ESCROW AGREEMENT
THIS
ESCROW AGREEMENT, dated as of March 31, 2010 between STW Resources Holding Corp.
(the "Company") and Viewpoint Securities LLC (“Viewpoint”)with TD BANK, N.A., a
Banking Corporation organized and existing under the laws of the United States
of America acting as the Escrow Agent (the "Escrow Agent").
WITNESSETH:
The
Company, pursuant to a Stock Purchase Agreement dated as of February 2010 (the
"Agreement") is offering securities (the "Offering") to certain qualified
subscribers (the "Subscribers") consisting of a 12% Convertible Note. Payments
will be released to the Company upon written request by the Company to the
Escrow Agent.
Pursuant
to the terms of the Offering, the Company will deliver to the Escrow Agent each
subscription payment (a “Subscription Payment”) received by the Company from a
subscriber. The Subscription Payment of such subscriber will be collectively
held in one escrow by the Escrow Agent on the terms and conditions hereinafter
set forth. The Company will maintain all subscriber records and at least
bi-weekly supply the Escrow Agent with a list showing such subscribers name,
address and amount of Subscription Payment.
The
offering will be made on a “best efforts” basis directly by the Company. The
offering and sale of the Shares will terminate no later than 365 days following
the effectiveness of the offering (the (“Effective Date”), unless extended upon
written direction by the Company for up to an additional days, or such earlier
date as shall be determined by the Company (the “Termination Date”). No funds
will be accepted by the Escrow Agent after the Termination Date.
The
Company agrees to provide the Escrow Agent, in writing, with the Effective Date
and the Termination Date.
NOW,
THEREFORE, the Company and the Escrow Agent agree as follows:
1. Deposits. Each
Subscription Payment received by the Company from a subscriber shall be
forwarded to the Escrow Agent along with a certificate from the Company (the
"Subscription Certificate") setting forth the name, address, social security
number and telephone number of such subscriber, the number of Units or
fractional or split Units being purchased and the purchase price being paid for
the same. If the Subscription Payment is in the form of a check, it shall be
enclosed with the Subscription Agreement. If the Subscription Payment is to be
made by wire transfer, the Subscription Agreement shall also state the name,
address and telephone number of the financial institution that will be wiring
such Subscription Payment.
Each
Subscription Payment received by the Escrow Agent from the Company will be
deposited and held in accordance with Section 6(a) below. Such account will be
held in the name of (the "Escrow"). It is understood that all checks received by
Escrow Agent are subject to clearance time and the funds represented thereby
cannot be drawn upon or invested until such time as the same constitute good and
collected funds. It is additionally understood that should any checks be
returned to the Escrow Agent as uncollectible, or returned because of
insufficient funds, the Escrow Agent is authorized and instructed to charge
expenses incurred by the Escrow Agent on such uncollected checks to the Escrow.
The Escrow Agent shall redeposit such check(s) for collection only upon the
verbal instruction of the Company; however, in no instance shall the check(s) be
presented for collection more than two (2) times. Should the check(s) be
uncollectible after the second presentation, the Escrow Agent, shall promptly
notify the Company and hold said check(s) until the subscriber has replaced the
same with a cashier's check or such other form of draft that the Company and
escrow Agent approve, at which time the Escrow Agent shall as soon as
practicable return said uncollectible check(s) to the subscriber. In the event
the subscriber does not replace said check(s) with a cashier's check or such
other form or draft acceptable to Escrow Agent and the Company, the Escrow Agent
shall as soon as practicable return the same to such subscriber.
2. Rejection of Subscription
Payment. The Company hereby certifies that such Subscription Agreement
provides that the purchase of any Unit is subject to the approval of the
Company. The Company agrees to notify the Escrow Agent in writing or
telephonically with written confirmation as to which Subscriptions are being
accepted and which rejected. All such rejections shall be refunded to the
respective subscribers at the close of this escrow pursuant to the procedure
described in Paragraph 4 hereof, as applicable, or as otherwise directed in
writing by the company.
3. Release of Escrow Funds on
Closing. If on a Closing Date, as shortened or extended pursuant to the
terms of the Agreement the Escrow Agent (a) holds Subscription Payments,
representing subscriptions as to which the Company has notified the Escrow
Agent, pursuant to paragraph 2 hereof, that the Company has accepted, and (b)
has received from the Company a certificate stating that all conditions to such
Closing have been met, (i.e. specifically, in the case of the Initial Closing,
that the Aggregate Subscription Amount has been accepted), then the Escrow Agent
is authorized and instructed to make the following payments: (i) all principal
amounts held by the Escrow Agent in the Escrow representing subscriptions as to
which the Company has notified the Escrow Agent, pursuant to Paragraph 2 hereof,
that the Company has accepted, shall be paid to the Company; (ii) all principal
amounts held by the Escrow Agent in the Escrow, representing subscriptions as to
which the Company has notified the Escrow Agent, pursuant to paragraph 2 hereof,
that the Partnership has rejected, shall be paid to the subscriber. All payments
to be made by the Escrow Agent to a subscriber shall be forwarded to the last
known address of the subscriber, as communicated in writing to the Escrow Agent
by the Company, mailed by first class mail. All payments to be made by the
Escrow Agent to the Company shall be forwarded to the Company at 000 Xxxx Xxxxx Xxxxxx Xxxxx 000,
Xxxxxxx, Xxxxx 00000, or issued to such account if the Company as the
Company shall direct. Upon release of any funds pursuant to this Paragraph 4,
the Escrow shall be closed as to the funds released; provided, however , that this
Agreement shall remain in effect for further Subscription Payments received by
the Escrow Agent from subscribers which shall be placed in Escrow and held by
the Escrow Agent in accordance with the terms of this Agreement.
Once the
Escrow Agent receives Escrowed Funds a Release Notice, in the form attached
hereto as Exhibit
A, (the “Release Notice”) must
be executed by both the Company and the Placement Agent, such Release Notice
shall instruct the Escrow Agent to wire the aggregate Subscription Amounts for
the Securities per the joint disbursement instructions of the Company and the
Placement Agent.
Upon
release of any funds pursuant to this Paragraph 3, the Escrow shall be closed as
to the funds released; provided, however , that this
Agreement shall remain in effect for further Subscription Payments received by
the Escrow Agent from subscribers which shall be placed in Escrow and held by
the Escrow Agent in accordance with the terms of this Agreement.
4. Other
Refunds. If the Escrow
Agent has received from the Company a certificate stating that the Offering is
being terminated, then the Escrow Agent is authorized and instructed to make the
following payments: (i) all principal amounts held by the Escrow Agent in the
Escrow together less the expenses incurred by the Escrow Agent for uncollected
checks, if any, shall be paid to the subscribers of the Company; (ii) All
earnings shall be paid to the Company. All payments to be made by the Escrow
Agent to a subscriber, as communicated in writing to the Escrow Agent by the
Company, will be mailed by first class mail. All payments to be made by the
Escrow Agent to the Company shall be forwarded to 000 Xxxx Xxxxx Xxxxxx
Xxxxx 000, Xxxxxxx, Xxxxx 00000 or issued to such account as the
Company may direct. Upon release of the funds pursuant to this Paragraph 4, the
Escrow Agent's duties as Escrow Agent will cease and the Escrow shall be
closed.
5. Fees. The Company
hereby agrees that the Escrow Agent shall be entitled to a fee of $3,500 plus
all out of pocket expenses incurred by the Escrow Agent, (the “Escrow Fee”). The
fee is due and payable upon execution of the Escrow Agreement. If any fee is not
so paid, it shall become a charge upon the Escrowed Funds. The Escrow Agent
agrees that in the event that a subsidiary company to the Company is formed to
facilitate investment in the Company, the Escrow Fee shall include services to
the subsidiary Company which are the same as the services set forth herein to
the Company and the Escrow Fee shall be prorated between the two
companies
6. Rights, Liabilities and
Indemnification of the Escrow Agent.
(a) The
Escrowed Funds shall be invested by the Escrow Agent in accordance with the
signed, written instructions of the Board of Directors for
STW Resources Holding Corp. In the absence of written instructions from
the above-named party, the Escrow Agent shall invest the Escrowed Funds in the
money market mutual funds customarily utilized by the Escrow Agent's corporate
trust department in the ordinary course of its corporate trust and escrow agent
duties. Such money market mutual fund is the Financial Square Treasury
Obligations Money Market Fund.
In
investing the Escrowed Funds, the Escrow Agent shall rely upon the written
instructions of and the Escrow Agent shall be and hereby is relieved of all
liability with respect to making, holding, redeeming or selling such investments
in accordance with such instructions. In the absence of the written investment
instructions contemplated herein, for any reasons whatsoever, the Escrow Agent
shall be and hereby is relieved of all liability with respect to making,
holding, redeeming or selling investments made in accordance with the preceding
paragraph which prescribes the permissible investment vehicles for the Escrowed
Funds absent written instructions from the Board of Directors for
STW Resources Holding Corp. .
Escrow
Agent is and shall be under no duty to enforce the obligation oto furnish
written investment instructions nor shall the Escrow Agent be liable to any
person, firm or corporation, including any of the parties hereto, for the
investments made, held, redeemed or sold as directed herein in the event that
written investment instructions from the Board of Directors for
STW Resources Holding Corp. are not furnished to the Escrow
Agent.
(b) The Escrow Agent shall not be
responsible for or be required to enforce any of the terms or conditions of the
Escrow
Agreement or any other agreement between STW Resources Holding Corp. and
Viewpoint Securities LLC.
The Escrow Agent shall not be
responsible or liable in any manner whatsoever for the performance of or by STW
Resources Holding Corp. and Viewpoint Securities LLC of their respective
obligations under this Agreement nor shall the Escrow Agent be responsible or
liable in any manner whatsoever for the failure of the other parties to this
Escrow Agreement or of any third party to honor any of the provisions of this
Escrow Agreement.
(c) The
parties hereto represent to the Escrow Agent that they are authorized to enter
into the Escrow Agreement by their duly authorized representatives and that the
Escrow Agent is entitled to rely on this representation without the need to
confirm the authority of the representatives.
(d) The
duties and obligations of the Escrow Agent shall be limited to and determined
solely by the express provisions of this Escrow Agreement and no implied duties
or obligations shall be read into this Escrow Agreement against the Escrow
Agent.
(e) The
Escrow Agent is not bound by and is under no duty to inquire into the terms or
validity of any other agreements or documents, including any agreements or
documents which may be related to, referred to in or deposited with the Escrow
Agent in connection with this Escrow Agreement.
(f) The
Escrow Agent shall be entitled to rely upon and shall be protected in acting in
reliance upon any instruction, notice, information, certificate, instrument or
other document which is submitted to it in connection with its duties under this
Escrow Agreement and which the Escrow Agent in good faith believes to have been
signed or presented by the proper party or parties. The Escrow Agent shall have
no liability with respect to the form, execution, validity or authenticity
thereof.
(g) The
Escrow Agent shall not be liable for any act which the Escrow Agent may do or
omit to do hereunder, or for any mistake of fact or law, or for any error of
judgment, or for the misconduct of any employee, agent or attorney appointed by
it, while acting in good faith, unless caused by or arising from its own gross
negligence or willful misconduct.
(h) The
Escrow Agent shall be entitled to consult with counsel of its own selection and
the opinion of such counsel shall be full and complete authorization and
protection to the Escrow Agent in respect of any action taken or omitted by the
Escrow Agent hereunder in good faith and in accordance with the opinion of such
counsel.
(i)
The
Escrow Agent shall have the right at any time to resign for any reason and be
discharged of its duties as Escrow Agent hereunder by giving written notice of
its resignation to the parties hereto at least thirty days/business days prior
to the date specified for such resignation to take effect. All obligations of
the Escrow Agent hereunder shall cease and terminate on the effective date of
its resignation and its sole responsibility thereafter shall be to hold the
Escrowed Funds, etc. for a period of thirty days/business days following the
effective date of resignation, at which time,
I) if a
successor escrow agent shall have been appointed and written notice thereof
shall have been given to the resigning Escrow Agent by parties hereto and the
successor escrow agent, then the resigning Escrow Agent shall deliver the
Escrowed Funds, etc. to the successor escrow agent; or
II)
if a
successor escrow agent shall not have been appointed, for any reason whatsoever,
the resigning Escrow Agent shall deliver the Escrowed Funds, etc. to a court of
competent jurisdiction and give written notice of the same to the parties
hereto.
The resigning Escrow Agent shall be
entitled to be reimbursed by STW Resources Holding Corp.
and Viewpoint
Securities LLC for any expenses incurred in connection with its
resignation and transfer of the Escrowed Funds, etc., pursuant to and in
accordance with the provisions of this section.
(j) STW Resources Holding Corp.
and Viewpoint Securities LLC. jointly and severally agree to indemnify
and hold the Escrow Agent harmless from and against any and all liabilities,
causes of action, claims, demands, judgments, damages, costs and expenses
(including reasonable attorneys fees and expenses) that may arise out of or in
connection with the Escrow Agent's good faith acceptance of or performance of
its duties and obligations under this Escrow Agreement. The Escrow Agent shall
be under no duty to institute any suit, or to take any remedial procedures under
this Escrow Agreement, or to enter any appearance or in any way defend any suit
in which it may be made a defendant hereunder until it shall be indemnified as
provided above.
(k) In the event that the Escrow
Agent shall be uncertain as to its duties or rights hereunder or shall receive
instructions with respect to the Escrow Fund which, in its sole discretion, are
in conflict either with other instructions received by it or with any provision
of this Agreement, the Escrow Agent shall have the absolute right to suspend all
further performance under this Escrow Agreement (except for the safekeeping of
the Escrow Fund) until the resolution of such uncertainty or conflicting
instructions to the Escrow Agent's sole satisfaction by final judgment of a
court of competent jurisdiction, joint written instructions from all of the
other parties hereto, or otherwise.
(l) In the event that any
controversy arises between one or more of the parties hereto or any other party
with respect to this Escrow Agreement or the Escrow Fund, the Escrow Agent shall
not be required to determine the proper disposition of such controversy or the
proper disposition of the Escrow Fund and shall have the absolute right, in its
sole discretion, to deposit the Escrow Fund with the Clerk of a court of
competent jurisdiction, file a suit in interpleader and obtain an order from the
court requiring all parties involved to litigate in such court their respective
claims arising out of or in connection with the Escrow Fund. Upon the deposit by
the Escrow Agent of the Escrow Fund with the Clerk of a court of competent
jurisdiction in accordance with this provision, the Escrow Agent shall be
relieved of all further obligations and released from all liability
hereunder.
(m) The Company hereby
indemnifies and holds the Escrow Agent harmless from any possible violations of
any Environmental Laws including any local, state or federal law, rule or
regulation pertaining to environmental matters, as now or hereafter enacted or
amended, including without limitation, the Federal Comprehensive Environmental
Response; Compensation and Liability Act of 1980; the Federal Resource
Conservation and Recovery Act; the Federal Superfund Amendments and
Reauthorization Act of 1986; the Federal Toxic Substance Control Act; the
Federal Hazardous Material Transportation Act; the Federal Clean Air Act; the
Federal Water Pollution Control Act; the Industrial Site Recovery Act; the New
Jersey Spill Act; the Underground Storage Tank Act; together with any other
federal, state or local superlien, or other statutes, rules or regulations, as
now or hereafter amended in any way pertaining to clean-up, disclosure, water
pollution control, air pollution control, regulation of solid waste, hazardous
waste management, storage tanks, regulation of environmentally sensitive areas,
use of ground water, surface waters and wetlands, hazardous and toxic substance
reporting and any other laws including case laws, which might be deemed or
referred to as environmental common law.
Neither
this Escrow Agreement, nor any other agreement between the Company, ViewPoint
Securities LLC and the Escrow Agent shall be deemed to create a joint
venture between the Escrow Agent and the Company and
Viewpoint. Nor shall the Escrow Agent be considered the alter ego of the
Company by
virtue of this Agreement, or any other agreement.
7. Modification, Amendment,
Rescission. No rescission, modification, amendment, supplement or change
of this Escrow Agreement shall be valid or in effect unless notice thereof is
given to the Escrow Agent in writing by the Company and accepted by the Escrow
Agent.
8. Successors and
Assigns. The provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives, heirs,
successors or assigns and shall survive the termination of this Escrow
Agreement.
9. Copies. This Escrow
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
10. Notices. All notices,
instructions and other communications under this Escrow Agreement shall be in
writing except as otherwise specified herein and shall be deemed duly given if
sent by certified or registered mail, postage prepaid, return receipt requested
and addressed as follows:
|
(a)
|
If
to the Escrow Agent:
|
|
TD
Bank, NA
|
|
|
Attn.:
Corporate Trust Administration
|
|
|
0000
Xxxxx 00 Xxxx
|
|
Xxxxxx
Xxxx, XX 00000
|
|
|
Telephone:
(000) 000-0000
|
|
|
Fax:
(000) 000-0000
|
|
|
(b)
|
If
to the Company:
|
|
Attention
Xxxxxxx X. Xxxxxx
|
|
|
000
Xxxx Xxxxx Xxxxxx Xxxxx 000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
(c)
|
If to Viewpoint: |
|
000
Xxxx X Xxxxxx
|
|
|
Xxxxx
000
|
|
|
Xxx
Xxxxx, XX 00000
|
|
|
Telephone:
(000) 000-0000
|
|
|
Fax:
(000) 000-0000
|
11. Applicable Law. This
Escrow Agreement shall be governed by and construed in accordance with the laws
of the United State of America.
IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement on the
day and year first above written.
|
By:
|
||
|
Xxxxxxx
X. Xxxxxx
|
||
|
Title:
Chairman and
CEO
|
||
|
TD
Bank, N.A.
|
||
|
By:
|
||
|
Title:
|
||
|
Viewpoint
Securities, LLC
|
||
|
By:
|
||
|
Xxxx
X. XxXxxxxxxxx
|
||
|
Title:
Partner
|
||
Exhibit
A
RELEASE
NOTICE
The
UNDERSIGNED, pursuant to the Escrow Agreement, dated as of July 10, 2009, among
STW Resources, Inc. (the “Company”), Viewpoint
Securities, LLC (“VP
Securities” or “Placement Agent”), as
attorney-in-fact for each of the Purchasers and TD Bank, National
Association (the “Escrow
Agreement”). (Capitalized terms used herein and not defined shall
have the meaning ascribed to such terms in the Escrow Agreement), hereby notify
the Escrow Agent that each of the conditions precedent to the purchase and sale
of the Securities set forth in the Subscription Agreement have been
satisfied. The Company and Placement Agent hereby confirm that all of their
respective representations and warranties contained in the Subscription
Agreement remain true and correct and authorize the release by the Escrow Agent
of the funds as described in the Escrow Agreement. This Release Notice shall not
be effective until executed by the Company and VP Securities. This Release
Notice may be signed in one or more counterparts, each of which shall be deemed
an original. The Escrow Agent is hereby authorized to disburse such funds
as follows:
1. $
to STW Resources, Inc. in accordance with the following wire
instructions:
STW
Resources, Inc.
Bank
Name:
Bank
Routing #
Account
Number:
SWIFT:
Bank
Address:
2. $
to Viewpoint Securities, LLC_ in accordance with the following wire
instructions:
Viewpoint
Securities, LLC
Bank
Name:
Bank
Routing #
Account
Number:
Bank
Address:
IN
WITNESS WHEREOF, the undersigned have caused this Release Notice to be duly
executed and delivered as of this day of
2010.
|
STW
RESOURCES, INC.
|
|
|
By:
|
|
| Name: | |
| Title: | |
|
VIEWPOINT
SECURITIES, LLC
|
|
|
By:
|
|
| Name: | |
| Title: | |
