STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is dated as of March 31, 2012 by and between TBWTV Inc., a California corporation (the “Company”), and San Lotus Holding Inc., a Nevada corporation (the “Purchaser”). The Company and the Purchaser are individually referred to herein as a “party” and collectively as the “parties.”
RECITALS
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, 50,000 shares of restricted common stock, par value $1.00 per share (the “Common Stock”) of the Company.
NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:
1. Agreement to Purchase and Sell. Subject to the terms and conditions of this Agreement, simultaneous with the execution and delivery of this Agreement, the Company hereby sells to the Purchaser and the Purchaser hereby purchases from the Company 50,000 shares of restricted Common Stock. The Company and the Purchaser are executing and delivering this Agreement in accordance with and in reliance upon the exemption from securities registration pursuant to Section 4(2) of the Securities Act.
2. Consideration. In consideration for the sale of the Shares, Purchaser shall deliver to Seller an aggregate of US $50,000.00 or $1.00 per share (the “Purchase Price”).
3. Closing; Deliverables. The closing of the purchase and sale of the Common Stock (the “Closing”) to be acquired by the Purchaser from the Company under this Agreement shall be at such time and on such date as the Company and the Purchaser may agree upon (the “Closing Date”). Subject to the terms and conditions of this Agreement, at the Closing the Purchaser shall make the Purchase Price available to the Company in immediately available funds, and the Company shall deliver to the Purchaser a certificate (or certificates in such denominations as the Purchaser shall so request) representing the Common Stock.
4. Representations and Warranties of the Company. As an inducement to Purchaser to enter into this Agreement and to consummate the transactions contemplated herein, the Company represents and warrants to Purchaser as follows:
4.1 Organization and Standing: Articles and Bylaws. The Company is and will continue to be a corporation duly organized, validly existing and in good standing under the laws of the State of California and will have all requisite corporate power and authority to carry on its business as proposed to be conducted. The Company is duly qualified to do business in each jurisdiction where the nature of its business or its ownership or leasing of its properties makes such qualification necessary.
4.2 Corporate Power. The Company will have at the Closing all requisite corporate power to enter into this Agreement and to sell and issue the Common Stock. This Agreement shall constitute a valid and binding obligation of the Company, enforceable in accordance with its respective terms, except as the same may be limited by bankruptcy, insolvency, moratorium and other laws of general application affecting the enforcement of creditors’ rights.
4.3 Valid Issuance of Common Stock. The Common Stock, when issued in compliance with the provisions of this Agreement, will be duly authorized, validly issued, fully paid and non-assessable, and will be free of any liens or encumbrances caused or created by the Company; provided, however that all such shares may be subject to restrictions on transfer under state and federal securities laws as set forth herein and as may be required by future changes in such laws.
4.4 No Conflict. The execution and delivery of this Agreement by the Company and the performance by the Company of its obligations hereunder in accordance with the terms hereof: (a) will not require the consent of any third party or governmental entity under any laws; (b) will not violate any laws applicable to the Company; and (c) will not violate or breach any contractual obligation to which the Company is a party.
4.5 No Bankruptcy. No insolvency proceedings of any character, including without limitation, bankruptcy, receivership, reorganization, composition or arrangement with creditors, voluntary or involuntary, designating the Company as the bankrupt or the insolvent, are pending or, to the knowledge of the Company, threatened and the Company has not made an assignment for the benefit of creditors, nor has the Company taken any action with a view to, or which would constitute the basis for, the institution of any such insolvency proceedings.
4.6 No General Solicitation or Advertising. Neither Seller nor any of its affiliates nor any person acting on its or their behalf (i) has conducted or will conduct any general solicitation (as that term is used in Rule 502(c) of Regulation D) or general advertising with respect to any of the Shares, or (ii) made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration of the Shares under the Securities Act of 1933, as amended (the “Securities Act”).
4.7 No Litigation. There are no actions, suits or proceedings pending or, to the best of the Company’s knowledge, threatened, which could in any manner restrain or prevent the Company from effectually and legally purchasing the Common Stock pursuant to the terms and provisions of this Agreement.
4.8 Full Disclosure. No representation or warranty of the Company to the Purchaser in this Agreement omits to state a material fact necessary to make the statements herein, in light of the circumstances in which they were made, not misleading. There is no fact known to the Company that has specific application to the Common Stock or the Company that materially adversely affects or, as far as can be reasonably foreseen, materially threatens the Common Stock or the Company that has not been set forth in this Agreement.
5. Representations and Warranties of Purchaser. As an inducement to the Company to enter into this Agreement and to consummate the transactions contemplated herein, Purchaser represents and warrants to the Company as follows:
5.1 Authority. Purchaser has the right, power, authority and capacity to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform his obligations under this Agreement. This Agreement constitutes the legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with the terms hereof.
5.2 No Consent. No consent, approval, authorization or order of, or any filing or declaration with any governmental authority or any other person is required for the consummation by the Purchaser of any of the transactions on its part contemplated under this Agreement.
5.3 No Conflict. None of the execution, delivery or performance of this Agreement, and the consummation of the transactions contemplated hereby, conflicts or will conflict with, or (with or without notice or lapse of time, or both) result in a termination, breach or violation of (i) any instrument, contract or agreement to which Purchaser is a party or by which it is bound; or (ii) any federal, state, local or foreign law, ordinance, judgment, decree, order, statute or regulation, or that of any other governmental body or authority, applicable to Purchaser.
5.4 Potential Loss of Investment. Purchaser understands that an investment in the Shares is a speculative investment which involves a high degree of risk and the potential loss of its entire investment.
5.5 Receipt of Information. Purchaser has received all documents, records, books and other information pertaining to its investment that has been requested by the Purchaser including, without limitation, a certificate of good standing of the Company, its articles of incorporation and bylaws.
5.6 No Advertising. At no time was the Purchaser presented with or solicited by any leaflet, newspaper or magazine article, radio or television advertisement, or any other form of general advertising or solicited or invited to attend a promotional meeting otherwise than in connection and concurrently with such communicated offer.
5.7 Investment Experience. The Purchaser (either by itself or with its advisors) is (i) experienced in making investments of the kind described in this Agreement, (ii) able, by reason of its business and financial experience, to protect its own interests in connection with the transactions described in this Agreement, and (iii) able to afford the entire loss of its investment in the Common Stock.
5.8 Investment Purposes. The Purchaser is acquiring the restricted Common Stock for its own account as principal, not as a nominee or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other person has a direct or indirect beneficial interest in the amount of restricted Common Stock the Purchaser is acquiring herein. Further, the Purchaser does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the restricted Common Stock the Purchaser is acquiring.
6. Indemnification; Survival.
6.1 Indemnification. Each party hereto shall jointly and severally indemnify and hold harmless the other party and such other party’s agents, beneficiaries, affiliates, representatives and their respective successors and assigns (collectively, the “Indemnified Persons”) from and against any and all damages, losses, liabilities, taxes and costs and expenses (including, without limitation, attorneys’ fees and costs) (collectively, “Losses”) resulting directly or indirectly from (a) any inaccuracy, misrepresentation, breach of warranty or non-fulfillment of any of the representations and warranties of such party in this Agreement, or any actions, omissions or statements of fact inconsistent with in any material respect any such representation or warranty, or (b) any failure by such party to perform or comply with any agreement, covenant or obligation in this Agreement.
6.2 Survival. All representations, warranties, covenants and agreements of the parties contained herein or in any other certificate or document delivered pursuant hereto shall survive the date hereof until the expiration of the applicable statute of limitations.
7. Miscellaneous.
7.1 Further Assurances. From time to time, whether at or following the Closing, each party shall make reasonable commercial efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable, including as required by applicable laws, to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement.
7.2 Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed duly given (a) if by personal delivery, when so delivered, (b) if mailed, three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid and addressed to the intended recipient as set forth below, or (c) if sent through an overnight delivery service in circumstances to which such service guarantees next day delivery, the day following being so sent to the addresses of the parties as indicated on the signature page hereto. Any party may change the address to which notices and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth.
7.3 Choice of Law; Jurisdiction. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of New York, without giving effect to its principles of conflicts of law.
7.4 Arbitration. All disputes arising out of or relating to this Agreement shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on any award rendered by one or more arbitrators may be entered in any court having jurisdiction
7.5 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties in respect of the transactions contemplated hereby and supersedes all prior and contemporaneous agreements, arrangements and understandings of the parties relating to the subject matter hereof. No representation, promise, inducement, waiver of rights, agreement or statement of intention has been made by any of the parties which is not expressly embodied in this Agreement.
7.6 Assignment. Each party's rights and obligations under this Agreement shall not be assigned or delegated, by operation of law or otherwise, without the other party's prior written consent, and any such assignment or attempted assignment shall be void, of no force or effect, and shall constitute a material default by such party.
7.7 Amendments. This Agreement may be amended, modified, superseded or cancelled, and any of the terms, covenants, representations, warranties or conditions hereof may be waived, only by a written instrument executed by the parties hereto.
7.8 Waivers. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by any party of any condition, or the breach of any term, covenant, representation or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or a waiver of any other term, covenant, representation or warranty of this Agreement.
7.9 Counterparts. This Agreement may be executed simultaneously in two or more counterparts and by facsimile, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7.10 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
7.11 Interpretation. The parties agree that this Agreement shall be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore shall not be construed against any party on the grounds that such party drafted or was more responsible for the drafting of any such provision(s). The parties further agree that they have each carefully read the terms and conditions of this Agreement, that they know and understand the contents and effect of this Agreement and that the legal effect of this Agreement has been fully explained to its satisfaction by counsel of its own choosing.
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the parties have duly executed this Stock Purchase Agreement as of the date first above written.
| SELLER: | ||
| TBWTV Inc. | ||
| By: | /s/ Xxxx Xx Hsing | |
| Xxxx Xx Hsing | ||
| PURCHASER: | ||
| San Lotus Holding Inc. | ||
| By: | /s/ Xxxx Xx Hsing | |
| Xxxx Xx Hsing | ||
| 3F-B302C, No 000 Xxxxxx Xxxx | ||
| Xxxxxxx Xxx., Xxxxxxx Xxxxxx 000 | ||
| Xxxxxx (R.O.C.) | ||
