INVESTOR RELATIONS ESCROW AGREEMENT
INVESTOR RELATIONS
ESCROW
AGREEMENT
This
INVESTOR RELATIONS ESCROW AGREEMENT (this “Agreement”) is made as of October 22,
2009 by and between Emerald Acquisition Corporation, a Cayman Islands exempted
company incorporated with limited liability (the “Company”), ▇▇. ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ 265200 P.R. China, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
LLP, ▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Escrow Agent”), Grandview Capital, Inc. (the
“Placement Agent”) and Access America Investments, LLC (the “Investor Representative”).
WITNESETH:
WHEREAS,
the Company is offering to certain investors (the “Investors”), on a “best
efforts” basis, investment units (“Units”), each Unit consisting of (i) Fifty
Thousand (50,000) of the Company’s ordinary shares, par value $0.001 per share
(the “Ordinary Shares”) and (ii) warrants to purchase Twenty Five Thousand
(25,000) of the Company’s Ordinary Shares, at an exercise price of $6.00 per
share (the “Warrants” and collectively with the Ordinary Shares, the
“Securities”), for aggregate gross proceeds of a minimum of $15,000,000 and up
to a maximum of $20,000,000 (the “Offering”), in reliance upon an exemption
from securities registration afforded by the provisions of Section 4(2), Section
4(6), Regulation D and/or Regulation S as promulgated by the United States
Securities and Exchange Commission under the Securities Act of 1933,
as amended;
WHEREAS, such Offering is in
connection with the combination (the “Combination”) of Emerald and Merit Times
International Limited, a company incorporated under the laws of the British
Virgin Islands (“Merit Times”). The closing of the Combination is
conditioned upon all of the conditions of the Offering being met, and the
Offering is conditioned upon the closing of the Combination (the “Closing”).
Merit Times owns 100% of the issued and outstanding capital stock of Shandong
MeKeFuBang Food Limited (“MeKeFuBang”), a company incorporated under the laws of
the People’s Republic of China (“China” or the “PRC”). Shandong Longkang Juice
Co., Ltd. (“Longkang Juice”), a company incorporated under the laws of the PRC
is a wholly-owned subsidiary of MeKeFuBang. Pursuant to the Combination, Merit
Times will become a wholly-owned subsidiary of Emerald. Therefore,
Emerald, Merit Times, MeKeFuBang, and Longkang Juice are collectively referred
to herein as “Emerald” or the “Company”;
WHEREAS,
the Company proposes to establish an escrow account (the “Escrow Account”),
which shall include One Hundred Twenty Thousand Dollars ($120,000) of the
Offering proceeds to be used for investor relations fees (the “IR Escrow
Amount”); and the Escrow Agent is willing to establish the Escrow Account on the
terms and subject to the conditions hereinafter set forth; and
WHEREAS,
the Investors have appointed Access America Investments, LLC as such Investor’s
representative (the “Investor Representative”) to act on their collective behalf
with respect to this Agreement and all amendments thereto.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Appointment of Escrow
Agent. The Company and Investor Representative hereby appoint
Escrow Agent as escrow agent to act in accordance with the terms and conditions
set forth in this Agreement, and the Escrow Agent hereby accepts such
appointment and agrees to establish the Bank Account on the terms and subject to
the conditions hereinafter set forth.
2. Establishment of the Bank
Account. The Escrow Agent shall establish a
non-interest-bearing bank account at the branch of the Bank selected by the
Escrow Agent (heretofore defined as the “Bank Account”). The purpose
of the Bank Account is for (a) the deposit of the IR Escrow Amount by the
Company, and (b) the disbursement of collected funds, all as described
herein.
3. Delivery of the Escrow
Funds. The Company hereby directs the Escrow Agent to allocate
the IR Escrow Amount (the “Escrow Funds”) separately from the proceeds of the
Offering at the closing, to be held and disbursed by the Escrow Agent as
provided in this Agreement. The Escrow Funds shall be held by the
Escrow Agent in the Bank Account as follows:
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Bank
Address:
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Wachovia
Bank NA
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▇▇▇▇▇▇▇▇,
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ABA
No.: ▇▇▇▇▇▇▇▇▇
Account:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP Attorney Trust Account
Account
No.: 2000013292968
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Reference:
Emerald Acquisition Corporation IR Escrow
4. Disbursements from the Bank
Account. The
Escrow Agent shall release the IR Escrow Amount in incremental amounts pursuant
to written instructions provided to it by the Company and Placement Agent to an
investor relations firm which is represented by the Investor Representative and
Placement Agent and chosen by the Company. If the entire IR Escrow Amount is not
disbursed within two (2) years from the date hereof, the balance of the IR
Escrow Amount will be returned to the Company.
5. Duration. This
Agreement shall terminate upon the disbursement of the entire IR Escrow Amount
in accordance with Section
4.
6. Interpleader. Should
any controversy arise among the parties hereto with respect to this Agreement or
with respect to the right to receive the Escrow Funds, the Escrow Agent shall
have the right to consult counsel and/or to institute an appropriate
interpleader action to determine the rights of the parties. The
Escrow Agent is also hereby authorized to institute an appropriate interpleader
action upon receipt of a written letter of direction executed by the parties so
directing Escrow Agent. If the Escrow 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 6 shall be
filed in any court of competent jurisdiction in New York, New York, and the
Escrow Funds in dispute shall be deposited with the court and in such event
Escrow Agent shall be relieved of and discharged from any and all obligations
and liabilities under and pursuant to this Agreement with respect to the Escrow
Funds.
7. Exculpation and
Indemnification of Escrow Agent.
7.1 The
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. The Escrow Agent acts under
this 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. The Escrow Agent will have
no duties or responsibilities other than those expressly set forth in this
Agreement. The Escrow Agent will be under no liability to anyone by
reason of any failure on the part of any party hereto (other than the 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 Agreement and instructions to the Escrow
Agent pursuant to the terms of this Agreement, the 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.
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7.2 The
Escrow Agent will not be liable for any action taken or omitted by it, or any
action suffered by it to be taken or omitted, in good faith and in the exercise
of its own best judgment, and may 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 the Escrow Agent), 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 to be genuine and to be signed or presented by the proper person
or persons. The duties and responsibilities of the Escrow Agent hereunder shall
be determined solely by the express provisions of this 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.
7.3 The
Escrow Agent will be indemnified and held harmless, jointly and severally, by
the Company from and against any expenses, including reasonable attorneys’ fees
and disbursements, damages or losses suffered by the Escrow Agent in connection
with any claim or demand, which, in any way, directly or indirectly, arises out
of or relates to this Agreement or the services of Escrow Agent hereunder;
except, that if the Escrow Agent is guilty of willful misconduct, fraud or gross
negligence under this Agreement, then the Escrow Agent will bear all losses,
damages and expenses arising as a result of such willful misconduct, fraud or
gross negligence. Promptly after the receipt by the Escrow Agent of notice of
any such demand or claim or the commencement of any action, suit or proceeding
relating to such demand or claim, the Escrow Agent 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 7 shall
survive the termination of this Agreement.
7.4 The
Escrow Agent has acted as legal counsel for the Company and may continue to act
as legal counsel for the Company from time to time, notwithstanding its duties
as the Escrow Agent hereunder. Investor Representative and the Investors consent
to the Escrow Agent in such capacity as legal counsel for the Company and waive
any claim that such representation represents a conflict of interest on the part
of the Escrow Agent. Investors Representative and the Investors understand that
the Escrow Agent is relying explicitly on the foregoing provision in entering
into this Escrow Agreement.
8. Fees and Expenses.
The Company agrees to pay the Escrow Agent’s costs and expenses including
reasonable attorney’s fees in the event of any dispute or litigation threatened
or commenced which requires the Escrow Agent in its opinion to refer such matter
to its attorneys. Escrow Agent will incur no liability for any delay
reasonably required to obtain such advice of counsel.
9. Resignation of Escrow
Agent. At any time, upon five (5) days’ written notice to the
Company, the Escrow Agent may resign and be discharged from its duties as escrow
agent hereunder. As soon as practicable after its resignation, the
Escrow Agent will promptly turn over to a successor escrow agent appointed by
the Company the Escrow Funds held hereunder upon presentation of a document
appointing the new escrow agent and evidencing its acceptance
thereof. If, by the end of the 5-day period following the giving of
notice of resignation by the Escrow Agent, the Company shall have failed to
appoint a successor escrow agent, the Escrow Agent may interplead the Escrow
Funds into the registry of any court having jurisdiction.
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10.
Records. The
Escrow Agent shall maintain accurate records of all transactions
hereunder. Promptly after the termination of this Agreement or as may
reasonably be requested by the parties hereto from time to time before such
termination, the Escrow Agent shall provide the parties hereto, as the case may
be, with a complete copy of such records, certified by the 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 the Escrow Agent.
11.
Notice. All
notices, communications and instructions required or desired to be given under
this 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 following addresses:
If to
Escrow Agent:
▇▇▇▇▇▇ + ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq.
If to the Company:
Emerald Acquisition
Corporation
▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
265200
P.R. China
Attention: Zhide Jiang, Chief
Executive Officer
If to the Placement Agent:
Grandview Capital, Inc.
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If to the
Investor Representative:
Access America Investments,
LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
President
or to
such other address and to the attention of such other person as any of the above
may have furnished to the other parties in writing and delivered in accordance
with the provisions set forth above.
12.
Execution in
Counterparts. This 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. Facsimile execution and delivery of this
Agreement is legal, valid and binding for all purposes.
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13. Assignment and
Modification. This Agreement and the rights and obligations
hereunder of any of the parties hereto may not be assigned without the prior
written consent of the other parties hereto. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of each of the parties
hereto and their respective successors and permitted assigns. No other person
will acquire or have any rights under, or by virtue of, this
Agreement. No portion of the Escrow Funds 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
Agreement. This Agreement may be changed or modified only in writing signed by
all of the parties hereto. No waiver of any right or remedy
hereunder shall be valid unless the same shall be in writing and signed by the
party giving such waiver. No waiver by any party with respect to any
condition, default or breach of covenant hereunder shall be deemed to extend to
any prior or subsequent condition, default or breach of covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
14. Applicable Law. This
Agreement shall be governed by and construed with the laws of the State of
Delaware applicable to contracts made and to be performed
therein. Any litigation concerning the subject matter of this
Agreement shall be exclusively prosecuted in the state or federal courts located
in New York, New York, and all parties consent to the exclusive jurisdiction and
venue of those courts.
15. Headings. The
headings contained in this Agreement are for convenience of reference only and
shall not affect the construction of this Agreement.
16. 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 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.
[Signatures
Page Follows]
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and
year first above written.
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& ▇▇▇▇▇▇, LLP
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
Managing Partner
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EMERALD
ACQUISITION CORPORATION
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By:
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/s/ Zhide Jiang
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Name:
Zhide Jiang
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Title:
President
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ACCESS
AMERICA INVESTMENTS, LLC
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By:
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/s/
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Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title:
President
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GRANDVIEW
CAPITAL, INC.
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title:
Chairman
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