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ESCROW
AGREEMENT
(For
PRC Investors)
THIS
ESCROW AGREEMENT (this “Escrow Agreement”) is
made as of December 21, 2009, by and among AllBright Law Offices, a law office
registered in the People’s Republic of China, with an address at Citigroup
Tower, 14th Floor No. 33, HuaYuan Shi Qiao Road, Pudong New Area, Shanghai,
China 200120 (the “Escrow Agent”),
SinoCoking Coal and Coke Chemical Industries, Inc. (prior to the
closing of the Share Exchange, “Ableauctions.com, Inc.”), a Florida corporation
(the “Company”), and
certain investors in the securities of the Company (“Purchasers”). Purchasers,
the Escrow Agent and Company collectively referred to herein as the
“Parties.” Capitalized terms used herein and not defined shall have
the same meanings as set forth in the Securities Purchase Agreement (defined
below).
RECITALS
WHEREAS,
Company is offering its units (“Units”) at a purchase
price of US $6.00, with each Unit consisting of one (1) share of post-Reverse
Stock Split common stock of the Company, and a warrant for the purchase of 0.5
shares of common stock with an exercise price of $12.00 per share (the “Purchased
Securities”), to the Purchasers pursuant to a Securities Purchase
Agreement for the purchase and sale of the Units, by and among the Company and
the Purchasers named therein (“Securities Purchase
Agreement”), entered into concurrently with this Escrow
Agreement;
WHEREAS, the foregoing issuance of
Units (the “Financing”) is being
conducted immediately following the consummation of a reverse acquisition by
means of a share exchange (“Share Exchange”) by
the Company of Top Favour Limited, a British Virgin Islands company and holding
company for a coal and coke producing business in the Henan Province of China,
as described in the Securities Purchase Agreement;
WHEREAS, in connection with the Share
Exchange and effective upon its closing, the Company shall have conducted a
1-for-20 reverse stock split of its common stock (“Reverse Stock
Split”), and after giving effect to the Reverse Stock Split and Share
Exchange, the Company will have approximately 13.5 million shares of common
stock, par value $0.001 per share, issued and outstanding;
WHEREAS, the parties contemplate that
the initial closing of the aforementioned transaction will occur within the 30
day period following the date of this Escrow Agreement (the “Initial Closing
Date”) immediately following the completion of the Reverse Stock Split
and Share Exchange, and it is anticipated that the offering of Units under the
Securities Purchase Agreement will be conducted in one or more closings over a
period of up to 90 days (each, a “Closing”);
WHEREAS, in order to facilitate the
orderly exchange of investment funds and securities between the Company and the
Purchasers, the Parties are entering into this Escrow Agreement with the Escrow
Agent.
AGREEMENT
NOW, THEREFORE, the Parties agree as
follows:
1. The Escrow.
1.1 The
parties hereby agree to establish an escrow account with the Escrow Agent
whereby the Escrow Agent shall hold the funds for the purchase of the Purchased
Securities.
1.2 The
Company will inform Escrow Agent of its intent to conduct a Closing for the
issuance of Purchased Securities. Upon the Escrow Agent’s receipt of:
(i) the Purchase Price together with executed counterparts of this Escrow
Agreement and the Securities Purchase Agreement countersigned by the Company
(the “Transaction
Documents”); and (ii) executed counterparts of the Transaction Documents
along with all closing deliveries set forth in the Securities Purchase Agreement
(the “Closing
Deliverables”), it shall telephonically or by electronic mail advise both
the Purchasers and Company that it has received the Purchase Price and all
Closing Deliverables. Upon receipt of written confirmation that all
closing conditions have been satisfied with respect to each Closing, and that
all Closing Deliverables have been received, the Escrow Agent shall deliver the
Purchased Securities to Purchasers and to transfer the Purchase Price (minus
applicable wire transfer fees) to Company.
1.3 Wire
transfers to the Escrow Agent shall be made as follows:
户名：河南省平顶山泓利煤焦有限公司
帐号：66676160154700001026
银行：上海浦东发展银行郑州高新开发区支行
1.4 This
Agreement shall have a term of ninety (90) days, unless further extended by
mutual agreement of the Company and Escrow Agreement.
2. Limited Duties of Escrow
Agent. It is understood and agreed that the duties of the
Escrow Agent are entirely ministerial in nature, being limited to receiving and
forwarding the items received pursuant to Section 1 hereof.
2.1 Reliance by Escrow
Agent. The Escrow Agent may conclusively rely on, and shall be
protected when it acts in good faith upon, any statement, certificate, notice,
request, consent, order, or other document which it believes to be genuine and
signed by the proper Party. The Escrow Agent shall have no duty or
liability to verify any such statement, certificate, notice, request, consent,
order or other document and its sole responsibility shall be to act only as set
forth in this Escrow Agreement. The Escrow Agent shall be under no
obligation to institute or defend any action, suit, or proceeding in connection
with this Escrow Agreement unless it is indemnified to its
satisfaction. The Escrow Agent shall not be liable for any action
taken or omitted, in good faith upon advice of counsel. In performing
any of its duties hereunder,
the Escrow Agent shall not incur any liability to anyone for damages, losses, or
expenses except for its willful misconduct.
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Escrow
Agreement (PRC Account)
2.2 Escrow Agent as Depository
Only. The Escrow Agent acts hereunder as a depository only, and it
is not responsible or liable in any manner whatsoever for the sufficiency,
correctness, genuineness or validity of any instrument deposited with it
hereunder, or with respect to the form or execution of the same, or the
identity, authority or rights of any person, executing the same. The
Escrow Agent shall not be required to take or be bound by notice of any default
of any person, or to take any action with respect to such default involving any
expense or liability, unless notice in writing is given to an officer of the
Escrow Agent of such default by the undersigned or any of them, and unless it is
indemnified in a manner satisfactory to it against any expense or liability
arising therefrom. The Escrow Agent shall not be liable for acting
upon any notice, request, waiver, consent, receipt or other papers or documents
not believed by the Escrow Agent to be genuine and to have been signed by the
proper Party or Parties.
2.3 No Liability for Error of
Judgment. The Escrow Agent shall not be liable for any error
of judgment or for any act done or step taken or omitted by it in good faith, or
for any mistake of fact or law, or for anything which it may do or refrain from
doing in connection herewith except its own willful misconduct. The
Escrow Agent shall not be answerable for the default or misconduct of any agent,
attorney or employee appointed by it if such agent, attorney or employee shall
have been selected with reasonable care. The Escrow Agent may
consult with legal counsel in the event of any dispute hereunder, and the Escrow
Agent shall incur no liability and shall be fully protected in acting in
accordance with the opinion and instructions of any such counsel.
2.4 Further Rights of Escrow
Agent. In the event of any disagreement between the
undersigned or any of them, or the person or persons named in the foregoing
instructions, or any other person, resulting in adverse claims or demands being
made in connection with or for any papers, money or property involved herein or
affected hereby, the Escrow Agent shall be entitled at its option to refuse to
comply with any such claim or demand, so long as such disagreement shall
continue, and in so refusing, the Escrow Agent shall not be or become liable to
the undersigned or any of them or to any person named in the foregoing
instructions for the failure or refusal to comply with such conflicting or
adverse demands, and the Escrow Agent shall be entitled to continue to do,
refrain or refuse to act until:
(a) the
rights of adverse claimants have been finally adjudicated in a court assuming
and having jurisdiction of the Parties and the money, papers and property
involved herein or affected hereby; or
(b) all
differences shall have been adjusted by agreement and the Escrow Agent shall
have been notified thereof in writing signed by all of the persons interested;
and
(c) Escrow
Agent shall have the right, at any time, to commence interpleader at the expense
of all other Parties to this Escrow Agreement.
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Escrow
Agreement (PRC Account)
3. Fees to Escrow
Agent. The Escrow Agent shall not receive a fee for the
discharge of its duties under this Escrow Agreement. However, in the
event that the conditions of this Escrow Agreement are not fulfilled, or the
Escrow Agent renders any material service not contemplated by the Agreement, or
there is any assignment of interest in the subject matter of this Escrow
Agreement, or any material modification thereof, or if any material controversy
arises hereunder, or the Escrow Agent is made a party or justifiably intervenes
in any litigation pertaining to this Escrow Agreement, or the subject matter
hereof, the Escrow Agent shall be reasonably compensated for such extraordinary
expenses, including reasonable attorneys’ fees, occasioned by any delay,
controversy, litigation or event, and the same may be recoverable from jointly
and severally from all other parties.
4. Notices. The notice
addresses of the Parties hereto are as follows:
Company: SinoCoking
Coal and Coke Chemical Industries, Inc.
Kuanggong Road and Tiyu
Road
10th
Floor, Chengshi Xin Yong She, Tiyu Road
Xinhua
District, Pingdingshan,
Henan
Province, China
Fax:
+86-375-2920030
Purchasers: To
the address and fax number for each
Purchaser
as indicated on the Signature
Page of the Securities Purchase
Agreement
Escrow
Agent: Steve Zhu
Attorney
at Law/Senior Partner
AllBright
Law Offices
Citigroup
Tower
14th
Floor
No.
33, HuaYuan Shi Qiao Road,
Pudong
New Area
Shanghai,
China 200120
Telephone:
(86-21)-61059116
Facsimile:
(86-21)-61059119
5. Miscellaneous. The
provisions of Section 2 shall survive any termination of this Escrow Agreement,
whether by full release of the Closing Deliverables, resignation or termination
of the Escrow Agent, or otherwise. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
-4-
Escrow
Agreement (PRC Account)
6. Acknowledgement. Escrow Agent
hereby acknowledges receipt of this Escrow Agreement and agrees to act in
accordance with said Escrow Agreement and upon the terms and conditions set
forth herein.
IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
date first written above.
ESCROW
AGENT:
AllBright
Law Offices
By: /s/ Steve
Zhu
Name:
Steve Zhu
Title: Attorney
at Law/Senior Partner
COMPANY:
SINOCOKING
COAL AND COKE CHEMICAL INDUSTRIES, INC.
By: /s/ Jianhua Lv
Name: Jianhua
Lv
Title: Chief
Executive Officer
PURCHASERS:
Name:
_______________________________
Signature:
____________________________
Authorized
Representative:
________________________
Title:
________________________________
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Escrow
Agreement (PRC Account)