ACQUISITION AGREEMENT
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THIS ACQUISITION AGREEMENT (the Agreement"), dated as of June 30, 2000
by and among China Resources Development, Inc., a Nevada corporation
(hereinafter called the "Purchaser"); Silver Moon Technologies Limited, a
British Virgin Islands corporation (hereinafter called the "Company ") and
E-link Investment Limited, a British Virgin Islands corporation and the existing
sole-shareholder of the Company (hereafter called the "Seller").
RECITALS
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WHEREAS, the Seller is the owner of 100 shares of U.S.$1.00 par value
each, representing 100% of the issued share capital of the Company;
WHEREAS, the Company is indebted to the Seller in the sum of
HK$8,023,995 as an interest-free, unsecured loan by the Seller (the
Shareholder's Loan);
WHEREAS, the Purchaser wishes to acquire Eighty (80) shares of the
Company, representing 80% of the issued shares of U.S.$1.00 each of the share
capital of the Company (hereinafter collectively referred to as the "Company
Stock"), together with the Shareholder's Loan, and the Seller wishes to sell to
the Purchaser the Company Stock and the Shareholder's Loan on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises herein contained, the
mutual covenants hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto covenant and agree as follows:
TERMS
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1. PURCHASE AND SALE. Subject to the terms and conditions hereinafter
set forth, at the time of the closing referred to in Section 2 hereof
(hereinafter called the "Closing Date"), the Purchaser shall purchase from the
Seller 80 shares of U.S.$1.00 each of the share capital of the Company and the
Shareholder's Loan, and the Seller shall sell to the Purchaser the 80 shares and
the Shareholder's Loan, for the consideration set forth in Section 2 thereof.
2. PURCHASE CONSIDERATION. The aggregate purchase consideration for the
Company Stock and the Shareholder's Loan shall be the sum of U.S.$1,500,000 (the
"Purchase Consideration"). At the time of the closing, the Purchaser shall
satisfy the Purchase Consideration by issuing and delivering to the Seller Two
Hundred and Fifty Thousand (244,897) shares of common stock of the Purchaser,
with a par value of $.001 per share (hereinafter the "Purchaser Common Stock"),
which will be issued at U.S.$6.125 per share of Purchaser Common Stock,
representing the closing bid price of the common stock of the Purchaser as
quoted on the Nasdaq Small Cap Market on June 29, 2000, being the immediate
trading day prior to the date of the Agreement.
3. REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents, warrants and covenants to the Purchaser, all of which representation
and warranties shall be true at the time of the Closing Date and shall survive
the Closing Date for a period of two (2) years therefrom, that:
a. The Company is duly organized, validly existing and in good standing
under the laws of the British Virgin Islands. Certified copies of the Memorandum
and Articles of Association for the Company have heretofore been furnished by
the directors of the Company to the Purchaser and such documents are true and
correct copies of the Memorandum and Articles of Association of the Company and
include all amendments thereto through the date hereof. The Company's authorized
capital consists of 50,000 shares of U.S.$1.00 each and it has 100 shares issued
and outstanding, all of which are owned by the Seller, free and clear of any
lien or encumbrance;
b. The Company is the beneficial owner of the entire equity interest in
Sky Creation Technology Limited ("Sky Creation"), a company established under
the laws of the Hong Kong Special Administrative Region ("Hong Kong"). Sky
Creation is an online healthcare content provider, through its website
xxxx-xxxxx.xxx, offers a healthcare content in both English and Chinese with a
focus on Chinese herbal medicine and therapies;
c. The financial information, consisting of consolidated unaudited
financial statements of the Company and its subsidiary (hereinafter collectively
called the "Group") for the period from the date of incorporation of the Company
to May 31, 2000, attached hereto as Exhibit 1 prepared by the Company,
constitute true and correct statements of all material facts, as of such date,
of the consolidated financial condition of the Group and of its assets,
liabilities and income, and from such date and until the Closing Date, no
dividends or distributions of capital, surplus, or profits has been paid or
declared by the Company (in redemption of its outstanding shares or otherwise),
other than those disclosed in writing to the Purchaser. The consolidated
unaudited financial statements of the Group have been prepared in accordance
with generally accepted accounting principles in the United States (hereinafter
referred to as U.S. GAAP).
d. Since May 31, 2000, the Group has not experienced any material
adverse changes with respect to their business condition (financial or
otherwise), results of operations, assets, contracts, liabilities or property.
e. The Group has complied, in all material respects, with the terms and
provisions of all agreements to which they are a party and all laws, rules,
regulations and orders to which they or their assets are subject.
f. The Group has not violated any law, rule, regulation or order, and
is not involved in any pending or threatened litigation, which would materially
adversely affect its financial condition as shown in its financial information
referenced in Section3.c above, which have not been provided for or referred to
in such financial information or otherwise disclosed to the Purchaser.
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g. The Group shall not, from the date hereof through the Closing Date,
engage in any transaction other than transactions in the normal course of the
operation of its business, except as specifically authorized by the Purchaser in
writing.
4. REPRESENTATIONS AND WARRANTIES BY THE SELLER. The Seller represents
and warrants to the Purchaser, all of which representation and warranties shall
be true at the time of the Closing Date and shall survive the Closing Date for a
period of two (2) years therefrom, that:
a. The Seller has, and will have at the Closing Date, good and
marketable title to all of the shares of the Company that it is selling pursuant
to this Agreement, free and clear of any and all liens or encumbrances.
b. The Seller has the full power to sell and transfer his or her shares
in the capital of the Company upon the terms provided for in this Agreement.
c. The Seller has been duly organized and is validly existing under the
laws of the British Virgin Islands, with full power and authority to own its
properties and carry on its business as currently conducted.
d. Intellectual Property
(1) The Company possesses all Intellectual Property necessary
to conduct its business as it currently operates or proposes to operate as of
the Closing Date and the Company owns or has the unrestricted right to use such
Intellectual Property.
(2) The Intellectual Property of the Company (i) does not
infringe Intellectual Property of any Person; (ii) is free and clear of any and
all Liens, escrows or other clouds on title; and (iii) is not the subject of any
assignment, exclusive or non-exclusive license, or other agreements or contracts
for purchase and sale; and there are no actual, pending or threatened third-
party claims, whether written or oral; cause of action; complaints;
cross-complaints, counterclaim; temporary restraining orders; injunctions of any
kind; court orders; judgments of any kind; settlement agreements; damages
awards; or other like adverse matters, which in any way relate to any or all of
any such Intellectual Property.
(3) None of the Intellectual Property of the Company, the
value of which to the Company is contingent upon maintenance of the
confidentiality thereof, has been disclosed by the Company to any Person other
than employees, representatives and agents of the Company.
(4) Since the Company's creation, (i) neither the Company nor
any the Company Software has infringed any third party Intellectual Property or
has at any time been sued or been the subject of a claim, or been a defendant in
any claim, suit, action or proceeding relating to its business which involves a
claim of infringement of any Intellectual Property. None of the Company's
Intellectual Property is subject to any outstanding order, judgment, decree,
stipulation or agreement restricting the use thereof by the Company or
restricting the licensing thereof by the Company to any Person.
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(5) The Company Business has not, and is not, conducted in
contravention of any Intellectual Property or other proprietary right of any
third party.
e. Licensed Software
In respect of the software (including embedded products and other
components) used by the Company in its business (including, without limitation,
software and embedded components used by the Company in its products, business
information systems and facilities) but which is not owned by the Company (the
"Licensed Software"), the Company has a valid, existing and enforceable right to
use the Licensed Software. The Company has complied with the terms of all
agreements under which it has the use of any Licensed Software.
The following terms, as used in Sections 4(d) and 4(e) above, have the
following meanings:
"Copyrights" means copyrighted and copyrightable materials, whether or
not registered, published, or containing a copyright notice, in any and all
media, and further including but not limited to , any and all corresponding
rights under international agreements and conventions, adaptations,
modifications, moral rights, revisions, translations, or other derivative work
thereof, and any and all applications for registrations, registrations, and
or/or renewals of any of the foregoing.
"Intellectual Property" used herein means any and all intellectual
property or proprietary rights of a Party or Person in and to Copyrights,
Patents, Software, Technical Information, Technology, and/or Trademarks and
Trade Names.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Software" means any and all mask works and computer software programs,
including but not limited to source code and object code, micros, macros,
programming languages, applications, tools, utilities, and the like, and further
including any and all alpha, beta, development, commercial, or master versions
thereof.
"Technical Information" means know-how, show-how, data and other
technical information including, but not limited to: (i) engineering
documentation, such as development records, production software information,
algorithms, flow charts, design information, drawings, specifications and data
sheets; (ii) manufacturing documentation such as manufacturing drawings,
instructions, specifications, procedures, methods, standards documentations,
tooling and fixture drawings, process specifications and instructions; and (iii)
quality and reliability documentation such as quality plans, specifications,
instructions, procedures, test plans, test records and regulatory documentation,
and which may be disclosed by the party in possession thereof without violating
obligations to a third party.
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"Technology" means know-how, show-how, procedures, systems, processes,
trade secrets, inventions (whether or not patentable and whether or not reduced
to practice), algorithms, formulae, research and development data,
manufacturing, development and production techniques; and all other proprietary
information relating thereto.
"Trademarks and Trade Names" means any and all trademarks, service
marks, logos, design marks, trade names, and corporate names, alone or in
connection, whether or not registered, along with the goodwill of the business
appurtenant thereto, and any and all applications for registration thereof and/
or registrations therefor.
f. The Seller understands that (i) the Purchaser is relying upon an
exemption from registration under the Securities Act of 1933, as amended (the
"Securities Act"), as set forth in Section 5 thereof, which relate to
"transactions by an issuer not involving any public offering," and applicable
regulations promulgated by the U.S. Securities and Exchange Commission ("SEC")
thereunder or other exemption under such act; and (ii) the Purchaser is also
relying upon the securities laws of any state on the basis that the transactions
contemplated herein are exempt from the registration requirements of such laws.
g. The Seller has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of , and to receive answers from,
representatives of the Purchaser concerning the merits and risks of investing in
the Purchaser Common Stock, (ii) access to public information about the
Purchaser and the Purchaser's financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to
evaluate its investment in the Purchaser Common Stock, and (iii) the opportunity
to obtain such additional public information that is necessary to make an
informed decision with respect to the Purchaser Common Stock.
h. The Seller is able to bear the economic risk of an investment in the
Purchaser Common Stock and, at the present time, is able to afford a complete
loss of such investment.
i. The Seller has such knowledge, sophistication and experience in
business and financial matters so as to be able of evaluating the merits and
risks of the prospective investment in the Purchaser Common Stock , and has so
evaluated the merits and risks of such investment.
j. The Seller is not a "U.S. person" as such term is defined in
Regulation S promulgated under the Securities Act.
k. The Seller is acquiring the Purchaser Common Stock for its own
account for investment and not with a view to distribution.
l. The Seller understands and acknowledges that (i) the Purchaser
Common Stock are being sold to it without registration under the Securities Act
by reason of reliance upon certain exemptions therefrom and (ii) the
availability of such exemptions depends in part on, and the Purchaser will rely
upon the accuracy and truthfulness of, the foregoing representations, and the
Seller hereby consents to such reliance.
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m. The Seller understands that resale or transfer of the Purchaser
Common Stock may only be undertaken pursuant to an effective registration
statement under the Securities Act or pursuant to an available exemption from
the registration requirements of the Securities Act. In connection with any
transfer of any Purchaser Common Stock other than pursuant to an effective
registration statement under the Securities Act, the Purchaser may require that
the transferor provide to the Purchaser an opinion of counsel, reasonably
satisfactory to the Purchaser, to the effect that such transfer does not require
registration of such Purchaser Common Stock under the Securities Act.
n. The Seller acknowledges and agrees that the Purchaser Common Stock
are subject to certain restrictions on public trading as set forth above and
that the Purchaser is under no obligation to register, or assist in the
registration of, the Purchaser Common Stock under the Securities Act or to make
any exemption from registration under the Securities Act available.
o. Notwithstanding anything set forth in this Agreement to the
contrary, the Seller acknowledges that after the acquisition of the Company, it
is the intention of the Purchaser to negotiate with third parties for the
possible issuance of additional shares of common stock of the Purchaser to
acquire other corporations by the exchange of common stock or for the sale of
additional shares of common stock to increase the operating capital of the
Purchaser. Therefore, the Seller acknowledges and consents that the number of
shares outstanding and number of shareholders of the Purchaser may change after
the date hereof and the financial condition of Purchaser may change to reflect
the results of any such issuances for assets of another corporation or may
change to reflect the proceeds from a future sale of common stock.
5. REPRESENTATION AND WARRANTIES BY THE PURCHASER. The Purchaser
represents, warrants and covenants to the Seller, all of which representations
and warranties shall be true at the time of the Closing Date and shall survive
the Closing Date for a period of two (2) years therefrom, that:
a. The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada and has the corporate
power to own its properties and carry on its business as now being conducted.
b. The Purchaser has all of the necessary corporate power and authority
to execute, deliver and perform this Agreement and to issue and deliver the
Purchaser Common Stock and any other shares of the Purchaser's common stock
required to be delivered hereunder.
c. The execution, delivery and performance of this Agreement have been
duly authorized by the Purchaser. This Agreement constitutes a valid binding
obligation of the Purchaser enforceable in accordance with its terms, except as
the enforceability thereof may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights and by general principles of equity.
The execution, delivery and performance by the Purchaser of this Agreement, the
consummation of the Exchange, the issuance and sale of the Purchaser Common
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Stock to the Seller, and the consummation of the other transactions contemplated
by this Agreement to be performed by the Purchaser do not and will not require
the authorization, consent, permit or approval of, or declaration to or filing
with, any court, regulatory or public body or governmental authority not already
obtained or made, or result in the creation of any lien, security interest,
charge or encumbrance upon the capital stock or assets of the Purchaser.
d. The Purchaser has complied, in all material respects, with the terms
and provisions of all agreements to which it is a party and all laws, rules,
regulations and orders or to which it or its assets are subject.
e. Neither the execution or delivery of this Agreement, nor the
issuance of the Purchaser Common Stock or other shares to be issued hereunder,
nor the performance, observance or compliance with the terms and provisions of
this Agreement, will violate any provision of law, any order of any court or
other governmental agency, the Articles of Incorporation or By-laws of the
Purchaser or any indenture, agreement or other instrument to which the Purchaser
is a party, or which the Purchaser is bound or by which any of its property is
bound.
f. The Purchaser Common Stock deliverable hereunder will, upon their
delivery in accordance with the terms hereof, be duly authorized, validly
issued, fully paid and non-assessable.
g. All of the issued and outstanding shares of common stock of the
Purchaser are and the Purchaser Common Stock shall be when issued, (i) duly
authorized, validly issued, fully paid and non-assessable. (ii) listed for
trading on the NASDAQ Small Cap Market (Nasdaq: CHRB) (except that the Purchaser
Common Stock will be restricted stock and not freely tradable thereon), and the
Purchaser has received no notice that its Common Stock is subject to being
delisted therefrom.
h. The Purchaser and its subsidiaries, if any, have complied with all
applicable foreign, federal and state laws, rules and regulations, including,
without limitation, the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the Securities Act.
i. The Purchaser is required to file reports under Section 12(g) of the
Exchange Act, and is current in its filing thereunder. All of the filings made
by the Purchaser under the Securities Act or the Exchange Act ("Filings") comply
with the requirements thereof and the rules and regulations of the Securities
and Exchange Commission thereunder. None of the Filings made by the Purchaser
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
j. The Purchaser hereby acknowledges that the Company Stock are not
registered under the Securities Act or the laws of any other jurisdiction and
are subject to restrictions on their transfer and resale under applicable
federal and state law.
The Purchaser understands that (i) in agreeing to sell and transfer its
Company Stock to the Purchaser in accordance with this Agreement, the Seller is
relying upon an exemption from registration under the Securities Act, as set
forth in Section 4 thereof, which relate to private resales of restricted
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securities; and (ii) the Seller is also relying upon the securities laws of any
state on the basis that the transactions contemplated herein are exempt from the
registration requirements of such laws.
k. The Company and the Seller have made available to the Purchaser the
opportunity to ask questions of and receive answers from the Company concerning
the terms and conditions of the Exchange and to obtain any additional
information from the Company or the Seller desired by the Purchaser concerning
the Company or the Seller.
l. That the investment by the Purchaser in the Company Stock is a
suitable investment for the Purchaser, given the investment goals and objectives
of the Company.
m. The Purchaser has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the Company Stock. The Purchaser understands the effect of
acquiring the Company Stock and the differing rights, restrictions and
obligations of a holder of the Company Stock.
n. The Purchaser has had access to and has thoroughly reviewed all
documents and instruments, including but not limited to the Memorandum and
Articles of Association of the Company, and have been able to obtain such
information, and has had the opportunity to ask all questions of, and receive
answers from the Company and the Seller, which it deems necessary or relevant to
an investment in the Company Stock and has utilized such opportunity to the
extent deemed necessary by the Purchaser to allow it to make a fully informed
decision to purchase the Company Stock described herein.
o. The Purchaser is purchasing the Company Stock for its own account,
for investment purposes only, and not with a view to the sale, pledge,
hypothecation, or other distribution or disposition thereof or of any interest
therein.
p. The Purchaser understands that resale or transfer of the Company
Stock will be prohibited indefinitely unless the Company Stock is registered
under the Act or an exemption from such registration is available and such
resale or transfer will not otherwise violate federal or state securities laws.
6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The obligations of
the Purchaser to consummate the transactions pursuant to Sections 1 and 2 is
subject to the following conditions as of the Closing Date.
a. The Purchaser shall not have discovered any material error or
misstatement in any of the representations and warranties made by the Seller or
the Company and all of the terms and conditions of this Agreement to be
performed and complied with prior to the Closing Date have been performed and
complied with on or prior to the Closing Date.
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b. The Company and the Seller are in compliance with all covenants set
forth herein.
c. There have been no material adverse change in the condition
(financial, business or otherwise)
of the Group from May 31, 2000 to the Closing Date;
d. The Company and the Seller have received all corporate, regulatory
and other third party approvals and authorizations necessary to consummate the
transactions contemplated herein.
e. The Seller shall have transferred and assigned all its interest and
benefit in the Shareholder's Loan to the Purchaser and the Seller shall have
executed a loan assignment agreement in form and substance satisfactory to the
Purchaser prior to the Closing Date .
7. CONDITIONS TO THE OBLIGATIONS OF THE SELLER AND THE COMPANY. The
obligations of the Seller and the Company hereunder are subject to the following
conditions:
a. The Seller or the Company shall not have discovered any material
error or misstatement in any of the representations or warranties made by the
Purchaser herein and all the terms and conditions of the Agreement to be
performed and complied with by the Purchaser herein to the Closing Date have
been performed and complied with on or prior to the Closing Date.
b. The Purchaser is in compliance with all covenants set forth herein.
c. As of the Closing date, the Purchaser shall have received all
corporate, regulatory and other third party approvals and authorizations
necessary to consummate the transactions contemplated herein.
8. CLOSING DATE. The Closing Date shall take place on July 12, 2000 at
the offices of the Purchaser, Room 2005, 20/F., Universal Trade Center, 3
Xxxxxxxxx Road, Hong Kong, or at such other time and place as the parties hereto
shall mutually agree. Otherwise, this Agreement shall terminate on July 12,
2000.
9. ACTIONS AT CLOSING. At closing, the Purchaser and the Seller will
each deliver, or cause to be delivered to the other, the securities to be
exchanged in accordance with Section 1 and 2 of this Agreement, and each party
shall pay any and all taxes required to be paid in connection with the issuance
and delivery of its own securities. All share certificates shall be in the name
of the party to which the same are deliverable except the Seller's shares, which
will be accompanied by an instrument of transfer executed in favor of the
Purchaser.
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In addition, the following shall occur at Closing:
a. The Purchaser will deliver to the Seller certified copies of all
corporate resolutions and other corporate proceedings taken by the Company to
authorize the execution, delivery and performance of this Agreement.
b. The Seller will deliver to the Purchaser:
(1) certified copies of all corporate resolutions and other
corporate proceedings taken by the Seller to authorize the execution, delivery
and performance of this Agreement.
(2) the loan assignment agreement duly executed by the Seller.
c. The Company will deliver to the Purchaser:
(1) all registration certificates, statutory books, minute
books and common seal of the Company, all accounts books and all documents and
papers in connection with the affairs of the Company and all documents of title
relating to the Company's assets (unless already in the possession of the
Purchaser) as are required by the Purchaser.
(2) certified copies of resolutions of the directors and
shareholders of the Company electing or appointing (as the case may be) such
number of new directors and officers of the Company as may be designated by the
Purchaser.
10. CONFIDENTIAL INFORMATION: DELIVERY; RETURN: NON-DISCLOSURE.
a. Delivery of Information. Until the earlier of the Closing Date or
the termination of this Agreement (such date hereinafter the "Termination
Date"), pursuant to the terms of this Agreement:
(1) The Company has provided and will provide the Purchaser
and its officers, directors, employees, agents, counsel, accountants, financial
advisors, consultants and other representatives (together "Purchaser
Representatives") with full access, upon reasonable prior notice, to all
officers, employees and accountants of the Company and Sky Creation and to their
assets, properties, contracts, books, records and all such other information and
data concerning the business and operations of the Company or Sky Creation as
the Purchaser Representatives reasonably may request in connection with such
investigation, but only to the extent that such access does not unreasonably
interfere with the business and operations of the Company or Sky Creation.
(2) The Purchaser has provided and will provide the Seller and
the Company and its officers, directors, employees, agents, counsel,
accountants, financial advisors, consultants and other representatives (together
"Seller Representatives") with full access, upon reasonable prior notice, to all
officers, employees and accountants of the Company and to their assets,
properties, contracts, books, records and all such other information and data
concerning the business and operations of the Purchaser as the Seller
Representatives reasonably may request in connection with such investigation.
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b. Acknowledgments: definitions:
(1) The Purchaser has been and, pursuant to the terms of this
Section, shall continue to be privy to certain proprietary and confidential
information of the Company and/or the Seller (the "Company Confidential
Information"). As used herein, the term "Company Confidential Information" shall
include, but not be limited to, any and all information or documentation
whatsoever which has been disclosed or made available to the Purchaser by the
Company, the Seller or Sky Creation, regarding their products, services,
techniques, manufacturing or other processes, activities, businesses,
properties, operations, clients, customers, prospective clients, price lists,
suppliers, business associates, equipment, Trade Secrets (as defined herein),
computer software, scientific discoveries, experiments, data, equipment designs,
training, devices, charts, manuals, payroll, financial statements and
improvements thereto and any other information or materials disclosed or
delivered to the Purchaser which the disclosing party may from time to time
designate and treat as confidential, proprietary or as a trade secret, including
all information relating (directly or indirectly) to the material set forth in
the Company business plan delivered or to be delivered to the Purchaser.
(2) The Company and/or the Seller have been and, pursuant to
the terms of this Section, shall continue to be privy to certain proprietary and
confidential information of the Purchaser (the "Purchaser Confidential
Information"). As used herein, the term "Purchaser Confidential Information"
shall include, but not be limited to, any and all information or documentation
whatsoever which has been disclosed or made available to the Company and/or the
Seller regarding its products, services, techniques, manufacturing or other
processes, activities, businesses, properties, operations, clients, customers,
prospective clients, price lists, suppliers, business associates, equipment,
Trade Secrets (as defined herein), computer software, scientific discoveries,
experiments, data, equipment designs, training devices, charts, manuals,
payroll, financial statements and improvements thereto and any other information
or materials disclosed or delivered to the Company and/or the Seller which the
disclosing party may from time to time designate and treat as confidential,
proprietary or as a trade secret.
(3) Reference to "Confidential Information" herein shall
include and relate to both the Company Confidential Information and the
Purchaser Confidential Information.
(4) As used herein, the term "Trade Secret" shall mean the
whole or any portion of any formula, pattern, device, combination of devices, or
compilation of information which is for use, or is used in the operation of the
other party's businesses and which provides such party's business an advantage,
or an opportunity to obtain an advantage, over those who do not know or use it.
For purposes of interpretation hereunder the following shall apply:
Irrespective of novelty, invention, patentability, the state
of the prior art, and the level of skill in the business, art or field to which
the subject matter pertains, when the owner thereof takes measures to prevent it
from becoming available to persons other than those selected by the owner to
have access thereto for limited purposes, a trade secret is considered to be
secret, of value, for use or in use by the business, and of advantage to the
business, or providing an opportunity to obtain an advantage, over those who do
not know or use it.
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In addition, a "Trade Secret" shall include information (not
readily compiled from publicly available sources) which has been made available
by the Company and/or the Seller to the Purchaser by the Purchaser to the
Company and/or the Seller, as the case may be, during the course of their
involvement with each other, including but not limited to the names, addresses,
telephone numbers, qualifications, education, accomplishments, experience and
resumes of all persons who have applied or been recruited for employment, for
either or both permanent and temporary jobs, job order specifications and the
particular characteristics and requirements of persons generally hired by the
disclosing party, as well as specific job listings from companies with whom the
disclosing party does, or attempts to do, business, as well as mailing lists,
computer runoffs, financial or other information not generally available to
others.
c. Non-Disclosure: the Purchaser:
(1) The Purchaser, for itself, its officers, employees,
directors, agents, affiliates, subsidiaries, independent contractors, and
related parties (all of whom are to be deemed included in any reference herein
to the Purchaser) agrees that it will not at any time during or after the
termination or expiration of this Agreement, except as authorized or directed
herein or in writing by the Company and/or the Seller, use for the Purchaser's
own benefit, copy, reveal, sell, exchange or give away, disclose, divulge or
make known or available in any manner to any person, firm, corporation or other
entity (whether or not the Purchaser receives any benefit therefrom), any the
Company Confidential Information.
(2) The Purchaser will take all actions necessary to ensure
that the Company Confidential Information is maintained as secret and
confidential and its disclosure shall only be made, to the extent necessary, to
a limited group of the Purchaser's employees, officers and/or directors who are
actually engaged in the evaluation of the Company Confidential Information;
provided, however, the Purchaser acknowledges and agrees that it shall be
responsible and held liable for the actions or inactions of such employees,
officers and directors (regardless whether or not such actions or inactions are
within their scope of employment) with respect to the maintenance of the secrecy
and confidentiality of the Company Confidential Information.
(3) The Purchaser understands that if it discloses to others,
use for its own benefit (other than as part of an agreement with the Company and
the Seller, which contemplates such use) or for the benefit of any person or
entity other than the Company and/or the Seller, copies or makes notes of any
such the Company Confidential Information, such conduct will constitute a breach
of the confidence and trust bestowed upon the Purchaser by the Company and the
Seller and will constitute a breach of this Agreement and render the Purchaser
responsible for any and all damages suffered by the Company and/or the Seller as
a result thereof.
(4) Provided, however, notwithstanding the foregoing, the
terms of this subsection (c) shall not be applicable to any information which
the Purchaser is compelled to disclose by judicial or administrative process or
by other requirements of law (including, without limitation, in connection with
obtaining the necessary approvals of the Exchange of governmental or regulatory
authorities).
12
d. Non-Disclosure: the Company and the Seller:
(1) The Company and the Seller, for themselves, their
officers, employees, directors, agents, affiliates, subsidiaries, independent
contractors, and related parties (all of whom are to be deemed included in any
reference herein to the Company and the Seller) agree that they will not at any
time during or after the termination or expiration of any agreement or
negotiations for an agreement with the Purchaser, except as authorized or
directed herein or in writing by the Purchaser, use for the Company and the
Seller's own benefit, copy, reveal, sell, exchange or give away, disclose,
divulge or make known or available in any manner to any person, firm,
corporation or other entity (whether or not the Company and the Seller receive
any benefit therefrom), any Purchaser Confidential Information.
(2) The Company and the Seller will take all actions necessary
to ensure that the Purchaser Confidential Information is maintained as secret
and confidential and its disclosure shall only be made, to the extent necessary,
to a limited group of the Company and/or the Seller's own employees, officers,
directors and/or professional advisors who are actually engaged in the
evaluation of the Purchaser Confidential Information; provided, however, the
Company and the Seller acknowledge and agree that they shall be responsible and
held liable for the actions or inactions of such employees, officers, directors
and/or professional advisors (regardless whether or not such actions or
inactions are within their scope of employment) with respect to the maintenance
of the secrecy and confidentiality of the Purchaser Confidential Information.
(3) The Company and the Seller understand that if they
disclose to others, uses for their own benefit (other than as part of an
agreement with the Purchaser, which contemplates such use) or for the benefit of
any person or entity other than the Purchaser, copies or makes notes of any such
Purchaser Confidential Information, such conduct will constitute a breach of the
confidence and trust bestowed upon the Company and the Seller by the Purchaser
and will constitute a breach of this Agreement and render the Company and the
Seller severally responsible for any and all damages suffered by the Purchaser
as a result thereof.
(4) Provided, however, notwithstanding the foregoing, the
terms of this subsection (d) shall not be applicable to any information which
the Company and/or the Seller are compelled to disclose by judicial or
administrative process or by other requirements of law (including, without
limitation, in connection with obtaining the necessary approvals of the Exchange
of governmental or regulatory authorities).
e. Return of Information:
(1) At any time after the Termination Date, upon request of
the Company or the Seller, the Purchaser will, and will cause the Purchaser
Representatives to, promptly (and in no event later than five days after such
request) redeliver or cause to be redelivered to the Company all the Company
Confidential Information and destroy or cause to be destroyed all notes,
memoranda, summaries, analyses, compilations and other writings relating thereto
or based thereon prepared by the Purchaser or any Purchaser Representative. Such
destruction shall be certified in writing to the Company by an authorized
officer supervising such destruction.
13
(2) At any time after the Termination Date, upon request of
the Purchaser, the Seller and/or the Company will, and will cause the Company
Representatives to, promptly (and in no event later than five days after such
request) redeliver or cause to be redelivered to the Purchaser all Purchaser
Confidential Information and destroy or cause to be destroyed all notes,
memoranda, summaries, analyses, compilations and other writings relating thereto
or based thereon prepared by the Seller, the Company or the Company
Representatives. Such destruction shall be certified in writing to the Purchaser
by an authorized officer supervising such destruction.
11. EQUITABLE RELIEF. The Purchaser and the Seller agree that money
damages would not be a sufficient remedy for any breach of any provision set
forth in Sections 9, 11 or 12 by the other, and that, in addition to all other
remedies which any party hereto may have, each party will be entitled to
specific performance and injunctive or other equitable relief as a remedy for
any such breach. No failure or delay by any party hereto in exercising any
right, power or privilege hereunder will operate as a waiver thereof, nor will
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege hereunder.
12. CONDUCT AND BUSINESS.
a. Between the date hereof and the Closing Date, the Company shall
conduct its business in the same manner in which it has heretofore been
conducted, and the Seller will not permit the Company to; (l) enter into any
contracts, agreements, arrangements, etc., other than in the ordinary course of
business, or (2) declare or make any distribution of any kind to the
shareholders of the Company without first obtaining the written consent of the
Purchaser.
b. Between the date hereof and the Closing Date, the Purchaser shall
conduct its business in the same manner in which it has heretofore been
conducted, and the Purchaser will not; (1) enter into any contracts, agreements,
arrangements, etc., other than in the ordinary course of business, or (2)
declare or make any distribution of any kind to the shareholders of the
Purchaser without first obtaining the written consent of the Company.
13. NO PUBLIC DISCLOSURE.
a. The Company and the Seller hereby acknowledge that they are aware
(and that the Company Representatives who have been apprised of this Agreement
and the Seller's consideration of the transactions contemplated herein have
been, or upon becoming so apprised will be advised) of the restrictions imposed
by federal and state securities laws on a person possessing material
"non-public" information about a company with a class of securities registered
under the Exchange Act. In this regard, the Seller agrees that while it is in
possession of material non-public information with respect to the Purchaser and
its subsidiaries, the Seller will not purchase or sell any securities of the
Purchaser, or communicate such information to any third party, in violation of
any such laws.
14
b. Without the prior written consent of the other, neither the Seller
or the Company, on the one hand, nor the Purchaser, on the other, will, and will
each cause their respective representatives not to, make any release to the
press or other public disclosure with respect to either the fact that
discussions or negotiations are taking place concerning the transactions
contemplated herein , the existence or contents of this Agreement or any prior
correspondence relating to this transaction, except for such public disclosure
as may be necessary, in the written opinion of outside counsel (reasonably
satisfactory to the other party) for the party proposing to make the disclosure
not to be in violation of or default under any applicable law, regulation or
governmental order. If either party proposes to make any disclosure based upon
such an opinion, that party will deliver a copy of such opinion to the other
party, together with the text of the proposed disclosure, as far in advance of
its disclosure as is practicable, and will in good faith consult with and
consider the suggestions of the other party concerning the nature and scope of
the information it proposes to disclose.
14. BROKERAGE FEE. Each party hereto represents that no brokers have
been employed in this transaction for which the other party could or will become
liable.
15. AGREEMENT TO INDEMNIFY. Subject to the terms and conditions of this
Section, the Purchaser hereby agrees for a period of two (2) years to indemnify,
defend and hold the Company and the Seller harmless from and against all
demands, claims, actions or causes of action, assessments, losses, damages,
liabilities, costs and expenses, including without limitation, interest,
penalties, court costs and reasonable attorneys fees (including paralegal and
law clerk fees and other legal expenses and costs) and expenses, asserted
against, relating to, imposed upon or incurred by the Company or the Seller by
reason of or resulting from a breach of (i) any representation or warranty given
by the Purchaser contained in or made pursuant to this Agreement, or (ii) any
provision set forth in this Agreement to be performed by the Purchaser or the
Purchaser Representatives.
Subject to the terms and conditions of this Section, the Company and
the Seller hereby agree to indemnify, defend and hold the Purchaser harmless
from and against all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, costs and expenses, including without limitation,
interest, penalties, court costs and reasonable attorneys' fees (including
paralegal and law clerk fees and other legal expenses and costs) and expenses,
asserted against, relating to, imposed upon or incurred by the Purchaser by
reason of or resulting from a breach of (i) any representation or warranty given
by the Company or the Seller contained in or made pursuant to this Agreement, or
(ii) any provision set forth in this Agreement to be performed by the Seller,
the Company or the Company Representatives.
All of the foregoing are hereinafter collectively referred to as
"Claims" and singularly as a "Claim."
a. Conditions of Indemnification. The obligations and liabilities of
the Seller, the Company and the Purchaser, with respect to Claims resulting from
the assertion of liability by third parties, shall be subject to the following
terms and conditions:
15
(1) The party hereto seeking indemnification (the
"Indemnitee") will give the other party hereto (the "Indemnitor") notice of any
such Claim reasonably promptly after the Indemnitee receives notice thereof, and
the Indemnitor will undertake the defense thereof by representatives of its own
choosing.
(2) In the event that the Indemnitor, within ten (10) business
days after notice of any such Claim, fails to defend such Claim, the Indemnitee
will (upon giving written notice to the Indemnitor) have the right, but not the
obligation, to undertake the defense, compromise or settlement of such Claim on
behalf of and for the account and risk of the Indemnitor, subject to the right
of the Indemnitor to assume the defense of such Claim at any time prior to
settlement, compromise or final determination thereof.
(3) Anything in this Section to the contrary notwithstanding,
if there is a reasonable probability that a Claim may materially and adversely
affect the Indemnitee other than as a result of money damages or other money
payments, the Indemnitee shall have the right to defend, compromise or settle
such Claim, in good faith, on behalf of and for the account and risk of the
Indemnitor. However, the Indemnitee shall not, without the Indemnitor's written
consent, settle or compromise any Claim or consent to entry of any judgment
which does not include an unconditional release from all liability in respect of
such Claim, other than liability specified in the settlement, from the claimant
or plaintiff to the Indemnitor and the Indemnitee. To the greatest extent
reasonably possible, the parties shall attempt to obtain general releases from
such plaintiff or claimant.
16. COST AND EXPENSES. Each party hereto shall pay its own costs and
expenses incident to the negotiation and preparation of this Agreement and to
the consummation of the transaction contemplated herein.
17. MISCELLANEOUS.
a. Waiver: Strict Construction. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by all the
parties hereto. No wavier of any provision of this Agreement shall be valid
unless in writing and signed by the person against whom sought to be enforced.
The failure of any party at any time to insist upon strict performance of any
condition, promise, agreement or understanding set forth and shall not be
construed as a waiver of relinquishment of the right to insist upon strict
performance of the same condition, promise, agreement or understanding at a
future time.
b. Entire Agreement. This Agreement, together with all schedules and
exhibits, sets forth all of the promises, agreements, conditions,
understandings, warranties and representations among the parties hereto, and
there are no promises, agreements, conditions, understandings, warranties or
representations, oral or written, express or implied, among them other than as
set forth herein. This Agreement is, and is intended by the parties to be, an
integration of any and all prior agreements or understandings, oral or written.
16
c. Headings. The headings in this Agreement are inserted for
convenience of reference only and are not to be used in construing or
interpreting the provisions of this Agreement.
d. Counterparts. This Agreement may be executed in two or more
identical counterparts, each of which will be deemed an original and all of
which will constitute one instrument.
e. Construction. Unless the context clearly otherwise requires the use
of the singular will include the plural and the use of the plural will include
the singular, and the use of any gender will include the other two genders.
f. Severability. If a covenant or provision provided in this Agreement
is deemed to be contrary to law, that covenant or provision will be deemed
separable from the remaining covenants and provisions of this Agreement, and
will not affect the validity, interpretation, or effect of the other provisions
of either this Agreement or any agreement executed pursuant to it or the
application of that covenant or provision to other circumstances not contrary to
law.
g. Computation of Time. Whenever the last day for the exercise of any
privilege or the discharge of any duty hereunder falls upon Saturday, Sunday, or
any public or legal holiday, whether Nevada or federal, the party having the
privilege or duty will have until 5:00 p.m. Pacific Standard Time on the next
succeeding regular business day to exercise the privilege or discharge the duty.
h. Interpretation. No provision of this Agreement will be construed
against or interpreted to the disadvantage of any party by any court or other
governmental or judicial authority by reason of such party having or being
deemed to have structured or dictated such provision.
i. Governing Law. This Agreement and the obligations of the parties
hereunder will be interpreted, construed, and enforced in accordance with the
Laws of the State of Florida.
j. Attorneys' Fees. In the event a lawsuit is brought by either party
to enforce or interpret the terms hereof, or for any dispute arising out of this
transaction, the party prevailing in any such lawsuit shall be entitled to
recover from the non-prevailing party its costs and expenses thereof, including
its legal fees in reasonable amount and prejudgment and post-judgment interest
at the highest rate allowable under Florida law.
k. Assignment. This Agreement shall not be assignable by either party
without the prior written consent of the other.
1. Notices. All notices, requests, instructions or other documents to
be given hereunder shall be in writing and sent by registered mail:
17
If to the Purchaser, then:
China Resources Development, Inc.
Room 2005, 20/F., Universal Trade Center,
0 Xxxxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxx
Attn: Xx. Xxxx Tam
with copies to:
Xxxxx & Xxxxxxxxx LLP
2300 Sun Bank Center
000 Xxxxx Xxxxxx Xxxxxx,
Xxxx Xxxxxx Xxx 000,
Xxxxxxx, Xxxxxxx 00000,
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to the Company, then:
Silver Moon Technologies Limited
17/F., Xxxxxxxxx Xxxxx,
0 Xxxxxxxx Xxxx,
Xxxxxxx,
Xxxx Xxxx
Attn: Xx. Xxxxxx Xx Xxxx
If to the Seller then:
E-link Investment Limited
17/F., Xxxxxxxxx Xxxxx,
0 Xxxxxxxx Xxxx,
Xxxxxxx,
Xxxx Xxxx
Attn: Xx. Xxxxxx Xx Xxxx
m. Benefit and Burden. This Agreement shall inure to the benefit of,
and shall be binding upon, the parties hereto and their legatees, distributees,
estates, executors or administrators, successors and assigns, and personal and
legal representatives.
18
IN WITNESS WHEREOF, on the date first written above, the parties hereto
have duly executed this Agreement and the Company and the Seller have caused
their corporate seal to be affixed hereto as of the date and year first above
written.
The Purchaser:
China Resources Development, Inc., a Nevada corporation
By: /s/ Ching Lung Po
-----------------
Ching Lung Po
Its: President
ATTEST: /s/ WongWah On
--------------
Xxxx Xxx On
Its: Secretary
The Seller:
E-link Investment Limited, a British Virgin Islands corporation
By: /s/ Xxxxxx Xx Xxxx
------------------
Xxxxxx Xx Xxxx
Its: Sole-shareholder and director
The Company:
Silver Moon Technologies Limited, a British Virgin Islands corporation
By: /s/ Xxxxxx Xx Xxxx
------------------
Xxxxxx Xx Xxxx
Its: Chairman
ATTEST: /s/ Xx Xxx Ip
-------------
Xx Xxx Ip
Its: Secretary
19
LIST OF EXHIBITS
EXHIBIT 1
Consolidated unaudited financial statements of Silver Moon Technologies
Limited and its subsidiary for the period from the date of incorporation to May
31, 2000.
