EXHIBIT 2.1
SHARE PURCHASE AND EXCHANGE AGREEMENT
AMONG
LOTUS PACIFIC, INC.
TRAVELWAY INTERNATIONAL LIMITED
AND
U.S. SECURITIES & FUTURES CORP.
February 12, 1999
SHARE PURCHASE AND EXCHANGE AGREEMENT
THIS SHARE PURCHASE AND EXCHANGE AGREEMENT (this "Agreement") is entered
into effective as of February 12, 1999, by and among Lotus Pacific, Inc.
(hereinafter the "Buyer" or "LPFC"), Travelway International Limited
(hereinafter the "Seller" or "Travelway"), sole shareholder of U.S. Securities
& Futures Corp. (hereinafter "USSF"), and U.S. Securities & Futures Corp.
Each of LPFC, Travelway and USSF is also referred to as a "Party", collectively
the "Parties".
RECITALS
WHEREAS, Travelway, the Seller, is the sole shareholder of USSF;
WHEREAS, Seller desires to transfer to Buyer one hundred eighteen (118)
shares (hereinafter the "USSF Shares"), which constitute one hundred percent
(100%) of all the capital stock of USSF currently issued and outstanding;
WHEREAS, LPFC, the Buyer desires to purchase and exchange for the USSF
Shares with cash and restricted shares of common stock of LPFC;
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. PURCHASE PRICE AND CAPITAL INVESTMENT
a. Cash Payment. Within ninety (90) days of the Closing, Buyer will pay
Seller two million five hundred thousand U.S. dollars ($2,500,000) as
the cash portion of the consideration for the USSF Shares.
b. Share Exchange. Buyer will issue five hundred thousand (500,000)
restricted shares of common stock of LPFC to Seller as the remaining
portion of the consideration for the USSF Shares. Said shares are
subject to the restrictions provided under the Securities Act of 1933,
as amended (the 1933 Act"), and shall bear a legend accordingly.
c. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall occur upon execution and delivery of
this Agreement by the Parties together with all documents, instruments,
and agreements referred to herein by the respective parties referred
to in such documents, instruments, and agreements. The date on which
the Closing occurs shall be referred to as the "Closing Date". The
Closing shall occur at such location and at such time as the Parties
shall mutually agree.
d. Deliveries at the Closing.
i. Seller's Obligation at Closing. At the Closing, Seller will:
(1) deliver to Buyer a stock certificate or stock certificates
representing and evidencing the USSF Shares, endorsed in blank
or accompanied by duly executed assignment documents or stock
powers sufficient to transfer good and marketable title to the
USSF Shares to Buyer; and
(2) execute and deliver this Agreement and all other documents,
instruments, and agreements referred to herein or contemplated
hereby.
ii. Buyer's Obligation at Closing. At the Closing, Buyer will:
(1) deliver to Seller a stock certificate or stock certificates
representing and evidencing five hundred thousand (500,000)
restricted shares of common stock of LPFC; and
(2) execute and deliver this Agreement and all other documents,
instruments, and agreements referred to herein or contemplated
hereby.
iii. Buyer's Obligation after Closing.
(1) within ninety (90) days after the Closing, deliver to Seller
a bank certified check in the amount of, or wire transfer to a
bank account designated by Seller, two million five hundred
thousand U.S. dollars ($2,500,000).
2. REPRESENTATIONS AND WARRANTIES
a. Representations and Warranties of Seller. Seller hereby represents
and warrants to Buyer that the statements contained in this Section
2.a. are correct and complete as of the Closing Date. Notwithstanding
Buyer's due diligence investigation of Seller, Buyer may rely on the
representations and warranties contained in this Section 2.a.
i. Ownership of the USSF Shares. Seller holds of record and owns
beneficially one hundred eighteen (118) shares of the capital stock
of USSF, which constitute one hundred percent (100%) of all the
capital stock of USSF currently issued and outstanding, clear of any
restrictions on transfer (other than any restrictions under the
Securities Act of 1933, as amended, and applicable state securities
laws), taxes, security interests, equities, claims and demands.
Seller is not a party to any voting trust, proxy, or other agreement
or understanding with respect to the voting of any capital stock of
USSF. All of the issued and outstanding equity interests of USSF have
been duly authorized and are validly issued, fully paid and non-
assessable.
ii. Noncontravention. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (a) violate any governing law or other restrictions of
any governmental authority to which Seller is subject, or (b)
conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any person the right to
accelerate, terminate, modify, or cancel, or require any notice under
any agreement, contract, lease, license, permit, governmental
approval, certificate, instrument, or other arrangement to which he
is a party or by which he is bound or to which any of his assets or
properties is subject.
iii. Broker's Fees. Seller has no liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Seller could
become liable or obligated.
iv. Disclosure. The representations and warranties contained in this
Section 2.a. do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements and information contained in this Section 2.a. not
misleading.
b. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller that the statements contained in this Section 2.b are
correct and complete as of the Closing Date. Moreover, notwithstanding
Seller's due diligence investigation of Buyer, Seller may rely on the
representations and warranties contained in this Section 2.b.
i. Organization of Buyer. Buyer is duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its
incorporation.
ii. Authorization of Transaction. Buyer has full power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder.
iii. Authorization to Issue Shares of Common Stock. Buyer is duly
authorized to issue five hundred thousand (500,000) shares of
common stock to consummate the transaction contemplated hereby.
iv. Noncontravention. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (a) violate any governing law or other restrictions
of any governmental authority to which Buyer is subject, or any
provision of its charter or bylaws, or (b) conflict with, result
in a breach of, constitute a default under, result in the
acceleration of, create in any person the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, permit, governmental
approval, certificate, instrument, or other arrangement to which
it is a party or by which it is bound or to which any of its
assets or properties is subject.
v. Broker's Fees. Buyer has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect
to the transactions contemplated by this Agreement for which Buyer
could become liable or obligated.
vi. Disclosure. The representations and warranties contained in this
Section 2.b. do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements and information contained in this Section 2.b. not
misleading.
3. MISCELLANEOUS
a. Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties
and supersedes any prior understandings, agreements, or
representations by or between the Parties, written or oral, to the
extent they related in any way to the subject matter hereof.
b. Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their
respective successors and assigns. No Party may assign this
Agreement or any of its rights, interests, or obligations
hereunder without the prior written consent of the other;
provided, however, that such consent shall not be unreasonably
withheld.
c. Counterparts. This Agreement may be executed by facsimile
signature and in one or more counterparts, each of which shall be
deemed an original but all of which together will constitute one
and the same instrument.
d. Headings. The section headings contained herein are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
e. Notices. All Notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request,
demand, claim, or other communication hereunder shall be deemed
duly given if (and then five (5) business days after) it is sent
by air mail, postage prepaid, and address to the intended
recipient as set forth below:
Lotus Pacific, Inc.
200 Centennial Avenue
Suite 201
Piscataway, NJ 08854
Travelway International Limited
100 Wall Street
11th Floor
New York, NY 10005
U.S. Securities & Futures Corp.
100 Wall Street
11th Floor
New York, NY 10005
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the addresses
set forth above using any other means (including personal
delivery, recognized overnight or international courier, messenger
service, confirmed telecopy, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be
deemed to have been duly given unless and until it actually is
received by the intended recipient or receipt is confirmed by a
third party or by electronic means. Any Party may change the
address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other
Party notice in the manner herein set forth.
f. Applicable Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of New Jersey,
U.S.A., without giving effect to any choice or conflict of law
provision or rule (whether of the State of New Jersey or any other
state or jurisdiction) that would cause the application of the
laws of any state or jurisdiction other than the State of New
Jersey.
g. Amendments and Waivers. No amendments of any provision of this
Agreement shall be valid unless the same shall be in writing and
signed by the Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenants hereunder,
whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation, or breach of warranty
or covenant hereunder to affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
h. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any state or
jurisdiction shall not affect the validity or enforceability of
the remaining terms and provision hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other state or jurisdiction.
i. Expenses. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with
this Agreement and the transactions contemplated hereby.
j. Construction: Official Version. The Parties have participated
jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the
Parties and no presumption or burden of proof shall arise favoring
or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.
k. Specific Performance. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event any
of the provisions of this Agreement are not performed in
accordance with their specific terms or otherwise are breached.
Accordingly, each of the Parties agrees that the other Party shall
be entitled to an injunction or injunctions to prevent breach of
the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action
instituted in any court of the U.S.A. or any state thereof having
jurisdiction over the Parties and the matter, in addition to any
other remedy to which they may be entitled, at law or equity.
IN WITNESS WHEREOF, the Parties have executed and delivered this
Agreement on the date first above written.
LOTUS PACIFIC, INC.
By: /S/ James Yao
- ----------------------------------
James Yao
Title: Chairman
TRAVELWAY INTERNATIONAL LIMITED
Sole shareholder of U.S. Securities & Futures Corp.
By: /s/ Huaya Lu Tung
- -----------------------------------
Huaya Lu Tung
Title: Chairman
U.S. SECURITIES & FUTURES, CORP.
By: /s/ Huaya Lu Tung
- ----------------------------------
Huaya Lu Tung
Title: Chairman