SECURITIES ESCROW AGREEMENT
Exhibit 10.3
THIS
SECURITIES ESCROW AGREEMENT (the “Agreement”), dated as
of April 27, 2010, is entered into by and among Eco Building International, a
Nevada corporation (the “Company”), each of
the several purchasers signatory hereto (each such purchaser, a “Purchaser” and,
collectively, the “Purchasers”), Expert
Venture Limited, a company organized in the British Virgin Islands (the “Principal
Stockholder”), and Xxxxxx & Xxxxxx, LLP, with an address at 000 Xxxxx
0 Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000 (the “Escrow Agent”).
Capitalized terms used but not defined herein shall have the meanings set forth
in the Purchase Agreement (as defined below).
WITNESSETH:
WHEREAS,
the Purchasers will be purchasing from the Company units consisting of 2,272,727
shares of the Company’s Series A Convertible Preferred Stock, par value $0.001
per share (the “Series
A Preferred”), initially convertible into 2,272,727 shares of the
Company’s common stock, par value $0.001 per share (the “Common Stock”), and
warrants to purchase, in the aggregate, 909,091 shares of Common Stock (the
“Warrants”)
pursuant to that certain Securities Purchase Agreement (the “Purchase Agreement”)
dated as of the date hereof (the “Closing Date”) by and
among the Company and the Purchasers (the “Financing”);
WHEREAS,
the Company has issued shares of its Common Stock to the Principal Stockholder
pursuant to that certain Share Exchange Agreement dated as of April 27, 2010 by
and among City Zone Holdings Limited, a British Virgin Islands company (“City Zone”), the
Company and the original controlling stockholders of the Company (the “Share Exchange
Agreement”). Upon consummation of the transactions
contemplated by the Share Exchange Agreement, City Zone, together with its
subsidiaries, became the wholly owned subsidiaries of the Company (the “Share Exchange
Transaction”);
WHEREAS,
the Company and the Purchasers agree that the capitalization table upon which
the transactions contemplated by this Agreement and the Purchase Agreement are
based is set forth as Schedule A hereto;
and
WHEREAS,
as an inducement to the Purchasers to enter into the Purchase Agreement, the
Principal Stockholder has agreed to place the Escrow Shares (as hereinafter
defined) into escrow for the benefit of the Purchasers in the event the Company
fails to achieve the following financial performance thresholds for the 12-month
periods ending December 31, 2010 (“2010”) and December
31, 2011 (“2011”):
(a) For
2010, Net Income, as reported by the Company in its audited financial statements
for 2010 (the “2010
Financial Statements”) equals or exceeds eleven million dollars
($11,000,000) (the “2010 Performance
Threshold”);
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(b) For
2011, Net Income, as reported by the Company in its audited financial statements
for 2011 (the “2011
Financial Statements”) equals or exceeds fifteen million dollars
($15,000,000) (the “2011 Performance
Threshold” and together with the 2010 Performance Threshold will be
referred to as the “Performance
Thresholds”); and
(c) For
the purposes hereof, “Net Income” shall be
as defined in accordance with US GAAP, provided, however, that Net Income for
each of 2010 and 2011 shall be increased by any non-cash charges incurred (i) as
a result of the Financing, including without limitation, as a result of the
issuance of the Warrants and upon conversion of the Series A Preferred, and (ii)
as a result of the release of the Escrow Shares to the Principal Stockholder
pursuant to the terms of this Agreement.
WHEREAS,
the Company and the Purchasers have requested that the Escrow Agent hold the
Escrow Shares 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.
NOW,
THEREFORE, in consideration of the covenants and mutual promises contained
herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE
I
TERMS OF
THE ESCROW
1.1. The
parties hereby agree to establish an escrow account (the “Escrow Account”) with
the Escrow Agent whereby the Escrow Agent shall hold the Escrow Shares as
contemplated by this Agreement.
1.2. Upon
the execution of this Agreement, the Principal Stockholder shall deliver to the
Escrow Agent stock certificates equal to the number of shares of Common Stock
constituting one hundred percent (100%) of the shares of Common Stock underlying
the Series A Preferred Shares indicated on Schedule A hereto
(such shares of Common Stock delivered by the Principal Stockholder plus such
additional number of shares of Common Stock as may be required to be deposited
hereunder pursuant to Sections 1.3, 1.4 or 1.5 hereof shall be collectively
referred to in this Agreement as the “Escrow Shares”),
along with updated stock powers executed in blank, signature medallion
guaranteed or in other form and substance acceptable for
transfer. Fifty percent (50%) of the Escrow Shares shall be allocated
for the 2010 Performance Threshold and shall be referred to as the “2010 Escrow Shares”
and the remaining fifty percent (50%) of the Escrow Shares shall be allocated
for the 2011 Performance Threshold and shall be referred to as the “2011 Escrow
Shares”.
1.3. The
parties hereby agree that the Escrow Shares shall be distributed based on and
subject to the achievement of the 2010 Performance Thresholds as set forth
below:
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(i) If
the Company achieves less than 50% of the 2010 Performance Threshold, then the
number of the 2010 Escrow Shares to be distributed to each Purchaser shall be
calculated as follows:
(a) A
= X
Y
(b) B
= (A)(Z)
| Where: | A = | such Purchaser’s percentage ownership of 2010 Escrow Shares |
| B = | the number of 2010 Escrow Shares to be distributed to such Purchaser | |
| X = | the number of shares of Series A Preferred (on an as converted basis) and Conversion Shares owned by such Purchaser as of the date of distribution of the 2010 Escrow Shares (the “Distribution Date”) | |
| Y = | number of Series A Preferred Shares issued on the Closing Date (on an as-converted basis) | |
| Z = | the 2010 Escrow Shares |
Within
five (5) business days of the Purchasers’ receipt of the 2010 Financial
Statements pursuant to Section 1.7 hereof, the Purchasers shall provide sole
written instructions to the Escrow Agent instructing the Escrow Agent to issue
and deliver the 2010 Escrow Shares to the Purchasers in accordance with the
calculation above. Any 2010 Escrow Shares remaining after
disbursement to the Purchasers in accordance with the calculation above shall be
returned to the Principal Stockholder.
(ii) If
the Company achieves at least 50% but less than 95% of the 2010 Performance
Threshold, the Escrow Agent shall deliver to each Purchaser its number of 2010
Escrow Shares in accordance with the calculation below.
(a) A
= X
Y
(b) B
= 2*(Z*A)
|
Where:
|
A
=
|
such
Purchaser’s percentage ownership of 2010 Escrow
Shares
|
3
| B = | the number of 2010 Escrow Shares to be distributed to such Purchaser | |
| X = | the number of shares of Series A Preferred (on an as converted basis) and Conversion Shares owned by such Purchaser as of the Distribution Date | |
| Y = | number of Series A Preferred Shares issued on the Closing Date (on an as-converted basis) | |
| Z = | the 2010 Escrow Shares multiplied by the Lowest Threshold Percentage |
For
purposes hereof, the “Lowest Threshold
Percentage” means the percentage by which the Performance Threshold was
not achieved. By way of example, if the Company’s Net Income reported
on the 2010 Financial Statements is an amount equal to 70% of the 2010
Performance Threshold, the Lowest Threshold Percentage would be 30%
(100%-70%). Within five (5) business days of Maxim Group, LLC’s, the
Company’s Placement Agent (the “Placement Agent”) receipt of the 2010 Financial
Statements pursuant to Section 1.6 hereof, the the Placement Agent, in
consultation with the Purchasers, shall provide written instructions to the
Escrow Agent instructing the Escrow Agent to issue and deliver the Escrow Shares
to the Purchasers in accordance with the calculation above. Any 2010
Escrow Shares remaining after disbursement to the Purchasers in accordance with
the calculation above shall be returned to the Principal
Stockholder.
(iii) If
the Company achieves at least 95% of each of the 2010 Performance Thresholds,
then the 2010 Escrow Shares shall returned to the Principal
Stockholder.
(iv) Notwithstanding
anything to the contrary set forth herein, only those Purchasers who own shares
of Series A Preferred or Conversion Shares of the Company at the time that the
2010 Escrow Shares are distributed hereunder shall be entitled to receive 2010
Escrow Shares calculated based on their ownership interest at the time such 2010
Escrow Shares are distributed hereunder. Any 2010 Escrow Shares not
delivered to any Purchaser because such Purchaser no longer holds shares of
Series A Preferred or Conversion Shares will be returned to the Principal
Stockholder. If any Purchaser transfers Preferred Shares purchased
pursuant to the Purchase Agreement, the rights to the 2010 Escrow Shares shall
similarly transfer to such transferee, pursuant to the terms in this Agreement,
with no further action required by the Purchaser, the transferee or the
Company.
1.4. The
parties hereby agree that the 2011 Escrow Shares shall be distributed based upon
and subject to the achievement of the 2011 Performance Threshold as set forth
below:
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(i) If
the Company achieves less than 95% of the 2011 Performance Threshold, then the
number of the 2011 Escrow Shares to be distributed to each Purchaser shall be
calculated using the same formula set forth in Section 1.3(i)
above. Within five (5) business days of the Placement Agent’s receipt
of the 2011 Financial Statements pursuant to Section 1.6 hereof, the Placement
Agent, in consultation with the Purchasers, shall provide written instructions
to the Escrow Agent instructing the Escrow Agent to issue and deliver the 2011
Escrow Shares to the Purchasers in accordance with the calculation set forth in
Section 1.3(i) above. Any 2011 Escrow Shares remaining after
disbursement to the Purchasers shall be returned to the Principal
Stockholder.
(ii) If
the Company achieves at least 50% but less than 95% of the 2011 Performance
Thresholds, the Escrow Agent shall deliver to each Purchaser its number of 2011
Escrow Shares in accordance with the calculation set forth in Section 1.3(ii)
above. Within five (5) business days of the Placement Agent’s receipt
of the 2011 Financial Statements pursuant to Section 1.7 hereof, the Placement
Agent, in consultation with the Purchasers, shall provide written instruction to
the Escrow Agent instructing the Escrow Agent to issue and deliver the 2011
Escrow Shares to the Purchasers in accordance with the calculation set forth in
Section 1.3(ii) above. Any 2011 Escrow Shares remaining after
disbursement to the Purchasers shall be returned to the Principal
Stockholder.
(iii) In
the event the Company achieves at least 95% of the 2011 Performance Threshold,
all of the 2011 Escrow Shares shall be returned to the Principal Stockholder at
the address set forth in Section 3.2 hereof.
(iv)
Notwithstanding anything to the contrary set forth herein, only those Purchasers
who own shares of Series A Preferred or Conversion Shares of the Company at the
time that the 2011 Escrow Shares are distributed hereunder shall be entitled to
receive 2011 Escrow Shares calculated based on their ownership interest at the
time when such 2011 Escrow Shares are distributed hereunder. If any
Purchaser transfers Preferred Shares purchased hereunder, any 2011 Escrow Shares
pursuant to this Agreement shall similarly transfer to such transferee with no
further action required by the Purchaser, the transferee or the
Company. Any 2011 Escrow Shares not delivered to any Purchaser
because such Purchaser no longer holds shares of Series A Preferred or
Conversion Shares will be returned to the Principal Stockholder.
1.5. If
the Company does not achieve either the 2010 Performance Threshold or the 2011
Performance Threshold, the Company shall use reasonable best efforts to promptly
cause the Escrow Shares, to be delivered to the Purchasers, including causing
its transfer agent to promptly, but in no event longer than five (5) business
days, transfer the certificates into the names of the Purchasers and causing its
securities counsel to provide any written instruction required by the Escrow
Agent in a timely manner so that the issuances and delivery contemplated above
can be achieved within five business days following delivery of the 2010
Financial Statements or 2011 Financial Statements, as applicable, to the
Purchasers.
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1.6. The
Company will provide the Purchasers and the Placement Agent with (i) the
Company’s audited financial statements for 2010, prepared in accordance with US
GAAP, no later than the date for filing the Company’s Annual Report on Form 10-K
for 2010, including any extension for filing the 2010 Annual Report which may be
requested under Rule 12b-25 of the Securities Exchange Act of 1934, as amended
(the “Annual
Report”) with the Securities and Exchange Commission (“SEC”), and (ii) the
Company’s audited financial statements for 2011, prepared in accordance with US
GAAP, on or before the date for filing the Company’s 2011 Annual
Report with the SEC, so as to allow the Purchasers the opportunity to
evaluate whether each of the 2010 Performance Thresholds and each of the 2011
Performance Thresholds were attained. In the event that the
Purchasers receive the financial information prior to its dissemination by the
Company in either a press release or in the Company’s periodic reports filed
with the SEC, the Company shall issue a press release announcing the information
or file a Form 8-K as required under Regulation FD.
ARTICLE
II
REPRESENTATIONS
OF THE PRINCIPAL STOCKHOLDER
2.1. The
Principal Stockholder hereby represents and warrants to the Purchasers as
follows:
(i) The
Principal Stockholder is the record and beneficial owner of the Escrow Shares
placed into escrow pursuant to this Agreement and owns such Escrow Shares, free
and clear of all pledges, liens, claims and encumbrances, except encumbrances
created by this Agreement and the Principal Stockholder Lock-Up Agreement
entered into as of even date herewith and in connection with the Financing.
There are no restrictions on the ability of the Principal Stockholder to
transfer the Escrow Shares placed into escrow pursuant to this Agreement or to
enter into this Agreement other than transfer restrictions under the Principal
Stockholder Lock-Up Agreement and/or applicable federal and state securities
laws.
(ii) The
performance of this Agreement and compliance with the provisions hereof will not
violate any provision of any law applicable to the Principal Stockholder and
will not conflict with or result in any material breach of any of the terms,
conditions or provisions of, or constitute a default under the terms of the
certificate of incorporation or by-laws of the Principal Stockholder, or any
indenture, mortgage, deed of trust or other agreement or instrument binding upon
the Principal Stockholder or affecting the Escrow Shares or result in the
creation or imposition of any lien, charge or encumbrance upon, any of the
properties or assets of the Principal Stockholder, the creation of which would
have a material adverse effect on the business and operations of the Principal
Stockholder. No notice to, filing with, or authorization,
registration, consent or approval of any governmental authority or other person
is necessary for the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby by the Principal
Stockholder, other than those already obtained.
ARTICLE
III
MISCELLANEOUS
3.1. The
Company, at the time of the Closing, will pay Escrow Agent a total of $2,000 for
all services rendered by Escrow Agent hereunder.
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3.2. No
waiver of, or any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
3.3 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 3.3), or the refusal to accept same, the notice, demand, consent,
request, instruction or other communication shall be deemed received on the
third 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 the following addresses or facsimile numbers as
applicable.
| If to Escrow Agent: | Xxxxxx & Xxxxxx, LLP |
| 000 Xxxxx 0 Xxxxx, Xxxxx 000 | |
| Xxxxxxxxx, Xxx Xxxxxx 00000 | |
| Attention: Xxxxxxx X. Xxxxxx, Esq. | |
| Xxxx X. Xxxxx, Esq | |
| Tel No.: (000) 000-0000 | |
| Fax No.: (000) 000-0000 |
If to the
Company or the Principal Stockholder:
|
Eco
Building International
c/o
City Zone Holdings Limited
Xxxx
000, Xxxx Xxxxxx, Xxxxx XX
000
Xxxxx’s Road
Central
Hong Kong
Attention:
Xxxxxxxx Xxx
Telephone
No.: 00-00000000000
|
|
| Fax No.: 00-000-000-0000 |
7
With a
copy to (which shall not constitute notice):
| Xxxxxx & Xxxxxx, LLP | |
| 000 Xxxxx 0 Xxxxx, Xxxxx 000 | |
| Xxxxxxxxx, Xxx Xxxxxx 00000 | |
| Attention: Xxxxxxx X. Xxxxxx, Esq. | |
| Xxxx X. Xxxxx, Esq. | |
| Tel No.: (000) 000-0000 | |
| Fax No.: (000) 000-0000 |
If to the Purchasers:
| Maxim Group, LLC | |
| 000 Xxxxxxxxx Xxx., 0xx Xxxxx | |
| Xxx Xxxx, Xxx Xxxx 00000 | |
| Attention: Xxxxxx Xxxxx | |
| Tel. No.: 000-000-0000 | |
| 000-000-0000 | |
| Fax No.: 000-000-0000 |
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.
3.4. This
Escrow Agreement shall be binding upon and shall inure to the benefit of the
permitted successors and permitted assigns of the parties hereto.
3.5. This
Escrow Agreement is the final expression of, and contains the entire agreement
between, the parties with respect to the subject matter hereof and supersedes
all prior understandings with respect thereto. This Escrow Agreement may not be
modified, changed, supplemented or terminated, nor may any obligations hereunder
be waived, except by written instrument signed by the parties to be charged or
by its agent duly authorized in writing or as otherwise expressly permitted
herein.
3.6. Whenever
required by the context of this Escrow Agreement, the singular shall include the
plural and masculine shall include the feminine. This Escrow Agreement shall not
be construed as if it had been prepared by one of the parties, but rather as if
all parties had prepared the same.
3.7. The
parties hereto expressly agree that this Escrow Agreement shall be governed by,
interpreted under and construed and enforced in accordance with the laws of the
State of New York, without regard to conflicts of law principles that would
result in the application of the substantive laws of another jurisdiction. Any
action to enforce, arising out of, or relating in any way to, any provisions of
this Escrow Agreement shall only be brought in a state or Federal court sitting
in New York City, Borough of Manhattan.
8
3.8. The
Escrow Agent’s duties hereunder may be altered, amended, modified or revoked
only by a writing signed by the Company, the Principal Stockholder, the
Purchasers and the Escrow Agent.
3.9. The
Escrow Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by the Escrow Agent
to be genuine and to have been signed or presented by the proper party or
parties. The Escrow Agent shall not be personally liable for any act the Escrow
Agent may do or omit to do hereunder as the Escrow Agent while acting in good
faith and in the absence of gross negligence, fraud or willful misconduct, and
any act done or omitted by the Escrow Agent pursuant to the advice of the Escrow
Agent’s attorneys-at-law shall be conclusive evidence of such good faith, in the
absence of gross negligence, fraud or willful misconduct.
3.10. The
Escrow Agent is hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case the Escrow Agent obeys or complies with any such order, judgment or decree,
the Escrow Agent shall not be liable to any of the parties hereto or to any
other person, firm or corporation by reason of such decree being subsequently
reversed, modified, annulled, set aside, vacated or found to have been entered
without jurisdiction.
3.11. The
Escrow Agent shall not be liable in any respect on account of the identity,
authorization or rights of the parties executing or delivering or purporting to
execute or deliver any documents or papers deposited or called for thereunder in
the absence of gross negligence, fraud or willful misconduct.
3.12. The
Escrow Agent shall be entitled to employ such legal counsel and other experts as
the Escrow Agent may deem necessary to properly advise the Escrow Agent in
connection with the Escrow Agent’s duties hereunder, may rely upon the advice of
such counsel, and may pay such counsel reasonable compensation therefor which
shall be paid by the Escrow Agent. The Escrow Agent has acted as legal
counsel for the Company and may continue to act as legal counsel for the Company
from time to time, notwithstanding its duties as the Escrow Agent hereunder. The
Company and the Purchasers consent to the Escrow Agent in such capacity as legal
counsel for the Company and waive any claim that such representation represents
a conflict of interest on the part of the Escrow Agent. The Company and the
Purchasers understand that the Escrow Agent is relying explicitly on the
foregoing provision in entering into this Escrow Agreement.
3.13. The
Escrow Agent’s responsibilities as escrow agent hereunder shall terminate if the
Escrow Agent shall resign by giving written notice to the Company and the
Purchasers. In the event of any such resignation, the Purchasers and the Company
shall appoint a successor Escrow Agent and the Escrow Agent shall deliver to
such successor Escrow Agent any escrow funds and other documents held by the
Escrow Agent.
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3.14. If
the Escrow Agent reasonably requires other or further instruments in connection
with this Escrow Agreement or obligations in respect hereto, the necessary
parties hereto shall use its best efforts to join in furnishing such
instruments.
3.15. It
is understood and agreed that should any dispute arise with respect to the
delivery and/or ownership or right of possession of the documents or the Escrow
Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized and
directed in the Escrow Agent’s sole discretion (1) to retain in the Escrow
Agent’s possession without liability to anyone all or any part of said documents
or the Escrow Shares until such disputes shall have been settled either by
mutual written agreement of the parties concerned by a final order, decree or
judgment or a court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but the Escrow Agent shall be under no
duty whatsoever to institute or defend any such proceedings or (2) to deliver
the Escrow Shares and any other property and documents held by the Escrow Agent
hereunder to a state or Federal court having competent subject matter
jurisdiction and located in the City of New York, Borough of Manhattan, in
accordance with the applicable procedure therefor.
3.16. The
Company agrees to indemnify and hold harmless the Escrow Agent and its partners,
employees, agents and representatives from any and all claims, liabilities,
costs or expenses in any way arising from or relating to the duties or
performance of the Escrow Agent hereunder or the transactions contemplated
hereby other than any such claim, liability, cost or expense to the extent the
same shall have been determined by final, unappealable judgment of a court of
competent jurisdiction to have resulted from the gross negligence, fraud or
willful misconduct of the Escrow Agent.
[Signature
Page Follows]
10
[SIGNATURE
PAGE TO SECURITIES ESCROW AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of this
__th day
of April, 2010.
ECO
BUILDING INTERNATIONAL
|
By:
|
Name: Xxxxxxxx
Xxx
Title: Chief
Executive Officer
ESCROW
AGENT:
XXXXXX
& JACLIN, LLP
|
By:
|
Name:
Xxxxxxx X. Xxxxxx
Title:
Managing Partner
PRINCIPAL
STOCKHOLDER:
Expert
Venture Limited
|
By:
|
Name:
Title:
[SIGNATURE
PAGES OF HOLDERS FOLLOW]
11
[SIGNATURE
PAGE TO SECURITIES ESCROW AGREEMENT FOR HOLDERS]
PURCHASER:
Name of
Holder: ____________________________
Signature
of Authorized Signatory of Holder: ____________________
Name of
Authorized Signatory: ________________________
Title of
Authorized Signatory: _______________________
12
Schedule
A
