CLOSING ESCROW AGREEMENT
CLOSING
ESCROW AGREEMENT
This
Escrow Agreement, dated as of April 14, 2008 (this “Agreement”),
is
entered into by and among Asian Business Management Group Limited, a British
Virgin Islands corporation, (“ABM”), Tri-State Title & Escrow, LLC (the
“Escrow
Agent”),
Xxxx
Investments II LLC (“Xxxx”) and the other Subscribers named in Exhibit A
(“Subscribers”) (together with the Company, the “Escrowing Parties”). The
principal address of each party hereto is set forth on Exhibit
A.
WITNESSETH:
WHEREAS,
Aamaxan Transport Group, Inc., a Delaware corporation (the “Company”), through
Capital Investment Services Incorporated, Member FINRA/MSRB/SIPC (the “Placement
Agent”), proposes to make a private offering (the “Offering”) to accredited
institutional investors, including Xxxx, of shares of Series A Convertible
Preferred Stock and Warrants (the “Securities”) of the Company in reliance upon
available exemptions from the registration requirements of the U.S. Securities
Act of 1933, as amended (the “Act”) and pursuant to a Securities Purchase
Agreement or Securities Purchase Agreements (collectively and individually,
the
“Securities Purchase Agreement”), in an aggregate amount of approximately Twenty
Million dollars ($20,000,000). Capitalized items, not defined herein, shall
have
the same meanings as set forth in the Securities Purchase Agreement; and
WHEREAS,
the Company desires to deposit all proceeds received from subscriptions made
by
the Subscribers for the Securities in the Offering (the “Escrowed Funds”) with
the Escrow Agent, to be held in escrow until joint written instructions are
received by the Escrow Agent from Xxxx and ABM, at which time and from time
to
time the Escrow Agent will disburse the Escrowed Funds in accordance with such
instructions (the “Closing”); and
WHEREAS,
Escrow Agent is willing to hold the Escrowed Funds in escrow subject to the
terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises herein contained and
intending to be legally bound, the parties hereby agree as follows:
1.
Appointment
of Escrow Agent.
The
Company hereby appoints Escrow Agent as escrow agent in accordance with the
terms and conditions set forth herein and the Escrow Agent hereby accepts such
appointment.
2.
Delivery
of the Escrowed Funds.
2.1
The
Placement Agent will direct Subscribers in the Offering to deliver the Escrowed
Funds to the Escrow Agent’s account as follows:
Account
Name: Tri-State Title & Escrow, LLC
Bank:
Access National Bank, Xxxxxx, XX 00000
Account
No.: 0000000
ABA
No:
.000000000
2.2 Escrowed
Funds shall be forwarded to the Escrow Agent by check or by wire transfer,
together with the written account of subscription (the “Subscription”) in the
form attached hereto as Exhibit B (the “Subscription Information”), in
accordance with the following:
(a)
Escrowed Funds to be deposited by check shall be made payable to “TRI-STATE
TITLE & ESCROW, LLC” and shall be delivered to the Escrow Agent at the
address set forth on Exhibit
A
hereto
and shall be
accompanied by a Subscription. The
Escrow
Agent shall, upon receipt of a Subscription, together with the related Purchase
Price therefore (as such term is defined in the Stock Purchase Agreement),
deposit the related Purchase Price of said Subscription in the Escrow Account
for collection.
(b)
Escrowed Funds to be wired shall be wired to the account set forth in Section
2.1 above and the Subscription shall be faxed or emailed to the Escrow Agent
in
accordance with the information provided on Exhibit
A.
2.3 Any
checks which are received by the Escrow Agent that are made payable to a party
other than the Escrow Agent shall be returned directly to the sender together
with any documents delivered therewith. Simultaneously with each deposit, the
Placement Agent shall provide the Escrow Agent with the Subscription
Information, including the name, address and taxpayer identification number
of
each Subscriber and of the aggregate principal amount of Securities subscribed
for by such Subscriber. The Escrow Agent is not obligated, and may refuse,
to
accept checks that are not accompanied by a Subscription containing the
requisite information.
2.4 In
the
event a wire transfer is received by the Escrow Agent and the Escrow Agent
has
not received Subscription Information, the Escrow Agent shall notify the
Placement Agent. If the Escrow Agent does not receive the Subscription
Information by such Subscriber prior to close of business on the fifth business
day (days other than a Saturday or Sunday or other day on which the Escrow
Agent
is not open for business in the State of Virginia) after notifying Placement
Agent of receipt of said wire, the Escrow Agent shall return the funds to the
Subscriber.
3.
Escrow
Agent to Hold and Disburse Escrowed Funds.
The
Escrow Agent will hold and disburse the Escrowed Funds received by it pursuant
to the terms of this Escrow Agreement, as follows:
2
3.1 Upon
receipt of joint written instructions from ABM and Xxxx, in substantially the
form of Exhibit
C
hereto,
the Escrow Agent shall release the Escrowed Funds as directed in such
instructions. In the event that the Escrow Agent does not receive any such
instructions by April 15, 2008, or such later date as is agreed upon by all
Subscribers, all Escrowed Funds shall be returned to the parties from which
they
were received without interest thereon or deduction therefrom.
3.2 This
Agreement shall terminate and be of no further force or effect at such time
as
all of the Escrowed Funds have been disbursed.
3.3 In
the
event this Agreement, the Escrowed Funds or the Escrow Agent becomes the subject
of litigation, or if the Escrow Agent shall desire to do so for any other
reason, the Company authorizes the Escrow Agent, at its option, to deposit
the
Escrowed Funds with the clerk of the court in which the litigation is pending,
or a court of competent jurisdiction if no litigation is pending, and thereupon
the Escrow Agent shall be fully relieved and discharged of any further
responsibility with regard thereto. The Company also authorizes the Escrow
Agent, if it receives conflicting claims to the Escrow Funds, is threatened
with
litigation or if the Escrow Agent shall desire to do so for any other reason,
to
interplead all interested parties in any court of competent jurisdiction and
to
deposit the Escrowed Funds with the clerk of that court and thereupon the Escrow
Agent shall be fully relieved and discharged of any further responsibility
hereunder to the parties from which they were received.
4.
Exculpation
and Indemnification of Escrow Agent
4.1
The
Escrow Agent shall have no duties or responsibilities other than those expressly
set forth herein. The Escrow Agent shall have no duty to enforce any obligation
of any person to make any payment or delivery, or to direct or cause any payment
or delivery to be made, or to enforce any obligation of any person to perform
any other act. The Escrow Agent shall be under no liability to the other parties
hereto or anyone else, by reason of any failure, on the part of any party hereto
or any maker, guarantor, endorser or other signatory of a document or any other
person, to perform such person’s obligations under any such document. Except for
amendments to this Escrow Agreement referenced below, and except for written
instructions given to the Escrow Agent by ABM relating to the Escrowed funds,
the Escrow Agent shall not be obligated to recognize any other agreement between
or among ABM and/or the Company, notwithstanding that references hereto may
be
made herein and whether or not it has knowledge thereof.
4.2 The
Escrow Agent shall not be liable to ABM or the Company or to anyone else for
any
action taken or omitted by it, or any action suffered by it to be taken or
omitted, in good faith and acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report, or other paper or document (not only as to its
due execution and the validity and effectiveness of its provisions, but also
as
to the truth and acceptability of any information therein contained), which
is
believed by the Escrow Agent to be genuine and to be signed or presented by
the
proper person or persons. The Escrow Agent shall not be bound by any of the
terms thereof, unless evidenced by written notice delivered to the Escrow Agent
signed by the proper party or parties and, if the duties or rights of the Escrow
Agent are affected, unless it shall give its prior written consent
thereto.
3
4.3 The
Escrow Agent shall not be responsible for the sufficiency or accuracy of the
form, or of the execution, validity, value or genuineness of, any document
or
property received, held or delivered to it hereunder, or of any signature or
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable to
ABM
and/or the Company or to anyone else in any respect on account of the identity,
authority or rights, of the person executing or delivering or purporting to
execute or deliver any document or property or this Escrow Agreement. The Escrow
Agent shall have no responsibility with respect to the use or application of
the
Escrowed Funds pursuant to the provisions hereof.
4.4 The
Escrow Agent shall have the right to assume, in the absence of written notice
to
the contrary from the proper person or persons, that a fact or an event, by
reason of which an action would or might be taken by the Escrow Agent, does
not
exist or has not occurred, without incurring liability to ABM and/or the Company
or to anyone else for any action taken or omitted to be taken or omitted, in
good faith and in the exercise of its own best judgment, in reliance upon such
assumption.
4.5 To
the
extent that the Escrow Agent becomes liable for the payment of taxes, including
withholding taxes, in respect of income derived from the investment of the
Escrowed Funds, or any payment made hereunder, the Escrow Agent may pay such
taxes; and the Escrow Agent may withhold from any payment of the Escrowed Funds
such amount as the Escrow Agent estimates to be sufficient to provide for the
payment of such taxes not yet paid, and may use the sum withheld for that
purpose. The Escrow Agent shall be indemnified and held harmless against any
liability for taxes and for any penalties in respect of taxes, on such
investment income or payments in the manner provided in Section
4.6.
4.6 The
Escrow Agent will be indemnified and held harmless by ABM and/or the Company
from and against all expenses, including all counsel fees and disbursements,
or
loss suffered by the Escrow Agent in connection with any action, suit or
proceedings involving any claim, or in connection with any claim or demand,
which in any way, directly or indirectly, arises out of or relates to this
Escrow Agreement, the services of the Escrow Agent hereunder, except for claims
relating to gross negligence by Escrow Agent or breach of this Escrow Agreement
by the Escrow Agent, or the monies or other property held by it hereunder.
Promptly after the receipt of the Escrow Agent of notice of any demand or claim
or the commencement of any action, suit or proceeding, the Escrow Agent shall,
if a claim in respect thereof is to be made against ABM and/or the Company,
notify it thereof in writing, but the failure by the Escrow Agent to give such
notice shall not relieve any such party from any liability which ABM and/or
the
Company may have to the Escrow Agent hereunder. Notwithstanding any obligation
to make payments and deliveries hereunder, the Escrow Agent may retain and
hold
for such time as it deems necessary such amount of monies or property as it
shall, from time to time, in its sole discretion, seem sufficient to indemnify
itself for any such loss or expense and for any amounts due it under Section
7.
4
4.7 For
purposes hereof, the term “expense or loss” shall include all amounts paid or
payable to satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the Escrow Agent, and all costs and expenses, including, but not
limited to, counsel fees and disbursements, paid or incurred in investigating
or
defending against any such claim, demand, action, suit or proceeding.
5.
Termination
of Agreement and Resignation of Escrow Agent
5.1 This
Escrow Agreement shall terminate upon disbursement of all of the Escrowed Funds,
provided that the rights of the Escrow Agent and the obligations of ABM under
Section 4 shall survive the termination hereof.
5.2 The
Escrow Agent may resign at any time and be discharged from its duties as Escrow
Agent hereunder by giving ABM at least five (5) business days written notice
thereof (the “Notice Period”). As soon as practicable after its resignation, the
Escrow Agent shall, if it receives notice from ABM within the Notice Period,
turn over to a successor escrow agent appointed by ABM all Escrowed Funds (less
such amount as the Escrow Agent is entitled to retain pursuant to Section 7)
upon presentation of the document appointing the new escrow agent and its
acceptance thereof. If no new agent is so appointed within the Notice Period,
the Escrow Agent shall return the Escrowed Funds to the parties from which
they
were received without interest or deduction.
6.
Form
of Payments by Escrow Agent
6.1 Any
payments of the Escrowed Funds by the Escrow Agent pursuant to the terms of
this
Escrow Agreement shall be made by wire transfer unless directed to be made
by
check by ABM.
6.2
All
amounts referred to herein are expressed in United States Dollars and all
payments by the Escrow Agent shall be made in such dollars.
7. Compensation.
Escrow
Agent shall be entitled to the following compensation from ABM:
7.1 Closing
Fee:
ABM
shall pay a documentation and closing fee to the Escrow Agent of $2,500.00
to be
taken at the time of the closing.
7.2 Interest:
The
Escrowed Funds shall accrue interest (the “Accrued Interest”) at the available
rate obtained by the Escrow Agent with respect to the period during which such
funds are held in the Escrow Agent’s account set forth in Section 2.1 above. In
connection with a Closing, ABM shall be paid 100% of the Accrued Interest on
the
aggregate amount of Escrowed Funds in the Escrow Agent’s account on the date of
such Closing.
5
8. Notices.
All
notices, requests, demands, and other communications provided herein shall
be in
writing, shall be delivered by hand or by first-class mail, shall be deemed
given when received and shall be addressed to parties hereto at their respective
addresses first set forth on Exhibit
A
hereto.
9. Further
Assurances. From
time
to time on and after the date hereof, ABM shall deliver or cause to be delivered
to the Escrow Agent such further documents and instruments and shall do and
cause to be done such further acts as the Escrow Agent shall reasonably request
(it being understood that the Escrow Agent shall have no obligation to make
any
such request) to carry out more effectively the provisions and purposes of
this
Escrow Agreement, to evidence compliance herewith or to assure itself that
it is
protected in acting hereunder.
10. Consent
to Service of Process .
ABM
hereby irrevocably consents to the jurisdiction of the courts of the State
of
Virginia and of any Federal court located in such state in connection with
any
action, suit or proceedings arising out of or relating to this Escrow Agreement
or any action taken or omitted hereunder, and waives personal service of any
summons, complaint or other process and agrees that the service thereof may
be
made by certified or registered mail directed to it at the address listed on
Exhibit A hereto.
11. Miscellaneous
11.1 This
Escrow Agreement shall be construed without regard to any presumption or other
rule requiring construction against the party causing such instrument to be
drafted. The terms “hereby,” “hereof,” “hereunder,” and any similar terms, as
used in this Escrow Agreement, refer to the Escrow Agreement in its entirety
and
not only to the particular portion of this Escrow Agreement where the term
is
used. The word “person” shall mean any natural person, partnership, corporation,
government and any other form of business of legal entity. All words or terms
used in this Escrow Agreement, regardless of the number or gender in which
they
were used, shall be deemed to include any other number and any other gender
as
the context may require. This Escrow Agreement shall not be admissible in
evidence to construe the provisions of any prior agreement.
11.2 This
Escrow Agreement and the rights and obligations hereunder of ABM may not be
assigned. This Escrow Agreement and the rights and obligations hereunder of
the
Escrow Agent may be assigned by the Escrow Agent, with the prior consent of
ABM.
This Escrow Agreement shall be binding upon and inure to the benefit of each
party’s respective successors, heirs and permitted assigns. No other person
shall acquire or have any rights under or by virtue of this Escrow Agreement.
This Escrow Agreement may not be changed orally or modified, amended or
supplemented without an express written agreement executed by the Escrow Agent
and ABM. This Escrow Agreement is intended to be for the sole benefit of the
parties hereto and their respective successors, heirs and permitted assigns,
and
none of the provisions of this Escrow Agreement are intended to be, nor shall
they be construed to be, for the benefit of any third person.
6
11.3 This
Escrow Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of Virginia. The representations and warranties
contained in this Escrow Agreement shall survive the execution and delivery
hereof and any investigations made by any party. The headings in this Escrow
Agreement are for purposes of reference only and shall not limit or otherwise
affect any of the terms thereof.
12.
Execution
of Counterparts This
Escrow Agreement may be executed in a number of counterparts, by facsimile,
each
of which shall be deemed to be an original as of those whose signature appears
thereon, and all of which shall together constitute one and the same instrument.
This Escrow Agreement shall become binding when one or more of the counterparts
hereof, individually or taken together, are signed by all the
parties.
13. Other
Subscriber Authorization. In the event Xxxx shall have executed and delivered
a
Disbursement Request with respect to all Escrowed Funds it deposited and
subsequently additional Escrowed Funds are deposited pursuant to this Agreement,
then any additional Disbursement Request shall not require the signature or
other consent of Xxxx but shall instead require the signature of the party(ies)
making such deposit.
7
IN
WITNESS WHEREOF, the parties have executed and delivered this Escrow Agreement
on the day and year first above written.
ESCROW
AGENT:
|
TRI-STATE
TITLE & ESCROW, LLC
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
ASIAN
BUSINESS MANAGEMENT GROUP LIMITED
|
|
|
By:
|
|
|
Name:
Xxxx Xxxxx
|
|
|
Title:
Chairman and CEO
|
|
|
XXXX
INVESTMENTS II LLC
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
8
EXHIBIT
A
PARTIES
TO AGREEMENT
Tri-State
Title & Escrow, LLC
000
Xxxx
Xxxxxx
X.X.
Xxx
000
Xxxxxxxxxx,
XX 00000
(000)
000-0000
Attention:
Xxxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Fax: (000)
000-0000
Email
xxxxxx@xxxxxxxxxxxxx.xxx
Asian
Business Management Group Limited
Xxxxx
0X,
0000 Xxxxxxxx Xxxx
Xxxxxxxxx
Xxxxxxxx
Xxxxxxxx
People’s
Republic of China
Tel.
No.:
00-00-000-00-000
Fax
No.:
00-00-000-00-000
Attn:
Mr.
Xxxx Xxxxx
Xxxx
Investments II LLC
0000
Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
phone:
(000) 000-0000
fax:
(000) 000-0000
Other
Subscribers
Name
of
Subscriber:
_____________________
Address:
____________________
Attention:
__________________
Tel:
Fax:
|
By:
|
|
|
Name:
|
|
|
Title:
|
9
EXHIBIT
B
SUBCRIPTION
INFORMATION
|
Name
of Subscriber
|
||
|
Address
of Subscriber
|
||
|
Amount
of Securities
|
||
|
Subscribed
(US$)
|
||
|
Subscription
Amount
|
||
|
Submitted
Herewith
|
||
|
Taxpayer
ID Number/
|
||
|
Social
Security Number
|
10
EXHIBIT
C
DISBURSEMENT
REQUEST
Pursuant
to that certain Escrow Agreement dated effective as of April 14, 2008 among
Asian Business Management Group Limited (“ABM”) and Tri-State Title &
Escrow, LLC, ABM and Xxxx (or the Subscriber authorizing disbursement) hereby
requests disbursement of funds in the amount and manner described below from
account number 0000000, styled Tri-State Title & Escrow, LLC Escrow
Account.
|
Please
disburse to:
|
|
|
Amount
to disburse:
|
|
|
Form
of distribution:
|
|
|
Payee:
|
|
|
Name:
|
|
|
Address:
|
|
|
City/State:
|
|
|
Zip:
|
|
|
Please
disburse to:
|
|
|
Amount
to disburse:
|
|
|
Form
of distribution:
|
|
|
Payee:
|
|
|
Name:
|
|
|
Address:
|
|
|
City/State:
|
|
|
Zip:
|
Subscriptions
Accepted From
|
Subscriber
|
Amount
|
|
|
Total:
|
Statement
of event or condition which calls for this request for
disbursement:
|
|
11
|
Date:
|
|
|
Name:
|
Xxxx
Xxxxx
|
|
Title:
|
Chairman
and CEO
|
|
XXXX
INVESTMENTS II LLC
|
|
|
Date:
|
|
|
Name:
|
|
|
Title:
|
|
|
(Other
Subscriber)
|
|
|
Date:
|
|
|
Title:
|
|
12
