Exhibit 10.7
FUNDING AGREEMENT
THIS FUNDING AGREEMENT, made this 14th day of August, 2006, by and between:
FIRST BRIDGE CAPITAL, INC., a Texas corporation with its principal office
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ together with its associates
(hereinafter jointly and severally referred to, as the context may require, as
"FBC")
AND
TEXXON, INC., an Oklahoma corporation having its principal office located at
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WITNESSETH THAT:
WHEREAS, subject to the terms and conditions set forth in this Funding
Agreement, FBC is willing to make serial investments, up to One Million Dollars
($1,000,000), into the Convertible Preferred Stock of TEXXON and TEXXON is
willing to issue its Convertible Preferred Stock upon the terms and conditions
of this Funding Agreement;
WHEREAS, the parties have negotiated, reached certain understandings, and desire
a document to formalize and evidence their understandings;
NOW, THEREFORE, intending to be legally bound, and in consideration of the
mutual promises and covenants contained herein, the parties have agreed, and do
hereby agree, as follows:
1. The purpose of this Funding Agreement is to provide a mechanism for the
funding of TEXXON by FBC in serial installments, upon the requisition of funds
by TEXXON. This Funding Agreement contains the entire understanding of the
parties with respect to the subject matter. Prior to the date of this Funding
Agreement, during negotiations, FBC and/or its associates have made various
interim advances to TEXXON under the oral agreement that such advances would
become a part of this Funding Agreement. Upon the execution of this Funding
Agreement, such advances shall be deemed to be advances hereunder, for which
shares of the Convertible Preferred Stock shall be issued, and the prior oral
agreement (and all other prior agreements and understandings, oral or written,
with respect to the contemplated transactions) shall be merged herein and
integrated herein and of no further effect. The advances so included are:
Date Amount
---- ------
3/15/06 $ 80,000
5/15/06 50,000
5/15/06 50,000
6/30/06 30,000
7/28/06 25,000
7/31/06 25,000
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Total: $ 260,000
2. FBC represents and warrants that it and its associates who may participate in
the funding are "accredited investors" as that term is defined in Rule 501(a) of
Regulation D promulgated by the U.S. Securities and Exchange Commission under
the Securities Act of 1933, as amended. FBC and its associates shall be deemed
to make a continuing representation during the term of this Funding Agreement,
at the time of each installment investment, that it and they remain "accredited
investors".
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3. FBC represents and warrants that it and its associates are acquiring TEXXON's
Convertible Preferred Stock for their own accounts, solely for investment
purposes and not with a view to or for distributing or reselling such
Convertible Preferred Stock or any portion thereof, without prejudice, however,
to the investor's right at all times to sell or otherwise dispose of all or any
part of its Convertible Preferred Stock in compliance with applicable federal
and state securities laws. Subject to the foregoing, neither FBC nor any of its
associates shall be deemed a representation or warranty by such investor to hold
the Convertible Preferred Stock for any period of time. FBC authorizes TEXXON to
place a restrictive legend on the face of the shares of Convertible Preferred
Stock to be issued to it, and to issue "Stop Transfer" instructions to the
transfer agent of the preferred stock.
4. Subject to the terms and conditions of this Funding Agreement, FBC shall
advance sums as provided herein up to a total of One Million Dollars
($1,000,000). Giving credit for the $260,000 advanced prior to this Funding
Agreement, the balance available for draw down hereunder by TEXXON is $740,000.
5. Subject to the terms and conditions of this Funding Agreement, TEXXON shall
issue its Convertible Preferred Stock to FBC. FBC acknowledges that TEXXON is
independently conducting a private placement of its Convertible Preferred Stock,
acknowledges receipt of the Private Placement Offering Memorandum and related
offering documents, and agrees that the Convertible Preferred Stock to be issued
shall be as described in the Offering Memorandum.
6. To obtain funds under this Funding Agreement, TEXXON shall provide FBC with a
Requisition of Funds, in the form attached hereto as Exhibit 1. The sum
requisitioned in any such Requisition of Funds shall not be more than Fifty
Thousand Dollars in any seven (7) day period. The seven (7) day period shall be
a rolling seven (7) days, calculated from the date on which the immediately
prior Requisition of Funds was received by FBC. In addition to such "$50,000 in
7 days" limitation, the sums requisitioned in any calendar month shall not
exceed Two Hundred Thousand Dollars ($200,000).
7. Upon receipt of a Requisition of Funds, FBC shall fund the Requisition within
five (5) business days. A business day is any day except Saturday, Sunday, any
day which shall be a federal or State of Texas legal holiday and any day on
which the banking institutions in the State of Texas are authorized or required
by law or other governmental action to close. Any day not a business day shall
not be counted in determining the five (5) days, regardless if it is not the
last day.
8. Within three (3) business days after receipt of the Requisition, TEXXON shall
issue to FBC and/or its associates from whom the funds were received that number
of shares of Convertible Preferred Stock purchasable under the terms of the
Private Placement Offering Memorandum for the amount invested. Each associate,
at the time of his/her/its first investment, shall provide TEXXON with issuance
instructions and such other documents as TEXXON shall reasonably require for the
issuance.
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9. As consideration for FBC's entering into this Funding Agreement, TEXXON shall
issue to FBC Common Stock Purchase Warrants, dated as of the date of this
Funding Agreement, for the purchase of one million (1,000,000) shares of
TEXXON's Common Stock. The warrants shall have a term of five (5) years from the
date of execution of this Funding Agreement, shall contain a cashless exercise
provision, shall be exercisable in whole or in part from time to time during
their term, and shall be assignable, in whole or in part, subject to securities
law restrictions. The per share exercise price shall be determined at the time
of exercise by calculating the average closing sale prices of TEXXON's Common
Stock for a period of twenty (20) consecutive trading days ending on the day of
exercise and multiplying such average by eighty-five percent (85%).
10. FBC represents to TEXXON that:
(a) Neither it, nor its associates, have purchased, or are agreeing to
purchase, the shares of Convertible Preferred Stock as a result of a general
solicitation or any advertisement, article, notice or other communication
regarding the shares published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or other general
solicitation or general advertisement.
(b) That it and its associates acknowledge that it and they have
reviewed the disclosure materials, the Private Placement Offering Memorandum and
related documents, and has been afforded the opportunity to ask such questions
as it has deemed necessary of, and to receive answers from, representatives of
TEXXON concerning the terms and conditions of the offering and the merits and
risks of investing in the shares;
(c) That it and its associates acknowledge that it and they have been
afforded access to public information about TEXXON and its financial condition,
results of operations, business, properties, management and prospects sufficient
for it and them to evaluate it and their investment; and
(d) That it and its associates acknowledge that it and they have been
given the opportunity to obtain information necessary to make an informed
investment decision with respect to the investment.
11. FBC and each of its associates, either alone or with its or his/her/its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the investment in the shares of Convertible Preferred Stock, and has so
evaluated the merits and risks of such investment. FBC and each associate is
able to bear the economic risk of an investment in the shares of Convertible
Preferred Stock and, at the present time, is able to afford a complete loss of
such investment.
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12. FBC and each of its associates has independently evaluated the merits of
his/her/its decision to purchase shares of Texxon's Convertible Preferred Stock
pursuant to this Funding Agreement. FBC and each associate confirms that it has
only relied on the advice of his/her/its own business and/or legal counsel and
not on the advice of any other investor's business and/or legal counsel in
making such decision.
13. FBC and each of its associates represents that he/she it has not directly or
indirectly, nor has any person acting on behalf of him/her/it pursuant to any
understanding with him/her/it, engaged in any short sales involving TEXXON's
Common Stock since the time that he/she/it was first contacted by TEXXON.
Further, FBC and each such associate covenants that neither he/she/it nor any
person acting on his/her/its behalf or pursuant to any understanding with
him/her/it engage in any short sale of the Common Stock of TEXXON prior to the
time that the transactions contemplated by this Funding Agreement are publicly
disclosed.
14. Any and all notices or other communications 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 specified below prior to 5:00
p.m. Central Time (Houston, Texas) on a business day (as defined in Paragraph 7
above);
(b) the next business day after the date of transmission, if such
notice or communication is delivered via facsimile to the facsimile number
specified below later than 5:00 p.m. Central Time (Houston, Texas) on a business
day (as defined in Paragraph 7 above);
(c) the business day following the date of transmittal, if sent by U.S.
nationally recognized overnight courier service; or
(d) the actual receipt by the party to whom such notice is required to
be given or to whom such notice or communication is made.
The addresses for such notices and communications shall be as follows:
If to TEXXON:
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Texxon Group, Inc.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to FBC: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
First Bridge Capital, Inc
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With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
Fox Law Offices, P.A.
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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15. No provision of this Funding Agreement may be waived or amended (including
this specific provision) except in a written instrument signed by TEXXON and FBC
and a majority in interest of its associates. No waiver of any default with
respect to any provision, condition or requirement of this Funding 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 or
power hereunder in any manner impair the exercise of any such right.
16. The language used in the Funding Agreement shall be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
construction shall be applied against any party. This Funding Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden of
proof favoring or disfavoring any party by virtue of the authorship of any
provisions of this Funding Agreement shall be applied.
17. TEXXON may not assign/delegate this Funding Agreement or any rights or
obligations hereunder without the prior written consent of FBC. FBC may not
assign/delegate or any rights or obligations hereunder without the prior written
consent of TEXXON, except that FBC may extend the terms and conditions of this
Funding Agreement to such of its associates as it shall determine in its own
discretion, subject only to such associates meeting the requirements set forth
herein relating to their status as an investor.
18. This Funding 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 or entity.
19. This Funding Agreement shall be governed by, and interpreted and construed
in accordance with, the internal laws of the State of Texas (without regard to
its conflicts of law principles). Venue for the adjudication of any claim or
dispute arising out of this Agreement or any of the other ancillary documents
shall be proper only in the state or federal courts of the State of Texas, and
all parties to this Agreement and its ancillary documents hereby consent to such
venue.
20. To the extent any provision herein violates any applicable law, that
provision shall be considered void and the balance of this Funding Agreement
shall remain unchanged and in full force and effect. The parties shall attempt
to agree upon a valid and enforceable provision that is a reasonable substitute
for any provision so severed and, upon so agreeing, shall incorporate such
provision into this Funding Agreement.
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21. This Funding Agreement is being executed in two or more counterparts, all of
which 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.
A facsimile 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 signature page were an original thereof.
TEXXON, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
FIRST BRIDGE CAPITAL, INC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President