SHARE ESCROW AGREEMENT
This
Escrow Agreement (the “Agreement”),
dated
May 16, 2007, is entered into by and among Neoview Holdings Inc.,
a
Nevada
corporation (the “Company”),
CRT
Capital Group LLC, as representative of the Investors (the “Investor
Representative”),
each
stockholder of Jingwei International Investments Limited (“Jingwei”)
named
in Exhibit A (collectively, the “Stockholders”) to
the
Share Exchange Agreement of even date herewith between and among Jingwei,
Synergy Business Consulting LLC, the Stockholders and the Company, and
Continental Stock Transfer & Trust Company (hereinafter referred to as
“Escrow
Agent”)
(a
copy of such Exhibit has been delivered to the Escrow Agent). All capitalized
terms used but not defined herein shall have the meanings assigned them in
that
certain Securities Purchase Agreement, dated on or about the date hereof, 2007
(“Purchase
Agreement”),
between the Company and each Investor in the offering the subject of the
Purchase Agreement (each an “Investor”
and
collectively, the “Investors”).
BACKGROUND
As
an
inducement to the Investors to enter into the Purchase Agreement, the
Stockholders agreed that the Stockholders would place the “Escrow Shares” (as
hereinafter defined) into escrow for the benefit of the Investors in the event
the Company failed to satisfy the “Performance Thresholds” (as hereinafter
defined). Pursuant to the requirements of the Purchase Agreement, the Company,
the Stockholders and the Investor Representative have agreed to establish an
escrow on the terms and conditions set forth in this Agreement and the Escrow
Agent has agreed to act as escrow agent pursuant to the terms and conditions
of
this Agreement.
AGREEMENT
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
Investor Representative (on behalf of the Investors), the Stockholders and
the
Company hereby appoint Continental Stock Transfer & Trust Company as Escrow
Agent to act in accordance with the terms and conditions set forth in this
Agreement, and Escrow Agent hereby accepts such appointment and agrees to act
in
accordance with such terms and conditions.
2. Establishment
of Escrow.
Upon the
execution of this Agreement, the Stockholders shall deliver to the Escrow Agent
stock certificates evidencing in the aggregate 2,000,000 shares
of
the Company’s common stock, par value $0.001 per share (collectively, the
“Escrow
Shares”),
along
with stock powers executed in blank.
3. Representations
of the Stockholders.
The
Stockholders hereby represent and warrant to the Investors and the Investor
Representative as follows:
(i)
The
Escrow Shares are validly issued, fully paid and nonassessable shares of the
Company, and free and clear of all pledges, liens and encumbrances.
(ii) Performance
of this 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 Stockholders pursuant
to the terms of any indenture, mortgage, deed of trust or other agreement or
instrument binding upon the Stockholders, other than such breaches, defaults
or
liens which would not have a material adverse effect taken as a whole.
4. Disbursement
of Escrow Shares. The
Stockholders have covenanted and hereby covenant to the Investors that the
Company will attain the following financial performance threshold (the
“Performance
Threshold”):
Net
Income of $6,827,000
for the fiscal year ending December 31, 2007. The Company will provide the
Investor Representative with its audited financial statements, prepared in
accordance with United States generally accepted accounting principles, on
or
before March 31, 2008, so as to allow the Investor Representative the
opportunity to evaluate whether the Company’s actual earnings for the fiscal
year ending December 31, 2007 (the “Realized
Performance”)
equals
or exceeds the Performance Threshold. If such audited financial statements
evidence that the Performance Threshold has not been achieved, the Investor
Representative shall request that the Company provide written instruction to
the
Escrow Agent instructing the Escrow Agent to issue and deliver within ten
business days following delivery of such request, to the Investors an aggregate
number of Escrow Shares equal to result of the following formula: (NIOP - IIOP)
x Initial Shares, where
“NIOP”
=
Aggregate Subscription Amount / (Aggregate Subscription
Amount + (10 x Realized Performance)).
“IIOP”
=
Aggregate Subscription Amount / (Aggregate Subscription
Amount + (10 x the Performance Threshold)).
“Initial
Shares” = The aggregate shares outstanding on the date hereof, including the
Escrow Shares.
“Aggregate
Subscription Amount” = The aggregate Subscription Amount under the Purchase
Agreement as of the date hereof.
Such
aggregate number of Escrow Shares shall be distributed by the Escrow Agent
pro
rata in accordance with each Investor’s original Subscription Amount set forth
in the Securities Purchase Agreement and, in the event such number of Escrow
Shares shall be insufficient to meet the requirements of the foregoing formula,
then such pro rata distribution shall be made of all Escrow Shares. The Company
shall provide the Escrow Agent with a schedule including the name and address
of
each Investor and the number of Escrow Shares to be transferred to such
Investor. The remainder, if any, shall be distributed to the Stockholders on
a
pro rata basis in accordance with their original shareholding in Jingwei
immediately prior to the consummation of the transactions contemplated by the
Share Exchange Agreement. If such audited financial statements evidence that
the
Performance Threshold has been achieved, the Investor Representative shall
request that the Company provide written instruction to the Escrow Agent to
release the Escrow Shares to the Stockholders. If the Investor Representative
has not provided a request to the Company to instruct the Escrow Agent to
release such Escrow Shares by the 10th
business
day following the delivery of the relevant audited financial statements of
the
Company referred to above to the Investor Representative, then the Company
shall
provide written instruction to the Escrow Agent to release the Escrow Shares
to
the Stockholders.
5. Duration.
This
Agreement shall terminate on the distribution of all the Escrow Shares in
accordance with Section 4 above.
6. Interpleader.
Should
any controversy arise among the parties hereto with respect to this Agreement
or
with respect to the right to receive the Escrow Shares, Escrow Agent shall
have
the right to consult counsel and/or to institute an appropriate interpleader
action to determine the rights of the parties. Escrow Agent is also hereby
authorized to institute an appropriate interpleader action upon receipt of
a
written letter of direction executed by the parties so directing Escrow Agent.
If Escrow Agent 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 6 shall be filed
in any court of competent jurisdiction in New York County, New York, and the
Escrow Shares in dispute shall be deposited with the court and in such event
Escrow Agent shall be relieved of and discharged from any and all obligations
and liabilities under and pursuant to this Agreement with respect to the Escrow
Shares.
7. Exculpation
and Indemnification of Escrow Agent.
(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
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 Agreement and instructions
to Escrow Agent pursuant to the terms of this 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.
(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, in good faith and in the exercise of
its
own best judgment, and 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 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 New York upon
fiduciaries.
(c) Escrow
Agent will be indemnified and held harmless, jointly and severally, by the
Company and the Stockholders from and against any expenses, including reasonable
attorneys’ fees and disbursements, damages or losses suffered by Escrow Agent in
connection with any claim or demand, which, in any way, directly or indirectly,
arises out of or relates to this Agreement or the services of Escrow Agent
hereunder; except, that if Escrow Agent is guilty of willful misconduct, fraud
or gross negligence under this Agreement, then Escrow Agent will bear all
losses, damages and expenses arising as a result of such willful misconduct,
fraud or gross negligence. Promptly after the receipt by Escrow Agent 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 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 7 shall survive
the
termination of this Agreement.
8. Compensation
of Escrow Agent.
The
Company will pay Escrow Agent $200 per month for all services rendered by Escrow
Agent hereunder.
9. Resignation
of Escrow Agent.
At any
time, upon ten (10) days’ written notice to the Company, 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-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 may interplead the Escrow Shares
into the registry of any court having jurisdiction.
10. Records.
Escrow
Agent shall maintain accurate records of all transactions hereunder. Promptly
after the termination of this 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.
11. Notice.
All
notices, communications and instructions required or desired to be given under
this 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 following addresses:
| If to Escrow Agent: |
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx
Xxxx, XX 00000
Facsimile:
(000) 000-0000
Attention:
Compliance Department
|
||
| If to the Company: | Neoview Holdings Inc.
000
X. Xxxxxxxx, 0xx
Xxxxx
Xxxxxxx,
XX 00000
Attention:
Chief Financial Officer
|
||
| With a copy to: | Loeb & Loeb LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxxx X. Xxxxxxxx, Esq.
|
||
| If to the Investor | CRT Capital Group LLC | ||
| Representative: | 000 Xxxxxx Xxxxx | ||
|
Xxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx Xxxxxx
|
|||
| If to an Investor: | To the address set forth on such Investor’s signature page to the Purchase Agreement | ||
| If to a Stockholder: | To the address set forth on such Stockholder’s signature page to the Share Exchange Agreement | ||
or
to
such other address and to the attention of such other person as any of the
above
may have furnished to the other parties in writing and delivered in accordance
with the provisions set forth above.
12. Execution
in Counterparts.
This
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. Facsimile execution and delivery of this Agreement is legal, valid
and binding for all purposes.
13. Assignment
and Modification.
This
Agreement and the rights and obligations hereunder of any of the parties hereto
may not be assigned without the prior written consent of the other parties
hereto. Subject to the foregoing, this Agreement will be binding upon and inure
to the benefit of each of the parties hereto and their respective successors
and
permitted assigns. No other person will acquire or have any rights under, or
by
virtue of, this Agreement. 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
Agreement. This Agreement may be changed or modified only in writing signed
by
all of the parties hereto.
14. APPLICABLE
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED THEREIN.
THE
PARTIES EXPRESSLY WAIVE SUCH DUTIES AND LIABILITIES, IT BEING THEIR INTENT
TO
CREATE SOLELY AN AGENCY RELATIONSHIP AND HOLD THE ESCROW AGENT LIABLE ONLY
IN
THE EVENT OF ITS WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE. ANY LITIGATION
CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE EXCLUSIVELY PROSECUTED
IN THE COURTS OF NEW YORK, AND ALL PARTIES CONSENT TO THE EXCLUSIVE JURISDICTION
AND VENUE OF THOSE COURTS.
15. Headings.
The
headings contained in this Agreement are for convenience of reference only
and
shall not affect the construction of this Agreement.
16. 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 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.
17. Registration
Rights. If
any
Escrow Shares are distributed to the Investors hereunder, then the Company
shall
use commercially reasonable efforts to file a registration statement relating
to
the resale by the Investors of the Escrow Shares so distributed within 30 days
following the date that the Company is obligated hereunder to deliver any such
Escrow Shares to the Investors and the Company shall thereafter use commercially
reasonable efforts to cause such registration statement to become effective.
The
Investors shall provide such information to the Company as the Company may
reasonably request in order to prepare such registration statement, including,
without limitation, delivery to the Company of selling stockholder
questionnaires. The Company shall cause such registration statement to remain
effective until each Investor has sold all Escrow Shares received by it
thereunder or until each Investor is permitted to resell all of the Escrow
Shares received hereunder at one time pursuant to Rule 144(k) of the Securities
Act of 1933, as amended.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first indicated above.
| NEOVIEW HOLDINGS INC. | ||
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| By: | /s/ Xxxxx Xxxxx | |
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Its: Xxxxx Xxxxx
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Dated: May
16, 2007
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| CENTURION INVESTMENTS LIMITED | ||
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| By: | /s/ | |
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Its:
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Dated:
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| SIDFORD INTERNATIONAL LIMITED | ||
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| By: | /s/ | |
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Its:
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Dated:
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| CHARMFIELD LIMITED | ||
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| By: | /s/ | |
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Its:
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Dated:
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| /s/ | ||
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Dated:
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| /s/ | ||
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Dated:
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| /s/ | ||
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Dated:
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| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
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| By: | /s/ | |
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Its:
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Dated:
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CRT
CAPITAL GROUP LLC
As
representative of the Investors
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| By: | ||
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Its:
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Dated:
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