SECURITIES PURCHASE AGREEMENT
Exhibit 10.6
This
Securities Purchase Agreement (this “Agreement”) is dated
as of June 25, 2010, by and among China Green Material Technologies, Inc., a
Nevada corporation (the “Company”), and each
purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser” and
collectively, the “Purchasers”).
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”), and
Regulation S promulgated thereunder (“Regulation S”), the
Company desires to issue and sell to each Purchaser, and each Purchaser,
severally and not jointly, desires to purchase from the Company, securities of
the Company as more fully described in this Agreement; and
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 each Purchaser agree as follows:
ARTICLE
1
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, the following terms
have the meanings set forth in this Section 1.1:
“Affiliate” means a
Person that, directly or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person
specified.
“Aggregate Purchase
Price” shall have the meaning ascribed to such term in Section
2.1.
“Agreement” shall have
the meaning ascribed to such term in the preamble.
“Board of Directors”
means the board of directors of the Company.
“Business Day” means
any day except Saturday, Sunday, any day which is a federal legal holiday in the
United States or any day on which banking institutions in the State of New York
are authorized or required by law or other governmental action to
close.
“Closing” shall have
the meaning ascribed to such term in Section 2.1.
“Closing Date” means
the date on which the Closing occurs.
“Commission” means the
United States Securities and Exchange Commission.
“Common Stock” shall
have the meaning ascribed to such term in Section 2.1.
ARTICLE
2
PURCHASE
AND SALE
2.1 Closing. Upon the
terms and subject to the conditions set forth herein, the Company agrees to
sell, and the Purchasers agree, severally and not jointly, to purchase the
number of shares of common stock, par value 0.001 per share, of the Company (the
“Common Stock”)
set forth opposite each Purchaser’s name on the Purchaser signature page
attached hereto at a price of $1.50 per share, for up to an aggregate of
1,866,666 shares of Common Stock with an aggregate Purchase Price of up to
$2,800,000 (the “Aggregate Purchase
Price”). The shares of Common Stock being offered and sold pursuant to
this Agreement are sometimes referred to as the “Securities”. The
closing shall take place within five business days upon the signing of this
Agreement, or this Agreement will automatically expire unless agreed otherwise
by both the Company and the Purchasers (the “Closing”).
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and
Warranties of the Company. Except as set forth in the Disclosure
Schedules, the Company hereby makes the following representations and warranties
as of the date hereof and as of the Closing Date to the Purchaser as
follows:
(a) Authorization;
Enforcement. The Company has the requisite corporate power and authority
to enter into and to consummate the transactions contemplated by the Agreement
and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of the Agreement by the Company and the consummation by
it of the transactions contemplated hereby and thereby have been duly authorized
by all necessary action on the part of the Company and no further action is
required by the Company, its Board of Directors or its stockholders in
connection therewith other than in connection with the Required Approvals. The
Agreement to which it is a party has been (or upon delivery will have been) duly
executed by the Company and, when delivered in accordance with the terms hereof
and thereof, will constitute the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except:
(i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(b) Issuance of the
Securities. The Securities are duly authorized and, when issued and paid
for in accordance with the applicable Agreement, will be duly and validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company other than restrictions on transfer provided for in the
Agreement.
(c) SEC Reports; Financial
Statements. The Company has filed all reports, schedules,
forms, statements and other documents required to be filed by the Company under
the Securities Act and the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, for two years preceding the date hereof (or such shorter period
as the Company was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents incorporated
by reference therein, being collectively referred to herein as the “SEC
Reports”).
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3.2 Representations and
Warranties of the Purchasers. The Purchaser, hereby represents and
warrants as of the date hereof and as of the Closing Date to the Company as
follows:
(a) Organization and
Authority. The Purchaser is an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
with full right, corporate or partnership power and authority to enter into and
to consummate the transaction contemplated by this Agreement and otherwise to
carry out its obligations hereunder, or, if the Purchaser is an individual,
he/she has full capacity and with full and independent legal status and legal
capacity to execute, deliver and perform this Agreement, and may act
independently as a subject of actions. The execution and delivery of this
Agreement and performance by the Purchaser of the transactions contemplated by
this Agreement have been duly authorized by all necessary action on the part of
the Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and binding obligation of the Purchaser, enforceable against it in
accordance with its terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
(b) Corporate
Information. The Company has made available to the Purchaser all
documents and information relating to an investment in the Company as the
Purchaser has requested, and the Purchaser has had the opportunity to ask
questions of, and receive answers from, the Company relating to its purchase and
acquisition of the Securities.
(c) Non Reliance by the
Purchaser. The Purchaser has conducted its own due diligence in making a
decision to purchase and acquire the Securities. In evaluating the suitability
of an investment in the Company, the Purchaser has not relied upon any
representations or other information (whether oral or written) from the Company
or any other person or entity acting as an agent for the Company in connection
with the purchase of the Securities other than the representations of the
Company provided in this Agreement. With respect to tax and other
economic considerations involved in this investment, the Purchaser has not
relied on the Company or any other person or entity acting as an agent for the
Company.
(d) Correctness of
Representations and Information. The Purchaser represents that the
representations and warranties of this Section 3.2 are true and correct as of
the date hereof and, unless the Purchaser otherwise notifies the Company prior
to the Closing Date, shall be true and correct as of the Closing
Date.
(e) Regulation S
Representation. The Purchaser represents that it as an entity is not a
U.S. Person, as such term is defined in Rule 902(k) of Regulation S, in an
offshore transaction, as such term is defined in Rule 902(h) of Regulation S,
or, if the Purchaser is an individual, he/she is a non-U.S. citizen and has
permanent residence outside of the United States. The Securities are
being offered and sold in reliance on an exemption from registration under the
Securities Act pursuant to Regulation S.
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ARTICLE
4
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. As a condition of transfer, any such transferee shall agree in
writing to be bound by the terms of this Agreement and shall have the rights of
a Purchaser under this Agreement. The Company may require the
transferor to provide to the Company an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration under the Securities Act.
(b) The
Purchasers agree to the imprinting, so long as is required by this Section 4.1,
of a legend on any of the Securities in the following form:
THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B) PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AND, IN THE CASE OF (B) ABOVE, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO CHINA GREEN MATERIAL TECHNOLOGIES, INC. THAT SUCH REGISTRATION
IS NOT REQUIRED HAS BEEN DELIVERED. THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
(c) Each
Purchaser, severally and not jointly with the other Purchasers, agrees that such
Purchaser will only sell any Securities pursuant to either the registration
requirements of the Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom, and that if Securities are sold
pursuant to a Registration Statement, they will be sold in compliance with the
plan of distribution set forth therein, and acknowledges that the removal of the
restrictive legend from certificates representing the Securities as set forth in
this Section 4.1 is predicated upon the Company’s reliance upon this
understanding.
4.2 Furnishing of
Information. Until such time that the Purchaser does not own any
Securities, the Company covenants to maintain the registration of the Securities
under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof pursuant to
the Exchange Act. As long as any Purchaser owns Securities, if the Company is
not required to file reports pursuant to the Exchange Act, it will prepare and
furnish to the Purchasers and make publicly available in accordance with Rule
144(c) such information as is required for the Purchasers to sell the Securities
under Rule 144. The Company further covenants that it will take such further
action as any holder of Securities may reasonably request to satisfy the
provisions of Rule 144 applicable to the issuer of securities relating to
transactions for the sale of securities pursuant to Rule 144.
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ARTICLE
5
MISCELLANEOUS
5.1 Termination. This
Agreement may be terminated: (i) upon the mutual agreement of the Company and
the Required Holders.
5.2 Entire Agreement. The
Transaction Documents, together with the exhibits and schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.3 Incorporation of Exhibits
and Schedules. All schedules and exhibits hereto which are
referred to herein are hereby made a part hereof and incorporated herein by such
reference. Each schedule to this Agreement shall be deemed to include
and incorporate all disclosures made on the other schedules to this
Agreement. The specification of any dollar amount in the
representations and warranties contained in this Agreement or the inclusion of
any specific item in the Schedules is not intended to imply that such amounts
(or higher or lower amounts) are or are not material, and no party shall use the
fact of the setting of such amounts or the fact of the inclusion of any such
item in the schedules in any dispute or controversy between the parties as to
whether any obligation, item, or matter not described herein or included in a
Schedule is or is not material for purposes of this Agreement. The
Company may from time to time notify the Purchasers of any changes or additions
to any of the Company’s Schedules to this Agreement as a result of unforeseen
events or circumstances arising after the date of this Agreement, and the
Purchasers may from time to time notify the Company of any changes or additions
to any of the Purchaser’s Schedules to this Agreement as a result of unforeseen
events or circumstances arising after the date of this Agreement, by the
delivery of amendments or supplements thereto.
5.4 Notices. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of: (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 5:30 p.m. (eastern standard time)
on a Trading Day, (b) the next Trading Day after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile number
set forth on the signature pages attached hereto on a day that is not a Trading
Day or later than 5:30 p.m. (eastern standard time) on any Trading Day, (c) the
second Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to
whom such notice is required to be given. The Placement Agent shall be entitled
to receive all notices related to the Transaction Documents and the Offering.
The address for such notices and communications shall be as set forth on the
signature pages attached hereto other than for the Placement Agent, which
address is 000 X. XxXxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attn: Xxx Xxxxxxxxxxxxxx, Facsimile: (000)
000-0000.
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5.5 Amendments; Waivers.
No provision of this Agreement may be waived, modified, supplemented or amended
except in a written instrument signed, in the case of an amendment, by the
Company and the Required Holders or, in the case of a waiver, by the party
against whom enforcement of any such waived provision is sought. 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 any party to exercise any
right hereunder in any manner impair the exercise of any such
right.
5.6 Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
5.7 Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties and their successors and permitted assigns. The Company may not
assign this Agreement or any rights or obligations hereunder without the prior
written consent of each Purchaser (other than by merger). Any Purchaser may
assign any or all of its rights under this Agreement to any Person to whom such
Purchaser assigns or transfers any Securities or its rights to acquire the
Securities, including, but not limited to the registration rights set forth in
Section 4.18, provided that such transferee agrees in writing to be bound, with
respect to the transferred Securities, by the provisions of the Transaction
Documents that apply to the Purchasers.
5.8 Governing Law; Venue; Waiver
Of Jury Trail. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. THE COMPANY AND
PURCHASERS HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE
AND FEDERAL COURTS SITTING IN THE CITY OF LAS VEGAS, NEVADA FOR THE ADJUDICATION
OF ANY DISPUTE BROUGHT BY THE COMPANY OR ANY PURCHASER HEREUNDER, IN CONNECTION
HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN
(INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS),
AND HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE COMPANY OR ANY PURCHASER, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT,
ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR
CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY
AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT
SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY
ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
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5.9 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. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
5.10 Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
5.11 Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action
or the expiration of any right required or granted herein shall not be a
Business Day, then such action may be taken or such right may be exercised on
the next succeeding Business Day.
5.12 Construction.
Whenever required by the context of this Agreement, the singular shall include
the plural and the plural shall include the singular. The parties agree that
each of them and/or their respective counsel has reviewed and had an opportunity
to revise the Agreement to which they are a party and, therefore, the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the
Agreement to which they are a party or any amendments hereto.
5.13 WAIVER OF JURY TRIAL.
IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE
GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature
Pages Follow)
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IN WITNESS
WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
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Address for Notice:
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27F(Changqing
Building)
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000
Xxxxxxxxx Xxxx Harbin City
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By:
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/s/ Su Zhonghao |
P.R.
China 150040
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Name:
Su Zhonghao
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Fax
No. [____________________]
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Title:
Chief Executive Officer
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With
a copy to (which shall not constitute notice):
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASERS FOLLOW]
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IN WITNESS
WHEREOF, the undersigned have caused this Securities Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
Name of
Purchaser:
(Exact
name as it should appear in the records of the Company and any registration
statement in which Purchaser is named “selling stockholder”)
| Signature of Authorized Signatory of Purchaser: | /s/ Signed |
| Name and Title of Authorized Signatory: | |
| Title of Authorized Signatory: | |
| Email Address of Authorized Signatory: | |
| Fax Number of Authorized Signatory: |
Address
for Notice of Purchaser:
| Purchase Price ($1.50 per share): | |
| Common Stock Shares: |
Social
Security or Tax ID Number (or foreign equivalent):
(Purchaser
may alternatively provide a copy of a validly issued identification card or
passport of the Authorized Signatory)
ID number
of Authorized Signatory:
