AMENDMENT TO ESCROW AGREEMENT
EXHIBIT 4.46
AMENDMENT TO
ESCROW AGREEMENT
ESCROW AGREEMENT
This Amendment to Escrow Agreement (this “Amendment”), dated as of July 2nd, 2010,
is among NewLead Holdings Ltd., a Bermuda corporation (“NewLead”), Grandunion, Inc., a Xxxxxxxx
Islands corporation (“Grandunion”) and Computershare Trust Company, N.A., a national banking
association (“Computershare”).
1. Reference to Escrow Agreement. Reference is made to the Escrow Agreement dated as of
April 1, 2010, by and among NewLead, Grandunion and Computershare (the “Escrow Agreement”). Terms
defined in the Escrow Agreement and not otherwise defined herein are used herein with the meanings
so defined.
2. Amendment to Section 1(b) of Escrow Agreement. Section 1(b) of the Escrow Agreement is
hereby deleted in its entirety and replaced with the following:
“(b) “Claims” means any claims to the Holdback Shares asserted against Grandunion (i) pursuant
to Section 2.3 of the Purchase Agreement or (ii) pursuant to Section 2.3 of the Securities Purchase
Agreement dated as of July 2nd, 2010, between NewLead and Grandunion (the “Additional
Purchase Agreement”).”
3. Amendment to Section 8 of Escrow Agreement. Section 8 of the Escrow Agreement is hereby
deleted in its entirety and replaced with the following:
“8. No Limitation. NewLead’s rights and recourses against Grandunion with respect to
any Claims under Section 2.3 of the Purchase Agreement or under Section 2.3 of the Additional
Purchase Agreement shall not be replaced, limited or deemed to be waived, in whole or in part, by
the exercise of NewLead’s rights and recourses under this Agreement or any other terms and
conditions of this Agreement except to the extent of any payment made by the Escrow Agent to
NewLead pursuant hereto following delivery of a Loss Notice in respect of a Claim.”
4. Miscellaneous. Except as otherwise set forth herein, the Escrow Agreement shall
remain in full force and effect without change or modification. This Amendment may be executed in
any number of counterparts, which together shall constitute one instrument, and shall bind and
inure to the benefit of the parties and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year
first above written.
| NEWLEAD HOLDINGS LTD. | ||||||
| By: | /s/ Xxxxx Xxxx
|
|||||
| Name: Xxxxx Xxxx | ||||||
| Title: CFO / Director | ||||||
| Address for Notice: | ||||||
| 00 Xxxx Xxxxxxx & Xxxxxx Xxx. | ||||||
| Xxxxxxx 000 00 Xxxxxx | ||||||
| Facsimile No.: 00 (000) 000 0000 | ||||||
| Telephone No.: 00 000 000 0000 | ||||||
| Attn: Xxxxx Xxxx | ||||||
| With a copy to: | Mintz, Cohn, Ferris, Glovsky, and Popeo, P.C. | |||||
| 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| Telephone: (000) 000-0000 | ||||||
| GRANDUNION, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxxx | ||||||
| Title: Director | ||||||
| Address for Notice: | ||||||
| Xxxx Xxxxxxx 00 & Flessa 1-7 | ||||||
| Xxxxxxx 000 00, Xxxxxx | ||||||
| Facsimile No.: x00 (000) 000-0000 | ||||||
| Telephone No.: x00 (000) 000-0000 | ||||||
| Attn: Xxxxxxx Xxxxxxx | ||||||
