EXHIBIT 2.2
SHARE PURCHASE AND EXCHANGE AGREEMENT
BETWEEN
LOTUS PACIFIC, INC.
AND
STEFAN H. BENGER
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 between Lotus Pacific, Inc.
(hereinafter the "Buyer" or "LPFC") and Stefan H. Benger (hereinafter the
"Seller"), sole shareholder of Professional Market Brokerage, Inc.,(hereinafter
"PMB, Inc."). Each of Seller and Buyer is also referred to as a "Party",
collectively the "Parties".
RECITALS
WHEREAS, Seller is the sole shareholder of PMB, Inc.;
WHEREAS, Seller desires to transfer to Buyer four hundred (400) shares
(hereinafter the "PMB Shares"), which constitute one hundred percent (100%) of
all the capital stock of PMB, Inc. currently issued and outstanding;
WHEREAS, Buyer desires to purchase and exchange for the PMB Shares with
cash and restricted shares of common stock of LPFC;
WHEREAS, Buyer desires to make additional investment in PMB, Inc. by
issuing shares of common stock to PMB, Inc.;
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. Buyer will pay Seller two hundred forty thousand
U.S. dollars ($240,000) as the cash portion of the consideration
for the PMB Shares.
b. Share Exchange. Buyer will issue five hundred thousand restricted
shares of common stock of LPFC to Seller as the remaining portion
of the consideration for the PMB Shares. The restricted shares of
common stock of LPFC shall bear a legend with a holding period of
three (3) years.
c. Capital Investment. Buyer will issue five hundred thousand shares
of common stock of LPFC to PMB, Inc. as additional capital.
d. 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.
e. 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 PMB Shares,
endorsed in blank or accompanied by duly executed
assignment documents or stock powers sufficient to
transfer good and marketable title to the PMB 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 bank certified check in the amount
of, or wire transfer to a bank account designated by
Seller, two hundred forty thousand U.S. dollars
($240,000).
(2) deliver to Seller a stock certificate or stock
certificates representing and evidencing five hundred
thousand (500,000) restricted shares of common stock of
LPFC;
(3) deliver to PMB, Inc. a stock certificate or stock
certificates representing and evidencing five hundred
thousand (500,000) restricted shares of common stock of
LPFC; and
(4) execute and deliver this Agreement and all other
documents, instruments, and agreements referred to
herein or contemplated hereby.
2. PMB STOCK OPTION
a. Reference is made to a Stock Option Agreement (hereinafter the
"Option Agreement") entered into on September 30, 1998, between
Professional Market Brokerage, Inc. (hereinafter "PMB, Inc.") and
George Koenig (hereinafter "Koenig") whereby PMB, Inc. granted to
Koenig an option to purchase common shares of PMB, Inc. (the "Stock
Option") in an amount equal to fifteen percent (15%) of all common
shares then issued and outstanding for an aggregated exercise price
of twenty thousand U.S. dollars ($20,000). Said Option Agreement
was entered into in connection with a Cash Subordinated Loan
Agreement between PMB, Inc. and Koenig of even date therewith.
b. Seller hereby agrees that he will acquire from Koenig , at his own
expense, said Stock Option prior to the Closing Date. Upon
completion of Seller's buy-back, said Stock Option shall be deemed
null and void.
3. REPRESENTATIONS AND WARRANTIES
a. Representations and Warranties of Seller. Seller hereby represents
and warrants to Buyer that the statements contained in this Section
3.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 3.a.
i. Ownership of the PMB Shares. Seller holds of record and owns
beneficially four hundred (400) shares of the capital stock of
PMB, Inc., which constitute one hundred percent (100%) of all
the capital stock of PMB, Inc. 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. The shares held by
Seller are subject to the Option Agreement and the terms and
conditions contained in Section 2 hereof. 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 PMB, Inc. All of the issued and outstanding equity
interests of PMB Inc. 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 3.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 3.a. not misleading.
b. Representations and Warranties of Buyer. Buyer hereby represents
and warrants to Seller that the statements contained in this
Section 3.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 3.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 (1,000,000) 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 3.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 3.b. not misleading.
4. 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
Stefan H. Benger
200 W. Madison Street
Suite 400
Chicago, IL 60606
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
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James Yao
Title: Chairman
STEFAN H. BENGER
Sole shareholder of Professional Market Brokerage, Inc.
By: /s/ Stefan H. Benger
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Stefan H. Benger