ESCROW AGREEMENT
THIS
ESCROW AGREEMENT (this “Agreement”) is made
as of January 20, 2010, by and among China Marine Food Group Limited. a Nevada
Corporation (the “Company”), the
purchasers signatory hereto (each a “Purchaser” and
together the “Purchasers”), Global
Hunter Securities, LLC and Xxxxx Xxxxxx, Carret & Co. LLC (collectively the
“Placement
Agents”) and Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, with an address at 00
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Escrow
Agent”).
WITNESSETH:
WHEREAS,
the Purchasers will be purchasing from the Company shares of Common Stock of the
Company (the “Securities”) pursuant
to a Securities Purchase Agreement dated as of the date hereof by and among the
Company and the Purchasers (the “Purchase Agreement”)
for an aggregate purchase price for all of the Securities equal to $30,000,022
(the “Funds”);
WHEREAS,
the Company, the Placement Agents and the Purchaser have requested
that the Escrow Agent hold the Funds in escrow for the purchase of the
Securities until the Escrow Agent receives the Release Notice in the form
annexed hereto as Exhibit A (the “Release
Notice”);
NOW,
THEREFORE, in consideration of the covenants and mutual promises contained
herein and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged and intending to be legally bound
hereby, the parties agree as follows:
TERMS OF
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 of up to $30,000,022 (the “Funds”)
in principal amount as contemplated by this Agreement.
1.2 Upon
the Escrow Agent’s receipt of the Funds from Purchaser into its master escrow
account for the benefit of the Company, it shall telephonically advise the
Company, or the Company’s designated attorney or agent, of the amount of funds
it has received into its master escrow account.
1.3 Wire
transfers to the Escrow Agent shall be made as follows:
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Citibank
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New
York, NY
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A/C
of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP (XXXX Account)
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A/C#:
92883436
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ABA#:
000000000
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SWIFT
Code: XXXXXX00
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REF:
GHS & BMC / CHINA MARINE FOOD GROUP
LIMITED
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1.4 Once
the Escrow Agent receives the Release Notice executed by the Company and the
Purchaser, it shall wire the aggregate Funds in accordance with the Closing
Statement signed by the Company.
The Escrow Agent shall be entitled to
compensation for its services in the amount of $5,000.00, which compensation
shall be paid by the Company on the date hereof. The fee agreed upon for the
services rendered hereunder is intended as full compensation for the Escrow
Agent’s services as contemplated by this Agreement; provided, however, that in
the event that the conditions for the disbursement of funds under this Agreement
are not fulfilled, or the Escrow Agent renders any service not contemplated in
this Agreement, or there is any assignment of interest in the subject matter of
this Agreement, or any material modification hereof, or if any material
controversy arises hereunder, or the Escrow Agent is made a party to any
litigation pertaining to this Agreement or the subject matter hereof, then the
Escrow Agent shall be compensated for such extraordinary services and reimbursed
for all costs and expenses, including reasonable attorneys’ fees and expenses,
occasioned by any such delay, controversy, litigation or event by the
Company. If any amount due to the Escrow Agent hereunder is not paid
within thirty (30) days of the date due, the Escrow Agent in its sole discretion
may charge interest on such amount up to the highest rate permitted by
applicable law. The Escrow Agent shall have, and is hereby
granted, a prior lien upon the escrow funds with respect to its unpaid fees,
non-reimbursed expenses and unsatisfied indemnification rights, superior to the
interests of any other persons or entities and is hereby granted the right to
set off and deduct any unpaid fees, non-reimbursed expenses and unsatisfied
indemnification rights from the escrow funds.
ARTICLE
II
MISCELLANEOUS
2.1 No
waiver or any breach of any covenant or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof, or of any other
covenant or provision herein contained. No extension of time for
performance of any obligation or act shall be deemed an extension of the time
for performance of any other obligation or act.
2.2 All
notices or other communications required or permitted hereunder shall be in
writing.
2.3 This
Escrow Agreement shall be binding upon and shall inure to the benefit of the
permitted successors and permitted assigns of the parties hereto.
2.4 This
Escrow Agreement is the final expression of, and contains the entire agreement
between, the parties with respect to the subject matter hereof and supersedes
all prior understandings with respect thereto. This Escrow Agreement
may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
parties to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein.
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2.5
Whenever required by the context of this Escrow Agreement, the singular shall
include the plural and masculine shall include the feminine. This
Escrow Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if all parties had prepared the same. Unless
otherwise indicated, all references to Articles are to this Escrow
Agreement.
2.6 The
parties hereto expressly agree that this Escrow Agreement shall be governed by,
interpreted under and construed and enforced in accordance with the laws of the
State of New York. Any action to enforce, arising out of, or relating
in any way to, any provisions of this Escrow Agreement shall only be brought in
a state or Federal court sitting in New York City.
2.7 The
Escrow Agent’s duties hereunder may be altered, amended, modified or revoked
only by a writing signed by the Company, Purchaser and the Escrow
Agent.
2.8 The
Escrow Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by the Escrow Agent
to be genuine and to have been signed or presented by the proper party or
parties. The Escrow Agent shall not be personally liable for any act
the Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting
in good faith and in the absence of gross negligence, fraud and willful
misconduct, and any act done or omitted by the Escrow Agent pursuant to the
advice of the Escrow Agent’s attorneys-at-law shall be conclusive evidence of
such good faith, in the absence of gross negligence, fraud and willful
misconduct.
2.9 The
Escrow Agent is hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such
order, judgment or decree, the Escrow Agent shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of such
decree being subsequently reversed, modified, annulled, set aside, vacated or
found to have been entered without jurisdiction.
2.10 The
Escrow Agent shall not be liable in any respect on account of the identity,
authorization or rights of the parties executing or delivering or purporting to
execute or deliver any documents or papers deposited or called for thereunder in
the absence of gross negligence, fraud and willful misconduct.
2.11 The
Escrow Agent shall be entitled to employ such legal counsel and other experts as
the Escrow Agent may deem necessary properly to advise the Escrow Agent in
connection with the Escrow Agent’s duties hereunder, may rely upon the advice of
such counsel, and may pay such counsel reasonable compensation; provided that
the costs of such compensation shall be borne by the Escrow Agent.
2.12 The
Escrow Agent’s responsibilities as escrow agent hereunder shall terminate if the
Escrow Agent shall resign by giving written notice to the Company and
Purchaser. In the event of any such resignation, Purchaser and the
Company shall appoint a successor Escrow Agent and the Escrow Agent shall
deliver to such successor Escrow Agent any escrow funds and other documents held
by the Escrow Agent.
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2.13 If
the Escrow Agent reasonably requires other or further instruments in connection
with this Escrow Agreement or obligations in respect hereto, the necessary
parties hereto shall join in furnishing such instruments.
2.14 It
is understood and agreed that should any dispute arise with respect to the
delivery and/or ownership or right of possession of the documents or the escrow
funds held by the Escrow Agent hereunder, the Escrow Agent is authorized and
directed in the Escrow Agent’s sole discretion (1) to retain in the Escrow
Agent’s possession without liability to anyone all or any part of said documents
or the escrow funds until such disputes shall have been settled either by mutual
written agreement of the parties concerned by a final order, decree or judgment
or a court of competent jurisdiction after the time for appeal has expired and
no appeal has been perfected, but the Escrow Agent shall be under no duty
whatsoever to institute or defend any such proceedings or (2) to deliver the
escrow funds and any other property and documents held by the Escrow Agent
hereunder to a state or Federal court having competent subject matter
jurisdiction and located in the City of New York in accordance with the
applicable procedure therefore.
2.15 The
Company and Purchaser agree jointly and severally to indemnify and hold harmless
the Escrow Agent and its partners, employees, agents and representatives from
any and all claims, liabilities, costs or expenses in any way arising from or
relating to the duties or performance of the Escrow Agent hereunder or the
transactions contemplated hereby other than any such claim, liability, cost or
expense to the extent the same shall have been determined by final, unappealable
judgment of a court of competent jurisdiction to have resulted from the gross
negligence, fraud or willful misconduct of the Escrow Agent.
2.16 The
Escrow Agent shall be permitted to act as counsel for the Purchaser or the
Company in any transaction and/or dispute including any dispute between the
Company and the Purchaser, whether or not the Escrow Agent is then holding the
documents or escrow funds held by the Escrow Agent hereunder.
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IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
date first written above.
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CHINA
MARINE FOOD GROUP LIMITED
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By:
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/s/ Xxxxxxx Xxx
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Name:
Xxxxxxx Xxx
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Title:
Chief Executive Officer
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PLACEMENT
AGENTS
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GLOBAL
HUNTER SECURITIES LLC
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By:
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/s/ Xxxxxxx Xxxxxx
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Name:
Xxxxxxx Xxxxxx
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Title:
Managing Director
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XXXXX
XXXXXX CARRET & CO., LLC
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx
X. Xxxxxxx
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Title: Managing
Director
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ESCROW
AGENT:
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SICHENZIA
XXXX XXXXXXXX XXXXXXX LLP
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx
Xxxxxxxx
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Title: Partner
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR PURCHASER FOLLOW]
[SIGNATURE
PAGE OF PURCHASER TO CHINA MARINE FOOD GROUP LIMITED ESCROW
AGREEMENT]
Name of
Investing Entity: _______________________________________________
Signature of Authorized Signatory of
Investing entity: __________________________
Name of
Authorized Signatory: ___________________________________________
Title of
Authorized Signatory: ____________________________________________
Exhibit A
to
Escrow
Agreement
RELEASE
NOTICE
The
UNDERSIGNED, pursuant to the Escrow Agreement, dated as of January 20, 2010,
among China Marine Food Group Limited (the “Company”), Global
Hunter Securities LLC and Xxxxx Xxxxxx, Carret & Co., LLC (collectively the
“Placement Agents”), the purchaser signatory hereto (the “Purchaser”) and
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, as Escrow Agent (the “Escrow Agent”);
capitalized terms used herein and not defined shall have the meaning ascribed to
such terms in the Escrow Agreement), hereby notify the Escrow Agent that each of
the conditions precedent to the release of the Funds. The Company,
the Placement Agent and the undersigned Purchaser authorize the release by the
Escrow Agent of the Funds as set forth in the Closing Statement. This Release
Notice shall not be effective until executed by the Company and
Purchaser.
This
Release Notice may be signed in one or more counterparts, each of which shall be
deemed an original.
IN
WITNESS WHEREOF, the undersigned have caused this Release Notice to be duly
executed and delivered as of this __ day of January, 2010.
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CHINA
MARINE FOOD GROUP LIMITED
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By:
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Name:
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Title:
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GLOBAL
HUNTER SECURITIES
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By:
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Name:
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Title:
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XXXXX
XXXXXX CARRET & CO., LLC
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By:
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Name:
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Title:
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[SIGNATURE
PAGE OF PURCHASER FOLLOWS]
[SIGNATURE
PAGE OF PURCHASER TO THE CHINA MARINE FOOD GROUP LIMITED RELEASE
NOTICE]
Name of
Investing Entity: _______________________________________________
Signature of Authorized Signatory of
Investing entity: __________________________
Name of
Authorized Signatory: ___________________________________________
