exv10w1






Exhibit 10.1




ESCROW AGREEMENT 



ESCROW AGREEMENT (the “Agreement”) dated as of April 1, 2010,




	 	 	 

	BY AND AMONG:

	 	NEWLEAD HOLDINGS LTD., a Bermuda
corporation (“NewLead”);
	 
	 	 
	AND:

	 	GRANDUNION, INC. a Marshall Islands
corporation (“Grandunion”);
	 
	 	 
	AND:

	 	COMPUTERSHARE TRUST COMPANY, N.A., a
national banking association (the “Escrow
Agent” or “Computershare”).






     WHEREAS NewLead and Grandunion have entered into a Securities Purchase Agreement dated as of
March 31, 2010 (the “Purchase Agreement”) that provides, among other things, that NewLead sell and
Grandunion purchases 8,844,444 common shares of NewLead, upon and subject to the terms and
conditions contained in the Purchase Agreement;



     WHEREAS the Purchase Agreement contemplates that 8,844,444 common shares of NewLead (the
“Holdback Shares”) shall be deposited and held in escrow with the Escrow Agent, to be held and
distributed by the Escrow Agent on the terms and conditions set forth herein;



     WHEREAS Grandunion and NewLead wish to appoint the Escrow Agent to act as escrow agent in
connection with the Purchase Agreement;



     WHEREAS the foregoing recitals are representations and statements of fact made by NewLead and
Grandunion and not by the Escrow Agent;



     NOW, THEREFORE, THIS AGREEMENT WITNESSETH THAT, in consideration of the foregoing recitals,
the covenants and agreements hereinafter contained and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows:




	 	1.	 	Definitions. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the respective meanings assigned to them in the
Purchase Agreement. For the purposes of this Agreement, the following terms shall have
the following meanings:
	 
	 	(a)	 	“Business Day” means any day, other than a Saturday or a Sunday, when the New
York Stock Exchange is open for regular business.
	 
	 	(b)	 	“Claims” means any claims to the Holdback Shares asserted against Grandunion
pursuant to Section 2.3 of the Purchase Agreement.




 









 






	 	(c)	 	“Dispute Notice” has the meaning specified in Section 7(b).
	 
	 	(d)	 	“Escrow Amount” means the Holdback Shares which are initially deposited with
the Escrow Agent hereunder, less any amount deducted pursuant to Sections 6 and 7
hereof.
	 
	 	(e)	 	“Loss Notice” has the meaning specified in
Section 7(a).
	 
	 	(f)	 	“Purchase Agreement” has the meaning specified in the preamble.
	 
	 	2.	 	Appointment of Escrow Agent. NewLead and Grandunion hereby appoint the
Escrow Agent to act as agent on their behalf pursuant to this Agreement, and the Escrow
Agent hereby accepts such appointment on the terms and conditions of this Agreement.
	 
	 	3.	 	Delivery of the Escrow Amount. NewLead hereby remits to the Escrow
Agent the Escrow Amount, being initially the Holdback Shares. The Escrow Amount shall
be held by the Escrow Agent in accordance with the terms and conditions of this
Agreement.
	 
	 	4.	 	Safekeeping of Escrow Amount.
	 
	 	(a)	 	Pending disbursement of the Escrow Amount, the Escrow Agent shall hold the
Escrow Amount in escrow and safekeep the Escrow Amount in a segregated file.
	 
	 	5.	 	Authorized Disbursements. The Escrow Agent is hereby authorized to
disburse the Escrow Amount only in accordance with Sections 6 or 7.
	 
	 	6.	 	Release from Escrow. Subject to Section 7 hereof, the Escrow Amount
shall be released by the Escrow Agent as follows:
	 
	 	(a)	 	at any time upon receipt of a written joint notice from Grandunion and
NewLead substantially in the form attached hereto as Schedule A, the Escrow Agent
shall disburse from the Escrow Amount to the Party specified in such notice the
amount specified therein; or
	 
	 	(b)	 	In accordance with Section 7 hereof.
	 
	 	7.	 	Loss Notice; Dispute Notice.
	 
	 	(a)	 	Loss Notice. If NewLead reasonably determines that it has a Claim,
NewLead shall give a written notice of such determination to the Escrow Agent and to
Grandunion, setting out the reasons for the dispute as well as the amount under
dispute and reasonable details of the calculation of such amount (a “Loss Notice”);
	 
	 	 	 	Upon receipt of a Loss Notice, the Escrow Agent shall promptly notify Grandunion in
writing that it has received a Loss Notice, including a copy




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	 	 	 	thereof, and shall set aside from the Escrow Amount the amount claimed in the Loss
Notice. The Escrow Agent shall hold the said amount until it disburses such amount
in accordance with Section 7(b) or is otherwise jointly instructed by Grandunion and
NewLead in writing pursuant to Section 6(a);
	 
	 	(b)	 	under the Loss Notice, Grandunion shall, within twenty (20) days of receipt
of the Loss Notice from the Escrow Agent, send a signed written notice concurrently to
both the Escrow Agent and to NewLead stating such dispute and summarizing the basis
for such dispute (a “Dispute Notice”);
	 
	 	 	 	If the Escrow Agent receives a Dispute Notice within the requisite time, it shall
take no further action pursuant to such Loss Notice, until receipt by it of a final
and binding determination by a court or arbitration panel of competent jurisdiction
or alternatively, receipt by it of written instructions signed by NewLead and
Grandunion. The Escrow Agent shall have no duty to inquire as to the truth of any
statements made in a Loss Notice or Dispute Notice nor shall the Escrow Agent have a
duty to confirm receipt by NewLead or Grandunion, as the case may be, of such Loss
Notice or Dispute Notice; and,
	 
	 	(c)	 	No Dispute Notice. If no Dispute Notice is received by the Escrow
Agent within twenty (20) days after delivery to the Escrow Agent of the related Loss
Notice, then the Escrow Agent shall disburse the amount set aside
pursuant to Section 6(a) and pay forthwith to NewLead the amount specified in the relevant Loss Notice.
	 
	 	8.	 	No Limitation. NewLead’s rights and recourses against Grandunion with
respect to any Claims under Section 2.3 of the Purchase Agreement shall not be
replaced, limited or deemed to be waived, in whole or in part, by the exercise of
NewLead’s rights and recourses under this Agreement or any other terms and conditions
of this Agreement except to the extent of any payment made by the Escrow Agent to
NewLead pursuant hereto following delivery of a Loss Notice in respect of a Claim.
	 
	 	9.	 	Responsibility of Escrow Agent; Indemnification.
	 
	 	(a)	 	Grandunion and NewLead acknowledge and agree that the Escrow Agent acts
hereunder as a depositary only and (i) shall not be responsible or liable in any manner
whatsoever for the sufficiency, correctness, genuineness or validity of any instrument
deposited with it (including, without limitation, the Purchase Agreement), for the form
or execution of such instruments, for the identity, authority or right of any Person or
party executing or depositing such instruments or for determining or compelling
compliance therewith, and shall not otherwise be bound thereby; (ii) shall be obligated
only for the performance of such duties as are expressly and specifically set forth in
this Agreement on its part to be performed, and no implied duties or obligations of any
kind shall be read into this Agreement against or on the part of the Escrow Agent;
(iii) shall not be required to take notice of any default or to take any action with
respect to such default involving any expense or liability, unless notice in writing of
such default is formally given to the Escrow Agent, and unless it is indemnified and




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	 	 	 	funded, in a manner satisfactory to it, against such expense or liability; (iv) may
rely on and shall be protected in acting or refraining from acting upon any written
notice, instruction (including, without limitation, wire transfer instructions,
whether incorporated herein or provided in a separate written instruction),
instrument, statement, certificate, request or other document furnished to it
hereunder and believed by it to be genuine and to have been signed or presented by
the proper Person, and shall have no responsibility for determining the accuracy
thereof; (v) may employ and consult counsel satisfactory to it, including in-house
counsel, and the opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion of such counsel; and, (vi) shall
not be responsible for delays or failures in performance resulting from acts beyond
its control, including without limitation, acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or other
disasters.
	 
	 	(b)	 	The Escrow Agent may employ such counsel, accountants, engineers, appraisers,
other experts, agents, agencies and advisors as it may reasonably require for the
purpose of discharging its duties under this Agreement, and the Escrow Agent may act
and shall be protected in acting in good faith on the opinion or advice or on
information obtained from any such parties and shall not be responsible for any
misconduct on the part of any of them. The reasonable costs of such services shall be
added to and be part of the Escrow Agent’s fee hereunder.
	 
	 	(c)	 	The Escrow Agent shall retain the right not to act and shall not be held
liable for refusing to act unless it has received clear and reasonable documentation
which complies with the terms of this Agreement. Such documentation must not require
the exercise of any discretion or independent judgment.
	 
	 	(d)	 	No provision of this Agreement shall require the Escrow Agent to expend or
risk its own funds or otherwise incur financial liability in the performance of its
duties or the exercise of any of its rights or powers unless indemnified as provided
for herein, other than as a result of its own gross negligence or bad faith.
	 
	 	(e)	 	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 for its own gross negligence or bad faith.
	 
	 	(f)	 	The Escrow Agent shall incur no liability with respect to the delivery or
non-delivery of any cash whether delivered by hand, wire transfer, registered mail or
bonded courier.
	 
	 	(g)	 	Grandunion shall pay the costs and expenses of the Escrow Agent’s services
hereunder, and the costs and expense reasonably incurred by the Escrow Agent




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	 	 	 	in connection with the administration of the escrow created hereby or the
performance or observance of its duties hereunder which are in excess of its
compensation for normal services hereunder and covered by the remuneration,
including without limitation, all out-of-pocket expenses and disbursements incurred
or made by the Escrow Agent in the administration of its services and duties
created hereby (including the reasonable fees and disbursements of its outside
counsel and other outside advisors required for discharge of its duties hereunder).
Any amount owing under this Section and unpaid thirty (30) days after request for
such payment will bear interest from the expiration of such thirty (30) days at a
rate per annum equal to the then current rate charged by the Escrow Agent, payable
on demand. If payment is not received when due, the Escrow Agent shall be entitled
to draw down on the Escrow Amount in order to effect such payment and may sell,
liquidate, convey or otherwise dispose of any investment for such purpose.
	 
	 	(h)	 	Grandunion and NewLead shall jointly and severally indemnify the Escrow Agent
and its officers, directors, employees, agents, affiliates, successors and assigns and
hold it and them harmless from and against any loss, fee, claim, demand, penalty,
liability, damage, cost and expense of any nature incurred by the Escrow Agent and
its officers, directors, employees, agents, affiliates, successors and assigns
arising out of or in connection with this Agreement or with the administration of its
duties hereunder, including but not limited to, reasonable attorneys’ fees and other
costs and expenses of defending or preparing to defend against any claim of liability,
unless and except to the extent such loss, liability, damage, cost and expense shall
be caused by the Escrow Agent’s or its officers’, directors’, employees’, agents’,
affiliates’, successors’ or assigns’ gross negligence or bad faith. Escrow Agent and
its officers, directors, employees, agents, affiliates, successors and assigns shall
not be liable for any incidental, indirect, special or consequential damages of any
nature whatsoever, including, but not limited to, loss of anticipated profits,
occasioned by a breach of any provision of this Agreement even if apprised of the
possibility of such damages. The foregoing indemnification and agreement to hold
harmless shall survive the resignation or removal of the Escrow Agent or the
termination of this Agreement. Notwithstanding the foregoing or any other provision
of this Agreement, in no event will the collective liability of the Escrow Agent under
or in connection with this Agreement to any one or more parties exceed the amount of
its annual fees collected under this Agreement or the amount of two thousand dollars
($2,000.00), whichever amount shall be greater.
	 
	 	(i)	 	The Escrow Agent does not have any interest in the Escrow Amount but is serving
as escrow agent only and having only possession thereof. This
Section 9 shall survive
notwithstanding any termination of the Agreement or the resignation or removal of the
Escrow Agent.
	 
	 	(j)	 	The Escrow Agent shall have no duties except those which are expressly set




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	 	 	 	forth herein, and it shall not be bound by any notice of a claim or demand with
respect to, or any waiver, modification, amendment, termination or rescission of
this Agreement, unless received by it in writing, and signed by the parties hereto
and if its duties herein are affected, unless it shall have given its prior written
consent thereto.
	 
	 	(k)	 	The Escrow Agent accepts the duties and responsibilities under this Agreement
as agent, and no trust is intended to be, or is or will be, created hereby and the
Escrow Agent shall owe no duties hereunder as trustee.
	 
	 	(l)	 	The Escrow Agent will have no responsibility for seeking, obtaining, compiling,
preparing or determining the accuracy of any information or document, including the
representative capacity in which a party purports to act, that the Escrow Agent
receives as a condition to a release from escrow under this Agreement.
	 
	 	10.	 	Dispute Resolution. It is understood and agreed that should any
dispute arise with respect to the delivery, ownership, right of possession and/or
disposition of the Escrow Amount, or should any claim be made upon the Escrow Agent or
the Escrow Amount by a third party, the Escrow Agent, upon receipt of notice of such
dispute or claim, is authorized and shall be entitled (at its sole option and election)
to retain in its possession without liability, all or any of said Escrow Amount until
such dispute shall have been settled either by the mutual written agreement of the
parties involved or by a final order, decree or judgment of a court or arbitrator of
competent jurisdiction, the time for perfection of an appeal of such order, decree or
judgment having expired. A copy of any such settlement or final order, decree or
judgment of a court or arbitrator of competent jurisdiction shall be delivered to the
Escrow Agent by Grandunion or NewLead forthwith upon receipt thereof. The Escrow Agent
may, but shall be under no duty whatsoever to, institute or defend any legal
proceedings which relate to the Escrow Amount.
	 
	 	11.	 	Arbitration. Any disputes with respect to this Agreement shall be
resolved by arbitration and any party may demand by written notice to the other party
that the matter be submitted to arbitration. The notice shall set out the reasons for
the dispute and reasonable details to support the dispute. Grandunion and each of
NewLead shall cooperate in completing any arbitration as expeditiously as possible, the
procedure to commence no later than thirty (30) days from the date the notice was sent,
and the arbitrator may hire such experts as may appear to be appropriate. All of the
costs and expenses of the arbitration shall be borne equally by NewLead and Grandunion.
Any award rendered by the arbitrator shall be final and binding on the parties.
	 
	 	12.	 	Resignation of Escrow Agent; Successor by Merger
	 
	 	(a)	 	Resignation and delivery. The Escrow Agent may at any time resign as
such, subject to this Section 12, by delivering written notice of resignation to the
other parties to this Agreement and by delivering the Escrow Amount (less any




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	 	 	 	portion thereof previously distributed in accordance with this Agreement) to any
successor escrow agent designated by NewLead, or by a court of competent
jurisdiction, whereupon the Escrow Agent shall be discharged of and from any and all
further obligations arising in connection with this Agreement. The resignation of
the Escrow Agent will take effect on the earlier to occur of (the “Resignation
Date”): (i) the appointment of a successor escrow agent as aforesaid or by a court
of competent jurisdiction; or (ii) the day which is 30 days after the date of
delivery of the Escrow Agent’s written notice of resignation to the other parties
hereto, or such shorter notice as the parties accept as sufficient. If the Escrow
Agent has not received written notice of the designation of a successor escrow agent
by the Resignation Date, the Escrow Agent’s sole responsibility after such time
shall be to retain and safeguard the Escrow Amount until receipt of written notice
of the designation of a successor escrow agent hereunder or pursuant to a final
non-appealable order of a court of competent jurisdiction. If a successor escrow
agent has not been appointed within 90 days of the date of the delivery of its
written notice of resignation, the Escrow Agent shall deliver the Escrow Amount
(less any portion thereof previously distributed in accordance with this Agreement)
to the legal counsel designated by NewLead and all of the Escrow Agent’s duties and
obligations under this Agreement shall thereupon cease immediately. Failing such
designation by NewLead, the Escrow Agent shall deliver such Escrow Amount to NewLead
whereupon this Agreement shall terminate and the Escrow Agent shall have no further
duties and obligations under this Agreement. NewLead and Grandunion, acting
together, shall have power at any time to remove the existing Escrow Agent and to
appoint a successor escrow agent.
	 
	 	(b)	 	Incapacity. If the Escrow Amount is to be released hereunder to a
party who has become bankrupt, has gone into liquidation or has otherwise become
incapable of performing their rights and responsibilities under this Agreement, the
Escrow Agent shall forthwith deliver the Escrow Amount, less any amounts owing to it in
respect to outstanding fees, disbursements and interest thereon, to the Trustee
appointed in relation to the bankruptcy proceedings . If all of the parties hereunder
have become bankrupt, have gone into liquidation or have otherwise become incapable of
performing their rights and responsibilities under this Agreement, the Escrow Agent
shall forthwith deliver the Escrow Amount, less any amounts owing to it in respect to
outstanding fees, disbursements and interest thereon, to the Trustee(s) appointed in
relation to the bankruptcy proceedings and provide written notice to NewLead and
Grandunion of the disposition of such Escrow Amount. Upon such delivery of the Escrow
Amount, this Agreement shall terminate and the Escrow Agent shall have no further
duties and obligations.
	 
	 	(c)	 	Incapacity of Escrow Agent. In the event of the Escrow Agent resigning
or being removed as aforesaid or being dissolved, becoming bankrupt, going into
liquidation or otherwise becoming incapable of acting hereunder, NewLead and
Grandunion acting together, shall forthwith appoint a successor escrow agent; failing
such appointment by NewLead and Grandunion, the retiring Escrow




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	 	 	 	Agent, acting alone, may apply, at the expense of NewLead and Grandunion, to a court
of competent jurisdiction for the appointment of a successor escrow agent; but any
successor escrow agent so appointed by the Court shall be subject to removal as
aforesaid by NewLead and Grandunion, acting together.
	 
	 	(d)	 	Transfer and Delivery; Fees. Any successor escrow agent appointed
under any provision of this Section 12 shall be a corporation authorized to carry on
the business of a trust company in the state of Massachusetts and, if required by the
applicable legislation for any other jurisdiction, in such other jurisdictions. On any
such appointment, the successor escrow agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named herein as Escrow
Agent hereunder. At the request of NewLead or the successor escrow agent, the retiring
Escrow Agent, upon payment of the amounts, if any, due to it pursuant to this
Agreement, including any amounts owing to it in respect to outstanding fees,
disbursements and interest thereon, shall duly assign, transfer and deliver to the
successor escrow agent all property and money held, and all records kept, by the
retiring Escrow Agent hereunder or in connection herewith.
	 
	 	(f)	 	Succession. Any corporation into or with which the Escrow Agent may be
merged or consolidated or amalgamated, or any corporation resulting therefrom to which
the Escrow Agent shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Escrow Agent shall be the successor to the
Escrow Agent hereunder without any further act on its part or any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor escrow
agent hereunder.
	 
	 	13.	 	Tax Reporting. Grandunion and NewLead agree to provide all necessary and
appropriate tax information and documentation required by the Escrow Agent or applicable
taxing authorities in a timely manner as to facilitate proper tax reporting hereunder.
Consistent with applicable law, the sole obligation of the Escrow Agent with regard to
tax reporting under this Section 13 shall be to the report amounts released from the
Escrow Amount on the appropriate IRS form or forms.
	 
	 	14.	 	Anti-Money Laundering.
	 
	 	(a)	 	Each Party to this Agreement (other than the Escrow Agent) hereby represents to
the Escrow Agent that any account to be opened by, or interest to be held by, the Escrow
Agent in connection with this Agreement, for or to the credit of such Party, either (i)
is not intended to be used by or on behalf of any third party; or (ii) is intended to be
used by or on behalf of a third party, in which case such Party hereto agrees to
complete and execute forthwith a declaration in the Escrow Agent’s prescribed form as to
the particulars of such third party.
	 
	 	(b)	 	The Escrow Agent shall retain the right not to act and shall not be liable for
refusing to act if, due to a lack of information or for any other reason whatsoever,
the Escrow Agent, in its sole judgment, determines that such act might cause it to




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	 	 	 	be in non-compliance with any applicable anti-money laundering or anti-terrorist
legislation, regulation or guideline. Further, should the Escrow Agent, in its sole
judgment, determine at any time that its acting under this Agreement has resulted in
its being in non-compliance with any applicable anti-money laundering or
anti-terrorist legislation, regulation or guideline, then it shall have the right to
resign on ten (10) days written notice to the other parties to this Agreement,
provided (i) that the Escrow Agent’s written notice shall describe the circumstances
of such non-compliance; and (ii) that if such circumstances are rectified to the
Escrow Agent’s satisfaction within such ten (10) day period, then such resignation
shall not be effective.
	 
	 	15.	 	Privacy.
	 
	 	(a)	 	Definition. Each party acknowledges and understands that any and all
technical, trade secret, or business information, including, without limitation,
financial information, business or marketing strategies or plans, product development,
Grandunion or NewLead information, (including any non-public information of such
Grandunion or NewLead), Proprietary Information, or proprietary software (including
methods or concepts used therein, sources code, object code, or related technical
information) which has been or is disclosed to the other or has been or is otherwise
obtained by the other, its affiliates, agents or representatives before or during the
term of this Agreement (the “Confidential Information”) is confidential and
proprietary, constitutes trade secrets of the owner (or its affiliates), and is of
great value and importance to the success of the owner’s (or its affiliates’) business.
The parties shall treat the terms and conditions (but not the existence) of this
Agreement as the Confidential Information of the other party. Confidential Information
shall not include any information that is: (i) already known to the other party or its
affiliates at the time of the disclosure; (ii) publicly known at the time of the
disclosure or becomes publicly known through no wrongful act or failure of the other
party; (iii) subsequently disclosed to the other party or its affiliates on a
non-confidential basis by a third party not having a confidential relationship with the
owner and which rightfully acquired such information; or (iv) independently developed
by one party without access to the Confidential Information of the other.
	 
	 	(b)	 	Use and Disclosure. All Confidential Information relating to a party
will be held in confidence by the other party to the same extent and with at least the
same degree of care as such party protects its own confidential or proprietary
information of like kind and import, but in no event using less than a reasonable
degree of care. Neither party will disclose, duplicate, publish, release, transfer or
otherwise make available Confidential Information of the other party in any form to, or
for the use or benefit of, any person or entity without the other party’s consent.
Each party will, however, be permitted to disclose relevant aspects of the other
party’s Confidential Information to its officers, affiliates, agents, subcontractors
and employees to the extent that such disclosure is reasonably necessary for the
performance of its duties and obligations under this Agreement




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	 	 	 	and such disclosure is not prohibited by the Gramm-Leach-Bliley Act of 1999 (15
U.S.C. 6801 et seq.), as it may be amended from time to time (the “GLB Act”), the
regulations promulgated thereunder or other applicable law. Each party will
establish commercially reasonable controls to ensure the confidentiality of the
Confidential Information and to ensure that the Confidential Information is not
disclosed contrary to the provisions of this Agreement, the GLB Act or any other
applicable privacy law. Without limiting the foregoing, each party will implement
such physical and other security measures as are necessary to (i) ensure the
security and confidentiality of the Confidential Information; (ii) protect against
any threats or hazards to the security and integrity of the Confidential
Information; and (iii) protect against any unauthorized access to or use of the
Confidential Information. To the extent that any duties and responsibilities under
this Agreement are delegated to an agent or other subcontractor, the party ensures
that such agent and subcontractor are contractually bound to confidentiality terms
consistent with the terms of this Section 15.
	 
	 	(c)	 	Required or Permitted Disclosure. In the event that any requests or
demands are made for the disclosure of Confidential Information, the party receiving
such request will notify the other party to secure instructions from an authorized
officer of such party as to such request and to enable the other party the opportunity
to obtain a protective order or other confidential treatment, unless such notification
is otherwise prohibited by law or court order. Each party expressly reserves the
right, however, to disclose Confidential Information to any person whenever it is
advised by counsel that it may be held liable for the failure to disclose such
Confidential Information or if required by law or court order.
	 
	 	(d)	 	Unauthorized Disclosure. As may be required by law and without
limiting either party’s rights in respect of a breach of this Section, each party will
(i) promptly notify the other party in writing of any unauthorized possession, use or
disclosure of the other party’s Confidential Information by any person or entity that
may become known to such party; (ii) promptly furnish to the other party full details
of the unauthorized possession, use or disclosure; and (iii) promptly use commercially
reasonable efforts to prevent a recurrence of any such unauthorized possession, use or
disclosure of Confidential Information.
	 
	 	(e)	 	Costs. Each party will bear the costs it incurs as a result of
compliance with this Section 15.
	 
	 	16.	 	Notices. Any notice, direction or other communication given under this
Agreement shall be in writing and given by delivering it or sending it by facsimile or
other similar form of recorded communication (excluding by way of electronic mail)
addressed:





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	 	 	 	to Grandunion at:
	 
	 	 	 	Akti Miaouli 83 & Flessa 1-7

Piraeus 185 38, Greece
	 
	 	 	 	Attention: Michail Zolotas
	 
	 	 	 	Facsimile: +30 (213) 014-8019
	 
	 	 	 	to NewLead:
	 
	 	 	 	Akti Miaouli 83 & Flessa 1-7

Piraeus 185 38, Greece
	 
	 	 	 	Facsimile: +30 (210) 898 3788
	 
	 	 	 	Attention: Allan Shaw
	 
	 	 	 	to the Escrow Agent at:
	 
	 	 	 	COMPUTERSHARE TRUST COMPANY, N.A.

350 Indiana Street, Suite 750

Golden, CO 80401
	 
	 	 	 	Attention: John Wahl/Rose Stroud, Corporate Trust Department
	 
	 	 	 	Facsimile: (303) 262-0608
	 
	 	 	 	Any such communication shall be deemed to have been validly and effectively given
and received on the date of personal delivery or transmission by facsimile or
similar means of recorded communication if such date is a Business Day and such
delivery was made prior to 4:00 p.m. (Eastern Standard Time) and otherwise on the
next Business Day. Any party to this Agreement may change its address for service
from time to time by notice given in accordance with the foregoing and any
subsequent notice shall be sent to such party at its changed address.
	 
	 	17.	 	Miscellaneous.




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	 	(a)	 	The section headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
	 
	 	(b)	 	Unless the context shall otherwise require, the singular shall include the
plural and vice versa, and each pronoun in any gender shall include all other genders.
	 
	 	(c)	 	This Agreement may be executed in any number of counterparts and any party
hereto may execute any such counterpart by facsimile (followed by the originally
executed document forwarded promptly thereafter to the other party hereto), each of
which when executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument. This
Agreement shall become binding when one or more counterparts taken together shall have
been executed and delivered by all of the parties. It shall not be necessary in making
proof of this Agreement or any counterpart hereof to produce or account for any of the
other counterparts.
	 
	 	(d)	 	This Agreement or any provision hereof may be amended or waived only by written
instrument duly signed by the party against whom such amendment or waiver is sought to
be enforced.
	 
	 	(e)	 	No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar), nor shall such
waiver be binding unless executed in writing by the party to be bound by the waiver.
	 
	 	(f)	 	No failure on the part of Grandunion or NewLead to exercise, and no delay in
exercising, any right under this Agreement shall operate as a waiver of such right; nor
shall any single or partial exercise of any such right preclude any other or further
exercise of such right or the exercise of any other right.
	 
	 	(g)	 	If one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect under applicable law, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein, and the remaining provisions hereof shall remain in full
force and effect.
	 
	 	(h)	 	This Agreement is for the sole and exclusive benefit of the parties hereto, and
nothing in this Agreement, express or implied, is intended to confer or shall be
construed as conferring upon any other Person any rights, remedies or any other type or
types of benefits.
	 
	 	(i)	 	No party may assign its rights hereunder without the prior written consent of
the other parties, except that (i) Grandunion may assign this Agreement in conjunction
with a permitted assignment of the Purchase Agreement provided such assignment shall
not relieve Grandunion of its obligations under the Purchase Agreement or this
Agreement; and (ii) the Escrow Agent may




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	 	 	 	subcontract its record keeping functions to its affiliate provided such
subcontracting shall not relive the Escrow Agent of its obligations hereunder.
	 
	 	(j)	 	This Agreement shall enure to the benefit of, and be binding upon, the parties
hereto and their respective successors and permitted assigns.
	 
	 	(k)	 	This Agreement shall be governed by and interpreted and enforced in accordance
with the laws of The Commonwealth of Massachusetts.
	 
	 	(l)	 	All references herein to money amounts are to lawful money of the United
States.
	 
	 	(m)	 	The Escrow Agent shall have no obligations with respect to tax reporting
other than to deliver the required annual statement of interest earned.
	 
	 	(n)	 	Except as otherwise required by law, Grandunion, NewLead and the Escrow Agent
shall keep the terms and conditions of this Agreement confidential and shall only
disclose the existence of this Agreement and its terms and conditions to such of their
employees and professional advisers who have a need to know.
	 
	 	(o)	 	The Schedules attached to this Agreement shall, for all purposes of this
Agreement, form an integral part of it. This Agreement shall override the Schedules
attached hereto to the extent of any inconsistency.
	 
	 	(p)	 	Any reference to time of day or date means the local time or date in l
Canton, Massachusetts, U.S.A.
	 
	 	18.	 	Day Not A Business Day. Whenever any payment shall be due, any period
of time shall begin or end, any calculation is to be made or any other action is to be
taken on, or as of, or from a period ending on, a day other than a Business Day, such
payment shall be made, such period of time shall begin or end, and such other actions
shall be taken, as the case may be, on, or as of, or from a period ending on, the next
succeeding Business Day.





(SIGNATURE PAGE FOLLOWS)




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the
date first above written.



	 	 	 	 	 
	 	NEWLEAD HOLDINGS LTD.

 	 
	 	By:  	/s/ Allan Shaw 	 
	 	 	Allan Shaw 	 
	 	 	 	 
	 	GRANDUNION, INC.

 	 
	 	By:  	/s/ Michail Zolotas 	 
	 	 	Michail Zolotas 	 
	 	 	 	 
	 	COMPUTERSHARE TRUST COMPANY, N.A., as Escrow Agent

 	 
	 	By:  	/s/ Kellie Gwinn 	 
	 	 	Kellie Gwinn 	 
	 	 	Vice President 	 



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SCHEDULE A

Form of Notice of Release




Date: l, 200l



TO: COMPUTERSHARE TRUST COMPANY, N.A. (“Escrow Agent”)



Pursuant to Section 6(a) of the Escrow Agreement entered into as of l, 20l by and among
Grandunion, Inc. (“Grandunion”) and NewLead Holdings Ltd. (“NewLead”) and the Escrow Agent (the
“Escrow Agreement”), you are hereby instructed to release to l, out of the Escrow Amount (as
defined in the Escrow Agreement), the following amount: $                    .




	 	 	 	 	 
	 	l

 	 
	 	
 	 
	 	By: l 	 
	 	 	 
	 
	 	 	 
	 	
 	 
	 	By: l