Exhibit 10.12


 


AMENDED AND RESTATED ESCROW DEPOSIT AGREEMENT


 





 





This AMENDED AND
RESTATED ESCROW DEPOSIT AGREEMENT (this “Agreement”) entered into and dated as of this 16th
day of October 2015, amends and restates in its entirety, the existing Escrow Deposit Agreement entered into and dated as of September
15, 2015, by and among FULING GLOBAL INC., a Cayman Islands corporation (the “Company”), having
an address at Southeast Industrial Zone, Songmen Town, Wenling, Zhejiang Province, Peoples Republic of China 317511, BURNHAM
SECURITIES INC., a FINRA member firm (the “Underwriter”) as representative of the underwriters, including
itself and Network 1 Financial Securities, Inc., having an address at 40 West 57th Street, New York, New York 10019,
and SIGNATURE BANK (the “Escrow Agent”), a New York State chartered bank, having an office at 950 Third
Avenue, 9th Floor, New York, NY 10022, . All capitalized terms not herein defined shall have the meaning ascribed to
them in that certain Registration Statement on Form F-1 of the Company, as initially publicly filed July 28, 2015 (Registration
No. 333-205894), as amended or supplemented from time-to-time, including all attachments, schedules and exhibits thereto (the “Registration
Statement”).


 







 







 


WITNESSETH:


 





WHEREAS, pursuant
to the terms of the Registration Statement the Company desires to sell (the “Offering”) up to 4,000,000 shares
for an aggregate offering amount of $20,000,000 (“Offering Amount”) of its ordinary shares, par value $0.001
per share (each, a “Share” together, the “Shares”). Each Share is being sold at a price of
$5.00 per Share (share prices and number of Shares are subject to change pending final effective Registration Statement); and


 


WHEREAS, the
Underwriter has an over-subscription option to sell up to an additional 750,000 Shares for an additional $3,000,000 (the
“Over-Subscription Shares”) of offering proceeds; and





 


WHEREAS, the
Underwriter is acting as Representative of the underwriters as agent for the sale of the Shares on a “best efforts, all or none basis” on behalf of the Company
whereby if the Offering Amount of securities is not sold, none will be sold and all funds returned to investors; and


 


WHEREAS, unless
the Offering Amount is sold by October 31, 2015 (the “Termination Date”), or, by November 30, 2015 (the “Final
Termination Date”) if the Termination Date has been extended by Company and the Underwriter, the Offering shall terminate
and all funds shall be returned to the subscribers in the Offering and, if the Offering Amount is sold, the Offering may continue
until the Termination Date or Final Termination Date if extended; and


 


WHEREAS, the
Company and the Underwriter desire to establish an escrow account with the Escrow Agent into which the Company and the Underwriter
shall instruct Subscribers introduced to the Company by the Underwriter (the “Subscribers”) to deposit checks
and other instruments for the payment of money made payable to the order of “Signature Bank as Escrow Agent for Fuling
Global Inc.,” and Escrow Agent is willing to accept said checks and other instruments for the payment of money in accordance
with the terms hereinafter set forth; and


 


WHEREAS, the
Company, as issuer, and the Underwriter, as an introducing broker-dealer, represent and warrant to the Escrow Agent that they will
comply with all of their respective obligations under applicable state and federal securities laws and regulations with respect
to sale of the Offering; and


 




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WHEREAS, the
Company and the Underwriter represent and warrant to the Escrow Agent that they have not stated to any individual or entity that
the Escrow Agent’s duties will include anything other than those duties stated in this Agreement; and


 


WHEREAS, the
Company and the Underwriter warrant to the Escrow Agent that a copy of each document that has been delivered to Subscribers
and third parties that include Escrow Agent’s name and duties, has been attached hereto as Schedule I.


 


NOW, THEREFORE,
IT IS AGREED as follows:


 


1.           Delivery
of Escrow Funds.


 


(a)          The Underwriter
and the Company shall instruct Subscribers to deliver to Escrow Agent checks made payable to the order of “Signature Bank,
as Escrow Agent for Fuling Global Inc.” or wire transfer to Signature Bank, 950 Third Avenue, 9th Floor, New York,
NY 10022, ABA No. 026013576 for credit to Signature Bank, as Escrow Agent for Fuling Global, Inc., Account No. 1502534668,
in each case, with the name and address of the individual or entity making payment. In the event any Subscriber’s address
is not provided to Escrow Agent by the Subscriber, then the Underwriter and/or the Company agree to promptly provide Escrow Agent
with such information in writing. The checks or wire transfers shall be deposited into a non interest-bearing account at Signature
Bank entitled “Fuling Global Inc., Signature Bank, as Escrow Agent” (the “Escrow Account”).


 


(b)          The
collected funds deposited into the Escrow Account are referred to as the “Escrow Funds.”


 


(c)          The
Escrow Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Escrow
Account. If, for any reason, any check deposited into the Escrow Account shall be returned unpaid to the Escrow Agent, the sole
duty of the Escrow Agent shall be to return the check to the Subscriber and advise the Company and the Underwriter promptly thereof.


 


(d)          Funds
or checks received by Underwriter shall be forwarded to the Escrow Agent by noon of the next business day following the date of
receipt thereof by the Underwriter.


 


2.           Release
of Escrow Funds. The Escrow Funds shall be paid by the Escrow Agent in accordance with the following:


 


(a)          In
the event that the Company and the Underwriter advise the Escrow Agent in writing that the Offering has been terminated (the “Termination
Notice”), the Escrow Agent shall promptly return the funds paid by each Subscriber to said Subscriber without interest
or offset.


 




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(b)          If
prior to 3:00 P.M. Eastern time on the Termination Date, the Escrow Agent receives written notice, in the form of Exhibit A,
attached hereto and made a part hereof, and signed by the Company and the Underwriter, stating that the Termination Date has been
extended to the Final Termination Date (the “Extension Notice”), then the Termination Date shall be so extended.



 


(c)          Provided
that the Escrow Agent does not receive the Termination Notice in accordance with paragraph 2(a) and there is the Offering Amount
deposited into the Escrow Account on or prior to later of the Termination Date or the date stated in the Extension Notice, if any,
received by the Escrow Agent in accordance with paragraph 2(b) above, the Escrow Agent shall, upon receipt of written instructions,
in the form of Exhibit B, attached hereto and made a part hereof, or in a form and substance satisfactory to the Escrow
Agent, received from the Company and the Underwriter, pay the Escrow Funds in accordance with such written instructions, which
instructions shall be limited to payment of the Underwriter’s fee and offering expenses and the payment of the balance to
the Company. Such payment or payments to be made by wire transfer within one (1) Business Day of receipt of such written instructions
which must be received by the Escrow Agent no later than 3:00 PM Eastern Time on a Banking Day for the Escrow Agent to process
such instructions that Banking Day.


 


(d)          If
by 3:00 P.M. Eastern time on the later of the Termination Date or the date stated in the Extension Notice, if any, that the Escrow
Agent has received in accordance with paragraph 2(b) above, the Escrow Agent has not received written instructions from the Company
and the Underwriter regarding the disbursement of the Escrow Funds or the total amount of the Escrow Funds is less than the Offering
Amount, then the Escrow Agent shall promptly return the Escrow Funds to the Subscribers without interest or offset. The Escrow
Funds returned to each Subscriber shall be free and clear of any and all claims of the Escrow Agent.


 


(e)          The
Escrow Agent shall not be required to pay any uncollected funds or any funds that are not available for withdrawal. Should any
party to this Agreement be a non-U.S. entity, the Escrow Agent may require up to an additional five (5) Business Days to open the
Escrow Account.


 


(f)          If
the Termination Date, Final Termination Date or any date that is a deadline under this Agreement for giving the Escrow Agent notice
or instructions or for the Escrow Agent to take action is not a Banking Day, then such date shall be the Banking Day that immediately
preceding that date. A Banking Day is any day other than a Saturday, Sunday or a day that a New York State chartered bank is not
legally obligated to be opened.


 


3.           Acceptance
by Escrow Agent. The Escrow Agent hereby accepts and agrees to perform its obligations hereunder, provided that:


 




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(a)          The
Escrow Agent may act in reliance upon any signature believed by it to be genuine, and may assume that any person who has been designated
by the Underwriter or the Company to give any written instructions, notice or receipt, or make any statements in connection with
the provisions hereof has been duly authorized to do so. Escrow Agent shall have no duty to make inquiry as to the genuineness,
accuracy or validity of any statements or instructions or any signatures on statements or instructions. The names and true signatures
of each individual authorized to act singly on behalf of the Company and the Underwriter are stated in Schedule II, which
is attached hereto and made a part hereof. The Company and the Underwriter may each remove or add one or more of its authorized
signers stated on Schedule II by notifying the Escrow Agent of such change in accordance with this Agreement, which notice shall
include the true signature for any new authorized signatories.


 


(b)          The
Escrow Agent may act relative hereto in reliance upon advice of counsel in reference to any matter connected herewith. The Escrow
Agent shall not be liable for any mistake of fact or error of judgment or law, or for any acts or omissions of any kind, unless
caused by its willful misconduct or gross negligence.


 


(c)          The
Underwriter and the Company agree to indemnify and hold the Escrow Agent harmless from and against any and all claims, losses,
costs, liabilities, damages, suits, demands, judgments or expenses (including but not limited to reasonable attorney’s fees)
claimed against or incurred by Escrow Agent arising out of or related, directly or indirectly, to this Escrow Agreement unless
caused by the Escrow Agent’s gross negligence or willful misconduct.


 


(d)          In
the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder, the Escrow Agent shall be entitled to
(i) refrain from taking any action other than to keep safely the Escrow Funds until it shall be directed otherwise by a court of
competent jurisdiction, or (ii) deliver the Escrow Funds to a court of competent jurisdiction.


 


(e)          The
Escrow Agent shall have no duty, responsibility or obligation to interpret or enforce the terms of any agreement other than Escrow
Agent’s obligations hereunder, and the Escrow Agent shall not be required to make a request that any monies be delivered
to the Escrow Account, it being agreed that the sole duties and responsibilities of the Escrow Agent shall be to the extent not
prohibited by applicable law (i) to accept checks or other instruments for the payment of money and wire transfers delivered to
the Escrow Agent for the Escrow Account and deposit said checks and wire transfers into the non-interest bearing Escrow Account,
and (ii) to disburse or refrain from disbursing the Escrow Funds as stated above, provided that the checks received by the Escrow
Agent have been collected and are available for withdrawal.


 


4.           Escrow
Account Statements and Information. The Escrow Agent agrees to send to the Company and/or the Underwriter a copy of
the Escrow Account periodic statement, upon request in accordance with the Escrow Agent’s regular practices for providing
account statements to its non-escrow clients and to also provide the Company and/or the Underwriter, or their designee, upon request
other deposit account information, including Escrow Account balances, by telephone or by computer communication, to the extent
practicable. The Company and the Underwriter agree to complete and sign all forms or agreements required by the Escrow Agent for
that purpose. The Company and the Underwriter each consents to the Escrow Agent’s release of such Escrow Account information
to any of the individuals designated by Company or the Underwriter, which designation has been signed in accordance with paragraph
3(a) by any of the persons in Schedule II.  Further, the Company and the Underwriter have an option to receive e-mail notification
of incoming and outgoing wire transfers. If this e-mail notification service is requested and subsequently approved by the Escrow
Agent, the Company and the Underwriter each agrees to provide a valid e-mail address and other information necessary to set-up
this service and sign all forms and agreements required for such service. The Company and the Underwriter each consents to the
Escrow Agent’s release of wire transfer information to the designated e-mail address(es). The Escrow Agent’s liability
for failure to comply with this section shall not exceed the cost of providing such information.


 




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5.           Resignation
and Termination of the Escrow Agent. The Escrow Agent may resign at any time by giving thirty (30) days’ prior written
notice of such resignation to the Underwriter and the Company. Upon providing such notice, the Escrow Agent shall have no further
obligation hereunder except to hold as depository the Escrow Funds that it receives until the end of such 30-day period. In such
event, the Escrow Agent shall not take any action, other than receiving and depositing Subscribers checks and wire transfers in
accordance with this Agreement, until the Company has designated a bank, in compliance with SEC Rule 15c2-4 as successor to the
Escrow Agent. Upon receipt of such written designation signed by the Underwriter and the Company, the Escrow Agent shall promptly
deliver the Escrow Funds to such successor and shall thereafter have no further obligations hereunder. If such instructions are
not received within thirty (30) days following the effective date of such resignation, then the Escrow Agent may deposit the Escrow
Funds held by it pursuant to this Agreement with a clerk of a court of competent jurisdiction pending the appointment of a successor.
In either case provided for in this paragraph, the Escrow Agent shall be relieved of all further obligations and released from
all liability thereafter arising with respect to the Escrow Funds.


 


6.           Termination.
The Company and the Underwriter may terminate the appointment of the Escrow Agent hereunder upon written notice specifying the
date upon which such termination shall take effect, which date shall be at least 30 days from the date of such notice. In the event
of such termination, the Company and the Underwriter shall, within thirty (30) days of such notice, appoint a successor escrow
agent and the Escrow Agent shall, upon receipt of written instructions signed by the Company and the Underwriter, turn over to
such successor escrow agent all of the Escrow Funds; provided, however, that if the Company and the Underwriter fail
to appoint a successor escrow agent within such thirty (30)-day period, such termination notice shall be null and void and the
Escrow Agent shall continue to be bound by all of the provisions hereof. Upon receipt of the Escrow Funds, the successor escrow
agent shall become the escrow agent hereunder and shall be bound by all of the provisions hereof and Signature Bank shall be relieved
of all further obligations and released from all liability thereafter arising with respect to the Escrow Funds and under this Agreement.


 


7.           Investment
and Rule 15c2-4 Compliance. All funds received by the Escrow Agent shall be held only in non-interest bearing bank accounts
at Escrow Agent and disbursed in compliance with Rule 15c2-4 of the Securities and Exchange Commission promulgated under the Exchange
Act of 1934, as amended.


 




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8.           Compensation.
Escrow Agent shall be entitled, for the duties to be performed by it hereunder, to a fee of $4,000, which fee shall be paid by
the Company upon the signing of this Agreement. In addition, the Company shall be obligated to reimburse Escrow Agent for all fees,
costs and expenses incurred or that become due in connection with this Agreement or the Escrow Account, including reasonable attorney’s
fees. Neither the modification, cancellation, termination or rescission of this Agreement nor the resignation or termination of
the Escrow Agent shall affect the right of Escrow Agent to retain the amount of any fee which has been paid, or to be reimbursed
or paid any amount which has been incurred or becomes due, prior to the effective date of any such modification, cancellation,
termination, resignation or rescission. To the extent the Escrow Agent has incurred any such expenses, or any such fee becomes
due, prior to any closing, the Escrow Agent shall advise the Company and the Company shall direct all such amounts to be paid directly
at any such closing. The Escrow Agent shall be entitled to a fee of $1,000 in the event this Agreement is amended for any reason
in accordance with Section 10(d).


 


9.           Notices.
All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall
be deemed to have been duly given if sent by hand-delivery, by facsimile (followed by first-class mail), by nationally recognized
overnight courier service or by prepaid registered or certified mail, return receipt requested, to the addresses set forth below:


 


If to any
Underwriter:


 


Burnham Securities,
Inc., as Representative of the Underwriters


40 West 57th
Street, 28th Floor


New York,
New York 10019


Attention:
Dan McClory


Fax: (949)
266-5789


 


With a copy to:


 


CKR Law, LLP


1330 Avenue of the Americas


New York, New York 10019


Attention Mark Crone,
Esq. or Ron Levy, Esq.


Phone: (212) 400-6900


Fax: (212) 400-6901


 


If to the Company:


 





Southeast
Industrial Zone, Songmen Town


Wenling,
Zhejiang Province


People’s
Republic of China 317511


Attention:
Chief Financial Officer


Fax: +86-576-86623099







 




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With a copy to:


 


Kaufman &
Canoles, P.C.


Two James
Center, 14th Floor


1021 E. Cary
St.


Richmond,
VA 23219


Attention:
Anthony W. Basch


Fax: 1 (804)
771-5777


 


If to Escrow Agent:


 


Signature Bank


950 Third Avenue, 9th
Floor


New York, New York 10022


Attention: John
Gonzalez, Group Director & Senior Vice President


Fax: (646) 822-1520


 


10.         General.


 


(a)          This
Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York applicable to agreements
made and to be entirely performed within such State, without regard to choice of law principles and any action brought hereunder
shall be brought in the courts of the State of New York, located in the County of New York. Each party hereto irrevocably waives
any objection on the grounds of venue, forum nonconveniens or any similar grounds and irrevocably consents to service of process
by mail or in any manner permitted by applicable law and consents to the jurisdiction of said courts. Each of the parties hereto
hereby waives all right to trial by jury in any action, proceeding or counterclaim arising out of the transactions contemplated
by this Agreement.


 


(b)          This
Agreement sets forth the entire
agreement and understanding of the parties with respect to the matters contained herein and supersedes all prior agreements, arrangements
and understandings relating thereto.


 


(c)          All
of the terms and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties
hereto, as well as their respective successors and assigns.


 


(d)          This
Agreement may be amended, modified, superseded or canceled, and any of the terms or conditions hereof may be waived, only by a
written instrument executed by each party hereto or, in the case of a waiver, by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to
enforce the same. No waiver of any party of any condition, or of the breach of any term contained in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any
such condition or breach or a waiver of any other condition or of the breach of any other term of this Agreement. No party may
assign any rights, duties or obligations hereunder unless all other parties have given their prior written consent.


 




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(e)          If
any provision included in this Agreement proves to be invalid or unenforceable, it shall not affect the validity of the remaining
provisions.


 


(f)          This
Agreement and any modification or amendment of this Agreement may be executed in several counterparts or by separate instruments
and all of such counterparts and instruments shall constitute one agreement, binding on all of the parties hereto.


 


11.          Form
of Signature. The parties hereto agree to accept a facsimile transmission copy of their respective actual signatures as evidence
of their actual signatures to this Agreement and any modification or amendment of this Agreement; provided, however,
that each party who produces a facsimile signature agrees, by the express terms hereof, to place, promptly after transmission of
his or her signature by fax, a true and correct original copy of his or her signature in overnight mail to the address of the other
party.


 


12.          No
Third Party Beneficiaries. This Agreement is solely for the benefit of the parties and their respective successors and permitted
assigns, and no other person has any right, benefit, priority or interest under or because of the existence of this Agreement.


 


[Signature Page Follows]


 




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[Counterpart Signature Page to Escrow
Agreement]


 


IN WITNESS WHEREOF, the parties
have duly executed this Agreement as of the date first set forth above.




 


	FULING GLOBAL, INC.	 	BURNHAM SECURITIES, INC.	 
	 	 	 	 	 	 
	By:	/s/ Xinfu Hu	 	By:       	/s/ Daniel J. McClory	 
	 	Name: Xinfu Hu	 	 	Name: Daniel J. McClory	 
	 	Title:  CEO	 	 	Title:   Managing Director	 


 


SIGNATURE BANK


 


	By:	/s/ John Gonzalez	 
	 	Name:  John Gonzalez	 
	 	Title:   Group Director / SVP	 


 


	By:	/s/ Stephen Fry	 
	 	Name:  Stephen Fry	 
	 	Title:   Senior Client Associate	 


 




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Schedule
I


 


OFFERING DOCUMENTS


 




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Schedule
II


 


The Escrow Agent is
authorized to accept instructions signed or believed by the Escrow Agent to be signed by any one of the following on behalf of
the Company and the Underwriter.


 


Fuling Global Inc.


 


	Name	 	True Signature
	 	 	 
	Xinfu Hu	 	/s/ Xinfu Hu


 


Burnham Securities Inc.


  


	Name	 	True Signature
	 	 	 
	Daniel J. McClory	 	/s/ Daniel J. McClory
	 	 	 
	Rashaun Williams	 	/s/ Rashaun Williams


 




     


     


    

 


Exhibit A


 


EXTENSION NOTICE


 


Date: October __, 2015


 


Signature Bank


950 Third Avenue, 9th Floor


New York, New York 10022


Attention: John Gonzalez, Group Director
& Senior Vice President


 


Dear Mr. Gonzalez:


 


In accordance with
the terms of paragraph 2(b) of the Escrow Deposit Agreement dated as of September 15, 2015 by and among Fuling Global Inc., a
Cayman Islands company (the “Company”), Burnham Securities Inc. as representative of the underwriters (the
“Underwriter”), and Signature Bank (the “Escrow Agent”), as amended and restated by the
Amended and Restated Escrow Deposit Agreement, dated as of October 16, 2015 (the “Amended and Restated Escrow Deposit
Agreement”), the Company and Underwriter hereby notifies the Escrow Agent that the Termination Date has been extended
to November __, 2015 (the “Final Termination Date”).


 


Very truly yours,


 


Fuling Global Inc.


 


	By:	 	 
	Name:	 	 
	Title:	 	 


 


Burnham Securities Inc. 


 


	By:	 	 
	Name:	 	 
	Title:	 	 


 




     


     


    

 


Exhibit B


 


FORM OF ESCROW RELEASE NOTICE


 


Date:


 


Signature Bank


950 Third Avenue, 9th Floor


New York, New York 10022


Attention: John Gonzalez, Group Director
& Senior Vice President


 


Dear Mr. Gonzalez:


 





In accordance with the terms of paragraph
2(c) of an Escrow Deposit Agreement originally dated entered into as of September 15, 2015 (the "Escrow Agreement"),
by and between ____________ (the "Company"), Signature Bank (the "Escrow Agent") and Burnham
Securities, Inc., as representative of the Underwriters (the “Underwriter”), as amended and restated by the
Amended and Restated Escrow Deposit Agreement dated as of October 16, 2015 (the “Amended and Restated Escrow Deposit
Agreement”), the Company and Underwriter hereby notify the Escrow Agent that the ________ closing will be held on ___________
for gross proceeds of $_________.





 


PLEASE DISTRIBUTE FUNDS BY WIRE TRANSFER AS FOLLOWS (wire instructions
attached):


 


	________________________:	$
	 	 
	________________________:	$
	 	 
	________________________:	$
	 	 
	________________________:	$


 


Very truly yours,


 


Fuling Global Inc.


 


	By:	 	 
	Name:	 	 
	Title:	 	 


 


Burnham Securities Inc. 


 


	By:	 	 
	Name:	 	 
	Title: