MAKE GOOD ESCROW AGREEMENT
This
Make
Good Escrow Agreement (the "Make Good Agreement"), dated effective as of
February 25, 2008, is entered into by and among China Solar & Clean Energy
Solutions, Inc., a Nevada corporation (the "Company"), the Investors (as defined
below), Xxxx Capital Partners, LLC ("Xxxx") and Tri-State Title & Escrow,
LLC, as escrow agent ("Escrow Agent").
WHEREAS,
each of the investors in the private offering of securities of the Company
(the
"Investors") has entered into a Securities Purchase Agreement, dated February
___, 2008 (the "SPA"), evidencing their participation in the Company's private
offering (the "Offering")
of
securities. As an inducement to the Investors to participate in the Offering
and
as set forth in the SPA, the Company has agreed to place certain shares of
the
Company’s common stock, par value $0.001 per share (the “Common Stock”) into
escrow for the benefit of the Investors in the event the Company fails to
satisfy certain financial thresholds.
WHEREAS,
pursuant to the requirements of the SPA, the Company has agreed to establish
an
escrow on the terms and conditions set forth in this Make Good
Agreement.
WHEREAS,
the Escrow Agent has agreed to act as escrow agent pursuant to the terms and
conditions of this Make Good Agreement.
WHEREAS,
all capitalized terms used but not defined herein shall have the meanings
assigned them in the SPA.
NOW,
THEREFORE, in consideration of the mutual promises of the parties and the terms
and conditions hereof, the parties hereby agree as follows:
1.
Appointment of Escrow Agent.
The
Company hereby appoints Escrow Agent to act as the as escrow agent in accordance
with the terms of this Make Good Agreement, and the Escrow Agent hereby accepts
such appointment.
2.
Establishment of Escrow.
By the
Closing Date, the Company shall deliver, or cause to be delivered, to the Escrow
Agent certificates evidencing an aggregate of 2,000,000 shares
of
the Company’s Common Stock (as equitably adjusted for any stock splits, stock
combinations, stock dividends or similar transactions) (the "Escrow Shares"),
along with bank signature stamped stock powers executed in blank (or such other
signed instrument of transfer acceptable to the Company’s Transfer Agent). As
used in this Make Good Agreement, “Transfer Agent” means Securities Transfer
Corporation, or such other entity hereafter retained by the Company as its
stock
transfer agent as specified in a writing from the Company to the Escrow Agent.
The Company understands and agrees that the Investors’ right to receive 2008
Make Good Shares (as defined below) and 2009 Make Good Shares (as defined below)
pursuant to Section 4.11 of the SPA and this Make Good Agreement shall continue
to run to the benefit of each Investor even if such Investor shall have
transferred or sold all or any portion of its Shares, and that each Investor
shall have the right to assign its rights to receive all or any such shares
of
Common Stock to other Persons in conjunction with negotiated sales or transfers
of any of its Shares. The Company hereby irrevocably agrees that other than
in
accordance with Section 4.11 of the SPA and this Make Good Agreement, the
Company will not offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly
or
indirectly, or announce the offering of any of the Escrow Shares (including
any
securities convertible into, or exchangeable for, or representing the rights
to
receive Escrow Shares). In furtherance thereof, the Company will (x) place
a
stop order on all Escrow Shares covered by any registration statements, (y)
notify the Transfer Agent in writing of the stop order and the restrictions
on
such Escrow Shares under this Make Good Agreement and direct the Transfer Agent
not to process any attempts to resell or transfer any Escrow Shares under such
registration statements or otherwise in violation of Section 4.11 of the SPA
and
this Make Good Agreement. The Company shall notify the Investors as soon as
the
Escrow Shares have been deposited with the Escrow Agent.
3. Representations
of the Company.
The
Company hereby represents and warrants to the Investors as follows:
(i)
All
of the Escrow Shares are validly issued, fully paid and nonassessable shares
of
the Company, and free and clear of all pledges, liens and encumbrances. Upon
any
transfer of Escrow Shares to Investors hereunder, Investors will receive full
right, title and authority to such shares as holders of Common Stock of the
Company.
(ii) Performance
of this Make Good Agreement and compliance with the provisions hereof will
not
violate any provision of any applicable law and will not conflict with or result
in any breach of any of the terms, conditions or provisions of, or constitute
a
default under, or result in the creation or imposition of any lien, charge
or
encumbrance upon, any of the properties or assets of the Company pursuant to
the
terms of any indenture, mortgage, deed of trust or other agreement or instrument
binding upon the Company, other than such breaches, defaults or liens which
would not have a material adverse effect taken as a whole.
(iii)
The
Company has carefully considered and understands its obligations and rights
under Section 4.11 of the SPA and this Make Good Agreement, and in furtherance
thereof (x) has consulted with its legal and other advisors with respect thereto
and (y) hereby forever waives and agrees that it may not assert any equitable
defenses in any Proceeding involving the Escrow Shares.
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4.
Disbursement of Escrow Shares.
a. The
Company agrees that in the event that the After Tax Net Income (as defined
below) reported in the Annual Report of the Company for the fiscal year ending
December 31, 2008, as filed with the Commission on Form 10-K (or such other
form
appropriate for such purpose as promulgated by the Commission) (the “2008
Annual Report”),
is
less than $4,800,000 (the “2008
Guaranteed ATNI”),
the
Company will transfer to each Investor on a pro-rata basis (determined by
dividing each Investor’s Investment Amount by the aggregate of all Investment
Amounts delivered to the Company by the Investors hereunder) for no
consideration other than their respective Investment Amounts paid to the Company
at Closing, the 2008 Make Good Shares. The “2008
Make Good Shares”
means
the 1,000,000 shares of Common Stock (as equitably adjusted for any stock
splits, stock combinations, stock dividends or similar transactions) required
to
be deposited with the Make Good Escrow Agent pursuant to the Make Good Escrow
Agreement.
b. In
the
event that the After Tax Net Income reported in the Annual Report of the Company
for the fiscal year ending December 31, 2009, as filed with the Commission
on
Form 10-K (or such other form appropriate for such purpose as promulgated by
the
Commission) (the “2009
Annual Report”)
is less
than $8,000,000 (the “2009
Guaranteed ATNI”),
the
Company will transfer to each Investor on a pro-rata basis (determined by
dividing each Investor’s Investment Amount by the aggregate of all Investment
Amounts delivered to the Company by the Investors hereunder) for no
consideration other than their respective Investment Amounts paid to the Company
at Closing, the 2009 Make Good Shares. The “2009
Make Good Shares”
means
the 1,000,000 shares of Common Stock (as equitably adjusted for any stock
splits, stock combinations, stock dividends or similar transactions) required
to
be deposited with the Make Good Escrow Agent pursuant to the Make Good Escrow
Agreement. In the event that the After Tax Net Income reported in the 2008
Annual Report is equal to or greater than the 2008 Guaranteed ATNI, no transfer
of the 2008 Make Good Shares shall be required by the Company to the Investors
and such 2008 Make Good Shares shall be returned to the Company in accordance
with this Make Good Agreement. In the event that the After Tax Net Income
reported in the 2009 Annual Report is equal to or greater than the 2009
Guaranteed ATNI, no transfer of the 2009 Make Good Shares shall be required
by
the Company to the Investors and such 2009 Make Good Shares shall be returned
to
the Company in accordance with this Make Good Agreement.
c. Any
required transfer of 2008 Make Good Shares or 2009 Make Good Shares shall be
made to the Investors or the Company, as applicable, within 10 Business Days
after the date which the 2008 Annual Report or 2009 Annual Report, as
applicable, is filed.
d. Notwithstanding
anything to the contrary contained herein, in determining whether the Company
has achieved either the 2008 Guaranteed ATNI or 2009 Guaranteed ATNI, the
Company may disregard any compensation charge or expense required to be
recognized by the Company under GAAP resulting from the release of the 2008
Make
Good Shares or 2009 Make Good Shares (as relevant) to the Company if and to
the
extent such charge or expense is specified in the Company’s independent
auditor’s report for the relevant year, as filed with the Commission. In
determining whether the Company has achieved either the 2008 Guaranteed ATNI
or
2009 Guaranteed ATNI (as the case may be), any liquidated damages payable
pursuant to the Transaction Documents shall not be included as expenses of
the
Company. If prior to the third anniversary of the filing of either of the 2008
Annual Report or the 2009 Annual Report (as the case may be), the Company or
their auditors report or recognize that the financial statements contained
in
such report are subject to amendment or restatement such that the Company would
recognize or report adjusted After Tax Net Income of less than either of the
2008 Guarantee ATNI or the 2009 Guaranteed ATNI (as the case may be), then
notwithstanding any prior return of 2008 Make Good Shares or 2009 Make Good
Shares to the Company, the Company will, within 10 Business Days following
the
earlier of the filing of such amendment or restatement or recognition, deliver
the relevant 2008 Make Good Shares or 2009 Make Good Shares to the Investors.
“After
Tax Net Income”
shall
mean the Company’s income after taxes for the fiscal year ending December 31,
2008 or December 31, 2009 (as the case may be) in each case determined in
accordance with GAAP as reported in the 2008 Annual Report or 2009 Annual Report
(as relevant).
3
e. In
the
event that the After Tax Net Income reported in the 2008 Annual Report is less
than the 2008 Guaranteed ATNI, the Company has agreed that Xxxx will provide
prompt written instruction to the Escrow Agent with regard to the distribution
of the 2008 Make Good Shares in an amount to each Investor as determined as
set
forth above. In the event that the After Tax Net Income reported in the 2009
Annual Report is less than the 2009 Guaranteed ATNI, the Company has agreed
that
Xxxx will provide prompt written instruction to the Escrow Agent with regard
to
the distribution of the 2009 Make Good Shares in an amount to each Investor
as
determined as set forth above. The Escrow Agent need only rely on the letter
of
instruction from Xxxx in this regard and notwithstanding anything to the
contrary contained herein will disregard any contrary instructions. In the
event
that the After Tax Net Income reported in the 2008 Annual Report is equal to
or
greater than the 2008 Guaranteed ATNI, Xxxx shall provide prompt written
instructions to the Escrow Agent for the release of the 2008 Make Good Shares
to
the Company. In the event that the After Tax Net Income reported in the 2009
Annual Report is equal to or greater than the 2009 Guaranteed ATNI, Xxxx shall
provide prompt written instructions to the Escrow Agent for the release of
the
2009 Make Good Shares to the Company.
f. Pursuant
to Section 4(a), if Xxxx delivers a notice to the Escrow Agent that the Escrow
Shares are to be transferred to the Investors, then the Escrow Agent shall
immediately forward either the 2008 Make Good Shares or 2009 Make Good Shares,
as the case may be, to the Company’s Transfer Agent for reissuance to the
Investors as determined as set forth above and otherwise in accordance with
this
Make Good Agreement. The Company covenants and agrees that upon any transfer
of
2008 Make Good Shares or 2009 Make Good Shares to the Investors in accordance
with this Make Good Agreement, the Company shall promptly instruct its Transfer
Agent to reissue such 2008 Make Good Shares or 2009 Make Good Shares in the
applicable Investor’s name and deliver the same as directed by such Investor in
an amount to each Investor as set forth on Exhibit
A
attached
hereto. If the Company does not promptly provide such instructions to the
Transfer Agent of the Company, then Xxxx is hereby authorized to give such
re-issuance instruction to the Transfer Agent of the Company. If a notice from
Xxxx pursuant to Section 4(a) indicates that the Escrow Shares are to be
returned to the Company, then the Escrow Agent will promptly deliver either
the
2008 Make Good Shares or 2009 Make Good Shares, as the case may be, to the
Company.
4
g. The
Company covenants and agrees to provide the Escrow Agent with certified tax
identification numbers by furnishing appropriate forms W-9 or W-8 and such
other
forms and documents that the Escrow Agent may request, including appropriate
W-9
or W-8 forms for each Investor. The Company understands that if such tax
reporting documentation is not provided and certified to the Escrow Agent,
the
Escrow Agent may be required by the Internal Revenue Code of 1986, as amended,
and the Regulations promulgated thereunder, to withhold a portion of any
interest or other income earned on the investment of the Escrow Property.
5.
Duration.
This
Make Good Agreement shall terminate upon the distribution of all the Escrow
Shares in accordance with the terms of this Make Good Agreement. The Company
agrees to promptly provide the Escrow Agent written notice of the filing with
the Commission of any financial statements or reports referenced
herein.
6.
Escrow Shares.
If any
Escrow Shares are deliverable to the Investors pursuant to the SPA and in
accordance with this Make Good Agreement, (i) the Company covenants and agrees
to execute all such instruments of transfer (including stock powers and
assignment documents) as are customarily executed to evidence and consummate
the
transfer of the Escrow Shares from the Company to the Investors, to the extent
not done so in accordance with Section 2, and (ii) following its receipt of
the
documents referenced in Section 6(i), the Company and Escrow Agent covenant
and
agree to cooperate with the Transfer Agent so that the Transfer Agent promptly
reissues such Escrow Shares in the applicable Investor’s name and delivers the
same as directed by such Investor. Until such time as (if at all) the Escrow
Shares are required to be delivered pursuant to the SPA and in accordance with
this Make Good Agreement, any dividends payable in respect of the Escrow Shares
and all voting rights applicable to the Escrow Shares shall be retained by
the
Company. Should the Escrow Agent receive dividends or voting materials, such
items shall not be held by the Escrow Agent, but shall be passed immediately
on
to the Company and shall not be invested or held for any time longer than is
needed to effectively re-route such items to the Company. In the event that
the Escrow Agent receives a communication requiring the conversion
of the Escrow Shares to cash or the exchange of the Escrow Shares for that
of an acquiring company, the Escrow Agent shall solicit and follow the
written instructions of the Company; provided,
that
the cash or exchanged shares are instructed to be redeposited into the Escrow
Account. The Company shall be responsible for all taxes resulting from any
such
conversion or exchange.
7.
Interpleader.
Should
any controversy arise among the parties hereto with respect to this Make Good
Agreement or with respect to the right to receive the Escrow Shares, Escrow
Agent and/or Xxxx shall have the right to consult and hire counsel and/or to
institute an appropriate interpleader action to determine the rights of the
parties. Escrow Agent and/or Xxxx are also each hereby authorized to institute
an appropriate interpleader action upon receipt of a written letter of direction
executed by the parties so directing either Escrow Agent or Xxxx. If Escrow
Agent or Xxxx is directed to institute an appropriate interpleader action,
it
shall institute such action not prior to thirty (30) days after receipt of
such
letter of direction and not later than sixty (60) days after such date. Any
interpleader action instituted in accordance with this Section 7 shall be filed
in any court of competent jurisdiction in the State of Virginia, and the Escrow
Shares in dispute shall be deposited with the court and in such event Escrow
Agent and Xxxx shall be relieved of and discharged from any and all obligations
and liabilities under and pursuant to this Make Good Agreement with respect
to
the Escrow Shares and any other obligations hereunder.
5
8. Exculpation
and Indemnification of Escrow Agent and Xxxx.
a. Escrow
Agent is not a party to, and is not bound by or charged with notice of any
agreement out of which this escrow may arise. Escrow Agent acts under this
Make
Good Agreement as a depositary only and is not responsible or liable in any
manner whatsoever for the sufficiency, correctness, genuineness or validity
of
the subject matter of the escrow, or any part thereof, or for the form or
execution of any notice given by any other party hereunder, or for the identity
or authority of any person executing any such notice. Escrow Agent will have
no
duties or responsibilities other than those expressly set forth herein. Escrow
Agent will be under no liability to anyone by reason of any failure on the
part
of any party hereto (other than Escrow Agent) or any maker, endorser or other
signatory of any document to perform such person's or entity's obligations
hereunder or under any such document. Except for this Make Good Agreement and
instructions to Escrow Agent pursuant to the terms of this Make Good Agreement,
Escrow Agent will not be obligated to recognize any agreement between or among
any or all of the persons or entities referred to herein, notwithstanding its
knowledge thereof. Xxxx’x sole obligation under this Make Good Agreement is to
provide written instruction to Escrow Agent (following such time as the Company
files certain periodic financial reports as specified in Section 4 hereof)
directing the distribution of the Escrow Shares. Xxxx will provide such written
instructions upon review of the relevant earnings per share and/or after-tax
net
income amount reported in such periodic financial reports as specified in
Section 4 hereof. Xxxx is not charged with any obligation to conduct any
investigation into the financial reports or make any other investigation related
thereto. In the event of any actual or alleged mistake or fraud of the Company,
its auditors or any other person (other than Xxxx) in connection with such
financial reports of the Company, Xxxx shall have no obligation or liability
to
any party hereunder.
b. Escrow
Agent will not be liable for any action taken or omitted by it, or any action
suffered by it to be taken or omitted, absent gross negligence or willful
misconduct. Escrow Agent may rely conclusively on, and will be protected in
acting upon, any order, notice, demand, certificate, or opinion or advice of
counsel (including counsel chosen by 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 reasonably believed
by Escrow Agent to be genuine and to be signed or presented by the proper person
or persons. The duties and responsibilities of the Escrow Agent hereunder shall
be determined solely by the express provisions of this Make Good Agreement
and
no other or further duties or responsibilities shall be implied, including,
but
not limited to, any obligation under or imposed by any laws of the State of
Virginia upon fiduciaries. THE
ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES,
LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN
DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY
RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II)
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS
BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE
FORM
OF ACTION.
6
c. The
Company hereby indemnifies and holds harmless each of Escrow Agent, Xxxx and
any
of their principals, partners, agents, employees and affiliates from
and
against any expenses, including reasonable attorneys' fees and disbursements,
damages or losses suffered by Escrow Agent or Xxxx in connection with any claim
or demand, which, in any way, directly or indirectly, arises out of or relates
to this Make Good Agreement or the services of Escrow Agent or Xxxx hereunder;
except, that if Escrow Agent or Xxxx is guilty of willful misconduct or gross
negligence under this Make Good Agreement, then Escrow Agent or Xxxx, as the
case may be, will bear all losses, damages and expenses arising as a result
of
its own willful misconduct or gross negligence. Promptly after the receipt
by
Escrow Agent or Xxxx of notice of any such demand or claim or the commencement
of any action, suit or proceeding relating to such demand or claim, Escrow
Agent
or Xxxx, as the case may be, will notify the other parties hereto in writing.
For the purposes hereof, the terms "expense" and "loss" will include all amounts
paid or payable to satisfy any such claim or demand, or in settlement of any
such claim, demand, action, suit or proceeding settled with the express written
consent of the parties hereto, and all costs and expenses, including, but not
limited to, reasonable attorneys' fees and disbursements, paid or incurred
in
investigating or defending against any such claim, demand, action, suit or
proceeding. The provisions of this Section 8 shall survive the termination
of
this Make Good Agreement, and the resignation or removal of the Escrow Agent.
9.
Compensation of Escrow Agent.
Escrow
Agent shall be entitled to compensation for its services as stated in the fee
schedule attached hereto as Exhibit
B,
which
compensation shall be paid by the Company. The fee agreed upon for the services
rendered hereunder is intended as full compensation for Escrow Agent's services
as contemplated by this Make Good Agreement; provided,
however,
that in
the event that Escrow Agent renders any material service not contemplated in
this Make Good Agreement, or there is any assignment of interest in the subject
matter of this Make Good Agreement, or any material modification hereof, or
if
any material controversy arises hereunder, or Escrow Agent is made a party
to
any litigation pertaining to this Make Good Agreement, or the subject matter
hereof, then Escrow Agent shall be reasonably compensated by the Company for
such extraordinary services and reimbursed for all costs and expenses, including
reasonable attorney's fees, occasioned by any delay, controversy, litigation
or
event, and the same shall be recoverable from the Company. Prior
to
incurring any costs and/or expenses in connection with the foregoing sentence,
Escrow Agent shall be required to provide written notice to the Company of
such
costs and/or expenses and the relevancy thereof and Escrow Agent shall not
be
permitted to incur any such costs and/or expenses which are not related to
litigation prior to receiving written approval from the Company, which approval
shall not be unreasonably withheld.
7
10.
Resignation of Escrow Agent.
At any
time, upon ten (10) Business Days’ written notice to the Company and the
Investors, Escrow Agent may resign and be discharged from its duties as Escrow
Agent hereunder. As soon as practicable after its resignation, Escrow Agent
will
promptly turn over to a successor escrow agent appointed by the Company the
Escrow Shares held hereunder upon presentation of a document appointing the
new
escrow agent and evidencing its acceptance thereof. If, by the end of the 10
Business Day period following the giving of notice of resignation by Escrow
Agent, the Company shall have failed to appoint a successor escrow agent, Escrow
Agent shall deposit the Escrow Shares as directed by Xxxx with the understanding
that such Escrow Shares will continue to be subject to the provisions of this
Make Good Agreement.
11.
Records.
Escrow
Agent shall maintain accurate records of all transactions hereunder. Promptly
after the termination of this Make Good Agreement or as may reasonably be
requested by the parties hereto from time to time before such termination,
Escrow Agent shall provide the parties hereto, as the case may be, with a
complete copy of such records, certified by Escrow Agent to be a complete and
accurate account of all such transactions. The authorized representatives of
each of the parties hereto shall have access to such books and records at all
reasonable times during normal business hours upon reasonable notice to Escrow
Agent and at the requesting party’s expense.
12.
Notice.
All
notices, communications and instructions required or desired to be given under
this Make Good Agreement must be in writing and shall be deemed to be duly
given
if sent by registered or certified mail, return receipt requested, or overnight
courier, to the addresses listed on the signature pages hereto.
13.
Execution in Counterparts.
This
Make Good Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
14.
Assignment and Modification.
This
Make Good Agreement and the rights and obligations hereunder of the Company
may
not be assigned. This Make Good Agreement and the rights and obligations
hereunder of the Escrow Agent may be assigned by the Escrow Agent only with
the
prior consent of the Company and Xxxx. An Investor may assign its rights under
this Make Good Agreement without any consent from any other party. This Make
Good Agreement may not be changed orally or modified, amended or supplemented
without an express written agreement executed by the Escrow Agent, the Company,
Investors representing a majority in interest of the Shares and Xxxx. This
Make
Good Agreement is binding upon and 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 Make Good Agreement are intended to be, nor
shall
they be construed to be, for the benefit of any third person. No portion of
the
Escrow Shares shall be subject to interference or control by any creditor of
any
party hereto, or be subject to being taken or reached by any legal or equitable
process in satisfaction of any debt or other liability of any such party hereto
prior to the disbursement thereof to such party hereto in accordance with the
provisions of this Make Good Agreement.
8
15.
Applicable Law.
This
Make Good 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 Make Good Agreement shall survive the execution and delivery
hereof and any investigations made by any party. Each party agrees that all
legal proceedings concerning the interpretations, enforcement and defense of
the
transactions contemplated by this Make Good Agreement shall be commenced
exclusively in the state and federal courts sitting in the City of New York,
Borough of Manhattan (the “New York Courts”). Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the New York Courts for
the
adjudication of any dispute hereunder or in connection, and hereby irrevocably
waives, and agrees not to assert in any such proceeding, any claim that it
is
not personally subject to the jurisdiction of any such New York Court, or that
such proceeding has been commenced in an improper or inconvenient forum. Each
party hereto hereby irrevocably waives personal service of process and consents
to process being served in any such proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Make Good
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.
16.
Headings.
The
headings contained in this Make Good Agreement are for convenience of reference
only and shall not affect the construction of this Make Good Agreement.
17.
Attorneys' Fees.
If any
action at law or in equity, including an action for declaratory relief, is
brought to enforce or interpret the provisions of this Make Good Agreement,
the
prevailing party shall be entitled to recover reasonable attorneys' fees from
the other party (unless such other party is the Escrow Agent), which fees may
be
set by the court in the trial of such action or may be enforced in a separate
action brought for that purpose, and which fees shall be in addition to any
other relief that may be awarded.
18.
Merger or Consolidation.
Any
corporation or association into which the Escrow Agent may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer all or substantially all of its corporate trust business and assets
as
a whole or substantially as a whole, or any corporation or association resulting
from any such conversion, sale, merger, consolidation or transfer to which
the
Escrow Agent is a party, shall be and become the successor escrow agent under
this Make Good Agreement and shall have and succeed to the rights, powers,
duties, immunities and privileges as its predecessor, without the execution
or
filing of any instrument or paper or the performance of any further act.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
9
IN
WITNESS WHEREOF, the parties have duly executed this Make Good Agreement as
of
the date set forth opposite their respective names.
| COMPANY: | ||
| CHINA SOLAR & CLEAN ENERGY SOLUTIONS, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
| Address: | ||
| Facsimile: | ||
| Attn.: |
| ESCROW AGENT: | ||
|
TRI-STATE TITLE & ESCROW, LLC,
as
Escrow Agent
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
| Address: | ||
| Facsimile: | ||
| Attn.: |
10
| XXXX CAPITAL PARTNERS, LLC | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
| Address: | ||
| Facsimile: | ||
| Attn.: |
| INVESTORS: | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
| Address: | ||
| Facsimile: | ||
| Attn.: |
11
Exhibit
A
(attached as a MS Excel spreadsheet)
|
Investor’s
Legal Name
|
Investor’s
Investment Amount
|
12
Exhibit
B
13
