Attached files
| file | filename |
|---|---|
| 8-K - 6D Global Technologies, Inc | v205629_8k.htm |
| EX-4.6 - 6D Global Technologies, Inc | v205629_ex4-6.htm |
| EX-4.5 - 6D Global Technologies, Inc | v205629_ex4-5.htm |
| EX-10.15 - 6D Global Technologies, Inc | v205629_ex10-15.htm |
REGULATION
S TEMPORARY GLOBAL NOTE DUE 2012
THIS NOTE
IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, THAT IS EXCHANGEABLE FOR A PERMANENT GLOBAL
NOTE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
THIS NOTE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES
ACT”), ANY STATE SECURITIES LAWS IN THE UNITED STATES OR THE SECURITIES
LAWS OF ANY OTHER JURISDICTION. THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS
NOTE, REPRESENTS THAT IT HAS OBTAINED THIS NOTE IN A TRANSACTION IN COMPLIANCE
WITH THE SECURITIES ACT, ALL OTHER APPLICABLE LAWS OF THE UNITED STATES OR ANY
OTHER JURISDICTION. THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS NOTE, FURTHER
REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT WILL NOT REOFFER, RESELL, PLEDGE OR
OTHERWISE TRANSFER THIS PURCHASE MONEY NOTE (OR ANY INTEREST HEREIN) EXCEPT IN
COMPLIANCE WITH THE SECURITIES ACT, AND ALL OTHER APPLICABLE LAWS OF ANY
JURISDICTION AND ONLY TO A TRANSFEREE THAT IS NOT A U.S. PERSON (AS DEFINED IN
REGULATION S OF THE SECURITIES ACT) AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION (AS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN COMPLIANCE
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT. PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE AND IS CURRENT OR PURSUANT
TO A SPECIFIC EXEMPTION FROM REGISTRATION THAT IS AVAILABLE UNDER THE SECURITIES
ACT.
THIS NOTE
IS NOT TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS DESCRIBED HEREIN.
ANY SALE OR TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND
EFFECT, WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO
THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER
OR ANY INTERMEDIARY. THIS NOTE IS NOT EXCHANGEABLE FOR DEFINITIVE SECURITIES
UNTIL THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD SPECIFIED IN
RULE 903(b)(3) AND UNTIL CERTIFICATION OF BENEFICIAL OWNERSHIP OF THE SECURITIES
BY A NON-US PERSON OR A U.S. PERSON WHO PURCHASED SECURITIES IN A TRANSACTION
THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. EACH TRANSFEROR OF
THIS NOTE AGREES TO PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS SET FORTH HEREIN
TO THE TRANSFEREE.
THE
FAILURE TO PROVIDE THE ISSUER, WITH THE APPLICABLE U.S. FEDERAL INCOME TAX
CERTIFICATIONS (GENERALLY, AN INTERNAL REVENUE SERVICE FORM W-8 (OR SUCCESSOR
APPLICABLE FORM) IN THE CASE OF A PERSON THAT IS NOT A “UNITED STATES PERSON”
WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE CODE) MAY RESULT IN THE
IMPOSITION OF U.S. FEDERAL BACK-UP WITHHOLDING UPON PAYMENTS TO THE HOLDER IN
RESPECT OF THIS NOTE.
CLEANTECH
INNOVATIONS, INC.
Liaoning
Creative Bellows Co., Ltd.
Liaoning
Creative Wind Power Equipment Co., Ltd.
10%
Promissory Note
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Issuance
Date: December 13, 2010
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New
York, NY
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Principal
Amount: U.S. $10,000,000.00
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For value
received, CleanTech Innovations, Inc., a Nevada corporation (the “Company”),
Liaoning Creative Bellows Co., Ltd. and Liaoning Creative Wind Power Equipment
Co., Ltd., each such subsidiary organized under the laws of the People’s
Republic of China., a company organized under the Peoples Republic of China
(collectively, jointly and severally, the “Maker”), hereby promises to pay to
the order of NYGG (Asia) Ltd., a British Virgin Islands company with an address
of 12th Floor
Ruttonjee House, 11 Duddell Street, Central, Hong Kong (together with its
successors, representatives, and permitted assigns, and designees the “Holder”),
in accordance with the terms hereinafter provided and subject to the terms and
conditions of the Loan Agreement by and between the Maker and the Holder, dated
the even date hereof (the “Loan Agreement”), the Principal Amount of TEN MILLION
U.S. DOLLARS AND ZERO CENTS (U.S.$10,000,000.00), together with interest
thereon.
All
payments under or pursuant to this Note shall be made in United States Dollars
(“USD”) or, at the option of the Holder, in Renminbi (“RMB”) at an exchange rate
of RMB 6.90 to USD 1.00 in immediately available funds to the Holder or the
designee of the Holder at the address of the Holder first set forth above or at
such other place as the Holder may designate from time to time in writing to the
Maker or by wire transfer of funds in USD or RMB, at the option of the Holder,
to the Holder’s or the Holder’s designee’s account, as requested by the Holder
in writing. The outstanding principal balance of this Note, together with all
accrued and unpaid interest, shall be due and payable in full on March 1, 2012
(the “Maturity Date”), or at such earlier time as provided herein.
ARTICLE
I
PAYMENT
Section
1.1 Interest. Beginning on the
date of this Note (the “Issuance Date”), the outstanding principal balance of
this Note shall bear interest at a rate per annum equal to ten percent (10%),
payable in USD or RMB at an exchange rate of RMB 6.90 to USD 1.00 at the option
of the Holder, and payable quarterly in advance commencing on the date hereof
and thereafter every three (3) months from the date hereof (the “Interest
Payment Date”) on the following dates: March 13, 2011, June 13, 2011, September
13, 2011, December 13, 2011, and the final payment due on the Maturity Date.
Interest shall be computed on the basis of a 365-day year and shall accrue daily
commencing on the Issuance Date. Furthermore, upon the occurrence of an Event of
Default (as defined in Section 2.1 hereof), the Maker will pay interest to the
Holder, payable on demand, on the outstanding principal balance of Note from the
date of the Event of Default until such Event of Default is cured at the rate
per annum of the lesser of twenty-four percent (24%) accrued daily and the
maximum applicable legal rate per annum.
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Section
1.2 Payment of Principal;
Prepayment. The Principal Amount hereof shall be paid in full on the earliest of
(i) the Maturity Date, (ii) the due date of any Mandatory Prepayment (as defined
below) (such prepayment pursuant to this clause (ii) to be in part if sufficient
funds are not available for application pursuant to Section 1.5 hereof) or (iii)
upon acceleration of this Note in accordance with the terms hereof. Any amount
of principal repaid hereunder may not be re-borrowed. The Maker may prepay all
or, subject to Holder preapproval, any portion of the Principal Amount of this
Note without premium or penalty; provided, however, any
quarterly prepayment of interest shall not be prorated or refunded to Maker if
the Principal Amount is paid in full after an interest payment is
made.
Section
1.3 Payment on Non-Business Days.
Whenever any payment to be made shall be due on a Saturday, Sunday or a holiday
recognized by the branch offices of JPMorgan Chase & Co. located in New York
City, NY, such payment may be due on the next succeeding day (a “Business
Day”).
Section
1.4 Use of Proceeds. The Maker
shall use the proceeds of this Note only for general working capital and
pre-payment of all outstanding principal and interest on the existing $1,500,000
loan, dated October 14, 2010, from Strong Growth Capital, Ltd.
Section
1.5 Mandatory Prepayment.
Notwithstanding anything to the contrary contained herein, upon the earliest to
occur of (i) Maker’s receipt of any financing from any source in excess of
$10,000,000 in one or a series of transactions, (ii) any Change of Control of
the Maker, (iii) any material negative change of the Maker’s business and
financial position, as reasonably determined by the Holder, (iv) any change to
the shareholdings of any person under a 3-year share lockup agreement entered by
certain insiders of the Maker or (v) departure of any senior members of
management of the Maker that will negatively impact the business of the Maker,
as reasonably determined by the Holder, in each case, the entire outstanding
Principal Amount of this Note, and all interest due thereon shall become
immediately payable upon demand of the Holder (“Mandatory
Prepayment”).
ARTICLE
II
EVENTS OF
DEFAULT; REMEDIES
Section
2.1 Events of Default. Unless
waived in writing by the Holder, the occurrence of any of the following events
shall be an “Event of Default” under this Note:
(a) any
default in the payment of (1) the Principal Amount hereunder when due, or (2)
interest on this Note if five (5) Business Days after the date when the same
shall become due and payable (whether on the Maturity Date, Interest Payment
Date, the date of any mandatory prepayment, by acceleration or otherwise);
or
(b) the
Maker shall fail to observe or perform any other covenant or agreement contained
in this Note or the Loan Agreement; or
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(c) any
material representation or warranty made by the Maker herein or in the Loan
Agreement shall prove to have been false or incorrect or inaccurate or breached
in a material respect on the date as of which made; or
(d) the
Maker shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its property or assets, (ii) make a general assignment
for the benefit of its creditors, (iii) commence a voluntary case under the
United States Bankruptcy Code (as now or hereafter in effect) or under the
comparable laws of any jurisdiction (foreign or domestic), (iv) file a petition
seeking to take advantage of any bankruptcy, insolvency, moratorium,
reorganization or other similar law affecting the enforcement of creditors’
rights generally, (v) acquiesce in writing to any petition filed against it in
an involuntary case under the United States Bankruptcy Code (as now or hereafter
in effect) or under the comparable laws of any jurisdiction (foreign or
domestic), (vi) issue a notice of bankruptcy or winding down of its operations
or issue a press release regarding same or (vii) take any action under the laws
of any jurisdiction (foreign or domestic) analogous to any of the foregoing;
or
(e) a
proceeding or case shall be commenced in respect of the Maker, without its
application or consent, in any court of competent jurisdiction, seeking (i) the
liquidation, reorganization, moratorium, dissolution, winding up, or composition
or readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of it or of all or any substantial part of its
assets in connection with the liquidation or dissolution of the Maker or (iii)
similar relief in respect of it under any law providing for the relief of
debtors, and such proceeding or case described in clause (i), (ii) or (iii)
shall continue undismissed, or unstayed and in effect, for a period of thirty
(30) days or any order for relief shall be entered in an involuntary case under
the United States Bankruptcy Code (as now or hereafter in effect) or under the
comparable laws of any jurisdiction (foreign or domestic) against the Maker or
action under the laws of any jurisdiction (foreign or domestic) analogous to any
of the foregoing shall be taken with respect to the Maker and shall continue
undismissed, or unstayed and in effect for a period of thirty (30)
days.
Section
2.2 Remedies Upon An Event of
Default. If an Event of Default shall have occurred and shall be continuing, the
Holder of this Note may, at any time, at its option, declare the entire unpaid
principal balance of this Note, together with all interest accrued hereon, due
and payable, and thereupon, the same shall be accelerated and so due and
payable, without presentment, demand, protest or notice, all of which are hereby
expressly unconditionally and irrevocably waived by the Maker. The Maker shall
pay to the Holder such additional amounts as shall be sufficient to pay the
Holder's actual and reasonable costs and expenses of collection, including
without limitation, reasonably attorney's fees and expenses. The remedies
provided in this Note shall be cumulative and in addition to all other remedies
available under this Note, at law or in equity (including, without limitation, a
decree of specific performance and/or other injunctive relief), no remedy
contained herein shall be deemed a waiver of compliance with the provisions
giving rise to such remedy and nothing herein shall limit the Holder’s right to
pursue actual damages for any failure by the Maker to comply with the terms of
this Note.
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Section
2.3 Definition of Change of
Control. For the purposes of this Note, a “Change of Control" means, with
respect to the Maker, the occurrence of any of the following
events:
(i) the
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or
more of the combined voting power of the then outstanding common stock, par
value $.00001 per share (the “Common Stock”), of the Company or any subsidiary;
provided, however, that for
purposes of this Section 2.3(i), the following acquisitions will not constitute
a Change of Control: (A) any issuance of Common Stock of the Company directly
from the Company that is approved by the Board of Directors of the Company (the
“Board of Directors”), (B) any acquisition by the Company of Common Stock of the
Company, (C) any acquisition of Common Stock of the Company by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Subsidiary or (D) any acquisition of Common Stock of the Company pursuant to a
Business Combination after Maker has complied with Section 1.5
hereof.
(ii) individuals
who, as of the date hereof, constitute the Board of Directors, cease for any
reason to constitute at least a majority of the Board of Directors;
(iii) consummation
of a reorganization, merger or consolidation, a sale or other disposition of all
or substantially all of the assets of the Company, or other transaction (each, a
"Business Combination"); or
(iv) approval
by the stockholders of the Company of a complete liquidation or dissolution of
the Company.
ARTICLE
III
MISCELLANEOUS
Section
3.1 Notices. Any notice, demand,
request, waiver or other communication required or permitted to be given
hereunder shall be in writing and shall be effective (a) upon hand delivery, at
the address set forth on the signature page hereto (in the case of the Maker) or
above (in the case of the Holder) (if delivered on a business day during normal
business hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received), (b) on the second business
day following the date of mailing by an internationally recognized overnight
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur or (c) by email, or other
electronic means to the email address listed below. Copies of such notice shall
be delivered by any of the foregoing means to Robert Newman, Esq., The Newman
Law Firm, PLLC, 44 Wall Street, 20th Floor,
New York, NY 10005, email (Rnewman@nlawglobal.com), and such delivery shall
constitute effective notice to the Maker hereunder.
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Section
3.2 Governing Law; Drafting;
Representation. This Note shall be governed by and construed in accordance with
the internal laws of the State of New York, without giving effect to any of the
conflicts of law principles which would result in the application of the
substantive law of another jurisdiction. This Note shall not be interpreted or
construed with any presumption against the party causing this Note to be
drafted.
Section
3.3 Headings. Article and section
headings in this Note are included herein for purposes of convenience of
reference only and shall not constitute a part of this Note for any other
purpose.
Section
3.4 Binding Effect; Amendments.
The obligations of the Maker and the Holder set forth herein shall be binding
upon the successors and assigns of each such party. This Note may not be
modified or amended in any manner except in writing executed by the Maker and
the Holder.
Section
3.5 Consent to Jurisdiction. Each
of the Maker and the Holder (i) hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court sitting in the Southern
District of New York and the courts of the State of New York located in New York
county for the purposes of any suit, action or proceeding arising out of or
relating to this Note and (ii) hereby waives, and agrees not to assert in any
such suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of such court, that the suit, action or proceeding is brought
in an inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Maker and the Holder consents to process being served in
any such suit, action or proceeding by mailing a copy thereof to such party at
the address in effect for notices to it hereunder and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing in this Section shall affect or limit any right to serve process in any
other manner permitted by law.
Section
3.6 Failure or Indulgence Not
Waiver. No failure or delay on the part of the Holder in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or
privilege.
Section
3.7 Maker Waivers; Dispute
Resolution. Except as otherwise specifically provided herein, the Maker and all
others that may become liable for all or any part of the obligations evidenced
by this Note, hereby waive presentment, demand, notice of nonpayment, protest
and all other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note, and do hereby consent to any number of
renewals of extensions of the time or payment hereof and agree that any such
renewals or extensions may be made without notice to any such persons and
without affecting their liability herein and do further consent to the release
of any person liable hereon, all without affecting the liability of the other
persons, firms or Maker liable for the payment of this Note, AND DO HEREBY WAIVE
TRIAL BY JURY.
(a) No
delay or omission on the part of the Holder in exercising its rights under this
Note, or course of conduct relating hereto, shall operate as a waiver of such
rights or any other right of the Holder, nor shall any waiver by the Holder of
any such right or rights on any one occasion be deemed a waiver of the same
right or rights on any future occasion.
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(b) THE
MAKER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A
COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, HEREBY
WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY
WHICH THE HOLDER OR ITS SUCCESSORS OR ASSIGNS MAY DESIRE TO USE.
IN WITNESS WHEREOF, the Maker
has caused this Note to be duly executed by its duly authorized officer as of
the date first above indicated.
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CLEANTECH
INNOVATIONS, INC.
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By:
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/s/ Bei Lu
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Name:
Bei Lu
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Title:
President and Chief Executive Officer
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LIAONING
CREATIVE BELLOWS CO., LTD.
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By:
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/s/ Bei Lu
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Name:
Bei Lu
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Title:
President and Chief Executive Officer
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LIAONING
CREATIVE WIND POWER
EQUIPMENT
CO., LTD
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By:
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/s/ Bei Lu
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Name:
Bei Lu
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Title:
President and Chief Executive Officer
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Address
of Makers:
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C
District, Maoshan Industry Park,
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Tieling
Economic Development Zone, Tieling,
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Liaoning
Province, China 112616
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Email:
beilu@ctiproduct.com
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