EXHIBIT 10
MERGER AGREEMENT AND PLAN OF REORGANIZATION
This Merger Agreement and Plan of Reorganization (the "AGREEMENT"), entered
into this 30th day of December 2002, is by and among Asian Star Development,
Inc., a corporation organized and existing under the laws of the state of Nevada
("ASDV"), Atlantic Mining Limited, a corporation organized and existing under
the laws of the British Virgin Islands ("AML"), and Atlantic Mining Limited, a
corporation organized and existing under the laws of Hong Kong ("AML-HK")
.
RECITALS:
WHEREAS, AML is a wholly owned subsidiary of ASDV;
WHEREAS, AML-HK desires to merge with and into AML, and ASDV desires to
merge AML with AML-HK, so that AML-HK will be the surviving corporation, all
upon the terms and subject to the conditions of this Merger Agreement and in
accordance with the laws of the State of Nevada;
WHEREAS, the terms and conditions of the Merger, the mode of carrying the
same into effect, the manner of converting the capital stock of AML-HK into the
right to receive common stock of ASDV and such other terms and conditions as may
be required or permitted to be stated in this Merger Agreement are set forth
below; and
WHEREAS, for federal income tax purposes, it is intended by the parties
hereto that the Merger shall qualify as a reorganization within the meaning of
Sections 368(a)(l)(A) and (a)(2)(D) of the Internal Revenue Code of 1986, as
amended (the "CODE"), and that this Merger Agreement shall constitute a "PLAN OF
REORGANIZATION" for purposes of Section 368 of the Code;
NOW, THEREFORE, based upon the stated premises, which are incorporated
herein by reference, and for and in consideration of the mutual covenants and
agreements set forth herein, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, ASDV, AML, and AML-HK approve and adopt this
Agreement and Plan of Reorganization and mutually covenant and agree with each
other as follows:
1. Merger of AML into AML-HK.
1.1 General. At the Closing of the Merger and pursuant to the provisions of
this Agreement, the corporate existence of AML will be merged with and into
AML-HK (hereinafter referred to as the "Surviving Corporation" whenever
reference is made to it as of the Closing or thereafter) and continued in the
Surviving Corporation, and the Surviving Corporation shall be deemed to be a
continuation of the entities and identities of the ASDV and AML-HK. ASDV, AML,
and AML-HK agree to take such action to execute and deliver such further
instruments as may be necessary to carry out the terms of said agreement of
merger.
1.2 Shares to be Issued. On the effective date of the merger, 15,000,000
shares of ASDV's common stock shall be delivered to the shareholders of AML-HK.
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2. Representations and Warranties of AML-HK
AML-HK represents and warrants to ASDV and AML as set forth below. These
representations and warranties are made as an inducement for ASDV and AML to
enter into this Agreement and, but for the making of such representations and
warranties and their accuracy, such entities would not be parties hereto.
2.1 Organization and Authority. AML-HK is a corporation duly organized,
validly existing and in good standing under the laws of Hong Kong with full
power and authority to enter into and perform the transactions contemplated by
this Agreement.
2.2 Capitalization. As of the date of the closing, AML-HK will have a total
of no more than 30,000 shares of common stock issued and outstanding. All of the
shares will have been duly authorized and validly issued and will be fully paid
and nonassessable. There are no options, warrants, conversion privileges, or
other rights presently outstanding for the purchase of any authorized but
unissued stock of AML-HK.
2.3 Performance of This Agreement. The execution and performance of this
Agreement and the transaction contemplated hereby have been authorized by the
board of directors of AML-HK.
2.4 Financials. The financial statements of AML-HK consisting of the
balance sheets as of the fiscal year ended December 31, 2002, and statements of
operations and cash flow for the fiscal year ended December 31, 2002, and
statement of changes in stockholder's equity from inception to December 31,
2002, will be prepared and delivered by AML-HK to ASDV and AML as soon as
possible after Closing, recognizing ASDV's need to make timely filings under
Form 8-K, as well as other applicable laws rules and regulations promulgated
under the Securities Act of 1933, as amended, and the Securities Exchange Act of
1934, as amended. Said financial statements will be true and correct in all
material respects and present an accurate and complete disclosure of the
financial condition of AML-HK as of December 31, 2002, and the earnings for the
periods covered, in accordance with generally accepted accounting principles
applied on a consistent basis.
2.5 Liabilities. There are no material liabilities of AML-HK, whether
accrued, absolute, contingent or otherwise, which arose or relate to any
transaction of AML-HK, its agents or servants occurring prior to December 31,
2002, which will not be disclosed by or reflected in said financial statements.
As of the date hereof, there are no known circumstances, conditions, happenings,
events or arrangements, contractual or otherwise, which may hereafter give rise
to liabilities, except in the normal course of business of AML-HK.
2.6 Absence of Certain Changes or Events. Except as set forth in this
Agreement, since inception of AML-HK, there has not been (i) any material
adverse change in the business, operations, properties, assets, or condition of
AML-HK, or (ii) any damage, destruction, or loss to AML-HK (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or conditions of AML-HK.
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2.7 Litigation. There are no legal, administrative or other proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions, either threatened, pending, or outstanding against
or involving AML-HK or its subsidiaries, if any, or their assets, properties, or
business, nor does AML-HK or its subsidiaries know, or have reasonable grounds
to know, of any basis for any such proceedings, investigations or inquiries,
product liability or other claims, judgments, injunctions or restrictions. In
addition, there are no material proceedings existing, pending or reasonably
contemplated to which any officer, director, or affiliate of AML-HK is a party
adverse to AML-HK or any of its subsidiaries or has a material interest adverse
to AML-HK or any of its subsidiaries.
2.8 Taxes. All federal, state, foreign, county and local income, profits,
franchise, occupation, property, sales, use, gross receipts and other taxes
(including any interest or penalties relating thereto) and assessments which are
due and payable have been duly reported, fully paid and discharged as reported
by AML-HK, and there are no unpaid taxes which are, or could become a lien on
the properties and assets of AML-HK, except as provided for in the financial
statements of AML-HK. All tax returns of any kind required to be filed have been
filed and the taxes paid or accrued.
2.9 Accuracy of All Statements Made by AML-HK. No representation or
warranty by AML-HK in this Agreement, nor any statement, certificate, schedule,
or exhibit hereto furnished or to be furnished by or on behalf of AML-HK
pursuant to this Agreement, nor any document or certificate delivered to ASDV
and ASDV Development by AML-HK pursuant to this Agreement or in connection with
actions contemplated hereby, contains or shall contain any untrue statement of
material fact or omits or shall omit a material fact necessary to make the
statement contained therein not misleading.
3. Representations and Warranties of ASDV and AML
ASDV and AML, jointly and severally, represent and warrant to AML-HK as set
forth below. These representations and warranties are made as an inducement for
AML-HK to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, AML-HK would not be a party
hereto.
3.1 Organization and Good Standing.
a. ASDV is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada with full power and authority to
enter into and perform the transactions contemplated by this Agreement.
b. AML is a corporation duly organized, validly existing and in good
standing under the laws of the British Virgin Islands with full power and
authority to enter into and perform the transactions contemplated by this
Agreement.
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3.2 Capitalization.
a. The authorized capital stock of ASDV consists of 1,000,000,000 shares of
common stock, $0.001 per share par value. As of the date of this Agreement, ASDV
has a total of 8,623,008 shares of common stock outstanding. As of the date of
the closing, ASDV will have a total of no more than 8,623,008 shares of common
stock issued and outstanding. All of the shares will have been duly authorized
and validly issued and will be fully paid and nonassessable. Except for ASDV's
obligations hereunder with respect to the shares to be issued pursuant to
subsection 1.2 hereof, there are no options, warrants, conversion privileges, or
other rights presently outstanding for the purchase of any authorized but
unissued stock of ASDV.
b. The authorized capital stock of AML consists of 50,000 shares of common
stock, $0.001 per share par value. As of the date of this Agreement, AML has a
total of 1 share of common stock outstanding, all of which are owned by ASDV.
All of the outstanding shares have been duly authorized and validly issued and
are fully paid and nonassessable. There are no options, warrants, conversion
privileges, or other rights presently outstanding for the purchase of any
authorized but unissued stock of AML.
3.3 Performance of This Agreement. The execution and performance of this
Agreement and the transaction contemplated hereby have been authorized by the
boards of directors of ASDV and AML.
3.4 Financials. True copies of the financial statements of ASDV consisting
of the balance sheets as of the fiscal years ended December 31, 200 and 2001,
and the nine months ended September 30, 2002, and statements of operations and
cash flow for each of the fiscal years ended December 31, 2000 and 2001, and the
nine months ended September 30, 2002, and statement of changes in stockholder's
equity from inception to September 30, 2002, have been delivered by ASDV to
AML-HK. The financial statements have been examined and certified by Xxxxx &
Partners LLP, Certified Public Accountant. Said financial statements are true
and correct in all material respects and present an accurate and complete
disclosure of the financial condition of ASDV as of September 30, 2002, and the
earnings for the periods covered, in accordance with generally accepted
accounting principles applied on a consistent basis.
3.5 Liabilities.
a. There are no material liabilities of ASDV, whether accrued, absolute,
contingent or otherwise, which arose or relate to any transaction of ASDV, its
agents or servants which are not disclosed by or reflected in said financial
statements. As of the date hereof, there are no known circumstances, conditions,
happenings, events or arrangements, contractual or otherwise, which may
hereafter give rise to liabilities, except in the normal course of business of
ASDV.
b. AML has no liabilities in the aggregate in excess of $1,000.
c. ASDV acknowledge that there are contractual commitments between AML-HK
and Atlantic Mutual Holdings Inc. to be taken over by ASDV in a total amount of
uS$625,000 beings payments to be made on or before 31 May 2003 for the purchase
of the following outstanding interest in the respective mines:
(i) 25% XinQixo Mine
(ii) 3% QunKee Mine, and
(iii) 3% ShiQo Mine.
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3.6 Litigation. There are no legal, administrative or other proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions, either threatened, pending, or outstanding against
or involving ASDV or AML, or their subsidiaries, if any, or their assets,
properties, or business, nor does ASDV or AML or their subsidiaries know, or
have reasonable grounds to know, of any basis for any such proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions. In addition, there are no material proceedings
existing, pending or reasonably contemplated to which any officer, director, or
affiliate of ASDV or AML is a party adverse to either entity or any of their
subsidiaries or has a material interest adverse to such entities or any of their
subsidiaries.
3.7 Taxes. All federal, state, foreign, county and local income, profits,
franchise, occupation, property, sales, use, gross receipts and other taxes
(including any interest or penalties relating thereto) and assessments which are
due and payable have been duly reported, fully paid and discharged as reported
by ASDV and AML, and there are no unpaid taxes which are, or could become a lien
on the properties and assets of ASDV or ASDV Acquisitions, except as provided
for in the financial statements of ASDV, or have been incurred in the normal
course of business of ASDV or ASDV Acquisitions since that date. All tax returns
of any kind required to be filed have been filed and the taxes paid or accrued.
3.8 Legality of Shares to be Issued. The shares of common stock of ASDV to
be issued by ASDV pursuant to this Agreement, when so issued and delivered, will
have been duly and validly authorized and issued by ASDV and will be fully paid
and nonassessable.
3.9 Accuracy of All Statements Made by ASDV and AML. No representation or
warranty by ASDV or AML in this Agreement, nor any statement, certificate,
schedule, or exhibit hereto furnished or to be furnished by ASDV or AML pursuant
to this Agreement, nor any document or certificate delivered to AML-HK pursuant
to this Agreement or in connection with actions contemplated hereby, contains or
shall contain any untrue statement of material fact or omits to state or shall
omit to state a material fact necessary to make the statement contained therein
not misleading.
4. Covenants of the Parties.
4.1 Corporate Records.
a. Simultaneous with the execution of this Agreement by AML-HK, such entity
shall deliver to ASDV and AML copies of the articles of incorporation, as
amended, and the current by-laws of AML-HK, and copies of the resolutions duly
adopted by the board of directors of AML-HK approving this Agreement and the
transactions herein contemplated.
b. Simultaneous with the execution of this Agreement by ASDV and ASDV
Acquisitions, such entities shall deliver to AML-HK copies of the articles of
incorporation, as amended, and the current by-laws of ASDV and ASDV
Acquisitions, and copies of the resolutions duly adopted by the boards of
directors of ASDV and AML approving this Agreement and the transactions herein
contemplated.
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4.2 Access to Information.
a. ASDV and AML and their authorized representatives shall have full access
during normal business hours to all properties, books, records, contracts, and
documents of AML-HK, and AML-HK shall furnish or cause to be furnished to ASDV
and ASDV Acquisitions and their authorized representatives all information with
respect to its affairs and business as ASDV and AML may reasonably request. ASDV
and ASDV Acquisitions shall hold, and shall cause their representatives to hold
confidential, all such information and documents, other than information that
(i) is in the public domain at the time of its disclosure to ASDV and ASDV
Acquisitions; (ii) becomes part of the public domain after disclosure through no
fault of ASDV or AML; (iii) is known to ASDV or ASDV Acquisitions or any of its
officers or directors prior to disclosure; or (iv) is disclosed in accordance
with the written consent of AML-HK. In the event this Agreement is terminated
prior to closing, ASDV and AML shall, upon the written request of AML-HK,
promptly return all copies of all documentation and information provided by
AML-HK hereunder.
b. AML-HK and its authorized representatives shall have full access during
normal business hours to all properties, books, records, contracts, and
documents of ASDV and AML, and ASDV and ASDV Acquisitions shall furnish or cause
to be furnished to AML-HK and its authorized representatives all information
with respect to their affairs and business as AML-HK may reasonably request.
AML-HK shall hold, and shall cause its representatives to hold confidential, all
such information and documents, other than information that (i) is in the public
domain at the time of its disclosure to AML-HK; (ii) becomes part of the public
domain after disclosure through no fault of AML-HK; (iii) is known to AML-HK or
any of its officers or directors prior to disclosure; or (iv) is disclosed in
accordance with the written consent of ASDV and AML. In the event this Agreement
is terminated prior to closing, AML-HK shall, upon the written request of ASDV
or ASDV Acquisitions, promptly return all copies of all documentation and
information provided by ASDV or AML hereunder.
4.3 Actions Prior to Closing. From and after the date of this Agreement and
until the closing date:
a. ASDV and AML and AML-HK shall each carry on its business diligently and
substantially in the same manner as heretofore, and neither party shall make or
institute any unusual or novel methods of purchase, sale, management, accounting
or operation.
b. Neither ASDV or AML nor AML-HK shall enter into any contract or
commitment, or engage in any transaction not in the usual and ordinary course of
business and consistent with its business practices.
c. Neither ASDV or AML nor AML-HK shall amend its articles of incorporation
and by-laws or make any changes in authorized or issued capital stock, except as
provided in this Agreement.
d. ASDV and AML and AML-HK shall each use its best efforts (without making
any commitments on behalf of the company) to preserve its business organization
intact.
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e. Neither ASDV or AML nor AML-HK shall do any act or omit to do any act,
or permit any act or omission to act, which will cause a material breach of any
material contract, commitment, or obligation of such party.
f. ASDV and AML and AML-HK shall each duly comply with all applicable laws
as may be required for the valid and effective issuance or transfer of stock
contemplated by this Agreement.
g. Neither ASDV or AML nor AML-HK shall sell or dispose of any property or
assets, except products sold in the ordinary course of business.
h. ASDV and AML and AML-HK shall each promptly notify the other of any
lawsuits, claims, proceedings, or investigations that may be threatened,
brought, asserted, or commenced against it, its officers or directors involving
in any way the business, properties, or assets of such party.
4.4 Shareholders' Consent. ASDV and AML and AML-HK shall promptly submit
this Agreement and the transactions contemplated hereby for the approval of
their respective stockholders by written consent and, subject to the fiduciary
duties of the Boards of Directors of ASDV and AML and AML-HK under applicable
law, shall use their best efforts to obtain stockholder approval and adoption of
this Agreement and the transactions contemplated hereby. In connection with such
consents of stockholders, ASDV and AML and AML-HK shall prepare an information
statement to be furnished to their respective shareholders setting forth
information about this Agreement and the transactions contemplated hereby. ASDV
and AML and AML-HK shall promptly furnish to the other all information, and take
such other actions, as may reasonably be requested in connection with any action
to be taken in connection with the immediately preceding sentence. ASDV and AML
and AML-HK shall have the right to review and provide comments to the
information statement furnished to the shareholders of the other prior to
mailing.
4.5 No Covenant as to Tax or Accounting Consequences. It is expressly
understood and agreed that neither ASDV or AML nor its officers or agents has
made any warranty or agreement, expressed or implied, as to the tax or
accounting consequences of the transactions contemplated by this Agreement or
the tax or accounting consequences of any action pursuant to or growing out of
this Agreement.
4.6 Indemnification. AML-HK shall indemnify ASDV and AML for any loss,
cost, expense, or other damage (including, without limitation, attorneys' fees
and expenses) suffered by ASDV and AML resulting from, arising out of, or
incurred with respect to the falsity or the breach of any representation,
warranty, or covenant made by AML-HK herein, and any claims arising from the
operations of AML-HK prior to the closing date. ASDV and AML, jointly and
severally, shall indemnify and hold AML-HK harmless from and against any loss,
cost, expense, or other damage (including, without limitation, attorneys' fees
and expenses) resulting from, arising out of, or incurred with respect to, or
alleged to result from, arise out of or have been incurred with respect to, the
falsity or the breach of any representation, covenant, warranty, or agreement
made by ASDV or AML herein, and any claims arising from the operations of ASDV
or AML prior to the closing date. The indemnity agreement contained herein shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any party and shall survive the consummation of the
transactions contemplated by this Agreement.
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4.7 Publicity. The parties agree that no publicity, release, or other
public announcement concerning this Agreement or the transactions contemplated
by this Agreement shall be issued by any party hereto without the advance
approval of both the form and substance of the same by the other parties and
their counsel, which approval, in the case of any publicity, release, or other
public announcement required by applicable law, shall not be unreasonably
withheld or delayed.
4.8 Expenses. Except as otherwise expressly provided herein, each party to
this Agreement shall bear its own respective expenses incurred in connection
with the negotiation and preparation of this Agreement, in the consummation of
the transactions contemplated hereby, and in connection with all duties and
obligations required to be performed by each of them under this Agreement.
4.9 Further Actions. Each of the parties hereto shall take all such further
action, and execute and deliver such further documents, as may be necessary to
carry out the transactions contemplated by this Agreement.
4.10 Change of Domicile. Prior to the closing date, ASDV shall not change
the domicile of ASDV from the State of Nevada.
5. Conditions Precedent to ASDV and AML's Obligations
Each and every obligation of ASDV and AML to be performed on the closing
date shall be subject to the satisfaction prior thereto of the following
conditions:
5.1 Truth of Representations and Warranties. The representations and
warranties made by AML-HK in this Agreement or given on its behalf hereunder
shall be substantially accurate in all material respects on and as of the
closing date with the same effect as though such representations and warranties
had been made or given on and as of the closing date.
5.2 Performance of Obligations and Covenants. AML-HK shall have performed
and complied with all obligations and covenants required by this Agreement to be
performed or complied with by it prior to or at the closing.
5.3 Officer's Certificate. ASDV and AML shall have been furnished with a
certificate (dated as of the closing date and in form and substance reasonably
satisfactory to ASDV and AML), executed by an executive officer of AML-HK,
certifying to the fulfillment of the conditions specified in subsections 5.1 and
5.2 hereof.
5.4 No Litigation or Proceedings. There shall be no litigation or any
proceeding by or before any governmental agency or instrumentality pending or
threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated by
this Agreement or which seeks substantial damages in respect thereof.
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5.5 No Material Adverse Change. As of the closing date there shall not have
occurred any material adverse change, financially or otherwise, which materially
impairs the ability of AML-HK to conduct its business or the earning power
thereof on the same basis as in the past.
5.6 No Liabilities of ASDV and AML. As of the closing date the total
liabilities of ASDV and AML shall not exceed US$30,000.00 in the aggregate.
6. Conditions Precedent to Obligations of AML-HK.
Each and every obligation of AML-HK to be performed on the closing date
shall be subject to the satisfaction prior thereto of the following conditions:
6.1 Truth of Representations and Warranties. The representations and
warranties made by ASDV and AML in this Agreement or given on their behalf
hereunder shall be substantially accurate in all material respects on and as of
the closing date with the same effect as though such representations and
warranties had been made or given on and as of the closing date.
6.2 Performance of Obligations and Covenants. ASDV and ASDV Acquisitions
shall have performed and complied with all obligations and covenants required by
this Agreement to be performed or complied with by them prior to or at the
closing.
6.3 Officer's Certificate. AML-HK shall have been furnished with a
certificate (dated as of the closing date and in form and substance reasonably
satisfactory to AML-HK), executed by an executive officer of ASDV and ASDV
Acquisitions, certifying to the fulfillment of the conditions specified in
subsections 6.1 and 6.2 hereof
6.4 No Litigation or Proceedings. There shall be no litigation or any
proceeding by or before any governmental agency or instrumentality pending or
threatened against any party hereto that seeks to restrain or enjoin or
otherwise questions the legality or validity of the transactions contemplated by
this Agreement or which seeks substantial damages in respect thereof.
6.5 No Material Adverse Change. As of the closing date there shall not have
occurred any material adverse change, financially or otherwise, which materially
impairs the ability of ASDV or AML to conduct its business.
6.6 As of the closing date, the total liabilities of AML-HK to Atlantic
Mutual Holdings Inc. shall not exceed US$918,000.00, being short term and long
term liabilities as stated in Schedule I.
7. Securities Law Provisions.
At closing AML-HK shall deliver to ASDV a representation form from the
shareholder of AML-HK (the "Shareholder") providing representations essentially
as follows:
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7.1 Restricted Securities. The Shareholder represents that he is aware that
the shares issued to him will not have been registered pursuant to the
Securities Act of 1933, as amended (the "1933 ACT"), or any state securities
act, and thus will be restricted securities as defined in Rule 144 promulgated
by the Securities and Exchange Commission (the "SEC"). Therefore, under current
interpretations and applicable rules, he will probably have to retain such
shares for a period of at least one year and at the expiration of such one year
period his sales may be confined to brokerage transactions of limited amounts
requiring certain notification filings with the SEC and such disposition may be
available only if the issuer is current in its filings with the SEC under the
Securities Exchange Act of 1934, as amended, or other public disclosure
requirements.
7.2 Non-distributive Intent. The Shareholder covenants and warrants that
the shares received are acquired for his own account and not with the present
view towards the distribution thereof and he will not dispose of such shares
except (i) pursuant to an effective registration statement under the 1933 Act,
or (ii) in any other transaction which, in the opinion of counsel acceptable to
the issuer, is exempt from registration under the 1933 Act, or the rules and
regulations of the SEC thereunder. In order to effectuate the covenants of this
subsection 7.2, an appropriate legend will be placed upon each of the
certificates of common stock of issued pursuant to this Agreement, and stop
transfer instructions shall be placed with the transfer agent for the
securities.
7.3 Evidence of Compliance with Private Offering Exemption. The Shareholder
hereby represents and warrants that he, either individually or together with his
representative, has such knowledge and experience in business and financial
matters that he is capable of evaluating the risks of this Agreement and the
transactions contemplated hereby, and that the financial capacity of such party
is of such proportion that the total cost of such person's commitment in the
shares would not be material when compared with his, her, or its total financial
capacity. Upon the written request of the issuer of the securities issued or
transferred pursuant to this Agreement, the Shareholder shall provide such
issuer with evidence of compliance with the requirements of any federal or state
exemption from registration. ASDV and AML and AML-HK shall each file, with the
assistance of the other and its respective legal counsel, such notices,
applications, reports, or other instruments as may be deemed by each of them to
be necessary or appropriate in an effort to document reliance on such
exemptions, unless an exemption requiring no filing is available in the
particular jurisdiction, all to the extent and in the manner as may be deemed by
such parties to be appropriate.
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SECTION 8. INTENTIONALLY LEFT BLANK.
9. Closing
9.1 Time and Place. The closing of this transaction ("CLOSING") shall take
place at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx, Xxxxxx, at 1:00 p.m., December
30, 2002, or at such other time and place as the parties hereto shall agree
upon. Such date is referred to in this Agreement as the "CLOSING DATE."
9.2 Documents to Be Delivered by AML-HK. At the closing AML-HK shall
deliver to ASDV and AML the following documents:
a. A dully executed copy of the agreement of merger in form as set forth in
Exhibit "A."
b. The representation forms of the Shareholder described in Section 7
hereof.
c. The certificate required pursuant to subsection 5.3 hereof.
d. A certified copy of the duly adopted resolutions of AML-HK's shareholder
authorizing this Agreement and the transactions contemplated hereby.
e. Such other documents of transfer, certificates of authority, and other
documents as ASDV and AML may reasonably request.
9.3 Documents To Be Delivered by ASDV and AML. At the closing ASDV and AML
shall deliver to AML-HK the following documents:
a. A duly executed copy of this Agreement.
b. Certificates for the number of shares of common stock of ASDV as
determined in sub-section 1.2 hereof.
c. The certificate required pursuant to subsection 6.3 hereof.
d. Certified copies of the duly adopted resolutions of ASDV and AML's
shareholders authorizing this Agreement and the transactions contemplated
hereby.
e. Such other documents of transfer, certificates of authority, and other
documents as AML-HK may reasonably request.
10. Termination
This Agreement may be terminated by ASDV and AML or AML-HK by notice to the
other if, (i) at any time prior to the closing date any event shall have
occurred or any state of facts shall exist that renders any of the conditions to
its or their obligations to consummate the transactions contemplated by this
Agreement incapable of fulfillment, or (ii) on December 30, 2002, if the closing
shall not have occurred. Following termination of this Agreement no party shall
have liability to another party relating to such termination, other than any
liability resulting from the breach of this Agreement by a party prior to the
date of termination.
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11. Miscellaneous.
11.1 Notices. All communications provided for herein shall be in writing
and shall be deemed to be given or made when served personally or when deposited
in the United States mail, certified return receipt requested, addressed as
follows, or at such other address as shall be designated by any party hereto in
written notice to the other party hereto delivered pursuant to this subsection
ASDV and AML: 0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000
Attn: Xxxxxxx Xxxx, President
with copy to: Xxxxxxx X. Xxxxxxxx, Esq.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000
XXX-XX X0000X, Xxxx 0000, Xxxxx Xxxxx
00 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx, Xxxx Xxxx.
Attn : Mr Ip Kei Shui, President
11.2 Default. Should any party to this Agreement default in any of the
covenants, conditions, or promises contained herein, the defaulting party shall
pay all costs and expenses, including a reasonable attorney's fee, which may
arise or accrue from enforcing this Agreement, or in pursuing any remedy
provided hereunder or by the statutes of the State of Nevada.
11.3 Assignment. This Agreement may not be assigned in whole or in part by
the parties hereto without the prior written consent of the other party or
parties, which consent shall not be unreasonably withheld.
11.4 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors and assigns.
11.5 Partial Invalidity. If any term, covenant, condition, or provision of
this Agreement or the application thereof to any person or circumstance shall to
any extent be invalid or unenforceable, the remainder of this Agreement or
application of such term or provision to persons or circumstances other than
those as to which it is held to be invalid or unenforceable shall not be
affected thereby and each term, covenant, condition, or provision of this
Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law.
11.6 Entire Agreement. This Agreement constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all negotiations, representations, prior discussions, and preliminary
agreements between the parties hereto relating to the subject matter of this
Agreement.
11.7 Interpretation of Agreement. This Agreement shall be interpreted and
construed as if equally drafted by all parties hereto.
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11.8 Survival of Covenants. Etc. All covenants, representations, and
warranties made herein to any party, or in any statement or document delivered
to any party hereto, shall survive the making of this Agreement and shall remain
in full force and effect until the obligations of such party hereunder have been
fully satisfied.
11.9 Further Action. The parties hereto agree to execute and deliver such
additional documents and to take such other and further action as may be
required to carry out fully the transactions contemplated herein.
11.10 Amendment. This Agreement or any provision hereof may not be changed,
waived, terminated, or discharged except by means of a written supplemental
instrument signed by the party or parties against whom enforcement of the
change, waiver, termination, or discharge is sought.
11.11 Full Knowledge. By their signatures, the parties acknowledge that
they have carefully read and fully understand the terms and conditions of this
Agreement, that each party has had the benefit of counsel, or has been advised
to obtain counsel, and that each party has freely agreed to be bound by the
terms and conditions of this Agreement.
11.12 Headings. The descriptive headings of the various sections or parts
of this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
11.13 Counterparts. This Agreement may be executed in two or more partially
or fully executed counterparts, each of which shall be deemed an original and
shall bind the signatory, but all of which together shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto executed the foregoing Agreement and
Plan of Reorganization as of the day and year first above written.
ASDV: Asian Star Development, Inc.
By /s/ XXXXXXX XXXX
__________________________________
Xxxxxxx Xxxx, President
AML: Atlantic Mining Limited
By /s/ XXXXXXX XXXX
__________________________________
Xxxxxxx Xxxx, President
AML-HK: Atlantic Mining Limited
By /s/ IP KEI SHUI
__________________________________
Ip Kei Shui, President
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SCHEDULE I
Amounts due to Atlantic Mutual Holdings Inc.:
AMOUNT (US$) PARTICULARS
$668,000 Payments for the acquisition of:
- 53.5% of XinQiao Mine
- 7% of QunKee Mine, and
- 7% of ShiQo Mine.
$250,000 Payments for expenses incurred in
organization and licensing of the joint
venture operation.
SUPPLEMENTARY AGREEMENT
(1) DIRECTORS
All present directors will resign from the board immediately. ASDV shall
appoint 4 new directors as follow:
- Mr. Xxxxxxx Xxxx Honorary Chairman & Director ___________
- Xx. Xxxx Xxxx Chairman & Director ___________
- Xx. Xxxxx Xxxx President, Treasurer & Director ___________
- Mr. Xxxxx Au-Xxxxx Secretary & Director ___________
The above Directors shall serve in term of one year.
(2) OPERATING EXPENSES
ASDV will assume all operating expenses, including the costs for gold
mining operations after the date of this agreement.
____________________________ ___________________________________
Xxxxxxx Xxxx Ip Kei Shui
Chairman Chairman
Asian Star Development, Inc. Atlantic Mining Limited - Hong Kong
