Contract
Exhibit 10.3
Xxx Xxxx
Securities, LLC
000 X.
XxXxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
January
12, 2010
Mr. Su
Zhonghao
27F(Changqing
Building), 000 Xxxxxxxxx Xxxx
Xxxxxx
Xxxx, Xxxxx 000000
Dear Mr.
Su:
The
purpose of this agreement (the "Agreement") is to set forth the terms and
conditions pursuant to which Xxx Xxxx Securities, LLC ("Xxx Xxxx") shall act as
placement agent for China Green Material Technologies, Inc., a Nevada
corporation (the "Company"), in connection with a proposed private placement of
common stock of the Company (the "Securities") slated to close on or about
January 15, 2010 (the "Private Placement"). The gross proceeds from the Private
Placement are proposed to be up to $4,770,000. The terms of such "best efforts"
Private Placement, including closing conditions and the Securities to be
purchased are set forth in a Securities Purchase Agreement dated on or about
January 12, 2010 by and among the Company and the purchasers set forth on the
signature pages thereto.
The
parties hereto hereby agree that the fees and compensation payable to Xxx Xxxx
in connection with the Private Placement, which fees and compensation the
Company shall direct ARC China, Inc., a Shanghai corporation ("ARC"), to pay at
the closing of the Private Placement, are as follows:
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A
cash fee equal to one percent (1%) of the gross proceeds raised in the
Private Placement, payable immediately upon the closing and funding of any
portion of the Private Placement placed with an accredited individual
investor or bank, finance company, hedge fund or similar
institution.
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All
amounts payable hereunder shall be paid to Xxx Xxxx by ARC at the direction of
the Company out of an escrow account at the closing or by such other means
acceptable to Xxx Xxxx, along with any reasonable out of pocket expenses
incurred by Xxx Xxxx in carrying out the Private Placement.
The
parties hereto agree to an Arbitration Agreement. Any and all
controversies, disputes or claims between the undersigned parties arising out
of, in connection with, from or with respect to any provisions of or the
validity of the agreement or any related agreements shall be conducted pursuant
to the code of arbitration procedure of FINRA. Arbitration must be
commenced by service of a written demand for arbitration or a written notice of
intention to arbitrate. The decision and award of the arbitrator(s)
shall be conclusive and binding upon all parties, and any judgment upon any
award rendered may be entered in a court having jurisdiction thereof, and no
parties shall oppose such entry.
The
Company and Xxx Xxxx hereby agree to the terms and conditions of the
Indemnification Agreement attached hereto as Appendix A with the same force and
effect as if such terms and conditions were set forth at length
herein.
This
Agreement constitutes the entire understanding and agreement between the parties
hereto with respect to its subject matter and there are no agreements or
understanding with respect to the subject matter hereof which are not contained
in this Agreement. This Agreement may be modified only in writing signed by the
party to be charged hereunder.
If the
foregoing correctly sets forth our agreement, please confirm this by signing and
returning to us the duplicate copy of this letter.
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Very
truly yours,
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XXX
XXXX SECURITIES, LLC
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By:
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/s/ Xxxxxx Xxxxxxx | |
| Xxxxxx Xxxxxxx, Chief Operating Officer | |||
ACCEPTED
AND AGREED TO:
By: /s/ Su
Zhonghao
Mr. Su
Zhonghao, Chief Executive Officer
ARC
China, Inc.
By:
/s/ Xxxx X.
Xxxxxxx
Xxxx X.
Xxxxxxx, Chief Executive Officer
APPENDIX
A
INDEMNIFICATION
AGREEMENT
Appendix
A to Letter Engagement Agreement (the "Agreement"), dated January 12, 2010 by
and between China Green Material Technologies, Inc. and its related entities
(collectively, the "Company"), Xxx Xxxx Securities, LLC (“Xxx Xxxx”) and ARC
China, Inc.
The
Company agrees to indemnify and hold Xxx Xxxx and its affiliates, control
persons, directors, officers, employees and agents (each an "Indemnified
Person") harmless from and against all losses, claims, damages, liabilities,
costs or expenses, including those resulting from any threatened or pending
investigation, action, proceeding or dispute whether or not Xxx Xxxx or any such
other Indemnified Person is a party to such investigation, action, proceeding or
dispute, arising out of Xxx Xxxx'x entering into or performing services under
this Agreement, or arising out of any matter referred to in this Agreement. This
indemnity shall also include Xxx Xxxx'x and/or any such other Indemnified
Person's reasonable attorneys' and accountants' fees and out-of-pocket expenses
incurred in such investigations, actions, proceedings or disputes which fees,
expenses and costs shall be periodically reimbursed to Xxxxxxx and/or to any
such other Indemnified Person by the Company as they are incurred; provided,
however, that the indemnity herein set forth shall not apply to an Indemnified
Person where a court of competent jurisdiction has made a final determination
that such Indemnified Person acted in a grossly negligent manner or engaged in
willful misconduct in the performance of the services hereunder which gave rise
to the loss, claim, damage, liability, cost or expense sought to be recovered
hereunder (but pending any such final determination the indemnification and
reimbursement provisions hereinabove set forth shall apply and the Company shall
perform its obligations hereunder to reimburse Xxx Xxxx and/or each such other
Indemnified Person periodically for its, his or their fees, expenses and costs
as they are incurred). The Company also agrees that no Indemnified Person shall
have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company for or in connection with any act or omission to act
as a result of its engagement under this Agreement except for any such liability
for losses, claims, damages, liabilities or expenses incurred by the Company
that is found in a final determination by a court of competent jurisdiction to
have resulted from such Indemnified Person's gross negligence or willful
misconduct.
If for
any reason, the foregoing indemnification is unavailable to Xxx Xxxx or any such
other Indemnified Person or insufficient to hold it harmless, then the Company
shall contribute to the amount paid or payable by Xxx Xxxx or any such other
Indemnified Person as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the Company and its shareholders on the one hand and Xxx Xxxx or any such
other Indemnified Person on the other hand, but also the relative fault of the
Company and Xxx Xxxx or any such other Indemnified Person, as well as any
relevant equitable considerations; provided that in no event will the aggregate
contribution by Xxx Xxxx and any such other Indemnified Person hereunder exceed
the amount of fees actually received by Xxx Xxxx.
Company
hereinabove set forth shall be in addition to any liability which the Company
may otherwise have and these obligations and the other provisions hereinabove
set forth shall be binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of the Company, Xxx Xxxx and any
other Indemnified Person.
The terms
and conditions hereinabove set forth in this Appendix A shall survive the
termination and expiration of this Agreement and shall continue indefinitely
thereafter.
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Very
truly yours,
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XXX
XXXX SECURITIES, LLC
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By:
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/s/ Xxxxxx Xxxxxxx | |
| Xxxxxx Xxxxxxx, Chief Operating Officer | |||
ACCEPTED
AND AGREED TO:
By: /s/ Su
Zhonghao
Mr. Su
Zhonghao, Chief Executive Officer
ARC
China, Inc.
By:
/s/ Xxxx X.
Xxxxxxx
Xxxx X.
Xxxxxxx, Chief Executive Officer
