SECOND AMENDMENT AGREEMENT
Exhibit
10.22
This
Agreement dated as of October 31 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 (the “Investor”.
WHEREAS, the Company and
certain investors (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
Company and the Investors executed an Amendment Agreement as of July 6, 2010
with respect to the parties rights and obligations under the SPA, the Notes and
the Warrants, which Amendment Agreement contains provisions which included (i)
an extension of the Maturity Date until October 31, 2010, (ii) the agreement of
the Company and the Investors that upon the closing of the Offering, the
Investors would (A) receive cash in an amount equal to 50% of the
outstanding principal amount of the Notes upon the closing of the Offering and
(B) convert the balance of the Notes into a whole number of Securities that is
equal to the quotient of the sum of (A) 50% of the outstanding principal amount
of the Notes and (B) all accrued and unpaid interest thereon, divided by fifty
percent (50%) of the Financing Based Conversion Price and (iii) the agreement of
the Investors to not sell or otherwise transfer any shares of Common Stock for a
period of nine (9) months after the Offering.
WHEREAS, since the
Registration Statement has not yet been declared effective by the Securities and
Exchange Commission, the parties to the SPA desire to extend the maturity date
of the Notes.
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 Investor agrees 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 February 28
2011
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b. The
interest rate under the Notes shall be 18% per annum from the date of issuance
through the Maturity Date. In the event
that the closing of the Offering shall not occur by February 28, 2011, the
interest rate under the Note shall be 24% per annum, accruing from the first
anniversary of the issuance of the Note.
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2. 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 theNote, as amended.
3. Miscellaneous
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a.
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Entire
Agreement. This Agreement shall only serve as an Amendment to the
Note with regard to the specific terms acknowledged in Section 1a and 1b
of this Agreement. All other terms previously agree upon by the parties in
the Amendment Agreement dated July 6, 2010 shall remain in full force and
effect. This Agreement, together with the Amendment Agreement, the Notes
and the 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]
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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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By:
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/s/Xxxxxxxxx
Xxxx
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Name: Xxxxxxxxx
Xxxx
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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/ Xxxx Xxxxxxx | |
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Name:
Xxxx Xxxxxxx
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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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/s/ Xxx Xxxxxxxxx | |
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Name:
Xxx Xxxxxxxxx
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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/ Xxxx Xxxxxxxxxx | |
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Name:
Xxxx Xxxxxxxxxx
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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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NAME
OF INVESTOR
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SILVER
ROCK II LTD.
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By:
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Xxxx Xxxxx | |
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Name: Xxxx
Xxxxx
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