Re: Make Good Escrow Agreement
February
25, 2008
Tri-State
Title & Escrow, LLC
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(▇▇▇)
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Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Gentlemen:
This
agreement will set forth the terms pursuant to which Entech
Environmental Technologies, Inc., a Florida corporation
(the “Company”),
will deposit into escrow with you (the “Escrow
Agent”)
2,000,000 shares of Series B Preferred Stock, which are the shares defined
as
the Make Good Escrow Stock in that certain securities purchase agreement (the
“Purchase
Agreement”),
dated February 25, 2008 among the Company, ▇▇▇▇▇▇ Partners L.P. (“▇▇▇▇▇▇
Partners”)
and the other investors named therein. ▇▇▇▇▇▇ Partners and the Company shall
be
collectively called “Interested
Parties”.
1. The
Escrow Agent agrees to hold the Make Good Escrow Stock on and subject to the
terms of this Agreement. The parties acknowledge that the Escrow Agent is not
and will not be a party to the Purchase Agreement. The Escrow Agent has and
will
have no obligations under the Purchase Agreement, and the Escrow Agent’s only
obligations are those expressly set forth in this Escrow Agreement.
2. The
Make Good Escrow Stock will be issued in the name of Tri-State
Title & Escrow, LLC,
as escrow agent. The Make Good Escrow Stock shall not have any voting rights
while they are held by the Escrow Agent pursuant to this Agreement.
3. Section
6.16 of the Purchase Agreement provides for the transfer of some or all of
the
Preferred Shares to the Investors named in the Purchase Agreement. If the Escrow
Agent receives the joint written notice from ▇▇▇▇▇▇ Partners, on behalf of
the
Investors, and the Company as to the disposition of any or all of the Make
Good
Escrow Stock, the Escrow Agent shall distribute the Make Good Escrow Stock
in
accordance with the joint written instructions.
4. If
the Escrow Agent receives written instructions signed by either but not both
of
▇▇▇▇▇▇ Partners and the Company, the Escrow Agent shall, within five (5)
business days from its receipt of such instructions, send a copy of such
instructions to the other party by overnight courier service which provides
evidence of delivery. If, by the close of business on the fifteenth
(15th)
business day after delivery of the instructions to the other party, the Escrow
Agent shall not have received notice from any of the other Interested Parties
either disputing the instructions or otherwise instructing the Escrow Agent
to
take action inconsistent with the original instructions, the Escrow Agent shall
distribute the Make Good Escrow Stock in accordance with the instructions
initially received by it.
5. If
the Escrow Agent shall have received notice from the other Party by the close
of
business on the fifteenth (15th)
business day after delivery of the instructions disputing or conflicting with
the initial instructions, the Escrow Agent shall retain the Make Good Escrow
Stock until it shall have received either (a) joint written instructions from
the Company and ▇▇▇▇▇▇ Partners or (b) a court order, final beyond right of
review, as to the disposition of the Escrow Property, in which event the Escrow
Agent shall distribution the Make Good Escrow Stock in accordance with such
instructions or court order.
6. In
the event that the Escrow Agent shall be uncertain as to its obligations with
respect to the Make Good Escrow Stock, or shall receive instructions, claims
or
demands which, in the Escrow Agent’s opinion, are in conflict with each other or
with any of the provisions of this Agreement, the Escrow Agent shall refrain
from taking any action other than to keep safely all Make Good Escrow Stock
until the Escrow Agent shall have written instructions from all Interested
Parties as to the disposition of Make Good Escrow Stock or until the Escrow
Agent is directed by a final judgment of a court of competent jurisdiction
final
beyond right of review. In addition, in such circumstances, the Escrow Agent
may
deposit the Make Good Escrow Stock into court, there to abide a decision of
the
court. In this connection, each of the parties consents to the exclusive
jurisdiction of the federal and state courts located in the City, County and
State of New York.
7. This
Agreement shall terminate upon a distribution of all of the Make Good Escrow
Stock pursuant to Section 3, 4, 5 or 6 of this Agreement.
8. The
Interested Parties shall jointly and severally (i) reimburse the Escrow Agent
for all reasonable expenses incurred by the Escrow Agent in connection with
its
duties hereunder and (ii) indemnify
and hold harmless the Escrow Agent against any and all losses, claims,
liabilities, costs, payments and expenses, including
reasonable legal fees for counsel who may be selected by the Escrow Agent,
which
may be imposed upon or incurred by the Escrow Agent hereunder, except as a
result of the gross negligence or willful misconduct of the Escrow
Agent.
9. The
Escrow Agent shall have no duties or responsibilities except those expressly
set
forth in this Agreement. The Escrow Agent shall have no liability under, or
duty
to inquire into the terms and provisions of, any agreement between the parties,
including the Purchase Agreement. No person, firm or corporation will be
recognized by the Escrow Agent as a successor or assignee of any party until
there shall be presented to the Escrow Agent evidence satisfactory to it of
such
succession or assignment. The Escrow Agent may rely upon any instrument in
writing believed in good faith by it to be genuine and sufficient and properly
presented and shall not be liable or responsible for any action taken or omitted
in accordance with the provisions thereof. The Escrow Agent shall not be liable
or responsible for any act it may do or omit to do in connection with the
performance of its duties as Escrow Agent, except for its gross negligence
or
willful misconduct. The Escrow Agent may consult with counsel, including
partners or associates of and attorneys who are of counsel to the Escrow Agent,
and shall be fully protected with respect to any action taken or omitted by
it
in good faith on written advice of counsel.
10. The
Escrow Agent may at any time resign hereunder by giving written notice of its
resignation to the other parties hereto, at their addresses set forth below,
at
least twenty (20) business days prior to the date specified for such resignation
to take effect. If the Escrow Agent shall resign, and upon the effective date
of
the resignation of the Escrow Agent, all property then held by the Escrow Agent
pursuant to this Agreement shall be delivered by the Escrow Agent to such person
as may be designated in writing by the joint instructions of the Interested
Parties, whereupon all such Escrow Agent’s obligations hereunder shall cease and
terminate. If no such person shall have been designated by such date, all of
the
Escrow Agent’s obligations hereunder shall, nevertheless, cease and terminate.
The Escrow Agent’s sole responsibility thereafter shall be to keep safely all
Make Good Escrow Stock then held by the Escrow Agent and to deliver the same
to
a person jointly designated as provided in this Agreement or, if the parties
shall have failed to designate a successor escrow agent, the Escrow Agent may
deposit the Make Good Escrow Stock into a court of competent jurisdiction as
provided in Section 6 of this Agreement.
11. Any
notice, request, demand and other communication hereunder shall be in writing
and shall be deemed to have been duly given if delivered by facsimile or e-mail
(if receipt is confirmed by the recipient) or sent by messenger or overnight
courier service which provides evidence of delivery or by certified or
registered mail, return receipt requested, postage
prepaid, and shall be deemed given when delivered, if to the Company or ▇▇▇▇▇▇
Partners at their addresses set forth on the signature page of this Agreement.
If any party refuses to accept delivery (other than notice given by telecopier),
notice shall be deemed to have been given on the date of attempted delivery.
Any
party may, by like notice, change the person, address or telecopier number
to
which notice should be sent.
12. This
Agreement shall in all respects be construed and interpreted in accordance
with,
and the rights of the parties shall be governed by, the laws of the State of
New
York applicable to contracts executed and to be performed wholly within such
State. Each party hereby (a) consents to the exclusive jurisdiction of the
United States district court for the Southern District of New York and Supreme
Court of the State of New York in the County of New York in any action relating
to or arising out of this Agreement, (b) agrees that any process in any action
commenced in such court under this Agreement may be served upon either (i)
by
certified or registered mail, return receipt requested, or by messenger or
courier service which obtains evidence of delivery, with the same full force
and
effect as if personally served upon him in New York City or (ii) by any other
method of service permitted by law and (c) waives any claim that the
jurisdiction of any such tribunal is not a convenient forum for any such action
and any defense or lack of in personam jurisdiction with respect
thereto.
13. Section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
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14. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, personal representatives, successors
and
assigns; provided, that any assignment of this Agreement or their rights
hereunder by any party hereto without the written consent of the other parties
shall be void. Nothing in this Agreement is intended to confer upon any other
person any rights or remedies under or by reason of this Agreement.
15. This
Agreement may be executed and delivered in counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
16. No
modification, waiver or discharge of any provisions of this Agreement shall
bind
any party unless it is in writing, specifically refers to this Agreement and
is
signed by or on behalf of the party to be bound or affected
thereby.
17. The
Company agrees to pay Escrow Agent a flat fee of $1,500 for the services
hereunder.
[Signatures
on following page]
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Very
truly yours,
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Address
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Signature
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c/▇
▇▇▇▇▇▇ Capital Advisors LLC
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▇▇▇▇▇▇
PARTNERS, L.P.
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Managing
Partner
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Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
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By:
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▇▇▇▇▇▇
CAPITAL ADVISORS LLC
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▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇
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Managing
Partner
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fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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e-mail:
▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO
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EOS
HOLDINGS
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By:
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/s/
▇▇▇ ▇▇▇▇▇▇
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▇▇▇
▇▇▇▇▇▇
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President
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Entech
Environmental Technologies, Inc.
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Entech
Environmental Technologies, Inc.,
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c/o
Shaanxi Tianren Food Company, Ltd.
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[Name
and Title of Contact Person]
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By:
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/s/
▇▇▇▇▇▇ ▇. Emas
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▇-▇/▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇▇,
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Name:
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▇▇▇▇▇▇
▇. Emas
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Gaoxin
2nd Road, Hi&Tech Zone,
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Title:
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Director
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▇▇'▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇
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[Email]
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[Fax]
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AGREED
TO AND ACCEPTED:
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Tri-State
Title & Escrow, LLC
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Tri-State
Title & Escrow, LLC
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▇▇▇
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▇.▇.
▇▇▇ ▇▇▇
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By:
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/s/
▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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▇▇▇
▇. ▇▇▇▇▇▇
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Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
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Fax: (▇▇▇)
▇▇▇-▇▇▇▇
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e-mail
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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