Exhibit 10.46
FINANCING AGREEMENT
This FINANCING AGREEMENT ("Agreement") is made and entered into on the
date set forth on the signature page hereof, by and between HFG International,
Limited, a Hong Kong corporation ("HFG"), and Eastern Nano-Materials Holdings
Limited, a corporation organized under the laws of the Republic of Singapore
(the "Company).
WHEREAS, as provided for in the FAA (as hereinafter defined), the
Company intends to complete, with the assistance of HFG, a going public
transaction (the "Going Public Transaction") with a U.S. domiciled public
company ("Pubco"). In contemplation thereof, the Company desires to enter into
this Agreement for the purpose of setting forth certain basic parameters
pursuant to which HFG will assist the Company and, if appropriate, Pubco with a
capital raising transaction (a "Financing"); and
WHEREAS, HFG is willing to execute this Agreement for the purpose of
evidencing its desire to assist the Company and Pubco with a Financing. However,
it is expressly understood by the Company that HFG shall be under no obligation
to help either the Company or Pubco complete a Financing until such time as HFG
and the Company execute that certain Financial Advisory Agreement (the "FAA"),
the form of which is attached hereto as Exhibit "A".
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and accepted, the parties hereby
agree to enter into this Agreement under the following terms and conditions:
1. Financing. It is expected that a Financing will be accomplished
under terms similar to the following:
Issuer: Pubco or the Company, as restructured
Issue: Common Stock
Offering Amount: $15million USD (the "Expected Offering" or "Minimum
Offering") of gross offering proceeds.
Closing Date: Simultaneous with the closing of the Going Public
Transaction.
Valuation The common stock offered will be priced at a
post-money valuation of at least 10-12 times the 12
month US GAAP trailing net income for the third
quarter of calendar 2005.
Registration: Immediately upon the closing of the Going Public
Transaction, the Company will ensure that Pubco files
a registration statement with the U.S. Securities and
Exchange Commission for the purpose of registering
the purchased shares for resale. Funds will not be
released from escrow until the registration statement
is filed.
Special Provisions: The Company will agree in the subscription documents
evidencing the Financing that in the event the
Minimum Offering is sold at a valuation of at least
10 times the 12 month US GAAP trailing net income for
the third quarter of calendar 2005, the Company will
complete both the Financing and the Going Public
Transaction. However, if the Minimum Offering is not
raised, the Company shall be under no obligation to
complete the Going Public Transaction.
2. Consideration. Subject to applicable law, any parties who
facilitated the Financing ("Facilitators") will be paid an amount equal to six
percent (6%) of the gross proceeds delivered upon consummation of the Financing
for which said party or parties is responsible.
3. Conditions. The Company acknowledges that the closing of a Financing
will be contingent upon both the achievement of the Minimum Offering and the
consummation of the Going Public Transaction in accordance with the FAA.
4. Exclusivity and Future Financings. HFG shall have the exclusive
right for a period of four months (the "Exclusivity Period") from the date of
this Agreement to effect the Financing.
In addition, the Company agrees that in the event that this Agreement
is terminated for any reason, other than upon the completion of a Financing, it
shall not enter into discussions or negotiations with or close a financing,
regardless of terms, with any party introduced by HFG as a possible investor or
placement agent for the Financing, each of which shall be listed on Schedule "A"
to this Agreement at the time of introduction, for a period of two years
following the date of termination of this Agreement.
5. Amendment and Modification. This Agreement may be amended or
modified by the written consent of the parties hereto.
6. Captions and Headings. The paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit or add to the meaning of any provision of this Agreement.
7. Governing Law. This Agreement shall be governed by the laws of the
Peoples Republic of China and any dispute arising hereunder shall be submitted
for binding arbitration to the China Foreign Trade Commission Arbitration
Committee in Beijing
It is understood that this Agreement will be prepared and executed in
both the English and Chinese languages, with both versions having legal
efficacy. If a dispute arises as to the interpretation of a particular provision
of this Agreement because of differences between the Chinese and English
languages, the dispute shall be resolved in accordance with the provisions of
the Chinese version.
8. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Execution and delivery of
this Agreement by exchange of facsimile copies bearing facsimile signature of a
party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable
original documents.
9. Notices and Waivers. Any notice or waiver required or permitted to
be given by the parties hereto shall be in writing and shall be deemed to have
been given, when delivered, three business days after being mailed by certified
or registered mail, faxed during regular business hours of the recipient and
there is confirmation of receipt, or sent by prepaid full rate telegram to the
following addresses:
To HFG:
Xxxxxxx X. Xxxxxx, President
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
To the Company:
________________________
________________________
________________________
________________________
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the last date written next to the signatures below.
HFG INTERNATIONAL, LIMITED
/s/ Xxxxxxx X. Xxxxxx Dated:
--------------------------------------- ---------------------------
BY: Xxxxxxx X. Xxxxxx
ITS: President
Eastern Nano-Materials Holdings Limited
/s/ Xxxxxxxx Xxxx Dated:
--------------------------------------- ---------------------------
BY: Xxxxxxxx Xxxx
ITS: CEO
ASSIGNMENT AGREEMENT
THIS ASSIGNEMENT AGREEMENT ("Agreement") is made and entered into on
this the 29th day of March, 2006, by and among between HFG International,
Limited, a Hong Kong corporation ("HFG"), Eastern Nano-Materials Holdings
Limited, a corporation organized under the laws of the Republic of Singapore
(the "Company) and Xxxxx Xxxxx Limited, a company organized under the laws of
The British Virgin Islands ("Xxxxx Xxxxx").
W I T N E S S E T H:
WHEREAS, HFG and the Company have entered into that certain Financial
Advisory Agreement (the "FAA") and that certain Financing Agreement (the
"Financing Agreement" and collectively with the FAA, the "Assigned Agreements")
each being dated as of September 26, 2005;
WHEREAS, the Company desires to assign its rights and obligations under
the Assigned Agreements to Xxxxx Xxxxx and Xxxxx Xxxxx is willing to assume all
rights and obligations of the Company under the Assigned Agreements;
WHEREAS, HFG is willing to consent to the assignment of the Assigned
Agreements by the Company to Xxxxx Xxxxx;
WHEREAS, the parties hereto also desire to amend the Financing
Agreement as provided for herein; and
WHEREAS, except as otherwise modified by this Agreement, the Assigned
Agreements shall remain in full force and effect, with the obligations of the
parties thereto remaining duly enforceable.
NOW, THEREFORE, for and in consideration of the covenants set forth
herein and the mutual benefits to be gained by the parties hereto, and other
good and valuable consideration, the receipt and adequacy of which are now and
forever acknowledged and confessed, the parties hereto hereby agree and intend
to be legally bound as follows:
1. Assignment. Upon the execution of this Agreement by the parties
hereto, all rights and obligations of the Company under the Assigned Agreements
shall be assigned to and assumed by Xxxxx Xxxxx, with HFG hereby consenting to
this assignment.
2. Amendment and Restatement. Section 4. of the Financing Agreement is
amended and restated in its entirety as follows:
"HFG shall have the exclusive right (the "Exclusivity Period") from the
date of this Agreement to March 31, 2006 to effect the Financing.
In addition, Xxxxx Xxxxx agrees that in the event that this Agreement
is terminated for any reason, other than upon the completion of a
Financing, it shall not enter into discussions or negotiations with or
close a financing, regardless of terms, with any party introduced by
HFG as a possible investor or placement agent for the Financing, each
of which shall be listed on Schedule "A" to this Agreement at the time
of introduction, for a period of two years following the date of
termination of this Agreement."
3. Governing Law. This Agreement shall be governed by the laws of the
Peoples Republic of China and any dispute arising hereunder shall be submitted
for binding arbitration to the China Foreign Trade Commission Arbitration
Committee in Beijing.
It is understood that this Agreement will be prepared and executed in
both the English and Chinese languages, with both versions having legal
efficacy. If a dispute arises as to the interpretation of a particular provision
of this Agreement because of differences between the Chinese and English
languages, the dispute shall be resolved in accordance with the provisions of
the Chinese version.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
HFG:
HFG International, Limited
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx,
Its: President
The Company:
Eastern Nano-Materials Holdings Limited
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Xxxxxxxx Xxxx
Its: CEO
Xxxxx Xxxxx:
Xxxxx Xxxxx Limited
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Xxxxxxxx Xxxx
Its: CEO
