Acquisition Agreement - China Resources Development Inc. and Isense Ltd.
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT ("Agreement") is made as of August 25, 2003, by
and among China Resources Development, Inc., a Nevada corporation (the
"Purchaser"); Isense Limited, a Hong Kong company (the "Company "), and Ngan
Chiu Wai Jenny and Kwok Kwan Hung, the sole existing shareholders of the Company
(collectively the "Sellers").
RECITALS
WHEREAS, Ngan Chiu Wai Jenny and Kwok Kwan Hung each own ten (10) shares
of HK$1.00 par value each, representing 50% of the issued share capital of the
Company individually, and the Sellers together own twenty (20) shares of HK$1.00
par value each, representing 100% of the issued share capital of the Company;
WHEREAS, the Purchaser wishes to acquire twenty (20) shares of the
Company, representing 100% of the issued shares of HK$1.00 par value each of the
share capital of the Company (hereinafter collectively referred to as the
"Company Stock") and the Sellers wish to sell to the Purchaser the Company Stock
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
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 the Company Stock from
the Sellers and the Sellers shall sell the Company Stock to the Purchaser for
the consideration set forth in Section 2 thereof.
2. PURCHASE CONSIDERATION. The aggregate purchase consideration for the
Company Stock shall be the sum of U.S.$724,000 (the "Purchase Consideration").
At the time of the closing, the Purchaser shall satisfy the Purchase
Consideration by issuing and delivering to the Sellers One Hundred Thousand
(100,000) shares of restricted 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.$7.24 per share of Purchaser Common Stock, representing the
closing price of the common stock of the Purchaser as quoted on the Nasdaq Small
Cap Market on August 22, 2003, 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 Hong Kong. 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 ten thousand (10,000) shares of HK$1.00 par value each and it has
twenty (20) shares issued and outstanding, all of which are owned by the
Sellers, free and clear of any lien or encumbrance. The Company Stock was duly
authorized, validly issued and is fully-paid and non-assessable;
b. The Company's principal activities consist of the provision of
advertising, promotions and public relations services in Hong Kong and mainland
China;
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c. The financial information, consisting of unaudited financial statements
of the Company for the year ended December 31, 2002 and for the period from
January 1, 2003 to March 31, 2003, attached hereto as Exhibits 1 and 2 prepared
by the Company, constitute true and correct statements of all material facts, as
of such date, of the financial condition of the Company 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. There are no contingent
liabilities not reflected in the unaudited financial statements. The unaudited
financial statements of the Company have been prepared in accordance with
accounting principles generally accepted in Hong Kong.
d. Since March 31, 2003, the Company 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 Company 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 Company 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 Section 3.c above, which have not been provided for or referred to
in such financial information or otherwise disclosed to the Purchaser.
g. The Company has all of the necessary corporate power and authority to
execute, deliver and perform this Agreement.
h. The execution, delivery and performance of this Agreement have been
duly authorized by the Company. This Agreement constitutes a valid binding
obligation of the Company 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 Company of this Agreement and the
consummation of the other transactions contemplated by this Agreement to be
performed by the Company 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 or other third party 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 Company.
i. Neither the execution or delivery of this Agreement, 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 Company or
any indenture, agreement or other instrument to which the Company is a party, or
which the Company is bound or by which any of its property is bound.
j. The Company 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 SELLERS. The Sellers represent
and warrant 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 Sellers have, and will have at the Closing Date, good and
marketable title to all of the shares of the Company that they are selling
pursuant to this Agreement, free and clear of any and all liens or encumbrances.
b. The Sellers have the full power to sell and transfer their shares in
the capital of the Company upon the terms provided for in this Agreement. This
Agreement constitutes a valid binding obligation of the Sellers 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 Sellers of this Agreement and the consummation of the other transactions
contemplated by this Agreement to be performed by the Sellers do not and will
not require the authorization, consent, permit or approval of, or declaration to
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or filing with, any court, regulatory or public body or governmental authority
or other third party 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 Company.
c. The Sellers understand that, in connection with the issuance of the
Purchaser Common Stock (i) the Purchaser is relying upon an exemption from
registration under the Securities Act of 1933, as amended (the "Securities
Act"), which relates 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 accuracy of the representations of
the Sellers set forth in this Section 4 as an inducement to issue the Purchaser
Common Stock under this Agreement.
d. The Sellers have been afforded (i) the opportunity to ask such
questions as they have 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. The Sellers
acknowledge that the Purchaser makes Filings (as hereinafter defined) under the
Exchange Act (as hereinafter defined) and that the Filings may be viewed and
printed at the web site of the SEC at www.sec.gov.
e. The Sellers are 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.
f. The Sellers have 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 have so
evaluated the merits and risks of such investment.
g. The Sellers are not a "U.S. person" as such term is defined in
Regulation S promulgated under the Securities Act. The transactions contemplated
by this Agreement are being negotiated and entered into outside the United
States and neither of the Sellers is a citizen or resident of the United States.
h. The Sellers are acquiring the Purchaser Common Stock for their own
account for investment and not with a view to distribution.
i. The Sellers understand 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.
j. The Sellers acknowledge and agree that the Purchaser Common Stock are
subject to certain restrictions on public resale 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.
k. Notwithstanding anything set forth in this Agreement to the contrary,
the Sellers acknowledge that after the acquisition of the Company, the Purchaser
may 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 or for other legitimate corporate
purposes. Therefore, the Sellers acknowledge and consent 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.
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l. The representations and warranties of the Company set forth in this
Agreement are true and correct in all material respects.
5. REPRESENTATION AND WARRANTIES BY THE PURCHASER. The Purchaser
represents, warrants and covenants to the Sellers, 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
Stock to the Sellers, 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
or other third party 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 in all
material respects, 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 in all material respects. 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.
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The Purchaser understands that (i) in agreeing to sell and transfer its
Company Stock to the Purchaser in accordance with this Agreement, the Sellers
are relying upon an exemption from registration under the Securities Act, which
relate to private resales of restricted securities; and (ii) the Sellers are
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 Sellers 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 Sellers desired by the Purchaser concerning
the Company or the Sellers.
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 Sellers, 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 Sellers 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.
b. The Company and the Sellers are in material compliance with all
covenants set forth herein.
c. There have been no material adverse changes in the condition
(financial, business or otherwise) of the Company from March 31, 2003 to the
Closing Date;
d. The Company and the Sellers have received all corporate, regulatory and
other third party approvals and authorizations necessary to consummate the
transactions contemplated herein.
7. CONDITIONS TO THE OBLIGATIONS OF THE SELLERS AND THE COMPANY. The
obligations of the Sellers and the Company hereunder are subject to the
following conditions:
a. The Sellers 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.
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b. The Purchaser is in material 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 August 29, 2003 at
the offices of the Purchaser, Room 2105, 21/F, West Tower, Shun Tak Centre, 200
Connaught Road Central, Sheung Wan, Hong Kong, or at such other time and place
as the parties hereto shall mutually agree. Otherwise, this Agreement shall
terminate on August 29, 2003.
9. ACTIONS AT CLOSING. At closing, the Purchaser and the Sellers 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. 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 Sellers' shares, which will be
accompanied by an instrument of transfer executed in favor of the Purchaser.
In addition, the following shall occur at Closing:
a. The Purchaser will deliver to the Sellers 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 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 reasonably 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 to its assets,
properties, contracts, books, records and all such other information and data
concerning the business and operations of the Company 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.
(2) The Purchaser has provided and will provide the Sellers and the
Company and its officers, directors, employees, agents, counsel, accountants,
financial advisors, consultants and other representatives (together "Sellers
Representatives") with full access, upon reasonable prior notice, to all
officers, employees and accountants of the Company and to its assets,
properties, contracts, books, records and all such other information and data
concerning the business and operations of the Purchaser as the Sellers
Representatives reasonably may request in connection with such investigation.
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 Sellers (the "Company Confidential Information"). As
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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 or the Sellers,
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 Sellers 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 Sellers 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.
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 Sellers to the Purchaser by the Purchaser to the Company
and/or the Sellers, 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 Sellers, 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.
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(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
Sellers, which contemplates such use) or for the benefit of any person or entity
other than the Company and/or the Sellers, 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 Sellers
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 Sellers
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).
(5) The Purchaser's obligations under this Section 10(c) shall terminate
at the Closing of the transactions contemplated by this Agreement.
d. Non-Disclosure: the Company and the Sellers:
(1) The Company and the Sellers, 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 Sellers) 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 Sellers' 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 Sellers receive any benefit therefrom), any
Purchaser Confidential Information.
(2) The Company and the Sellers 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 Sellers' 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 Sellers 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 Sellers by the Purchaser
and will constitute a breach of this Agreement and render the Company and the
Sellers 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 Sellers 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).
8
<PAGE>
e. Return of Information:
(1) At any time after the Termination Date, upon request of the Company or
the Sellers, 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.
(2) At any time after the Termination Date, upon request of the Purchaser,
the Sellers 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 Sellers, 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 Sellers agree that money
damages would not be a sufficient remedy for any breach of any provision set
forth in Sections 10, 12 or 13 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 Sellers 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 Sellers hereby acknowledge that they are aware (and
that the Company Representatives who have been apprised of this Agreement and
the Sellers' 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 Sellers agree that while it is in possession
of material non-public information with respect to the Purchaser and its
subsidiaries, the Sellers will not purchase or sell any securities of the
Purchaser, or communicate such information to any third party, in violation of
any such laws.
b. Without the prior written consent of the other, neither the Sellers 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.
9
<PAGE>
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 Sellers 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 Sellers 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
Sellers 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 Sellers contained in or made pursuant to this Agreement,
or (ii) any provision set forth in this Agreement to be performed by the
Sellers, 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
Sellers, 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:
(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
10
<PAGE>
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.
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 Hong Kong.
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 Hong Kong 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:
If to the Purchaser, then:
China Resources Development, Inc.
Room 2105, 21/F., West Tower,
Shun Tak Centre, 200 Connaught Road Central,
Sheung Wan,
Hong Kong
Attn: Mr. Bell Tam
11
<PAGE>
If to the Company, then:
Isense Limited
Room 2302-2303 Connaught Commercial Building,
185 Wanchai Road,
Wanchai,
Hong Kong
Attn: Miss Ngan Chiu Wai Jenny
If to the Sellers then:
Room 2302-2303 Connaught Commercial Building,
185 Wanchai Road,
Wanchai,
Hong Kong
Attn: Miss Ngan Chiu Wai Jenny/Mr. Kwok Kwan Hung
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.
12
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
each party hereto as of the date first above written.
THE PURCHASER:
CHINA RESOURCES DEVELOPMENT, INC., A NEVADA CORPORATION
By: /s/ Tam Cheuk Ho
-------------------------------------
Tam Cheuk Ho
Its: Director and Chief Financial Officer
ATTEST: /s/ Wong Wah On
-------------------------------------
Wong Wah On
Its: Secretary
THE SELLERS:
By: /s/ Ngan Chiu Wai Jenny
-------------------------------------
Ngan Chiu Wai Jenny
By: /s/ Kwok Kwan Hung
-------------------------------------
Kwok Kwan Hung
THE COMPANY:
ISENSE LIMITED, A HONG KONG COMPANY
By: /s/ Ngan Chiu Shing Eric
-------------------------------------
Ngan Chiu Shing Eric
Its: Director
ATTEST: /s/ Ngan Chiu Wai Jenny
-------------------------------------
Ngan Chiu Wai Jenny
Its: Secretary
13
<PAGE>
EXHIBIT 1
Unaudited Financial Statements
ISENSE LIMITED
For the year ended December 31, 2002
14
<PAGE>
ISENSE LIMITED
STATEMENTS OF OPERATIONS
Year ended December 31, 2002
(Amounts in HK$)
TURNOVER 3,310,378
Cost of services rendered (2,102,986)
----------
Gross profit 1,207,392
Other revenue 30,365
Administrative expenses (1,124,610)
----------
PROFIT BEFORE TAX 113,147
Tax --
----------
NET PROFIT FOR THE YEAR 113,147
Accumulated losses at beginning of year (251,821)
----------
ACCUMULATED LOSSESS AT END OF YEAR (138,674)
==========
15
<PAGE>
ISENSE LIMITED
BALANCE SHEETS
December 31, 2002
(Amounts in HK$)
CURRENT ASSETS
Cash and cash equivalents 107,977
Trade receivables 483,876
Other receivables 822
--------
592,675
CURRENT LIABILITIES
Trade payables 264,823
Accruals 20,303
Due to shareholders 446,203
--------
731,329
NET LIABILITIES (138,654)
========
CAPITAL AND RESERVE
Share capital 20
Accumulated deficits (138,674)
--------
(138,654)
========
16
<PAGE>
EXHIBIT 2
Unaudited Financial Statements
ISENSE LIMITED
For the period from January 1, 2003 to March 31, 2003
17
<PAGE>
ISENSE LIMITED
STATEMENTS OF OPERATIONS
Period from January 1, 2003 to March 31, 2003
(Amounts in HK$)
TURNOVER 147,700
Cost of services rendered (263,418)
--------
Gross loss (115,718)
Administrative expenses (133,326)
--------
LOSS BEFORE TAX (249,044)
Tax --
--------
NET LOSS FOR THE PERIOD (249,044)
Accumulated losses at beginning of period (138,674)
--------
ACCUMULATED LOSSESS AT END OF PERIOD (387,718)
========
18
<PAGE>
ISENSE LIMITED
BALANCE SHEETS
March 31, 2003
(Amounts in HK$, except share data)
CURRENT ASSETS
Cash and cash equivalents 31,504
Trade receivables 122,315
Other receivables 822
--------
154,641
CURRENT LIABILITIES
Trade payables 65,333
Other payables and accruals 30,803
Due to shareholders 446,203
--------
542,339
NET LIABILITIES (387,698)
========
CAPITAL AND RESERVE
Share capital 20
Accumulated deficits (387,718)
--------
(387,698)
========
19