Execution Copy MAKE GOOD ESCROW AGREEMENT
Exhibit 10.3
Execution Copy
This Make Good Escrow Agreement (the "Make Good Agreement"), dated effective as of November 2, 2010, is entered into by and among the following:
| (a) |
THT Heat Transfer Technology, Inc., a Nevada corporation (the "Company"); |
| (b) |
the Investors (as defined below); |
| (c) |
Wisetop International Holdings Limited, a BVI company (the "Make GoodPledgor"); |
| (d) |
▇▇▇▇▇▇▇ ▇▇▇▇, a citizen of People’s Republic of China ("PRC"), ("▇▇. ▇▇▇▇"); |
| (e) |
▇▇▇▇▇▇▇ ▇▇▇▇, an Australian citizen, ("▇▇. ▇▇▇▇", collectively with ▇▇. ▇▇▇▇,each a "Guarantor", and collectively, the "Guarantors"); |
| (f) |
Infinity I-China Fund (Cayman) L.P. as Investor agent (“Investor Agent”); and |
| (g) |
Escrow, LLC, as escrow agent ("Escrow Agent"). |
WHEREAS, each of the investors in the private offering of securities of the Company (the "Investors") has entered into a Securities Purchase Agreement, dated the date of this Agreement (the "Securities Purchase Agreement"), evidencing their participation in the Company's private offering (the "Offering") of securities. As an inducement to the Investors to participate in the Offering and as set forth in the Securities Purchase 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 it into escrow for the benefit of the Investors in the event the Company fails to satisfy certain financial thresholds.
WHEREAS, pursuant to the requirements of the Securities Purchase 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;
WHEREAS, the Escrow Agent has agreed to act as escrow agent pursuant to the terms and conditions of this Make Good Agreement;
WHEREAS, ▇▇. ▇▇▇▇ is the sole shareholder of the Make Good Pledgor, and ▇▇. ▇▇▇▇ entered into an option agreement ("Option Agreement") with ▇▇. ▇▇▇▇ on June 30, 2009, pursuant to which ▇▇. ▇▇▇▇ was granted an option to acquire all of the equity interests of the Make Good Pledgor ("Option"). ▇▇. ▇▇▇▇ may exercise the Option, in whole but not in part, during the period commencing on the 180th day following of the date of the Option Agreement and ending on the second anniversary of the date thereof. Pursuant to the requirements of the Securities Purchase Agreement, each of ▇▇. ▇▇▇▇, being the sole shareholder of the Make Good Pledgor, and ▇▇. ▇▇▇▇, 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; and
WHEREAS, all capitalized terms used but not defined herein which are defined in the Securities Purchase Agreement shall have the respective meanings given to such terms in the Securities Purchase 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) Within fifteen Trading Days following the Closing, the Make Good Pledgor shall deliver, or cause to be delivered, to the Escrow Agent certificates evidencing an aggregate of 2,000,000 shares of the Company’s Common Stock, as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions (the "Escrow Shares"), along with stock powers executed in blank (or such other signed instrument of transfer acceptable to the Company’s Transfer Agent). As used in this Make Good Agreement, "Transfer Agent" means Securities Transfer Corporation, 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.
(ii) 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).
(iii) In furtherance thereof, the Company will (x) place a stop order on all Escrow Shares which shall expire on the date the Escrow Shares are delivered to the Investors or returned to the Make Good Pledgor, (y) notify the Transfer Agent in writing of the stop order and the restrictions on such Escrow Shares under this Make Good Agreement and direct the Transfer Agent not to process any attempts by the Make Good Pledgor to resell or transfer any Escrow Shares before the date the Escrow Shares that should be delivered to the Investors are delivered to the Investors or returned to the Make Good Pledgor, or otherwise in violation of this Make Good Agreement. The Company shall notify the Investors as soon as the 2010 Make Good Shares and 2011 Make Good Shares have been deposited with the Escrow Agent.
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(iv) If within fifteen (15) trading days following the Closing, the Make Good Pledgor shall not have deposited all Escrow Shares into escrow in accordance with this Make Good Agreement along with stock powers executed in blank (or such other signed instrument of transfer acceptable to the Company’s transfer agent), then, the Investor Agent shall have the right, at its sole discretion and selection, to either (i) cash damages, as liquidated damages and not as a penalty, equal to [0.1% of the aggregate value of the Escrow Shares calculated by the closing price of the Company’s Common Stock on the fifth day following the Closing] on a daily basis during the period between the sixth day following the Closing and the date on which the Escrow Shares are actually deposited into escrow; or (ii) issue a written demand to the Company, upon which the Company shall promptly, and in any event within thirty (30) days from the date of such written demand, pay to Investors as listed on the written demand, as liquidated damages, an amount equal to those listed Investors’ entire Investment Amount without interest thereon. As a condition to the receipt of such payment, such Investors shall return to the Company for cancellation of the certificates evidencing the Shares acquired by such Investors under this Agreement.
(v) The Guarantors each hereby, jointly and severally, provide to the Investors a guarantee to secure the Make Good Pledgor’s performance of its obligations under this Make Good Agreement, indemnify and hold harmless each of the Investors 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 any Investor 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.
3. Representations and Undertakings of Make Good Pledgor and the Company and the Guarantors. The Make Good Pledgor (as to itself and the Escrowed Shares) and the Company (as to itself) and each Guarantor (as to itself and the Make Good Pledgor), severally but not jointly, hereby represent and warrant to the Investors 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 pledges, liens and encumbrances ("Lien"). Upon any transfer of Escrow Shares to Investors hereunder, Investors will receive full right, title and authority to such shares as holders of Common Stock of the Company free and clear of all Liens other than those imposed by US Federal Securities laws.
(ii) The issuance of the Escrow Shares to the Make Good Pledgor, the Make Good Pledgor’s holding of the Escrow Shares and ▇▇. ▇▇▇▇’▇ Option under the Option Agreement do not and will not violate or conflict with any applicable laws and regulations, including but not limited to laws and regulations with regard to foreign exchanges, and any necessary filing and amendments thereto have been made on a timely basis.
(iii) 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 the Option Agreement, or 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.
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(iv) 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.
(v) ▇▇. ▇▇▇▇ is the sole shareholder of the Make Good Pledgor. ▇▇. ▇▇▇▇ represents that Ms. ▇▇▇ ▇▇, being the sole director of the Make Good Pledgor, has the full right, power and authorization to sign on this Make Good Agreement on behalf of the Make Good Pledgor.
(vi) Each Guarantor undertakes to the Investors that prior to the delivery and disbursement of the 2011 Make Good Shares in accordance with the Section 4 hereof, there will not be any change in the shareholding structure or directorship of the Make Good Pledgor, whether due to ▇▇. ▇▇▇▇’▇ exercise of his Option or not, unless the Investor Agent’s prior consent is obtained.
4. Disbursement of Escrow Shares.
a. The Make Good Pledgor agrees that 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, 2010, as filed with 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 $8,000,000 (the “2010 Guaranteed ATNI”), the Escrow Agent (on behalf of the Make Good Pledgor) will transfer the 2010 Make Good Shares to the Investors on a pro rata basis (determined by dividing each Investor’s Investment Amount by the aggregate of all Investment Amounts delivered to the Company by the Investors under the Securities Purchase Agreement) as specified in Exhibit A to this Agreement for no consideration other than payment of their respective Investment Amount paid to the Company at Closing and without any need for action or notice by or on behalf of any Investor. The “2010 Make Good Shares” means the number of shares of Common Stock calculated using the following formula, as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions:
“2010 Make Good Shares” = [(2010 Guaranteed ATNI – 2010 Audited ATNI)/$8,000,000] * 50% of the Escrow Shares”
In the event that the After Tax Net Income reported in the 2011 Annual Report is less than $12,000,000 (the “2011 Guaranteed ATNI”), the Escrow Agent (on behalf of the Make Good Pledgor) will transfer the 2011 Make Good Shares to the Investors on a pro rata basis (determined by dividing each Investor’s Investment Amount by the aggregate of all Investment Amounts delivered to the Company by the Investors under the Securities Purchase Agreement) as specified in Exhibit A to this Agreement for no consideration other than payment of their respective Investment Amount paid to the Company at Closing and without any need for action or notice by or on behalf of any Investor. The “2011 Make Good Shares” means the number of shares of Common Stock calculated using the following formula, as equitably adjusted for any stock splits, stock combinations, stock dividends or similar transactions:
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“2011 Make Good Shares” = [(2011 Guaranteed ATNI – 2011 Audited ATNI)/$12,000,000] * 50% of the Escrow Shares” For purposes hereof, “After Tax Net Income” shall mean the Company’s net income after taxes for the fiscal year ending December 31, 2010 or December 31, 2011 (as applicable) in each case determined in accordance with GAAP as reported in the 2010 Annual Report or 2011 Annual Report (as applicable).
If prior to the second anniversary of the filing of either of the 2010 Annual Report or 2011 Annual Report (as applicable), the Company or their auditors report or recognize that the financial statements contained in such report are subject to amendment or restatement such that the Company would recognize or report adjusted After Tax Net Income of less than either of the 2010 Guarantee ATNI or the 2011 Guaranteed ATNI (as applicable), then notwithstanding any prior return of 2010 Make Good Shares and 2011 Make Good Shares to the Make Good Pledgor, the Make Good Pledgor will, within 10 Business Days following the earlier of the filing of such amendment or restatement or recognition, deliver the relevant 2010 Make Good Shares and 2011 Make Good Shares to the Investors without any further action on the part of the Investors.
In the event that the 2010 Audited ATNI is equal to or greater than the 2010 Guaranteed ATNI, no transfer of the 2010 Make Good Shares shall be required by the Make Good Pledgor to the Investors under this Section 4 and fifty percent (50%) of the Escrow Shares shall be promptly returned to the Make Good Pledgor without the need of any approval or consent thereto by any Investor. The remaining fifty percent (50%) of the Escrow Shares shall continue to be held in escrow by the Escrow Agent and shall remain subject to this Section 4. In the event that the 2011 Audited ATNI is equal to or greater than the 2011 Guaranteed ATNI, no transfer of the 2011 Make Good Shares shall be required by the Make Good Pledgor to the Investors under this Section and the remaining fifty percent (50%) of the Escrow Shares shall be promptly returned to the Make Good Pledgor without the need of any approval or consent thereto by any Investor.
Any transfer of the 2010 Make Good Shares and 2011 Make Good Shares under this Section shall be made to the Investors or the Make Good Pledgor, as applicable, within 10 Business Days after the date which the 2010 Annual Report or 2011 Annual Report, as applicable, is filed with the Commission and otherwise in accordance with this Make Good Agreement subject to return as provided in the immediately preceding paragraph and, in the event that any of the 2010 Make Good Shares and 2011 Make Good Shares are required to be distributed to the Investors in accordance with the terms of this Agreement, the Company has agreed that the Investor Agent will provide prompt written instruction to the Escrow Agent with regard to the distribution of the 2010 Make Good Shares and 2011 Make Good Shares, as the case may be, in an amount to each Investor as set forth on Exhibit A attached hereto. The Investor Agent will deliver to the Escrow Agent (with a copy to the Company) a copy of the 2010 Annual Report and 2011 Annual Report. 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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Each of the Investors understands and agrees that such Investor’s right to receive 2010 Make Good Shares or 2011 Make Good Shares, as the case may be, is a unique and personal right of such Investor which requires such Investor to continue to own the shares when the 2010 Audited ATNI or 2011 Audited ATNI, as the case may be, is determined for purposes of this Make Good Agreement. The right of an Investor to receive any Make Good Shares will be proportionately reduced if such Make Good Beneficiary does not continue to own the same number of shares on the 2010 Audited ATNI determination date or the 2011 Audited ATNI determination date as are owned on the date hereof. Furthermore, the right to receive Make Good Shares shall not run to the benefit of any transferee of any Shares transferred by any Investor to a third party (other than an entity affiliated with such Investors, family member or heir of an Investors or to a trust or similar vehicle established by an Investor in connection with estate planning purposes).
b. Pursuant to Section 4(a), if the Investor Agent delivers a notice to the Escrow Agent that the Escrow Shares are to be transferred to the Investors, then the Escrow Agent shall immediately forward either the 2010 Make Good Shares and 2011 Make Good Shares, as the case may be, to the Company’s Transfer Agent for reissuance to the Investors in an amount to each Investor as set forth on Exhibit A attached hereto and otherwise in accordance with this Make Good Agreement. The Company covenants and agrees that upon any transfer of 2010 Make Good Shares and 2011 Make Good Shares to the Investors in accordance with this Make Good Agreement, the Company shall promptly instruct its Transfer Agent to reissue such 2010 Make Good Shares and 2011 Make Good Shares in the applicable Investor’s name and deliver the same, or cause the same to be delivered as directed by such Investor in an amount to each Investor as set forth on Exhibit A attached hereto. If the Company does not promptly provide such instructions to the Transfer Agent of the Company, then the Investor Agent is hereby irrevocably authorized and directed by the Company to give such re-issuance instruction to the Transfer Agent of the Company. 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 either the 2010 Make Good Shares, 2011 Make Good Shares or any remaining proportion of the Escrow Shares after the transfer of 2010 Make Good Shares and/or 2011 Make Good Shares to Investors, as the case may be, to the Make Good Pledgor in accordance with instructions provided by the Make Good Pledgor at such time.
c. The Company and Make Good Pledgor covenant and agree to provide the Escrow Agent with certified tax identification numbers by furnishing appropriate forms W-9 or W-8 and such other forms and documents that the Escrow Agent may request, including appropriate W-9 or W-8 forms for each Investor. The Company and Make Good Pledgor understand that if such tax reporting documentation is not provided and certified to the Escrow Agent, the Escrow Agent may be required by the Internal Revenue Code of 1986, as amended, and the Regulations promulgated thereunder, to withhold a portion of any interest or other income earned on the investment of the Escrow Property.
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5. Notice of Filings. The Company agrees to promptly provide the Investors with written notice of the filing with the Commission of any financial statements or reports referenced herein.
6. Escrow Shares. If any Escrow Shares are deliverable to the Investors in accordance with this Make Good Agreement, (i) Make Good Pledgor covenants and agrees to execute all such instruments of transfer (including stock powers and assignment documents) as are customarily executed to evidence and consummate the transfer of the Escrow Shares from Make Good Pledgor to the Investors, to the extent not done so in accordance with Section 2, and (ii) following its receipt of the documents referenced in Section 6(i), the Company and Escrow Agent covenant and agree to cooperate with the Transfer Agent so that the Transfer Agent may promptly reissue such Escrow Shares in the applicable Investor’s name and delivers the same as provided herein or otherwise directed in writing by the applicable Investors. Until such time as (if at all) the Escrow Shares are required to be delivered pursuant to the Securities Purchase Agreement and in accordance with this Make Good Agreement, (i) any dividends payable in respect of the Escrow Shares and all voting rights applicable to the Escrow Shares shall be retained by Make Good Pledgor and (ii) should the Escrow Agent receive dividends or voting materials, such items shall not be held by the Escrow Agent, but shall be passed immediately on to the Make Good Pledgor and shall not be invested or held for any time longer than is needed to effectively re-route such items to the Make Good Pledgor. In the event that the Escrow Agent receives a communication requiring the conversion of the Escrow Shares to cash or the exchange of the Escrow Shares for that of an acquiring company, the Escrow Agent shall solicit and follow the written instructions of the Make Good Pledgor; provided, that the cash or exchanged shares are instructed to be redeposited into the Escrow Account. Make Good Pledgor shall be responsible for all taxes resulting from any such conversion or exchange.
Assuming the Make Good Pledgor provides good and valid title to the Escrow Shares to be transferred and delivered on behalf of the Make Good Pledgor to the Investors hereunder, free and clear of all liens, encumbrances, equities or claims, the Escrow Agent will ensure that upon delivery of the Escrow Shares, good and valid title to the Escrow Shares, free and clear of all liens, encumbrances, equities or claims will pass to the Investors. The Escrow Agent shall not take any action which could impair Investors’ rights in the Escrow Shares. The Escrow Agent shall not sell, transfer, assign or otherwise dispose of (by operation of law or otherwise) or grant any option with respect to any Escrow Shares prior to the termination of this Agreement.
7. 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.
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8. 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 reported in such periodic financial reports as specified in Section 4 hereof or receipt of notice from the Company under Section 4. 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 (other than the Investor Agent) in connection with such financial reports of the Company, the Investor Agent shall have no obligation or liability to any party hereunder.
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.
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c. The Company and 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.
9. Compensation of Escrow Agent. Escrow Agent shall be entitled to compensation for its services as stated in the fee schedule attached hereto as Exhibit B, 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.
10. 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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11. 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.
12. 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.
13. 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.
14. 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 Investor Agent. 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 the 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 Investor Agent). 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.
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15. Applicable Law. This Make Good Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York without giving effect to the principles of conflicts of laws thereof. 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.
16. 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.
17. 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.
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18. 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.
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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.
COMPANY:
THT HEAT TRANSFER TECHNOLOGY, INC.
By:_______________________________ Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Title: Chief Executive Officer
Address: THT Industrial Park No. 5 Nanhuan Road, Tiexi District Siping, Jilin Province China 136000 Facsimile: ▇▇-▇▇▇-▇▇▇▇▇▇▇ Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇
MAKE GOOD PLEDGOR:
Wisetop International Holdings Limited
By:_______________________________ Name: ▇▇▇ ▇▇ Title: Director
Address: Facsimile: Attn.:
GUARANTOR:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
By:_______________________________ Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Address: Facsimile: Attn.:
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GUARANTOR:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
By: _______________________________ Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Address: Facsimile: Attn.:
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[Signature page to Make Good Escrow Agreement]
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ESCROW AGENT:
ESCROW, LLC, as Escrow Agent
By:_______________________________ Name: Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Attn.:
INVESTOR AGENT
Infinity I-China Fund (Cayman) L.P. as Investor Agent
By:_______________________________ Name: Title:
Address:
Facsimile: Attn.:
INVESTORS:
By: _______________________________ Name: Title:
Address:
Facsimile: Attn.:
[Signature page to Make Good Escrow Agreement]
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Exhibit A
ESCROW SHARES TO BE ISSUED TO INVESTORS
| Investor’s Legal Name | Investor’s Investment Amount | Make Good (2010) | Make Good (2011) |
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Exhibit B
ESCROW AGENT FEE SCHEDULE
Documentation Fee: $4,000.00 Delivery Fee: $500.00
Total Fees: $4,500.00
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