Attached files
| file | filename |
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| S-1/A - Asia Cork Inc. | v201527_s1a.htm |
| EX-5.1 - Asia Cork Inc. | v201527_ex5-1.htm |
| EX-23.1 - Asia Cork Inc. | v201527_ex23-1.htm |
| EX-10.22 - Asia Cork Inc. | v201527_ex10-22.htm |
Exhibit 10.21 – Amendment
Agreement
AMENDMENT
AGREEMENT
This
Agreement dated as of July 6, 2010 among ASIA CORK INC. (formerly, HANKERSEN
INTERNATIONAL CORP.,) a Delaware corporation (together with its successors and
assigns, the “Company”), and the
investor identified on the signature page hereto (each, an “Investor” and
collectively, the “Investors”).
WHEREAS, the Company and the
Investors executed a certain securities purchase agreement dated May 29, 2008
(as amended, the “SPA”);
WHEREAS, pursuant to the SPA
the aggregate Investment Amount (as defined in the SPA) is $700,000 and the
Company issued a Promissory Note (“Note”) and Warrant to each
Investor;
WHEREAS, the
Company has filed a registration statement on form S-1 (the “Registration
Statement”) with the Securities and Exchange Commission with respect to a
primary offering by the Company of securities (the “Offering”).
WHEREAS, the parties to the
SPA desire to amend the Notes and otherwise reach agreement regarding the
parties rights under the SPA, the Note and the Warrants.
NOW, THEREFORE, in
consideration of the mutual covenants contained in this Agreement, and for other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Company and the Investors agree as follows:
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1.
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Note. The
Note is hereby amended as follows:
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a.
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The
Maturity Date shall be October 31,
2010
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b.
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The
interest rate under the Notes shall be 18% per annum from the date of
issuance through the Maturity Date.
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2. Warrants. The
Investors shall retain the Warrants. The Company shall register the
shares of Common Stock issuable upon exercise of the Warrants under the
Registration Statement in accordance with Section 4.2 of the SPA. The
exercise price of the Warrants shall be the offering price of the Securities in
the Offering, as provided in the Warrants. The terms of the Warrants
shall remain unchanged, subject to the provisions of Section 4 of this
Agreement.
3. Closing of the Financing
The closing of the Offering under the Registration Statement (the
“Closing”) shall be deemed a Financing as defined in the Note and, upon the
closing of the sale of the Securities by the Company pursuant to the
Registration Statement, the parties agree that the Investors shall deliver the
Note to the Company and the Company shall:
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a.
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Pay
the Investors or its designee cash by wire transfer in an amount equal to
50% of the outstanding principal amount of the Notes
and
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b.
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the
Noteholder shall receive, upon conversion of the balance due under the
Note, such whole number of fully paid and non-assessable shares of the
Securities that is equal to the quotient of the sum of (i) 50% of the
outstanding principal amount of the Notes and (ii) all accrued an unpaid
interest thereon, divided by fifty percent (50%) of the Financing Based
Conversion Price.
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In the
event that the Closing shall not occur by September 30, 2010, the interest rate
under the Note shall be 24% per annum, accruing from the first anniversary of
the issuance of the Note.
Prior to
the Closing, the Company will not pay off the outstanding balance under a Note
without the prior written consent of the holder of such Note.
Upon the
payment of the amounts and issuance of the Securities in accordance with this
Section 3, the parties agree that the shares of Common Stock being held in
escrow pursuant to the Escrow Agreement shall be released to the registered
owners of such shares of Common Stock.
4. Lock-Up In order to
induce the Company and Global Arena Capital Corp. (the “Underwriter”) to proceed
with the Offering, the Investor agrees, for the benefit of the Company, that
should such Offering be effectuated, the Investor will not, without the prior
written consent of the Underwriter, sell, assign, pledge, hypothecate or
otherwise dispose of, directly or indirectly, any shares of Common Stock of the
Company owned by the Investor, or subsequently acquired through the conversion
of the Note and the exercise of the Warrants or other distribution of stock, or
grant of options, rights or warrants with respect to any such shares of Common
Stock, during the nine (9) month period commencing on the closing date of said
Offering. Furthermore, the Investor will permit all certificates
evidencing its shares of Common Stock to be endorsed with the appropriate
restrictive legends, and will consent to the placement of appropriate stop
transfer orders with the transfer agent for the Company.
5. Default Any defaults
by the Company pursuant to the SPA or the Notes prior to the date hereof shall
be deemed waived provided that, and so long as, the Company complies with the
terms of this Agreement.
6. Miscellaneous
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a.
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Entire
Agreement.This Agreement, together with the Notes and Warrants,
contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements, understandings,
discussions and representations, oral or written, with respect to such
matters, which the parties acknowledge have been merged into such
documents.
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b.
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Document
References. The provisions of the SPA,
the Notes and the Warrants as may be hereby amended, that do not conflict
with this Agreement shall remain the same and in full force and effect.
All capitalized terms used herein, unless otherwise defined, shall have
the meanings ascribed to them under the
Note.
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c.
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Notices. Any
and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be delivered in accordance with
the SPA
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d.
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Amendments; Waivers;
No Additional Consideration. No provision of this
Agreement may be waived or amended except in a written instrument signed
by the Company and the Investors holding at least a majority in interest
of the outstanding aggregate principal amount of the Notes. No
waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in
the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner
impair the exercise of any such
right.
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e.
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Successors and
Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted
assigns.
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f.
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No Third-Party
Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and
is not for the benefit of, nor may any provision hereof be enforced by,
any other Person.
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g.
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Governing
Law. This Agreement shall be governed by and be
construed in accordance with the laws of the State of New York without
regard to the conflicts of law rules of such state. Each of the
Company and the Investors hereby irrevocably and unconditionally submits,
for itself and its property, to the jurisdiction of the Supreme Court of
the State of New York sitting in New York County and of the United States
District Court for the Southern District of New York, and any appellate
court from any thereof, in respect of actions brought against it as a
defendant, in any action, suit or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action, suit or proceeding may be
heard and determined in such courts. Each of the parties hereto
agrees that a final judgment in any such action, suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. The Company and the
Investors hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any action, suit or
proceeding arising out of or relating to this Agreement, or in any court
referred to above. Each of the parties hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action, suit proceeding in
any such court and waives any other right to which it may be entitled on
account of its place of residence or
domicile.
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h.
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Execution. This
Agreement may be executed in two or more counterparts, all of which when
taken together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need
not sign the same counterpart.
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i.
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Severability. If
any provision of this Agreement is held to be invalid or unenforceable in
any respect, the validity and enforceability of the remaining terms and
provisions of this Agreement shall not in any way be affected or impaired
thereby and the parties will attempt to agree upon a valid and enforceable
provision that is a reasonable substitute therefor, and upon so agreeing,
shall incorporate such substitute provision in this
Agreement.
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j.
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Independent Nature of
Investors’ Obligations and Rights. The obligations of
each Investor hereunder are several and not joint with the obligations of
any other Investor, and no Investor shall be responsible in any way for
the performance of the obligations of any other Investor
hereunder. The decision of each Investor to purchase Securities
pursuant hereto has been made by such Investor independently of any other
Investor.
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[Signature
Page Follows]
4
IN
WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed by their respective authorized signatories as of the date first
indicated above.
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Asia
Cork Inc.
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By:
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/s/ Pengcheng
Chen_________________________
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Name: Pengcheng
Chen
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Title:
President
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[Remainder
of Page Intentionally Left Blank; Signature Page for Investors
Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
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NAME
OF INVESTOR
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IDAHOCORK,
LLC
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By:
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/s/ Gary Hawkins
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Name:
Gary Hawkins
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Title: Manager
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
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ANCORA
GREATER CHINA FUND, LP
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By:
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John Micklitsch
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Name: Jon
Micklitsch
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
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PIPE
EQUITY PARTNERS, LLC
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By:
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/s Greg Freihofner
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Name: Greg
Freihofner
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Title: Managing
Partner
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
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SILVER
ROCK II LTD.
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By:
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Rima Salam
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Name: Rima
Salam
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