FORM OF AMENDMENT AGREEMENT
Exhibit
10.1
FORM
OF AMENDMENT
AGREEMENT
AMENDMENT
AGREEMENT
by and
between CHINA
INDUSTRIAL WASTE MANAGEMENT, INC.
(“CIWT”) and _____________
(“Purchaser”). Capitalized terms used in this Agreement and not otherwise
defined herein shall have the respective meanings accorded to them in that
certain Subscription Agreement dated _______, 2008 by and between CIWT and
Purchaser (the “Subscription Agreement”).
WITNESSETH:
WHEREAS,
CIWT and
Purchaser are parties to the Subscription Agreement; and
WHEREAS,
the
Subscription Agreement was entered into in furtherance of CIWT’s Confidential
Term Sheet dated August 21, 2008 relating to its Offering of Units described
therein; and
WHEREAS,
in
furtherance of the Subscription Agreement, the Term Sheet and the other
documents entered into in connection therewith (the “Transaction Documents”),
CIWT sold and issued Units to Purchaser; and
WHEREAS,
CIWT
sold and issued Units in the Offering to purchasers other than Purchaser (the
“Other Purchasers”); and
WHEREAS,
CIWT and
Purchaser have engaged in discussions relating to the Proposed Disclosure (as
hereinafter defined), and based upon those discussions CIWT and Purchaser have
mutually agreed to amend the Subscription Agreement, Term Sheet and Warrants
and, to the extent applicable, the other Transaction Documents, on the terms
and
conditions set forth herein.
NOW
THEREFORE,
in
consideration of the promises and covenants herein set forth and for other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledge by the parties, the parties hereto, intending to be legally bound,
agree as follows:
1. Acknowledgment
of Purchase of Units.
CIWT and
Purchaser hereby acknowledge that, in furtherance of the Subscription Agreement
and Term Sheet, Purchaser previously acquired the number of Units, Shares,
Class
A Warrants and Class B Warrants identified in Item 1 of Exhibit A attached
hereto and made a part hereof. Certificates evidencing the Shares and
certificates evidencing the Warrants (the “Original Warrant Certificates”) have
previously been delivered to Purchaser.
2. Adjustment
to Unit Components.
The
purchase price for the Units shall be maintained at $60,000 per Unit; however,
CIWT and Purchaser hereby acknowledge and agree that the Subscription Agreement,
Term Sheet and other Transaction Documents are, to the extent applicable, hereby
amended to provide that each Unit consists of (a) 29,412 Shares of Common Stock,
(b) one Class A Warrant to purchase 14,706 shares of Common Stock and (c) one
Class B Warrant to purchase 14,704 shares of Common Stock. As a result of the
foregoing, CIWT and Purchaser hereby acknowledge that the total number of Units,
Shares, Class A Warrants and Class B Warrants that Purchaser is entitled to
receive in connection with its purchase of Units are identified in Item 2 of
Exhibit A attached hereto and made a part hereof.
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3. Effect
of Adjustment.
As a
result of the adjustment to the number of Shares, Class A Warrants and Class
B
Warrants that Purchaser is entitled to receive as described in Section 2, above,
CIWT and Purchaser agree that the number of additional Shares, Class A Warrants
and Class B Warrants (collectively, the “Additional Securities”) that Purchaser
is entitled to receive pursuant to this Agreement are identified in Item 3
of
Exhibit A attached hereto and made a part hereof. Except as hereinafter
provided, the terms and conditions of the Class A Warrants and Class B Warrants
shall remain in full force and effect.
4. Reduction
in Exercise Prices of Warrants; Voluntary Exchange of Warrant
Certificates.
The
exercise price of each Class A Warrant is hereby reduced from $3.50 per Warrant
Share to $2.50 per Warrant Share. The exercise price of each Class B Warrant
is
hereby reduced from $4.50 per Warrant Share to $3.20 per Warrant Share. CIWT
agrees that in the event Purchaser tenders an Original Warrant Certificate
to
CIWT accompanied by Purchaser’s written request that CIWT exchange the Original
Warrant Certificate for a new Warrant certificate (the “New Warrant
Certificate”) evidencing the combined number of Warrants evidenced by the
Original Warrant Certificate and the Warrants included in the Additional
Securities, and the revised exercises prices thereof, CIWT shall prepare and
deliver such New Warrant Certificate to Purchaser within five business days
following CIWT’s receipt of Purchasers Original Warrant Certificate and written
request. The New Warrant Certificate shall recite that it has been issued in
exchange for the Original Warrant Certificate and that the date of the New
Warrant Certificate shall relate back to the date of the Original Warrant
Certificate.
5. Performance
Escrow Agreement.
It
shall be a condition to consummation of the transactions contemplated by this
Agreement that on or about November 21, 2008, but subject to the execution
and
delivery of this Agreement by CIWT and Purchaser, the Performance Escrow
Agreement dated October 14, 2008 by and between Xx. Xxxx Jinqing, Newbridge
Securities Corporation and Xxxxxxxxx Xxxxxxxxxx & Beilly LLP shall be
superseded and replaced by the Amended and Restated Performance Escrow Agreement
in the form of Exhibit B hereto. The form of Performance Escrow Agreement
attached as an exhibit to the Term Sheet shall be replaced and superseded by
the
Amended and Restated Performance Escrow Agreement.
6. Effect
of Agreement on Other Purchasers.
The
execution and delivery of this Agreement is not dependent upon CIWT entering
into similar agreements with one or more of the Other Purchasers and CIWT’s
entering into similar agreements with one or more of the Other Purchasers shall
neither constitute a violation of the Subscription Agreement or other
Transaction Documents nor affect the parties’ obligations under this Agreement.
7. Effect
on Transaction Documents; Conflicting Provisions.
Except
as set forth herein, the terms of the Subscription Agreement, the Term Sheet,
the Warrants and the other Transaction Documents shall remain in full force
and
effect. Any inconsistency between the terms and conditions of this Agreement
and
the terms and conditions of the Subscription Agreement, Term Sheet, the Warrants
or any of the other Transaction Documents, shall be resolved by reference to
the
terms and conditions of this Agreement.
8. Effective
Date of Agreement.
This
Agreement shall become effective at such time as it is executed and delivered
by
CIWT and Purchaser, as evidenced by the latest date set forth on the signature
page hereof; provided, however, that this Agreement shall be null and void
and
shall be of no force or effect unless this Agreement is executed and delivered
by CIWT and Purchaser on or before November 21, 2008.
9. Receipt
of Proposed Current Disclosure.
Purchaser hereby acknowledges that prior to its execution and delivery of this
Agreement, Purchaser received and reviewed a draft copy of CIWT’s proposed
public disclosure (“Proposed Disclosure”) in the form attached hereto as Exhibit
C. CIWT has advised Purchaser that CIWT intends to include the Proposed
Disclosure in either a Current Report on Form 8-K or in Part II of its Quarterly
Report on Form 10-Q for the quarter ended September 30, 2008, as well in as
a
press release. Purchaser understands and acknowledges that until such time
as
the Proposed Disclosure is “previously reported” within the meaning of Rule
12b-2 under the Exchange Act, the Proposed Disclosure constitutes material
nonpublic information of CIWT, and Purchaser covenants and agrees to treat
it as
such.
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10. No
Admission of Liability.
Nothing
in this Agreement shall operate as an admission of liability on the part of
any
person. The parties are entering into this Agreement in a manner that they
mutually agree is fair and reasonable, and in order to avoid the time, expense
and other adverse consequences of pursuing alternate methods of addressing
their
respective concerns.
11. Entire
Agreement.
This
Agreement, including the Exhibits hereto, and the Transaction Documents as
amended hereby, contains the entire understanding of the parties with respect
to
the subject matter hereof and may not be amended except in a writing signed
by
CIWT and Purchaser.
12. Expenses.
Each of
the parties hereto shall pay its own costs and expenses in connection
herewith.
13. Notices.
Any
notice or other communication required, permitted or provided for hereunder
(each, a “Notice”) shall be effective as between the parties only if given in
writing and sent by (a) personal delivery, (b) registered or certified mail
(return receipt requested); or (c) internationally recognized express delivery
service, to the Company at Xx. 0 Xxxxxx Xxxx Xxxx. E-T-D Xxxx, Xxxxxx, Xxxxx
000000, and to Purchaser at its address indicated on the signature page of
the
Subscription Agreement. Notice shall be deemed to have been duly given and
received (i) if personally delivered, on the date of such delivery, (ii) if
mailed, on the date set forth on the return receipt, or (iii) if delivered
by
express delivery, on the date of such delivery (as evidenced by the receipt
provided to the express delivery service). If Notice cannot be delivered because
of a changed address of which no Notice was given, or the refusal to accept
delivery, the Notice shall be deemed received on the date it is sent (as
evidenced by the affidavit of the sender).
14. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and assigns.
15. Governing
Law; Venue.
Notwithstanding the place where this Agreement may be executed by any of the
parties hereto, CIWT and Purchaser hereby: (a) agree that all questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by and construed and enforced in accordance with
the
internal laws of the State of Nevada, without regard to the principles of
conflicts of law thereof, and (b) all legal proceedings concerning the
interpretation, enforcement and defense of this Agreement shall be commenced
in
the Courts of the State of Florida or the courts of the United States of
America, in each case located in the County of Broward, and appellate courts
from any thereof (the “Courts”), (c) irrevocably submit to the exclusive
jurisdiction of the Courts for the adjudication of any dispute hereunder
(including with respect to the enforcement of this Agreement); (d) irrevocably
waive and agree not to assert in any suit, action or proceeding, any claim
that
it is not personally subject to the jurisdiction of any of such Courts, or
that
such suit, action or proceeding is improper; (e) irrevocably waive 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 the other 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); and (f) irrevocably waive, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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16. Counterparts;
Facsimile.
This
Agreement may be executed in counterparts with the same force and effect as
if
all parties executed the same version; and may be executed by facsimile or
electronic signature with the same force and effect as if executed by original
signature.
17. Severability.
If any
provision of this Agreement is declared by a court of competent jurisdiction
to
be in any way invalid, illegal or unenforceable, such provision shall be given
effect to the extent legally permissible to carry out the expectations of the
parties under this Agreement, the balance of this Agreement shall remain in
effect.
18. Further
Assurances.
The
parties agree to execute and deliver all such further documents, agreements
and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Subscription
Agreement.
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IN
WITNESS WHEREOF
we have
executed this Agreement as of the date and year first above
written.
CHINA
INDUSTRIAL WASTE MANAGEMENT, INC.
By: ______________________________
Dong
Jinqing
President
and Chief Executive Officer
Date: November
__, 2008
PURCHASER:
_________________________
By: ____________________________
_________________
Date: November
__, 2008
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EXHIBIT
A
DESCRIPTION
OF SECURITIES
1. Description
of Units acquired:
|
Number
of Units
|
Number
of Shares
|
Number
of Shares Underlying Class A Warrants
|
Number
of Shares Underlying Class B Warrants
|
2. Description
of Units following this Amendment Agreement:
|
Number
of Units
|
Number
of Shares
|
Number
of Shares Underlying Class A Warrants
|
Number
of Shares Underlying Class B Warrants
|
3. Description
of Additional Securities due to Purchaser upon execution of this
Agreement:
|
Number
of Units
|
Additional
Shares due to Purchaser
|
Additional
Shares Underlying Class A Warrants due to
Purchaser
|
Additional
Shares Underlying Class B Warrants due to
Purchaser
|
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EXHIBIT
B
FORM
OF AMENDED AND RESTATED PERFORMANCE ESCROW AGREEMENT
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AMENDED
AND RESTATED
PERFORMANCE
ESCROW AGREEMENT
AMENDED
AND RESTATED PERFORMANCE ESCROW AGREEMENT
(“Escrow
Agreement”)
dated
as of November __, 2008, by and between NEWBRIDGE
SECURITIES CORPORATION,
a
Virginia corporation (the “Placement
Agent”),
THE
PERSON IDENTIFIED ON SCHEDULE A HERETO
(the
“Escrowee”),
and
XXXXXXXXX
XXXXXXXXXX & BEILLY LLP,
a
Florida limited liability partnership (the “Escrow
Agent”).
WITNESSETH:
WHEREAS,
the
parties are the parties to a Performance Escrow Agreement dated October 14,
2008
(the “Original Agreement”); and
WHEREAS,
the
Original Agreement was entered into in connection with an offering (the
Offering”) of the securities of China Industrial Waste Management, Inc. (the
“Company”)
on the
terms and conditions set forth in the Company’s Confidential Term Sheet dated
August 21, 2008 and related Subscription Agreement (collectively, the
“Offering
Documents”);
and
WHEREAS,
the
final closing of the Offering took place on October 14, 2008; and
WHEREAS,
pursuant
to the Offering Documents, at the final closing of the Offering, the Escrowee
placed an aggregate of 333,333 shares of the Company’s common stock owned by him
into escrow (the “Original
Escrow Shares”)
for
disbursement to the Escrowee or the investors in the Offering (“Investors”),
in
the manner described in the Original Agreement (the “Escrow
Account”);
and
WHEREAS,
in
furtherance of the foregoing: the Placement Agent and the Escrowee engaged
the
Escrow Agent to hold the Original Escrow Shares upon the terms and conditions
set forth in the Original Agreement; the Escrow Agent agreed to act as escrow
agent upon the terms and conditions set forth in the Original Agreement; and
the
Escrowee deposited the Original Escrow Shares with the Escrow Agent for
disposition in the manner described in the Original Agreement; and
WHEREAS,
subsequent to the final closing of the Offering, certain disagreements arose
between the Company and the Investors and, in an effort to resolve those
disagreements, the Company and the several Investors have discussed and agreed
to enter into a series of identical Amendment Agreements (the “Amendment
Agreements”),
of
which this Agreement is one; and
WHEREAS,
in
furtherance of the Amendment Agreements, the parties to this Agreement desire
to
amend and restate the Original Agreement in its entirety on the terms and
conditions hereinafter set forth; and
NOW,
THEREFORE,
for good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and for other good and valuable consideration the receipt and
sufficiency is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Appointment
of Escrow Agent.
The
Placement Agent and the Escrowee hereby appoint the Escrow Agent as escrow
agent
upon the terms and conditions set forth herein, and the Escrow Agent hereby
accepts such appointment. The Placement Agent, the Escrowee and the Escrow
Agent
hereby agree and acknowledge that, upon execution of this Agreement, the
Original Agreement shall terminate and cease to be of any further force or
effect, and the relationship of the parties, with respect to the subject matter
hereof, shall henceforth be governed by this Agreement.
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2. Delivery
of Escrow Property.
By its
execution of this Agreement, the Escrow Agent hereby acknowledges (a) its
receipt of the Original Escrow Shares, in each case accompanied by one or more
Stock Powers duly endorsed for transfer in blank, and (b) its receipt of an
additional 111,111 shares of the Company’s common stock, in each case
accompanied by one or more Stock Powers duly endorsed for transfer in blank,
being deposited into the Escrow Account by the Escrowee in connection with
the
Amendment Agreements (the “Additional
Escrow Shares”
and
together with the Original Escrow Shares, the “Escrow
Shares”).
The
Escrow Shares are sometimes hereinafter collectively referred to as the
“Escrow
Property.”
3. Investment
of the Escrow Property.
The
Escrow Account shall not bear interest and no investment of the Escrow Property
shall be made while held by the Escrow Agent.
4. Release
of Escrow Property.
The
Escrow Agent shall disburse the Escrow Property as follows:
(a) If
either:
(i) the
Company’s “after tax net income” for the year ended December 31, 2008, as
reported in the Company’s audited financial statements, is less than $4.5
million (exclusive of any charges attributable to this Escrow Agreement);
or
(ii) the
Company’s “cash flow from operations” for the year ended December 31, 2008, as
reported in the Company’s audited financial statements, is less than $3.375
million (exclusive of any charges attributable to this Performance Escrow
Agreement);
then
the
Placement Agent shall deliver to the Escrow Agent written instructions for
the
disposition of 222,222 Escrow Shares to the, Investors in the form of Exhibit
C
hereto; and the Escrow Agent shall disburse 222,222 Escrow Shares
to the
Investors in accordance with therewith.
(b) If
both:
(i) the
Company’s “after tax net income” for the year ended December 31, 2008, as
reported in the Company’s audited financial statements, is at least $4.5 million
(exclusive of any charges attributable to this Escrow Agreement); and
(ii) the
Company’s “cash flow from operations” for the year ended December 31, 2008, as
reported in the Company’s audited financial statements, is at least $3.375
million (exclusive of any charges attributable to this Performance Escrow
Agreement);
then
the
Placement Agent shall deliver to the Escrow Agent written instructions for
the
disposition of 222,222 Escrow Shares to the Escrowee in the form of Exhibit
B
hereto; and the Escrow Agent shall disburse 222,222 Escrow Shares
to the
Escrowee in accordance with therewith.
(c) If
:
(i) The
Company’s “after tax net income” for the year ended December 31, 2009 is at
least $7.25 million, and
the
Company’s “cash flow from operations” for the year ended December 31, 2009 is at
least $5.4375 million, in each case as reported in the Company’s audited
financial statements but exclusive of any charges attributable to this
Performance Escrow Agreement); then the Placement Agent shall deliver to the
Escrow Agent written instructions for the disposition of 222,222 Escrow Shares
to the Escrowee in the form of Exhibit B hereto; and the Escrow Agent shall
disburse 222,222 Escrow Shares
to the
Escrowee in accordance therewith;
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(ii) The
Company’s “after tax net income” for the year ended December 31, 2009 is at
least $7 million but less than $7.25 million, and
the
Company’s “cash flow from operations” for the year ended December 31, 2009 is at
least $5.25, in each case as reported in the Company’s audited financial
statements but exclusive of any charges attributable to this Performance Escrow
Agreement); then the Placement Agent shall deliver to the Escrow Agent written
instructions for the disposition of 148,222 Escrow Shares to the Escrowee and
74,000 Escrow Shares to the Investors, in the form of Exhibit D hereto; and
the
Escrow Agent shall disburse 222,222 Escrow Shares
to the
Escrowee and the Investors in accordance therewith;
(iii) The
Company’s “after tax net income” for the year ended December 31, 2009 is at
least $6.75 million but less than $7 million, and
the
Company’s “cash flow from operations” for the year ended December 31, 2009 is at
least $5.0625, in each case as reported in the Company’s audited financial
statements but exclusive of any charges attributable to this Performance Escrow
Agreement); then the Placement Agent shall deliver to the Escrow Agent written
instructions for the disposition of 74,000 Escrow Shares to the Escrowee and
148,222 Escrow Shares to the Investors, in the form of Exhibit D hereto; and
the
Escrow Agent shall disburse 222,222 Escrow Shares
to the
Escrowee and the Investors in accordance therewith; and
(iv) The
Company’s “after tax net income” for the year ended December 31, 2009 is less
than $6.75 million, or
the
Company’s “cash flow from operations” for the year ended December 31, 2009 is
less than $5.0625 million, in each case as reported in the Company’s audited
financial statements but exclusive of any charges attributable to this
Performance Escrow Agreement); then the Placement Agent shall deliver to the
Escrow Agent written instructions for the disposition of 222,222 Escrow Shares
to the Investors in the form of Exhibit C hereto; and the Escrow Agent shall
disburse 222,222 Escrow Shares
to the
Investors in accordance therewith.
(d) Until
such time as the Escrow Agent has received a disposition notice in accordance
with Sections 4(a) through (c), above, the Escrowee shall be entitled to vote
the Escrow Shares on all matters submitted to a vote of the Company’s
stockholders.
The
Escrow Agent shall be authorized to tender the certificates evidencing all
or a
portion of the Escrow Shares to the Company’s transfer agent for denominational
breakdown and/or transfer in order to facilitate the performance of its services
under this Agreement. Upon disbursement of the Escrow Property as set forth
in
this Section 4, the obligations of the Escrow Agent under this Agreement shall
terminate.
5. Disbursement
Into Court.
At any
time, the Escrow Agent, in its sole discretion, may commence an action in the
nature of an interpleader in any court of competent jurisdiction to determine
ownership or disposition of the Escrow Property, or it may deposit the Escrow
Property with the clerk of any court of competent jurisdiction or it may retain
the Escrow Property pending receipt of a final, non-appealable order of a court
having jurisdiction over all of the parties hereto directing to whom and under
what circumstances the Escrow Property are to be disbursed and delivered. During
the pendency of any such action, the Escrow Agent may suspend the performance
of
any of its obligations under this Escrow Agreement until such dispute or
uncertainty shall be resolved to the sole satisfaction of Escrow Agent or until
a successor Escrow Agent shall have been appointed (as the case may be). The
Escrow Agent shall have no liability to the Escrowee, the Investors or any
other
person with respect to any such suspension of performance or disbursement into
court, specifically including any liability or claimed liability that may arise,
or be alleged to have arisen, out of or as a result of any delay in the
disbursement of funds held in the Escrow Accounts or any delay in or with
respect to any other action required or requested of Escrow Agent.
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6. Acknowledgements
by Escrowee.
The
Escrowee, by his execution of this Agreement and delivery of Escrow Shares
to
the Escrow Agent, hereby acknowledges that he has received and read a copy
of
the Offering Documents and understands the nature of the escrow created
hereunder, as well as his understanding that (a) he is depositing the Escrow
Shares into an escrow account and is relinquishing all control over the Escrow
Shares pending disbursement by the Escrow Agent (except that prior to
disbursement of the Escrow Shares the Escrowee depositing Escrow Shares into
escrow may continue to vote such Escrow Shares on all matters submitted to
a
vote of shareholders), (b) disbursement of the Escrow Shares to the Escrowee
will be dependent upon the Company achieving certain results of operations
for
its fiscal years ended December 31, 2008 and December 31, 2009, as described
in
Section 4, above, (c) to the extent the Company fails to achieve such operating
results, the Escrowee will surrender and forfeit the Escrow Shares and the
Escrow Shares will be delivered to the Investors in the Offering, (d) the Escrow
Shares will be disbursed in accordance with written instructions provided to
the
Escrow Agent by the Placement Agent, and the Escrowee will have no control
over
disbursement of the Escrow Shares and (d) the Company will have no obligation
to
replace the Escrow Shares or to otherwise compensate the Escrowee for delivering
the Escrow Shares into escrow.
7. Limitation
of Responsibility and Liability and Duties of the Escrow Agent.
The
acceptance by the Escrow Agent of its duties as such under this Escrow Agreement
is subject to the following terms and conditions, which all parties to this
Escrow Agreement hereby agree shall govern and control with respect to the
rights, duties, liabilities and immunities of the Escrow Agent:
(a) The
Escrow Agent shall not be liable for any error in judgment or mistake of law
or
fact, or for any action taken or omitted to be taken by it, or any action
suffered by it to be taken or omitted by it, in good faith and in the exercise
of its own best judgment. The Escrow Agent shall not be liable for any delay
in
delivering Escrow Property as required hereby, absent its own gross negligence
or willful misconduct.
(b) The
Escrow Agent may rely conclusively and shall be protected in acting upon any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Escrow Agent other than itself), statement, instrument,
report or other paper or document (not only as to its due execution and 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.
(c) The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Escrow Agreement unless
evidenced by a writing delivered to the Escrow Agent by the Placement Agent
and
the Escrowee, if the duties or rights of the Escrow Agent are affected by any
such modification of or waiver under this Escrow Agreement, unless the Escrow
Agent shall have given its prior written consent thereto.
(d) The
Escrow Agent acts hereunder as a depositary only, and shall not be responsible
for the sufficiency or accuracy, the form of, or the execution, validity, value
or genuineness of any document or property received, held or delivered by 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 in any respect on account of the identity, authority
or
rights of the persons executing or delivering or purporting to execute or
deliver any document or property paid or delivered by the Escrow Agent pursuant
to the provisions hereof.
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(e) The
Escrow Agent shall have the right to assume, in the absence of written notice
to
the contrary, 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 for any action taken or omitted, in good faith and in the
exercise of its own best judgment, in reliance upon such
assumption.
(f) The
Escrow Agent shall be indemnified and held harmless, jointly and severally,
by
the Escrowee and the Placement Agent, upon demand by the Escrow Agent, from
and
against any claims, demands, losses, damages, liabilities, costs and expenses,
including counsel fees and disbursements, (collectively, “Damages”) suffered by
the Escrow Agent in connection with any action, suit or other proceeding
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, the monies or other property held by
it
hereunder or any such Damages. Promptly after the receipt by 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 shall be
made
against the other parties hereto, notify such parties thereof in writing; but
the failure by the Escrow Agent to give such notice shall not relieve any party
from any liability which such party may have to the Escrow Agent hereunder,
except to the extent of actual prejudice demonstrated by such party. The
obligations under this Section 6(f) shall survive any termination of this Escrow
Agreement and the resignation or removal of the Escrow Agent.
(g) From
time
to time on and after the date hereof, the parties shall deliver or cause to
be
delivered to the Escrow Agent such further documents and instruments and shall
do or 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 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.
(h) The
Escrow Agent may resign at any time and be discharged from its duties as Escrow
Agent hereunder by its giving the other parties hereto prior written notice
of
at least seven business days. As soon as practicable after its resignation,
the
Escrow Agent shall turn over to a successor escrow agent appointed by the other
parties hereto, jointly, all of the Escrow Property held hereunder upon
presentation of the document appointing the new escrow agent and its acceptance
thereof. If no new escrow agent is so appointed within the 20 day period
following the giving of such notice of resignation, the Escrow Agent may proceed
as contemplated under Section 5.
(i) The
Escrow Agent may consult with, and obtain advice from, legal counsel in the
event of any dispute or question as to the construction of any of the provisions
hereof or its duties hereunder, and it shall incur no liability and shall be
fully protected in acting in good faith in accordance with the opinion and
instructions of such counsel, other than itself.
(j) The
Escrow Agent is authorized, in its sole discretion, to comply with orders issued
or process entered by any court with respect to the Escrow Property, without
determination by the Escrow Agent of such court’s jurisdiction in the matter. If
any portion of the Escrow Property is at any time attached, garnished or levied
upon under any court order, or in case the payment, assignment, transfer,
conveyance or delivery of any such property shall be stayed or enjoined by
any
court affecting such property or any part thereof, then and in any such event,
the Escrow Agent is authorized, in its sole discretion, to rely upon and comply
with any such order, writ, judgment or decree which it is advised by legal
counsel selected by it (other than itself) is binding upon it without the need
for appeal or other action; and if the Escrow Agent complies with any such
order, writ, judgment or decree, it shall not be liable to any of the parties
hereto or to any other person or entity by reason of such compliance even though
such order, writ, judgment or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
12
(k) The
parties acknowledge that the Escrow Agent has acted as counsel to the Company
and/or its affiliates in various matters, including in connection with the
Offering, and has prepared this Escrow Agreement, and may continue to act as
counsel to the Company and/or its affiliates during and following the term
of
this Escrow Agreement. All parties to this Escrow Agreement waive any conflicts
that exist or may arise by reason of such prior, continuing and/or future
representation.
8. Intentionally
omitted.
9. Governing
Law; Jurisdiction, Venue.
This
Escrow Agreement shall be governed by and construed and enforced in accordance
with the law (other than the law governing conflict of law questions) of the
State of Florida. Except as otherwise set forth herein, any suit, action or
proceeding arising out of or relating to this Escrow Agreement shall be brought
in State Circuit Court or Federal District Court located in Broward County,
Florida, and the parties hereby (a) submit to the exclusive jurisdiction of
such
courts, (b) waive any objection to the laying of venue in such courts, and
(c)
agree that service of process in any such suit, action or proceeding, in
addition to any other method permitted by applicable law, may be effected by
certified mail, return receipt requested, to a party at its address set forth
in
Section 9 hereof.
10. Notices.
All
notices and communications shall be deemed to have been duly given at the time
(a) delivered by hand, if personally delivered; (b) when received, if deposited
in the mail, postage prepaid, addressed as provided below; (c) when transmission
is verified, if telecopied, provided that (i) the business day following the
date of transmission shall be the deemed to be the day notice is given if the
day of transmission is not a business day and (ii) telecopy notice shall not
be
used for notice to the Escrowee; and (d) on the next business day, if timely
delivered to a courier service for “guaranteed” overnight delivery; provided
that the Escrow Agent shall have no obligation hereunder unless notice is
actually received by it:
| If to the Placement Agent: | Newbridge Securities Corporation
Suite
204
0000
Xxxxxxx Xxxxx Xxxx
Xx.
Xxxxxxxxxx, XX 00000
Attn:
Xxxxxxx X. Xxxxxxxxx
Facsimile
No.: 000-000-0000
|
||
| If to the Escrow Agent: | Xxxxxxxxx Xxxxxxxxxx & Beilly LLP
Suite
210
0000
Xxxxxxxxx Xxxx. XX
Xxxx
Xxxxx, Xxxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile
No.: 000-000-0000
|
||
|
If
to the Escrowee:
|
To
the address set forth on Exhibit A.
|
Any
party
may change its address by providing written notice of such change to the other
parties hereto. All notices and communications shall be signed by a duly
authorized person of the sending party.
11. Termination
of Escrow Agreement.
The
Escrow Agent’s responsibilities hereunder shall terminate upon the earliest to
occur of disbursement of the Escrow Property in accordance with the terms of
this Agreement (including into court under Section 5 hereof) and the removal
or
resignation of the Escrow Agent.
13
12. Entire
Escrow Agreement.
This
Escrow Agreement (and the exhibits attached hereto) contains the entire
understanding by and among the parties hereto with respect to the subject matter
hereof; there are no promises, agreements, understandings, representations
or
warranties, other than as herein set forth. No change or modification of this
Escrow Agreement shall be valid or effective unless the same is in writing
and
is signed by all of the parties hereto.
13. Counterparts;
Facsimile and Electronic Signature.
This
Escrow Agreement may be executed (a) in two or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the
same
agreement, and may be executed and delivered by facsimile counterpart and (b)
by
facsimile or electronic signature with the same force and effect as if executed
by original signature.
14
IN
WITNESS WHEREOF,
the
parties hereto have caused their respective hands to be set hereto with the
intention of being bound effective in all respects as of the date and year
first
hereinabove written.
NEWBRIDGE
SECURITIES CORPORATION
By:
__________________________________
Xxxxxxx
X. Xxxxxxxxx
Its: Director
of Investment Banking
XXXXXXXXX
XXXXXXXXXX & BEILLY LLP
By:
__________________________________
Xxxxxx
X.
Xxxxxxxxxx
Its:
Member
ESCROWEE:
_____________________________________
Dong
Jinqing
15
EXHIBIT
A
ESCROWEE
|
Name
|
Address
|
Certificate
No(s).
|
Number
of Escrow Shares
|
|
Dong
Jinqing
|
Xx.
0 Xxxxxx Xxxx Xxxx
X-X-X
Xxxx
Xxxxxx,
Xxxxx 116600
|
20134
20151
TBD
|
444,444
|
16
EXHIBIT
B
FORM
OF DISBURSEMENT NOTICE
[DATE]
Xxxxxxxxx
Xxxxxxxxxx & Beilly LLP
Suite
210
0000
Xxxxxxxxx Xxxx. XX
Xxxx
Xxxxx, XX 00000
| Re: |
Escrow
Agreement dated _________, 2008
|
| China Industrial Waste Management, Inc. |
Ladies
and Gentlemen:
Reference
is made to the Escrow Agreement dated _____, 2008 (the “Escrow Agreement)” by
and between Newbridge Securities Corporation, the person identified on Exhibit
A
to the Escrow Agreement and Xxxxxxxxx Xxxxxxxxxx & Beilly LLP, as escrow
agent. Defined terms herein shall have the respective meanings given to them
in
the Escrow Agreement.
Pursuant
to Section [4(b)] [4(c)] of the Escrow Agreement, you are hereby instructed
to
deliver [222,222] Escrow Shares to the Escrowee, as follows:
|
Name
of Escrowee
|
Address
|
Tax
ID Number
|
Number
of Shares
|
|
Dong
Jinqing
|
Xx.
0 Xxxxxx Xxxx Xxxx
X-X-X
Xxxx
Xxxxxx,
Xxxxx 116600
|
N/A
|
[222,222]
|
Very
truly yours,
NEWBRIDGE
SECURITIES
CORPORATION
By:
__________________________
Xxxxxxx
X. Xxxxxxxxx
Director
of Investment Banking
17
EXHIBIT
C
FORM
OF DISBURSEMENT NOTICE
[DATE]
Xxxxxxxxx
Xxxxxxxxxx & Beilly LLP
Suite
210
0000
Xxxxxxxxx Xxxx. XX
Xxxx
Xxxxx, XX 00000
| Re: |
Escrow
Agreement dated _________, 2008
|
|
China
Industrial Waste Management,
Inc.
|
Ladies
and Gentlemen:
Reference
is made to the Escrow Agreement dated _____, 2008 (the “Escrow Agreement”) by
and between Newbridge Securities Corporation, the person identified on Exhibit
A
to the Escrow Agreement and Xxxxxxxxx Xxxxxxxxxx & Beilly LLP, as escrow
agent. Defined terms herein shall have the respective meanings given to them
in
the Escrow Agreement.
Pursuant
to Section [4(a)] [4(c)] of the Escrow Agreement, you are hereby instructed
to
deliver [222,222] Escrow Shares to the Investors, registered as
follows:
|
Name
of Investor
|
Address
|
Tax
ID Number
|
Number
of Shares
|
|
[222,222]
|
|||
You
are
hereby authorized to deliver the certificates evidencing the Escrow Shares
to be
disbursed hereunder to the Company’s transfer agent in order to process the
transfer of such Escrow Shares to the Investors, as aforesaid.
Very
truly yours,
NEWBRIDGE
SECURITIES
CORPORATION
By:
__________________________
Xxxxxxx
X. Xxxxxxxxx
Director
of Investment Banking
18
EXHIBIT
D
FORM
OF DISBURSEMENT NOTICE
[DATE]
Xxxxxxxxx
Xxxxxxxxxx & Beilly LLP
Suite
210
0000
Xxxxxxxxx Xxxx. XX
Xxxx
Xxxxx, XX 00000
| Re: |
Escrow
Agreement dated _________, 2008
|
| China Industrial Waste Management, Inc. |
Ladies
and Gentlemen:
Reference
is made to the Escrow Agreement dated _____, 2008 (the “Escrow Agreement”) by
and between Newbridge Securities Corporation, the person identified on Exhibit
A
to the Escrow Agreement and Xxxxxxxxx Xxxxxxxxxx & Beilly LLP, as escrow
agent. Defined terms herein shall have the respective meanings given to them
in
the Escrow Agreement.
Pursuant
to Section 4(c) of the Escrow Agreement, you are hereby instructed:
(a) to
deliver [74,000][148,222] Escrow Shares to the Investors, registered as
follows:
|
Name
of Investor
|
Address
|
Tax
ID Number
|
Number
of Shares
|
|
[74,000][148,222]
|
|||
and
(b) to
deliver [74,000][148,222] Escrow Shares to the Escrowee, registered as
follows:
|
Name
of Escrowee
|
Address
|
Tax
ID Number
|
Number
of Shares
|
|
Dong
Jinqing
|
Xx.
0 Xxxxxx Xxxx Xxxx
X-X-X
Xxxx
Xxxxxx,
Xxxxx 116600
|
N/A
|
[74,000][148,222]
|
You
are
hereby authorized to deliver the certificates evidencing the Escrow Shares
to be
disbursed hereunder to the Company’s transfer agent in order to process the
transfer of such Escrow Shares to the Investors and the Escrowee, as
aforesaid.
Very
truly yours,
NEWBRIDGE
SECURITIES
CORPORATION
By:
__________________________
Xxxxxxx
X. Xxxxxxxxx
Director
of Investment Banking
19
EXHIBIT
C
PROPOSED
DISCLOSURE
[SEE
EARNINGS RELEASE DATED NOVEMBER 17, 2008]
20
