MAKE GOOD ESCROW AGREEMENT
This Make Good Escrow Agreement (the
"Make Good Agreement"),
dated effective as of December _______, 2010, is entered into by and among the
following parties:
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(1)
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Longhai
Steel Inc., a Nevada corporation (the "Company"),
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(2)
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Merry
Success Limited, a BVI company (the “Make Good
Pledgor”),
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(3)
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Xx.
Xxxxxxx Xxxx, the Chief Executive Officer and Chairman of the Company
(“Xx.
Xxxx”),
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(4)
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Xx.
Xxxxxx Xxx, the sole shareholder of the Make Good Pledgor (("Xx. Xxx", collectively
with Xx. Xxxx,
each a
"Guarantor", and collectively, the
"Guarantors"),
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(5)
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Ladenburg
Xxxxxxxx & Co. Inc. as Investor agent (“Investor
Agent”)
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(6)
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Escrow,
LLC, as escrow agent ("Escrow Agent"),
and
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(7)
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Pacific
Stock Transfer Company, 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, as transfer agent, (“Transfer
Agent”).
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BACKGROUND
The Investor Agent and the Company have
entered into an Underwriting Agreement, dated ______, 2010 (the "Underwriting Agreement"), for
the Company's underwriting offering (the "Offering") of
securities. As an inducement to investors (the “Investors”) to participate in
the Offering and as set forth in the Underwriting Agreement, the Make Good
Pledgor has agreed to place certain shares of the Company’s common stock, par
value $0.001 per share (the “Common Stock”) owned by him
into escrow for the benefit of the Investors in the event the Company fails to
satisfy certain financial thresholds. Xx. Xxx is the sole shareholder of the
Make Good Pledgor, and Xx. Xxxx entered into a call option agreement with Xx.
Xxx on March 18, 2010, pursuant to which Xx. Xxxx was granted an option to
acquire all of the equity interests of the Make Good Pledgor for fixed
consideration within the next three years. Pursuant to the requirements of the
Underwriting Agreement, each of Xx. Xxx being the sole shareholder of the Make
Good Pledgor, and Xx. Xxxx, being the beneficial owner of the Make Good Pledgor,
has agreed to act as a guarantor pursuant to the terms and conditions of this
Make Good Agreement to guarantee the Make Good Pledgor’s performance of this
Make Good Agreement.
Pursuant to the requirements of the
Underwriting Agreement, the Company and Make Good Pledgor have agreed to
establish an escrow on the terms and conditions set forth in this Make Good
Agreement. The Escrow Agent has agreed to act as escrow agent
pursuant to the terms and conditions of this Make Good Agreement.
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All capitalized terms used but not
defined herein which are defined in the Underwriting Agreement shall have the
respective meanings given to such terms in the Underwriting
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 Make Good Pledgor and the Company hereby appoint Escrow Agent
to act as Escrow Agent in accordance with the terms and conditions set forth in
this Make Good Agreement, and Escrow Agent hereby accepts such appointment and
agrees to act as Escrow Agent in accordance with such terms and
conditions.
2. Establishment of
Escrow.
(i)
Effective as of the execution of this Make Good Agreement, the Make Good Pledgor
has instructed the Transfer Agent to deliver the Escrow Shares (as defined in
this Section 2) as provided herein, and the Escrow Agent acknowledges such
instruction and agrees to perform the actions set forth in this Section
2. As of the date hereof, the Transfer Agent will note the
limitations on the Escrow Shares described in this Section 2. Within
fifteen (15) Trading Days following the date hereof, the Transfer Agent shall
deliver, or cause to be delivered, to the Escrow Agent certificates evidencing
an aggregate of 2,550,165 shares of the Company’s
Common Stock, as equitably
adjusted for any stock splits, stock combinations, stock dividends or similar
transactions (the "Escrow Shares").
.. The Make Good Pledgor hereby irrevocably agrees that, other than in
accordance with this Make Good Agreement, the Make Good Pledgor 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 has advised the
Transfer Agent, and the Transfer agent agrees, (x) to place a stop order on all
Escrow Shares which shall expire on the date the Escrow Shares are cancelled or
returned to the Make Good Pledgor, (y) not to process any attempts by any Make
Good Pledgor to resell or transfer any Escrow Shares before the date the Escrow
Shares should be cancelled or returned to the Make Good Pledgor, or otherwise in
violation of this Make Good Agreement. The Company shall notify the
Investor Agent as soon as the Escrow Shares have been deposited with the Escrow
Agent. Following delivery of the Escrow Shares, the Make Good Pledgor
shall not be required to deliver any additional securities or other property to
the Escrow Agent or the Investors under any circumstances unless the Make Good
Pledgor otherwise agrees in a separate written instrument.
(ii) The
Guarantors each hereby, jointly and severally, provide to the Investor Agent a
guarantee to secure the Make Good Pledgor’s performance of its obligations under
this Make Good Agreement, indemnify and hold harmless the Investor Agent and any
of its principals, partners, agents, employees and affiliates from and against any
expenses, including reasonable attorneys' fees and disbursements, damages or
losses suffered by the Investor Agent 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 obligations of the Make Good Pledgor hereunder.
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3. Representations of Make Good Pledgor
and the
Company and the
Guarantors. The Make Good
Pledgor (as to itself and its Escrowed Shares) and the Company (as to itself)
and each Guarantor (as to himself and the Make Good Pledgor), severally but not
jointly, hereby represents and warrants to the Investor Agent 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 Liens.
(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 upon any of the
properties or assets of Make Good Pledgor pursuant to the terms of any
indenture, mortgage, deed of trust or other agreement or instrument binding upon
Make Good Pledgor or such properties or assets, other than such breaches,
defaults or Liens which would not have a material adverse effect taken as a
whole.
(iii) The
Make Good Pledgor has carefully considered and understands its obligations and
rights under 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.
4. Make Good
Shares.
a. 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, 2011, as
filed with the Securities and Exchange Commission (the “Commission”) on Form
10-K (or such other form appropriate for such purpose as promulgated by the
Commission) (the “2010 Annual
Report”) is less than $12,480,000 (the “2011 Guaranteed ATNI”), the
Escrow Agent (on behalf of the Make Good Pledgor) will have the Escrow Shares cancelled by
the Transfer Agent.
For
purposes hereof, “After Tax Net
Income” shall mean the
Company’s operating income after taxes for the fiscal year ending
December 31, 2011
determined in accordance with GAAP as reported in the 2010 Annual Report but
shall exclude any accounting effect (positive or negative) caused by the Escrow
Shares or the return or cancellation thereof, including any potential derivative
liability.
The Escrow Shares shall be cancelled or
returned to the Make Good Pledgor within 10 Business Days after the date which the 2011 Annual report is
filed with the Commission. The Investor Agent will deliver to the
Escrow Agent (with a copy to the Company) a copy of the 2010 Annual Report,
together with the calculation of whether the 2011 Guaranteed ATNI has been
achieved. The Escrow Agent need only rely on such letters from
Investor Agent and will disregard any contrary or further calculations or
instructions in such regard delivered by or on behalf of the
Company.
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b. In the event that the After Tax
Net Income reported in the 2011 Annual Report is equal to or greater than the
2011 Guaranteed ATNI, the Escrow
Shares shall be returned to the Make Good Pledgor in accordance with this Make Good
Agreement.
c. Pursuant
to Section 4(a), if the Investor Agent delivers a notice to the Escrow Agent
that the Escrow Shares are to be cancelled, then the Escrow Agent shall
immediately forward the Escrow Shares to the Company’s Transfer Agent for
cancellation. If a notice from the Investor Agent pursuant to Section 4(a)
indicates that the Escrow Shares are to be returned to the Make Good Pledgor,
then the Escrow Agent will promptly deliver the Escrow Shares to the Make Good
Pledgor in accordance with instructions provided by the Make Good Pledgor at
such time.
5. Notice of
Filings. The Company agrees to promptly provide the Investor
Agent with written notice of the filing with the Commission of any financial
statements or reports referenced herein.
6.
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 the Investor Agent 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
the Investor Agent 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 the Investor Agent. If Escrow
Agent or the Investor 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 7
shall be filed in any court of competent jurisdiction in the State of New York,
and the Escrow Shares in dispute shall be deposited with the court and in such
event Escrow Agent and the Investor Agent 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.
7. Exculpation and Indemnification of
Escrow Agent and the Investor 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 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. The Investor Agent’s
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. The Investor Agent will provide such written
instructions upon review of the relevant After Tax Net Income and Earnings Per
Share amount reported in such periodic financial reports as specified in Section
4 hereof. The Investor Agent 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 in connection
with such financial reports of the Company, the Investor Agent shall have no
obligation or liability to any party hereunder.
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b. Neither
the Escrow Agent nor Investor Agent will 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. The Escrow Agent and Investor Agent
may each 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 or Investor Agent, as applicable), 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 or Investor Agent, as applicable, to be genuine and to be signed
or presented by the proper person or persons. The duties and
responsibilities of the Escrow Agent and Investor Agent, as the case may be,
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 New York upon fiduciaries. NEITHER THE ESCROW AGENT NOR
INVESTOR AGENT SHALL 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 OR INVESTOR AGENT'S, AS THE CASE MAY BE, 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 OR INVESTOR AGENT, AS APPLICABLE, HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM
OF ACTION.
c. The
Company and the Make Good Pledgor each hereby, jointly and severally, indemnify
and hold harmless each of Escrow Agent, the Investor Agent 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 the Investor Agent 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 the
Investor Agent hereunder; except, that if Escrow Agent or the Investor Agent is
guilty of willful misconduct or gross negligence under this Make Good Agreement,
then Escrow Agent or the Investor Agent, 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
the Investor 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 or
the Investor Agent, 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.
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8. Compensation of Escrow
Agent. Escrow Agent shall be entitled to compensation for its
services as stated in the fee schedule attached hereto as Exhibit A, 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.
9. 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 the Investor Agent with the understanding that such
Escrow Shares will continue to be subject to the provisions of this Make Good
Agreement.
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10. 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.
11. 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.
12. 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.
13. Assignment and
Modification. This Make Good Agreement and the rights and
obligations hereunder of the Company may be assigned by the Company only
following the prior written consent of Investors holding a majority of the
Shares issued at Closing under the Underwriting Agreement. 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
the Investor Agent. This Make Good Agreement and the rights and
obligations hereunder of the Make Good Pledgor may not be assigned by any Make
Good Pledgor. Subject to the requirements under federal and state
securities laws, 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, the Make Good
Pledgor and the Investor Agent (upon consent of the Investors holding a majority
of the Shares issued at Closing under the Underwriting Agreement). 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.
14. Applicable
Law. This Make Good Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York. 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 herewith, 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.
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15. 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.
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 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.
17. 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]
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IN WITNESS WHEREOF, the parties have
duly executed this Make Good Agreement as of the date set forth opposite their
respective names.
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COMPANY:
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By:
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Name:
Xxxxxxx Xxxx
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Title:
Chief Executive Officer
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Address:
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Xx.
0 Xxxxxxxxx Xxxx, Xxxxxx
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Xxxxxx,
Xxxxxxx Xxxx, Xxxxx
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Xxxxxxxx,
Xxxxx 054000
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Attn.:
Xxxxxxx Xxxx
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MAKE
GOOD PLEDGOR:
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Merry
Success Limited
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By:
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Name:
Xxxxxx Xxx
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||||
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Title:
Director
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GUARANTOR:
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XX.
XXXXXXX XXXX
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||||
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By:
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Name:
Xxxxxxx Xxxx
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||||
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GUARANTOR:
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||||
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XX.
XXXXXX XXX
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||||
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By:
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Name:
Xxxxxx Xxx
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[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK -
SIGNATURE
PAGE FOR OTHER PARTIES FOLLOWS]
[Signature
page to Make Good Escrow Agreement]
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ESCROW
AGENT:
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ESCROW,
LLC, as Escrow Agent
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By:
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Vice President
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Address:
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000 Xxxxx Xx. | |||
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Xxxxxxxxx,
XX 00000
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Facsimile:
(000) 000-0000
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Attn.:
Xxxxxxx Xxxxxxx
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LADENBURG
XXXXXXXX & CO. INC.
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as
Investor Agent
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By:
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Name:
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Title:
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Address:
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Facsimile:
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Attn.:
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TRANSFER
AGENT:
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PACIFIC
STOCK TRANSFER
COMPANY,
as Transfer Agent
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By:
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Name:
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Title:
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Address:
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Facsimile:
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Attn.:
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[Signature
page to Make Good Escrow Agreement]
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Exhibit
A
ESCROW AGENT FEE
SCHEDULE
Documentation
Fee: $4,000.00
Delivery
Fee: $500.00
Total
Fees: $4,500.00
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