EXHIBIT 10.129
PURCHASE AND SALE AGREEMENT DATED AUGUST 8, 1996 BETWEEN NUOASIS
INTERNATIONAL INC., AND THE HARTCOURT COMPANIES, INC.
PURCHASE AND SALE AGREEMENT
DATED: 8, August 1996
PARTIES:
1. "Hartcourt"
The Hartcourt Companies, Inc., a corporation organised under the laws of
the United States, State of Utah.
2. "NuOasis"
NUOASIS INTERNATIONAL INC., a corporation organised under the laws of the
Commonwealth of the Bahamas.
RECITALS:
1.1 NuOasis is the owner and developer of a commercial real estate project
located in mainland China commonly known as the Peony Gardens Property,
more fully described in Schedule "1" annexed hereto (the "Property"); and,
1.2 Hartcourt wishes to purchase the Property.
OPERATIVE PROVISIONS:
1. PURCHASE AND SALE
1.1 Upon the terms and subject to the conditions of this Agreement, on the
Closing Date, NuOasis agrees to sell and transfer the Property to
Hartcourt and Hartcourt agrees to purchase and accept the Property for
the consideration set forth in this Agreement.
1.2 In exchange for the Property, Hartcourt shall pay to NuOasis the sum
of Twenty Two Million Dollars (USD22,000,000), hereinafter referred to
as the "Purchase Price", consisting of a Convertible Secured
Promissory Note in the principal amount of Twelve Million Dollars
(USD12,000,000) in the form annexed hereto as Schedule 2 (the
"Hartcourt Note") and the greater of Two Million (2,000,000) shares of
Hartcourt common stock or that number of shares of Hartcourt common
stock having a market value equal to Ten Million Dollars
(USD10,000,000) at Closing (the "Shares"). For the purpose of this
Agreement, "Market Value" shall mean fifty percent (50%) of the thirty
(30) days moving average closing "bid" price for Hartcourt common
stock as quoted by the United States National Association of
Securities Dealers Electronic Bulletin Board immediately preceding the
Closing Date.
- 1 -
2. CLOSING
2.1 The closing of the delivery and transfer of the Property (the
"Closing") shall occur at the offices of Hartcourt on a date ("Closing
Date") to be mutually agreed upon by Hartcourt and NuOasis after (i)
exchange of all books, records, financial information, documents, and
other materials deemed necessary to completion of the transaction
contemplated under this Agreement, and (ii) completion of all review
periods provided for in this Agreement. Exchange of documents under
this Agreement shall begin as soon as possible after execution hereof.
In any case, the Closing Date shall be no later than 30th September
1996.
2.2 At the Closing, the following transactions shall occur and documents
shall be exchanged, all of which shall be deemed to occur
simultaneously:
2.2.1 NuOasis will deliver, or cause to be delivered, to Hartcourt:
2.2.1.1 the documents necessary to establish the interest in the
Property and to transfer ownership of NuOasis' right, title
and interest in and to the Property to Hartcourt, in form
and substance acceptable to Hartcourt;
2.2.1.2 such other documents, instruments, and/or certificates,
if any, as are required to be delivered pursuant to the
provisions of this Agreement, or which are reasonably
determined by the parties to be required to effectuate the
transactions contemplated in this Agreement, or as otherwise
may be reasonably requested by Hartcourt in furtherance of
the intent of this Agreement.
2.2.1.3 certificates or other conveyance documents acceptable to
NuOasis transferring the Purchase Price to NuOasis;
2.3 From time to time after the Closing, upon the reasonable request of
any party, the party to whom the request is made shall deliver such
other and further documents, instruments, and/or certificates as may
be necessary to more fully vest in the requesting party the
consideration provided for in this Agreement or to enable the
requesting party to obtain the rights and benefits contemplated by
this Agreement.
[NUOINTL\AGR:NUOBVIMG.AGR]-2
- 2 -
3. REPRESENTATIONS AND WARRANTIES OF HARTCOURT
Hartcourt represents and warrants to NuOasis that:
3.1 Hartcourt is a corporation, validly existing and in good standing
under the laws of the United States, State of Utah, with the power and
authority to carry on its business as now being conducted. The
execution and delivery of this Agreement and the consummation of the
transaction contemplated in this Agreement have been, or will be prior
to Closing, duly authorized by all requisite action on the part of
Hartcourt. This Agreement has been duly executed and delivered by
Hartcourt and the Hartcourt Note the Shares to be issued by Hartcourt
hereunder will constitute validly issued shares and a binding, and
enforceable obligation of the corporation.
3.2 To the best of Hartcourt's knowledge and belief, the execution and
performance of this Agreement will not violate, or result in a breach
of, or constitute a default in, any provisions of applicable law, any
agreement, instrument, judgment, order or decree to which Hartcourt is
a party or to which it is subject so as to give rise to a claim by
anyone against the Hartcourt Note or Shares which would in any way
effect the enforceability or validity of this Agreement or Hartcourt's
ability to conclude the transaction contemplated under this Agreement.
- 3 -
3.3 The Shares. The Shares to be issued pursuant to this Agreement will be
issued at Closing, free and clear of liens, claim, and encumbrances,
and Hartcourt can issue such shares without the consent or approval of
any person, firm, corporation, or government authority.
3.4 Capitalization. The capitalization of Hartcourt is attached hereto and
incorporated herein as Schedule "3".
3.5 Financial Information. Hartcourt has provided NuOasis, or will provide
prior to Closing, copies of its Annual Report containing audited
financial statements for the years ending 31st December 1994 and 1995,
and all other information included in such reports or delivered to
NuOasis pursuant to this Agreement, shall be referred to as the
"Hartcourt Financials". Except as set forth in the Hartcourt
Financials, Hartcourt has no obligations or liabilities (whether
accrued, absolute, contingent, liquidated or otherwise, including
without limitation any tax liabilities due or to become due) which are
not fully disclosed and adequately provided for excepting current
liabilities incurred and obligations under agreements entered into in
the usual and ordinary course of business since the date of the
Hartcourt Financials, none of which (individually or in the aggregate)
are material except as expressly indicated there use is not a
guarantor or otherwise contingently liable for any material amount of
indebtedness. Except as indicated in the Hartcourt Financials, there
exists no default under the provisions of any instrument evidencing
any indebtedness or of any agreement in relation thereto.
3.6 Litigation. To the best knowledge and belief of Hartcourt, except as
disclosed in the Hartcourt Financials or pursuant to this Agreement,
there is neither pending nor threatened, any action, suit or
arbitration to which its Hartcourt property, assets or business is or
is likely to be subject and in which an unfavorable outcome, ruling or
finding will or is likely to have a material adverse effect on the
condition, financial or otherwise, or create a material liability on
the part of Hartcourt, or which would conflict with this Agreement or
any action taken or to be taken in connection with it.
3.7 Tax Matter. To the extent that its tax filings, liabilities, payments,
or provisions for payment could give rise to a claim against or affect
the right of ownership to the Shares, Hartcourt has filed or will file
all federal, state, and local income, excise, property, and other tax
returns, forms, or reports, which are due or required to be filed by
it and has paid, or made adequate provision for payment of all taxes,
interest, penalty fee, assessment, or deficiencies shown to be due or
claimed to be due or which have or may become due on or in respect of
such returns or reports.
[NUOINTL\AGR:NUOBVIMG.AGR]-2
- 37 -
3.8 Contracts. Except as disclosed pursuant to this Agreement, or in the
Hartcourt Financials, there are no contracts, actual or contingent
obligations, agreement, franchises, license agreements, or other
commitments between Hartcourt third parties which are material to its
business, financial condition, or results of operation, taken as a
whole. For purposes of the preceding sentence, the term "material"
refers to any obligation or liability which by its terms calls for
aggregate payments of more than Ten Thousand Dollars (USD10,000).
3.9 Material Contract Breaches: Defaults. To the best of Hartcourt's
Knowledge and relief, it has not materially breached, nor has it any
knowledge of any pending or threatened claims or any legal basis for a
claim that it has materially breached, any of the terms or conditions
of any agreements, contracts, or commitments to which it is a party or
is bound and which might give rise to a claim by anyone against the
Note or the Shares, and there is no event of default or other event
which, with notice or lapse of time or both, would constitute a
default in any material rise to a claim against the Note or the Shares
in respect of which Hartcourt has not taken adequate steps to prevent
such a default from occurring.
- 4 -
3.10 Securities Laws. Hartcourt is a public company and represents that, to
the best of its knowledge, except as disclosed in the Hartcourt
Financials, it has no existing or threatened liabilities, claims,
lawsuits, or basis for the same with respect to this original stock
issuance to its founders, its initial public offering, or any dealings
with its stockholders, the public, the brokerage community, the United
States Securities And Exchange Commission ("SEC"), any U.S. state
regulatory agencies, or other person. Hartcourt is currently a
non-reporting company and is not required to file quarterly or yearly
reports. Hartcourt is in the process of filing its Form 10 with the
SEC. Hartcourt is currently published in Standard and Poors and is
cleared therefore for secondary trading in Standard and Poors approved
states.
3.11 Brokers. Hartcourt has agreed to pay a finder's fee with respect to
the transaction contemplated in this Agreement to Asian International
Development Ltd. ("AID"), its assignees or nominees, and to Guangoong
Investments Ltd. ("GIL"), its assignees or nominees in an amount to be
negotiated. To the best of Hartcourt's knowledge, no other person or
entity is entitled, or intends to claim that it is entitled, to
receive any fees or commissions in connection with this transaction,
further agrees to indemnify and hold harmless NuOasis against
liability to AID, GIL or any broker claiming fees of any kind or
nature.
3.12 Approvals. Except as otherwise provided in this Agreement, to
Hartcourt's best knowledge and belief no authorization, consent, or
approval of, or registration or filing with any governmental
authority, or any other person, is required to be obtained or made by
connection with Hartcourt's execution, delivery, or performance of
this Agreement.
3.13 Full disclosure. The information concerning set forth in this
Agreement, and in the Hartcourt Financials, is, to the best of
Hartcourt's knowledge and belief, complete and accurate in all
material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were
made, not misleading.
3.14 Date of Representations and Warranties. Each of the representations
and warranties of set forth in this Agreement is true and correct at
and as of the Closing Date, with the same force and effect as though
made at and as of the Closing Date, except for changes permitted or
contemplated by this Agreement.
- 5 -
4. REPRESENTATIONS AND WARRANTIES OF NUOASIS
NuOasis represents and warrants to Hartcourt that:
4.1 NuOasis is the owner of the Property and will certify in form and
substance acceptable to Hartcourt at Closing.
4.2 NuOasis is a corporation duly incorporated, validly existing and in
good standing under the laws of the Commonwealth of Bahamas, with the
corporate power and authority to carry on its business as now being
conducted. In addition, NuOasis is duly qualified to do business in
each jurisdiction in which the nature of its business requires it to
be so qualified, except to the extent that the failure to so qualify
does not have a material adverse effect on the business of NuOasis,
taken as a whole. The execution and delivery of this Agreement and the
consummation of the transactions contemplated in this Agreement have
been, or will be prior to Closing, duly authorized by all requisite
corporate actions on the part of NuOasis, to the extent, if any, that
such authorizations are necessary. This Agreement has been duly
executed and delivered by NuOasis and constitutes the valid, binding,
and enforceable obligation of NuOasis.
4.3 NuOasis has provided to Hartcourt, or will provide prior to Closing,
appraisals, construction costs and budgets, and all other information
related to the Property in the possession of NuOasis, or available for
NuOasis. Such information shall be referred to as the "Property
Reports". All financial statements and reports included in the
Property Reports and prepared by NuOasis, are prepared in accordance
with generally acceptable accounting standards and present fairly the
condition of the Property. Except as indicated, there exists no
default under the provisions of any instrument evidencing NuOasis'
ownership of the Property and NuOasis is not a guarantor or otherwise
contingently liable for any material amount of indebtedness relating
thereto.
4.4 To the best knowledge and belief of NuOasis, there is neither pending
nor threatened, any action, suit, arbitration, proceeding (whether
federal, state, local or foreign) or claim to which NuOasis or the
Property is or is likely to be named as a party in which an
unfavorable outcome, ruling or finding will or is likely to have a
material adverse effect on the condition, financial or otherwise, of
the Property, or create any material liability on the part of owners
of the Property, or which would conflict with this Agreement or any
action taken or to be taken in connection with it.
- 6 -
4.5 To NuOasis's best knowledge and belief, no authorization, consent, or
approval of, or registration or filing with, any governmental
authority or any other person is required to be obtained or made by
NuOasis in connection with the execution, delivery, or performance of
this Agreement.
4.6 The information concerning NuOasis set forth in this Agreement and in
the Property Reports is, to the best of NuOasis's knowledge and
belief, complete and accurate in all material respects and does not
contain any untrue statement of a material fact or omit to state a
material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
5. CONDITIONS PRECEDENT TO OBLIGATIONS OF NUOASIS
All obligations of NuOasis under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, of each of the following
conditions:
5.1 The representations and warranties by Hartcourt set forth in this
Agreement shall be true and correct at and as of the Closing Date,
with the same force and effect as though made at and as of the Closing
Date, except for changes permitted or contemplated by this Agreement.
5.2 Hartcourt shall have performed and complied with all covenants,
agreements, and conditions required by this Agreement to be performed
or complied with by it prior to or at the Closing.
5.3 Hartcourt shall have taken all corporate and other action necessary to
issue the Shares and the Hartcourt Note constituting the Purchase
Price to NuOasis pursuant to this Agreement.
5.4 All instruments and documents delivered to NuOasis pursuant to the
provisions of this Agreement shall be satisfactory to NuOasis and its
legal counsel.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF HARTCOURT
All obligations of NuOasis under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, of each of the following
conditions:
- 7 -
6.1 The representations and warranties by NuOasis set forth in this
Agreement shall be true and correct with the same force and effect as
though made at and as of the Closing Date, except for changes
permitted or contemplated by this Agreement.
6.2 NuOasis shall have performed and complied with all covenants,
agreements, and conditions required by this Agreement to be performed
or complied with by it prior to or at the Closing.
6.3 NuOasis shall have taken all corporate and other action necessary to
transfer NuOasis ownership and title to the Property to Hartcourt.
6.4 Before Closing, NuOasis will have delivered the Property Reports to
Hartcourt. NuOasis shall specifically provide to Hartcourt schedules
of all costs related to the Property as of 31st March, 1996 and all
other documents necessary to substantiate to Hartcourt's sole
satisfaction the agreed value of not less than Twenty Two Million
Dollars (USD22,000,000). Upon receipt and review of the Property
Reports, Hartcourt shall have fifteen(15) business days to raise
objections to the information contained in the Property Reports, which
shall be accomplished by submission of a written list of such
objections to NuOasis, and to conduct a valuation of the Property. If
there are objections, or if the valuation of the Property, as
determined by Hartcourt, or a recognised independent appraiser acting
for Hartcourt, is less than Twenty-Two Million Dollars(USD22,000,000),
then Hartcourt shall have the option to terminate this Agreement
without penalty. Alternatively, Hartcourt may elect, in its sole
discretion, to waive objections and proceed with Closing.
6.5 All instruments and documents delivered to Hartcourt pursuant to the
provisions of this Agreement shall be satisfactory to Hartcourt and
its legal counsel. NuOasis shall provide to Hartcourt prior to Closing
evidence satisfactory to Hartcourt that the representations of NuOasis
herein and the interest in the Property is legally created and duly
enforceable.
7. TERMINATION
7.1 This Agreement may be terminated at any time prior to the Closing Date
without liability on the part of either Hartcourt or NuOasis:
- 8 -
7.1.1 by mutual consent of Hartcourt and NuOasis;
7.1.2by Hartcourt or NuOasis, (unless the action or proceeding
referred to is caused by a breach or default on the part of
Hartcourt or NuOasis of any of their representations, warranties,
or obligations under this Agreement), if there shall be any
actual or threatened action or proceeding by or before any court
or any other governmental body which shall seek to restrain,
prohibit, or invalidate the transactions contemplated by this
Agreement and which, in the judgment of Hartcourt or NuOasis,
made in good faith and based upon the advice of legal counsel,
makes it inadvisable to proceed with the transactions
contemplated by this Agreement;
7.1.3by NuOasis or Hartcourt (as the case may be) if, as provided
herein upon Hartcourt's disapproval of the Value of the Property
or NuOasis' disapproval of the Value of the Shares or the
financial condition of Hartcourt, including but not limited to
its capitalisation, at any time prior to Closing.
8. TERMINATION WITH CAUSE
If this Agreement is terminated for breach or otherwise for cause, the
non-breaching party shall be reimbursed by the other party of all expenses
and costs related to this Agreement in the amount of Fifty Thousand Dollars
(USD50,000).
9. MISCELLANEOUS PROVISIONS
9.1 All representations, warranties, and covenants made by any party in
this Agreement shall survive the Closing hereunder and the
consummation of the transactions contemplated hereby for three (3)
years from the Closing Date. Hartcourt and NuOasis are executing and
carrying out the provisions of this Agreement in reliance on the
representations, warranties, and covenants and agreements contained in
this Agreement or at the Closing of the transactions herein provided
for including any investigation upon which it might have made or any
representations, warranty, agreement, promise, or information, written
or oral, made by the other party or any other person other than as
specifically set forth herein.
- 9 -
9.2 All costs and expenses in the proposed sale and transfer described in
this Agreement shall be borne by the following manner:
9.2.1each party has been represented by its own attorney(s) in this
transaction, shall pay the fees of its own attorney(s), except as
may be expressly set forth herein to the contrary.
9.2.2each party shall bear its reasonable shares of all other Closing
costs and expenses arising from this Agreement.
9.3 At any time and from time to time, after the effective date, each
party will execute such additional instruments and take such action as
may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
9.4 Any failure of any party to this Agreement to comply with any of its
obligations, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed. The failure of
any party to this Agreement to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a
waiver of any such provision or a waiver of the right of such party
thereafter to enforce each and every such provision. No waiver of any
breach of or non-compliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or non-compliance.
9.5 All notices and other communications hereunder shall either be in
writing and shall be deemed to have been given if delivered in person,
sent by overnight delivery service or sent by facsimile transmission,
to the parties hereto, or their designees, as follows:
To Hartcourt: The Hartcourt Companies, Inc.
00000 Xxxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxx 00000
Telephone: x0 000 000-0000
Facsimile: x0 000 000-0000
To NuOasis: NuOasis International Inc.
First Directors Limited
00 Xxxxxxxxx Xxxxxx
Xxxxxx, The Bahamas
Telephone: x00 0000 000000
Facsimile: x00 0000 000000
- 10 -
9.6 The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.7 This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.8 Notwithstanding that this Agreement was negotiated and is being
contracted for in the Bahamas and any conflict-of-law provision to the
contrary, the Agreement shall be governed by the laws of the
Commonwealth of the Bahamas.
9.9 This Agreement shall be binding upon the parties hereto and inure to
the benefit of the parties, their respective heirs, administrators,
executors, successors, and assigns.
9.10 This Agreement contains the entire agreement between the parties
hereto and supersedes any and all prior agreements, arrangements, or
understandings between the parties relating to the subject matter of
this Agreement. No oral understandings, statements, promises, or
inducements contrary to the terms of this Agreement exist. No
representations, warranties, covenants, or conditions, express or
implied, other than as set forth herein, have been made by any party.
9.11 If any part of this Agreement is deemed to be unenforceable the
balance of the Agreement shall remain in full force and effect.
9.12 This Agreement may be amended only by a written instrument executed by
the parties or their respective successors or assigns.
9.13 A facsimile, telecopy or other reproduction of this Agreement may be
executed by one or more parties hereto and such executed copy may be
delivered by facsimile of similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of
such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the
request of any party hereto, all parties agree to execute an original
of this Agreement as well as any facsimile, telecopy or other
reproduction hereof.
- 11 -
9.14 Time is of the essence of this Agreement and of each and every
provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
THE HARTCOURT COMPANIES INC.
/s/ Xxxx Xxxx
By:-------------------------------
Name: Xxxx Xxxx
Title: President
NuOASIS INTERNATIONAL INC.
By:-------------------------------
Name:
Title:
- 12 -