EX-99.4
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v204976_ex99-4.htm
INVESTOR AND PUBLIC
RELATIONS ESCROW AGREEMENT
This
Agreement, dated as of December 2, 2010 (this “Agreement”), is
entered into by and among Weikang Bio-Technology Group Company, Inc., a Nevada
corporation (the “Company”), Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP (the “Escrow Agent”), and
MidSouth Investor Fund LP, as representative for the Subscribers in that certain
Subscription Agreement (as defined herein) (“Subscriber
Representative) (the Company and the Subscriber Representative are
collectively referred to as “Escrowing
Parties”).
WITNESSETH:
WHEREAS,
the Company proposes to make a private offering to accredited investors (the
“Offering”) of
Units, each composed of (i) four (4) shares of common
stock, par value $.00001 per share (the “Common Stock”), (ii)
a three year warrant to purchase one share of Common Stock at an exercise price
of $3.60 per share, and (iii) a three year warrant to purchase one share of
common stock at an exercise price of $4.80 per share (the “Offering Securities”)
in reliance upon available exemptions from the registration requirements of the
U.S. Securities Act of 1933, as amended and pursuant to a Subscription Agreement
(the “Subscription
Agreement”), in an aggregate amount of no less than One Million Dollars
($1,000,000) (the “Minimum Offering
Amount”); and
WHEREAS,
the Company has agreed to retain the services of an investor relations firm (the
“IR Firm”), the selection of which is subject to the approval of the Subscriber
Representative; and
WHEREAS,
the Company has agreed to deposit at the closing (the “Closing”) of the Offering
an aggregate of One Hundred Fifty Thousand Dollars ($150,000) from the Minimum
Offering Amount (the “Investor Relations Held-Back
Escrowed Portion”) with the Escrow Agent, to be held and disbursed by the
Escrow Agent pursuant to this Agreement; and
WHEREAS,
Escrow Agent is willing to hold the Investor Relations Held-Back Escrowed
Portion 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.
a. The
Company hereby directs that the Escrow Agent allocate the Investor Relations
Held-Back Escrowed Portion separately from the Minimum Offering Amount at the
Closing and hold the Investor Relations Held-Back Escrowed Portion in the escrow
account as follows (the “Escrow Account”):
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Bank:
Citibank
Address:
000 Xxxxx Xxxxxx, Xxx Xxxx, XX
ABA
No.: 000000000
SWIFT:
XXXXXX00
Account:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP Attorney Escrow Account for Weikang
Bio-Technology Group Company, Inc.
Account
No.: 00000000
Reference:
Weikang Bio-Technology Group Company, Inc.
3. Escrow Agent to Hold and
Disburse the Investor Relations Held-Back Escrowed
Portion. The Escrow Agent will hold and disburse the Investor
Relations Held-Back Escrowed Portion received by it pursuant to the terms of
this Agreement to the Company after approval of the IR Firm by the Subscriber
Representative, as follows:
a. The
Investor Relations Held-Back Escrowed Portion shall remain in the Escrow Account
and shall only be released by the Escrow Agent to the Company upon the Escrow
Agent’s receipt of written instructions in the form of Exhibit B hereto from
the Company with invoices from the IR Firm evidencing the investor relations
related expenses for payment.
b. 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 Investor Relations Held-Back Escrowed Portion 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
further authorizes the Escrow Agent, if it receives conflicting claims to any of
the Escrowed 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 Investor Relations
Held-Back Escrowed Portion 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.
a. 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
Agreement referenced below, and except for written instructions given to the
Escrow Agent by the Escrowing Parties relating to the Escrowed Funds, the Escrow
Agent shall not be obligated to recognize any agreement between or among any of
the Escrowing Parties, notwithstanding that references hereto may be made herein
and whether or not it has knowledge thereof.
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b. The Escrow
Agent shall not be liable to the Company, the Subscriber
Representative, 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.
c. 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 the
Company, the Subscriber Representative, 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
Agreement. The Escrow Agent shall have no responsibility with respect to the use
or application of the Escrowed Funds pursuant to the provisions
hereof.
d. 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 the Company, the
Subscriber Representative, 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.
e. 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 Investor Relations Held-Back Escrowed Portion, or any payment made
hereunder, the Escrow Agent may pay such taxes; and the Escrow Agent may
withhold from any payment of the Investor Relations Held-Back Escrowed Portion
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(f).
f. The
Escrow Agent will be indemnified and held harmless by 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 Agreement, the
services of the Escrow Agent hereunder, except for claims relating to gross
negligence by Escrow Agent or breach of this 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 an Escrowing Party, notify each of them thereof in
writing, but the failure by the Escrow Agent to give such notice shall not
relieve any such party from any liability which an Escrowing Party 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.
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g. 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.
a. This
Agreement shall terminate upon disbursement of all of the Investor Relations
Held-Back Escrowed Portion provided that the rights of the Escrow Agent and the
obligations of the Company under Section 4 shall survive the termination
hereof.
b. The
Escrow Agent may resign at any time and be discharged from its duties as Escrow
Agent hereunder by giving the Company and Subscriber Representative 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 the Company within the Notice
Period, turn over to a successor escrow agent appointed by the Company all
Investor Relations Held-Back Escrowed Portion (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.
a. Any
payments of the Investor Relations Held-Back Escrowed Portion by the Escrow
Agent pursuant to the terms of this Agreement shall be made by wire transfer
unless directed to be made by check by the Escrowing Parties.
b. 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 the
Company:
a. Fees: The
Company shall pay an annual processing fee of $2,500 to the Escrow Agent for the
Investor Relations Held-Back Escrowed Portion.
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b. Interest: The
Investor Relations Held-Back Escrowed Portion 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 Account.
8. Notices. All
notices, demands, consents, requests, instructions and other communications to
be given or delivered or permitted under or by reason of the provisions of this
Agreement or in connection with the transactions contemplated hereby shall be in
writing and shall be deemed to be delivered and received by the intended
recipient as follows: (i) if personally delivered, on the business
day of such delivery (as evidenced by the receipt of the personal delivery
service), (ii) if mailed certified or registered mail return receipt requested,
two (2) business days after being mailed, (iii) if delivered by overnight
courier (with all charges having been prepaid), on the business day of such
delivery (as evidenced by the receipt of the overnight courier service of
recognized standing), or (iv) if delivered by facsimile transmission, on the
business day of such delivery if sent by 6:00 p.m. in the time zone of the
recipient, or if sent after that time, on the next succeeding business day (as
evidenced by the printed confirmation of delivery generated by the sending
party’s telecopier machine). If any notice, demand, consent, request,
instruction or other communication cannot be delivered because of a changed
address of which no notice was given (in accordance with this Section 8), or the
refusal to accept same, the notice, demand, consent, request, instruction or
other communication shall be deemed received on the second business day the
notice is sent (as evidenced by a sworn affidavit of the sender). All
such notices, demands, consents, requests, instructions and other communications
will be sent to addresses or facsimile numbers as applicable set forth on Exhibit A
hereto.
9. Further
Assurances. From time to time on and after the date hereof,
the Company and the Subscriber Representative, if applicable, 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 Agreement, to evidence compliance herewith or to
assure itself that it is protected in acting hereunder.
10. Consent to Service of
Process. The Company, the Escrow Agent and the
Subscriber Representative hereby irrevocably consent to the jurisdiction of the
courts of the State of New York and of any Federal court located in such state
in connection with any action, suit or proceedings arising out of or relating to
this 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
a. This
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 Agreement, refer to the Escrow Agreement in its entirety
and not only to the particular portion of this 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 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
Agreement shall not be admissible in evidence to construe the provisions of any
prior agreement.
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b. This
Agreement and the rights and obligations hereunder of the Company and the
Subscriber Representative may not be assigned. This Agreement and the
rights and obligations hereunder of the Escrow Agent may be assigned by the
Escrow Agent, with the prior consent of the Company. This 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 Agreement. This Agreement may not be
changed orally or modified, amended or supplemented without an express written
agreement executed by the Escrow Agent, the Company and the Subscriber
Representative. This 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 Agreement are intended to be, nor shall they be
construed to be, for the benefit of any third person.
c. This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York. The representations and warranties contained in
this Agreement shall survive the execution and delivery hereof and any
investigations made by any party. The headings in this Agreement are
for purposes of reference only and shall not limit or otherwise affect any of
the terms thereof.
12. Execution of
Counterparts. This 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 Agreement shall become
binding when one or more of the counterparts hereof, individually or taken
together, are signed by all the parties.
[THE
REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK.]
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IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement on the
day and year first above written.
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SICHENZIA
XXXX XXXXXXXX XXXXXXX LLP
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By:
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/s/ Xxxx X. Xxxx
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Name:
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Xxxx
X. Xxxx
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Title:
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Partner
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WEIKANG
BIO-TECHNOLOGY GROUP COMPANY, INC.
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By:
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/s/ Xxx Xxxx
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Name:
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Xxx
Xxxx
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Title:
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Chief
Executive Officer
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SUBSCRIBER
REPRESENTATIVE:
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MidSouth
Investor Fund LP
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By:
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MidSouth
Investment Management, LLC, GP
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By:
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/s/ Xxxxx X. Xxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Manager
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EXHIBIT
A
Parties
to Agreement
Escrow
Agent:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxx, Esq.
Tel No.:
(000) 000-0000
Fax No.:
(000) 000-0000
Company:
Weikang
Bio-Technology Group Co., Inc.
Xx. 000
Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx
Xxxxxxxxxxxx
Xxxxxxxx, The People’s Republic of China 150020
Attention:
Xxx Xxxx, Chief Executive Officer
Phone:
(00) 0000-00000000
Subscriber
Representative:
MidSouth
Investor Fund LP
000
0xx
Xxxxxx Xxxxx
Xxxxx
0000
Xxxxxxxxx,
XX 00000
Tel No.:
000 000-0000
Attention
Xxxxx X. Xxxxxx, Manager
Fax No.:
_________________
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EXHIBIT
B
DISBURSEMENT
REQUEST
Pursuant
to that
Investor and Public Relations Escrow Agreement dated effective as of
November 30, 2010, among Weikang Bio-Technology Group Company, Inc., the
Subscriber Representative, and Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, as Escrow
Agent, the Company hereby requests disbursement of funds in the amount and
manner described below from account number 00000000, styled Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP Attorney Escrow Account.
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Please
disburse to:
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Amount
to disburse:
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Form
of distribution:
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Payee:
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Name:
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Address:
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City/State:
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Zip:
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Statement
of event or condition which calls for this request for
disbursement:
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WEIKANG
BIO-TECHNOLOGY
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GROUP
COMPANY, INC.
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Date:
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By:
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Name:
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Title:
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