EX. 10.2
LOTUS PACIDFIC, INC.
COMMON STOCK
SUBSCRIPTION AGREEMENT
THE SHARES OF COMMON STOCK OF LOTUS PACIFIC, INC., A DELAWARE CORPORATION
(THE "COMPANY"), PURCHASED PURSUANT TO THIS SUBSCRIPTION AGREEMENT (THE
"AGREEMENT"), HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
UNDER THE LAWS OF ANY JURISDICTION.
1. Subscription. The undersigned subscriber (the "Subscriber"), agreeing
to be legally bound hereby, does subscribe for and agree to purchase 3,100,000
(three million one hundred thousand) shares of the Company's Common Stock
with a par value of $0.001 per share (the "Shares"). The total purchase price
is US $3,100,000 (three million one hundred thousand US Dollars). The
Subscriber herewith tenders payment upon signing this Stock Subscription
Agreement, in such amount, the receipt of which is hereby acknowledged by the
Company, in the form of a check or wire transfer payable to the Company from
the Subscriber. The Company shall cause its stock transfer agent to issue the
Shares as soon as practicable thereafter.
2. Representations and Warranties of Subscriber. To induce the Company
to enter into this Agreement, the Subscriber hereby represents and warrants
to the Company as follows:
(A) The Subscriber
(i) has had access to the books and records of the Company, and
is fully familiar with and understands the contents thereof;
(ii) acknowledges that it has had the opportunity to ask questions
of and receive answers from the management and from the authorized
representatives of the Company concerning the Company and to obtain any
additional information necessary to verify the accuracy of the information so
furnished;
(iii) has read carefully this Agreement;
(iv) has received no solicitation or general advertisement with
respect to the purchase of the Shares; and
(v) has based its investment decision on such information as is
described above and supplied herein and has not received any other written
communication in connection with this transaction.
(B) The Subscriber understands and acknowledges the following:
(i) The Shares are being offered and sold under the exemption
provided in, among others, Section 4(2) of the Securities Act of 1933, as
amended (the "Act") and under applicable exemptions from securities
registration as a transaction by an issuer not involving a public offering;
(ii) The Shares have not been registered under the Act or under
any securities act; and the Shares can not be sold or transferred unless
they are registered under the Act or an exemption from registration is
otherwise available;
(iii) The Company has no obligation or intention to register said
Shares for resale under any federal or other securities laws or to take any
action which would make available any such exemption from the registration
requirements of any such laws;
(iv) Rule 144 of the Securities and Exchange Commission under the
Act would substantially restrict the transferability of the Shares; and
(v) There is no assurance of a public market for the Shares and,
accordingly, the Subscriber must bear the economic risks of its investment
for a infinite period of time.
(C) The Subscriber is acquiring the Shares solely for its own account,
for investment only, and not with a view towards the further distribution
thereof. The Subscriber will not sell, transfer, hypothecate, or otherwise
dispose of the Shares, or any portion thereof, unless such sale, transfer,
hypothecation or disposition is made in compliance with the requirements of
the Act and any and all applicable laws, rules and regulations.
(D) THE SUBSCRIBER RECOGNIZES THAT ANY INVESTMENT IN THE COMPANY
INVOLVES SUBSTANTIAL RISK FACTORS.
(E) The Subscriber has adequate financial means of providing for its
current needs and financial contingencies without the need for liquidity in
this investment and has the ability to bear the economic risks of this
investment and can afford a complete loss of the purchase price; and the
Subscriber has no reason to contemplate any change in its financial condition.
(F) The Subscriber, through its management and advisors, is fully
familiar with, and has the knowledge and expertise in, financial and business
matters necessary to evaluate the merits and the risks involved in the
purchase of the Shares.
(G) These representations and warranties provided to the Company by the
Subscriber are true and correct as of the date hereof and the Subscriber
agrees to advise the Company prior to its acceptance of this Agreement of any
material change in any of such information.
(H) The Subscriber fully understands that no governmental agency has
approved or disapproved, passed upon or endorsed the merits of the sale or
purchase of the Shares.
(I) The Subscriber is a corporation duly organized and existing in good
standing under the laws of the jurisdiction of its incorporation.
(J) The undersigned representative of the Subscriber has full power, in
accordance with all applicable laws, to execute and perform this Agreement, and
such execution and performance do not have any conflict with any applicable
charter or bylaw provision or with any contract to which it is a party or to
which it is subject. The Board of Directors of the Subscriber has duly
authorized this Agreement, the transactions contemplated herein, and the
execution hereof by the undersigned representative.
3. Representations and Warranties of Company. To induce the Subscriber
to enter into the Agreement, the Company and its principal shareholders do
hereby represent and warrant as follows:
(A) The Company's Shares to be delivered to the Subscriber will
constitute, under Delaware corporate law, valid and legally issued Shares of
the Company, fully paid, and nonassessable.
(B) The officers of the Company are duly authorized to execute this
Agreement and have taken all actions required by law and agreement, its
charter and bylaws, to properly and legally execute this Agreement.
(C) The Company is not involved in any pending litigation, claims, or
governmental investigation or proceeding not reflected in its financial
statements or otherwise disclosed in writing to the Subscriber and there
are no lawsuits, claims, assessments, investigations, or similar matters,
to the best knowledge of the management, threatened or contemplated against
the Company, its management or properties.
(D) The Company is duly organized, validly existing and in good standing
under the laws of the State of Delaware; it has the corporate power to own
its property and to carry on its business as now being conducted and is duly
qualified to conduct such business in any jurisdiction so required.
(E) Pursuant to its Certificate of Incorporation, as amended, the Company
is authorized to issue 50,000,000 shares of Common Stock, par value $0.001
per share, 37,637,054 shares of which are issued and outstanding, fully paid
and nonassessable. The company is authorized to issue 4,300 shares of Series
A preferred stock, 4,300 shares of which are issued and outstanding. The
Company has authorized 100,000 shares of preferred stock, none of which is
issued or outstanding prior to the closing hereof. The Company has no
treasury stock. There are no other authorized or outstanding subscriptions,
options, warrants, or other agreements or commitments obligating the Company
to issue any additional shares of its capital stock of any class, or any
options or rights with respect thereto, or any securities convertible into
any shares of stock of any class. No shareholder of the Company has any right
of first refusal or any preemptive rights with respect to the issuance of
the Company's capital stock.
(F) Attached hereto and marked as Exhibit A, and hereby made a part hereof,
are the Financial Statements of the Company as of December 31, 1996,
hereinafter referred to as the "Financial Statements". Except as explained
in the notes thereto, the Financial Statements present fairly the financial
condition of the Company as of the dates thereof and the results of
operations for periods covered thereby and, except as aforesaid, the
Financial Statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved.
(G) The Company has in all material aspects performed all obligations
required to be performed by it in the past and no claim exists for default
in any material respect under any agreements, leases, or other documents to
which the Company is a party.
(H) The Company has complied in all material aspects with all applicable
statutes and regulations of any governmental authority having jurisdiction
over it or that have been applicable to its business. The Company is
current in its SEC filings and has filed all reports required to be filed
with the SEC during the past twelve (12) months.
(I) The Company has filed in correct form all income tax returns due with
respect to all prior years, and all franchise, real and personal property tax
returns that are required to be filed, and has paid all taxes as shown on the
said returns and all assessments received by it to the extent that such
taxes and assessments have become due.
(J) No loans or other obligations are payable to officers, directors,
employees, or stockholders of the Company.
4. Legends. The Subscriber hereby agrees that the certificate(s)
evidencing the Shares shall bear such legends with regard to restrictions on
transfer as may be required under the Act and other applicable law.
5. Inspection Rights. It is understood that all documents, records and
books pertaining to this investment have been made available for inspection
by the Subscriber and each of its attorney, accountant and representative,
and that they will be available, upon reasonable notice, for inspection
during reasonable business hours at the office of the Company.
6. Indemnification by Subscriber. The Subscriber hereby agrees to
indemnify and hold harmless the Company and its officers and directors from
and against any and all loss, damage, or liability (including attorney's
fees) due to, or arising out of, a breach of any representation or warranty
made by the Subscriber contained herein.
7. Indemnification by Company. The Company and its undersigned principal
shareholders agree that they, jointly and severally, will indemnify
Subscriber and the Company against, and will hold each of them harmless from,
any and all loss, damage, or liability (including attorney's fees) due to,
or arising out of, a breach of any representation or warranty made by the
Company contained herein.
8. No Assignment or Transfer. The Subscriber agrees not to transfer or
assign this Subscription Agreement or any interest of the Subscriber herein
except as described above; any attempted transfer or assignment shall be
deemed void and without force or effect.
9. Governing Law. This Agreement shall be construed in accordance with
and governed and interpreted by the laws of the State of Delaware.
10. Headings. The headings employed in each of the numbered paragraphs
herein are for reference and convenience of the parties, but shall not be
deemed to have any substantive effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized representatives and have caused
their signatures to be affixed hereto this fifth day of May, 1997.
Lotus Pacific, Inc. Evolving Investments Ltd.
By: /S/ By: /S/
Xxxxx Xxx, President Jinli Dong, President
