ESCROW AGREEMENT
Exhibit
10.8
This
Escrow Agreement, (this Agreement) is made and entered into effective as of
March 22, 2006, by and among Chinamerica Fund, L.P., a Texas limited partnership
(Chinamerica), Sinosmart Group, Inc., a British Virgin Islands company
(Sinosmart), and Gateway National Bank, N.A., a national banking association
with offices in Dallas, Dallas County, Texas (the Bank). China-Biotics, Inc.,
a
Delaware corporation formerly known as Otish Resources, Inc. (the Company),
is
an intended beneficiary of this Agreement, and shall be entitled to enforce
the
provisions of this Agreement from and after the date of the consummation of
the
China-Biotics Exchange (defined below).
BACKGROUND:
Chinamerica
and a group of five other qualified and accredited investors (the Investors)
intend to subscribe for ordinary shares to be issued by Sinosmart (the Sinosmart
Issuance). Immediately after the Sinosmart Issuance, all outstanding Sinosmart
ordinary shares, including the shares issued to the Investors in the Sinosmart
Issuance, shall be exchanged for 15,980,000 shares of common stock of the
Company (the China-Biotics Exchange). Immediately after the Sinosmart Issuance
and the China-Biotics Exchange, the Company intends to acquire 20,000,000 shares
of its common stock held by Xxxx Xxxx, pursuant to an agreement between the
Company and Xx. Xxxx (the Ford Acquisition). The Investors intend to pay an
aggregate consideration of US$5,067,700 (the Share Consideration) for the
Sinosmart ordinary shares in the Sinosmart Issuance, and to receive an aggregate
of 1,870,000 shares of China Biotics common stock in the China-Biotics
Exchange.
Sinosmart
desires to establish an escrow account in which a portion of the Share
Consideration will be deposited and retained in escrow until the satisfaction
of
certain conditions to disbursement set out in this Agreement. The parties have
requested the bank named above to act in the capacity of escrow agent under
this
Agreement, and such bank, subject to the terms and conditions hereof, has agreed
so to do.
AGREEMENTS
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants and agreements contained
herein, the parties hereby agree as follows:
1. Appointment
of Escrow Agent.
Chinamerica and Sinosmart hereby appoint the Bank as escrow agent under this
Agreement (the Bank in such capacity is referred to in this Agreement as the
Escrow Agent), and Escrow Agent hereby accepts such appointment.
2. Establishment
of Escrow Account. The
parties shall establish an escrow account with the Escrow Agent which escrow
account shall be styled "China-Biotics, Inc. Escrow Account" (the Escrow
Account).
3. Escrow
Period. The
escrow period (the Escrow Period) shall begin on the date hereof and shall
terminate upon the earlier to occur of the following (the Termination
Date):
(a) the
first
anniversary of this Agreement;
(b) the
date,
if any, on which both of Chinamerica and Sinosmart inform the Escrow Agent
in
writing that the Escrow Period shall be terminated; or
1
(c)
the
complete disbursement of the Deposits pursuant to the provisions of Paragraph
5.
4. Deposits.
At the
closing of the Sinosmart Issuance, Chinamerica shall cause an aggregate amount
of $5,064,842 to be deposited in the Escrow Account. All monies deposited in
the
Escrow Account (as said amount may increase or decrease as a result of the
investment and reinvestment thereof and as same amount may be reduced by charges
thereto and payments and offsets therefrom to compensate or reimburse Escrow
Agent for amounts owing to it pursuant to this Agreement) are hereinafter
referred to as the "Deposits." Each of Chinamerica and Sinosmart hereby
expressly acknowledges and agrees that neither the Company nor Sinosmart shall
be entitled to receive any of the Deposits except as provided for in Paragraph
5
below and further agree that while any Deposits are held in the Escrow Account,
such Deposits shall not be subject to the debts of the Company or
Sinosmart.
5. Disbursement
of the Deposits.
Deposits
shall not be disbursed until such time as such amounts have been received by
the
Escrow Agent in "collected funds." For purposes of this Agreement, the term
"collected funds" shall mean all funds received by the Escrow Agent which have
cleared normal banking channels and are in the form of cash.
The
Escrow Agent is hereby authorized to make disbursements from the Deposits,
as
follows:
(a) Ford
Acquisition.
Upon
receipt of a certificate (the Ford Certificate) in substantially the form set
out on Exhibit A (which may be executed in counterparts), from each of
Chinamerica and Sinosmart, certifying that the China-Biotics Exchange has
occurred, the Escrow Agent shall disburse US$5,000 of the Deposits to Xxxx
Xxxx
pursuant to the wiring instructions set forth in the Ford
Certificate.
(b) Filing
of SB-2.
Upon
receipt of a certificate (the SB-2 Certificate) in substantially the form set
out on Exhibit B (which may be executed in counterparts), from each of
Chinamerica and Sinosmart, certifying that (i) the China-Biotics Exchange and
Ford Acquisition have occurred, and (ii) a registration statement on form SB-2
(the Registration Statement) has been filed with the Securities and Exchange
Commission covering all of the issued and outstanding Registrable Securities
(as
such term is defined in that certain Registration Rights Agreement dated as
of
March 22, 2006 among the Company and the persons listed on the signature pages
thereto), the Escrow Agent shall disburse the Deposits in the following
order:
(1) US$4,222,143
of the Deposits shall be wired to Sinosmart or the Company, pursuant to wiring
instructions provided in the SB-2 Certificate.
(2) US$87,699
shall be disbursed to Chinamerica, pursuant to instructions provided in the
SB-2
Certificate.
(3) At
any
time and from time to time upon receipt by the Escrow Agent of an additional
certificate (the Marketing Certificate) in substantially the form set out on
Exhibit D (which may be executed in counterparts), from each of Chinamerica
and
Sinosmart, the amount set forth therein shall be disbursed as set forth
therein.
(c) Non-Filing
of SB-2; Exercise of Put Right.
If the
Escrow Agent has not received an SB-2 Certificate, upon receipt of a certificate
(the Put Certificate) at any time on or after April 15, 2006 in substantially
the form set out on Exhibit C from Chinamerica certifying that (i) the
Registration Statement has not been filed with the Securities and Exchange
Commission and (ii) the put rights pursuant to that certain Put Agreement dated
as of the date hereof among Sinosmart, Chinamerica and the other parties listed
therein have been exercised, the Escrow Agent shall disburse the Deposits as
set
forth in the Put Certificate.
2
(d) Into
the
registry of the Court in accordance with Section 10 or 16 hereof.
(e) As
permitted by this Agreement, to Escrow Agent.
(f) In
the
event of the termination of the Escrow Period before all the Deposits have
been
dispersed, the balance of the Deposits will be disbursed to
Sinosmart.
6. Delivery
of Certificates.
(a) Sinosmart
and Chinamerica agree that disbursements pursuant to Section 5(a)(3) are
intended to reimburse, and pay for costs and expenses of, China-Biotics and
Sinosmart related to an integrated investor and public relations campaign and
the retention of an independent professional executive search firm to conduct
an
executive search and for other executive search costs of the Company and
Sinosmart. Chinamerica agrees that, promptly after receiving a request from
Sinosmart to execute and deliver a Marketing Certificate and reasonably
satisfactory evidence relating to such costs and expenses, it will execute
and
deliver such Marketing Certificate to the Escrow Agent.
(b) Chinamerica
agrees that, promptly after receiving a request from Sinosmart to execute and
deliver (i) an SB-2 Certificate and reasonably satisfactory evidence that the
Registration Statement has been filed with the Securities and Exchange
Commission, it will execute and deliver (or cause to be delivered) such SB-2
Certificate to the Escrow Agent, and (ii) a Ford Certificate and reasonably
satisfactory evidence that the China-Biotics Exchange has occurred, it will
execute and deliver (or cause to be delivered) such Ford Certificate to the
Escrow Agent.
7. Tax
Matters. Chinamerica
and China-Biotics shall each provide the Escrow Agent with its taxpayer
identification number documented by an appropriate Form W-8 or Form W-9 after
execution of this Agreement. Failure so to provide such forms shall not
invalidate this Agreement, but may prevent or delay disbursements from the
Deposits and may also result in the assessment of a penalty and Escrow Agent
being required to withhold tax on the Deposits. Any payments of income shall
be
subject to applicable withholding regulations then in force in the United States
or any other jurisdiction, as applicable. If any part of the Deposits represents
income earned on such Deposits during the Escrow Period that is taxable under
United States tax laws, such income shall be allocated to the Company (or
Sinosmart, upon notice by Sinosmart to Escrow Agent) for United States federal
income tax purposes, and shall be accordingly reported by the Escrow
Agent.
8. Scope
of Undertaking.
Escrow
Agent’s duties and responsibilities in connection with this Agreement shall be
purely ministerial and shall be limited to those expressly set forth in this
Agreement. Escrow Agent is not a principal, participant or beneficiary in any
transaction underlying this Agreement and shall have no duty to inquire beyond
the terms and provisions hereof. Escrow Agent shall have no responsibility
or
obligation of any kind in connection with this Agreement or the Deposits and
shall not be required to disburse the Deposits or any part thereof or take
any
action with respect to any matters that might arise in connection therewith,
other than to receive, hold, invest, reinvest and disburse the Deposits as
herein provided. Without limiting the generality of the foregoing, it is hereby
expressly agreed and stipulated by the parties hereto that Escrow Agent shall
not be required to exercise any discretion hereunder and shall have no
investment or management responsibility and, accordingly, shall have no duty
to,
or liability for its failure to, provide investment recommendations or
investment advice. Escrow Agent shall not be liable for any error in judgment,
any act or omission, any mistake of law or fact, or for anything it may do
or
refrain from doing in connection herewith, except for, subject to Section 11
herein below, its own willful misconduct or gross negligence. It is the
intention of the parties hereto that Escrow Agent shall never be required to
use, advance or risk its own funds or otherwise incur financial liability in
the
performance of any of its duties or the exercise of any of its rights and powers
hereunder.
3
At
the
direction of the Company or Sinosmart, Escrow Agent may invest the Deposits
in
one or more of the following: (i) certificates of deposit issued by United
States commercial banks having capital and surplus in excess of $500,000,000
and
having (or its parent having) one of the five highest debt ratings by any of
Standard & Poor’s Corporation or Xxxxx’x Investors Service; (ii)
certificates of deposit not in excess of $100,000 issued by the Escrow Agent
and
its affiliated banks to the extent that the same are guaranteed by the Federal
Deposit Insurance Corporation; (iii) obligations of the United States government
or any agency thereof; and (iv) obligations guaranteed by the United States
government. Escrow Agent shall not be liable to Sinosmart, the Company or
Chinamerica for any claims related to the investments or management of the
Escrow Funds, provided that the Escrow Agent complies with the provisions of
this Agreement including the receipt of, action upon, and refusal to act upon,
notices and certificates delivered to Escrow Agent by the other parties to
this
Agreement.
9. Reliance
and Liability. Escrow
Agent may rely on, and shall not be liable for acting or refraining from acting
in accordance with, any written notice, consent, certificate, receipt,
direction, authorization, instruction or request or other paper furnished to
it
hereunder by the other parties to this Agreement, or pursuant here to and
believed by it to have been signed or presented by the proper party or parties.
Escrow Agent shall be responsible for holding, investing, reinvesting and
disbursing the Deposits pursuant to and subject to the terms and provision
of
this Agreement provided, however that in no event shall Escrow Agent be liable
for any lost profits, lost savings or other special, exemplary, consequential
or
incidental damages whatsoever and provided, further, that Escrow Agent shall
have no liability for any loss, damage, costs or expense arising from any case
beyond its control, including, but not limited to, the following: (a) acts
of
God, or force majeure, including, without limitation, war (whether or not
declared or existing), revolution, insurrection, riot, civil commotion,
accident, fire, explosion, stoppage of labor, strikes and other differences
with
employees; (b) the act, failure or neglect of any other party or any agent
or
correspondent or any other person selected by Escrow Agent; (c) any delay,
error, omission or default of any mail, courier, telegraph, cable or wireless
agency or operator; or (d) the acts or edicts of any government or governmental
agency or other group or entity exercising governmental powers. Escrow Agent
is
not responsible or liable in any manner whatsoever for the sufficiency,
correctness, genuineness or validity of the subject matter or this Agreement
or
any part hereof or for the transaction or transactions requiring or underlying
the execution of this Agreement, the form or execution hereof or for the
identity or authority of any person executing this Agreement (other than Escrow
Agent) or any part hereof or depositing the Deposits, or the genuineness of
any
signature of any party (other than Escrow Agent) to this Agreement, or any
document or instrument executed or delivered pursuant to this Agreement,
including, but not limited to, any of the certificates contemplated herein
to be
delivered.
10. Right
of Interpleader.
Should
any controversy arise involving the parties hereto or any of them or any other
person, firm or entity with respect to this Agreement or the Deposits or should
a substitute escrow agent fail to be designated as provided in Section 16
hereof, or if Escrow Agent should be in doubt, or have any concern whatsoever,
as to what action to take, Escrow Agent shall have the right, but not the
obligation, either to (a) withhold delivery of the Deposits or the taking of
any
other action hereunder until the controversy is resolved, the conflicting
demands are withdrawn or its doubt is resolved, in any event to the satisfaction
of Escrow Agent, and Escrow Agent shall not in any event be or become liable
for
its refusal or failure to act; and/or (b) institute a petition for interpleader
in any court of competent jurisdiction to determine the rights of the parties
hereto. In the event Escrow Agent is party to any dispute, Escrow Agent shall
have the additional right to refer such controversy to binding arbitration.
Should a petition for interpleader be instituted, or should Escrow Agent be
threatened with litigation or become involved in litigation or binding
arbitration in any manner whatsoever in connection with this Agreement or the
Deposits, each other party to this agreement agrees to reimburse Escrow Agent
for its attorney’s fees and any and all other expenses, losses, costs and
damages incurred by Escrow Agent in connection with or resulting from such
threatened or actual litigation or arbitration prior to any disbursement of
the
Deposits hereunder or thereunder.
4
11. Indemnification.
Sinosmart and Chinamerica, each jointly and severally, hereby indemnify Escrow
Agent, its officers, directors, employees, representatives and agents (each
herein called an Indemnified Party) against, and agrees to hold each Indemnified
Party harmless from any and all expenses, including, without limitation,
attorney’s fees and court costs, losses, costs, damages and claims, including,
but not limited to, costs of investigation, litigation and arbitration, tax
liability and loss on investments suffered or incurred by any Indemnified Party
in connection with or arising from or out of this Agreement, except such acts
or
omissions as may result from the willful misconduct or gross negligence of
such
Indemnified Party. IT IS THE EXPRESS INTENT OF SINOSMART AND CHINAMERICA TO
INDEMNIFY EACH OF THE INDEMNIFIED PARTIES FOR, AND HOLD THEM HARMLESS AGAINST,
THEIR OWN NEGLIGENT ACTS OR OMISSIONS WHICH DO NOT CONSTITUTE WILLFUL MISCONDUCT
OR GROSS NEGLIGENCE.
12. Compensation
and Reimbursement of Expenses.
Chinamerica hereby agrees to pay Escrow Agent for its service hereunder in
connection with the preparation, establishment, operation, and administration
of
the Escrow Account, in accordance with the fee schedule of the Escrow Agent
as
in effect from time to time. Sinosmart and Chinamerica each hereby agrees to
pay
one-half of all other expenses incurred by Escrow Agent in connection with
the
performance of its duties and enforcement of its rights hereunder or other
proceedings pursuant to this Agreement, but in any event shall be jointly and
severally liable to Escrow Agent for such expenses, including, without
limitation, attorneys fees, and costs of any litigation, arbitration,
interpleader or similar proceeding.
13. Notices.
Any
notice or other communication required or permitted to be given under this
Agreement shall be considered as properly given if in writing and (a) delivered
against receipt therefor, (b) mailed by registered or certified mail, return
receipt requested and postage prepaid or (c) sent by telefax machine, in
each
case to
the address or telefax number, as the case may be, set forth below:
If
to
Escrow Agent:
Gateway
National Bank, N.A.
00000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxxx XxXxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If
to
Sinosmart:
Sinosmart
Group Inc.
No.
000
Xxxxxxxx Xxxx
Jinqiao
Export Processing Zone
Pudong,
Shanghai 201206
People’s
Republic of China
Attn:
President
Facsimile:
86 21 5834 7713
with
copies (which shall not constitute notice) to:
0
Xxxxxxx
Xxxxx & Xxxxx LLP
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxxxx 00000
Attn:
Xxxx Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Xxxxxxx
Xxxxx & Xxxxx
35/F,
Two
International Finance Centre
0
Xxxxxxx
Xxxxxx
Xxxxxxx,
Xxxx Xxxx
Attn:
Xx.
Xxxxxxxx Xx / Ms. Xxxxxxx Xxx
Telephone:
(000) 0000 0000
Fascimile:
(000) 0000 0000
If
to
Chinamerica:
Chinamerica
Fund, LP
0000
Xx.
Xxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Attn:
Xx.
Xxxx Xxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Except
to
the extent otherwise provided herein, delivery of any communication given in
accordance herewith shall be effective only upon actual receipt thereof by
the
party or parties to whom such communication is directed. Any party to this
Agreement may change the address to which communications hereunder are to be
directed by giving written notice to the other party or parties hereto in the
manner provided in this section.
14. Consultation
with Legal Counsel.
Escrow
Agent may consult with its counsel or other counsel satisfactory to it
concerning any question relating to its duties or responsibilities hereunder
or
otherwise in connection herewith and shall not be liable for any action taken,
suffered or omitted by it in good faith upon the advice of such
counsel.
15. Choice
of Laws; Cumulative Rights. This
Agreement shall be construed under and governed by, the laws of the State of
Texas, excluding, however, (a) its choice of law rules and (b) the portions
of
the Texas Trust Code Sec. 111.001, et seq. of the Texas Property Code concerning
fiduciary duties and liabilities of trustees. All of Escrow Agent’s rights
hereunder are cumulative of any other rights it may have at law, in equity
or
otherwise. The parties hereto agree that the forum for resolution of any dispute
arising under this Agreement shall be Dallas County, Texas, and each of the
parties hereby consents, and submits itself, to the jurisdiction of any state
or
federal court sitting in Dallas County, Texas.
16. Resignation.
Escrow
Agent may resign hereunder upon ten (10) days prior notice to Chinamerica and
Sinosmart. Upon the effective date of such resignation, Escrow Agent shall
deliver the Deposits to any substitute escrow agent designated jointly by
Chinamerica and Sinosmart in writing. If Chinamerica and Sinosmart fail to
jointly designate a substitute escrow agent within ten (10) days after the
giving of such notice, Escrow Agent may institute a petition for interpleader.
Escrow Agent’s sole responsibility after such 10-day period expires shall be to
hold the Deposits (without any obligation to reinvest the same) and to deliver
the same to a designated substitute escrow agent, if any, or in accordance
with
the directions of a final order or judgment of a court of competent
jurisdiction, at which time of delivery Escrow Agent’s obligations hereunder
shall cease and terminate.
6
17. Assignment.
This
Agreement shall not be assigned by Chinamerica or Sinosmart without the prior
written consent of Escrow Agent and such other party, and may be assigned by
Escrow Agent only to a successor national banking association with the prior
written consent of Chinamerica and Sinosmart (such assigns hereinafter referred
to collectively as "Permitted Assigns").
18. Severability.
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 be given full force and effect.
19. Termination.
This
Agreement shall terminate upon the complete disbursement of the Deposits in
accordance with Section 5 hereof; provided, however, that in the event all
fees,
expenses, costs or other amounts required to be paid to Escrow Agent hereunder
are not fully and finally paid prior to termination, the provisions of Section
12 hereof shall survive the termination hereof and, provided, further, that
the
provisions of Sections 9, 10 and 11 hereof shall, in any event, survive the
termination hereof.
20. General.
The
section headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this Agreement.
This Agreement and any affidavit, certificate, instrument, agreement or other
document required to be provided hereunder may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute but one and the same instrument. 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. The terms and
provisions of this Agreement constitute the entire agreement among the parties
hereto in respect to the Escrow Account and the deposit of the Share
Consideration. This Agreement or any provision hereof may be amended, modified,
waived or terminated only by written instrument duly signed by the parties
hereto. This Agreement shall inure to the benefit of and be binding upon, the
parties hereto and their respective heirs, devises, executors, administrators,
personal representatives, successors, trustees, receivers and Permitted Assigns.
This Agreement is for the sole and exclusive benefit of the Company, Sinosmart,
Chinamerica and the Escrow Agent, 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.
[signature
page follows]
7
IN
WITNESS WHEREOF,
the
parties have executed this Agreement to be effective as of the date first above
written.
|
Escrow
Agent:
|
||
| |
Gateway National Bank, N.A. |
|
| By: | /s/ Xxxxxx XxXxxxx | |
|
Name: Xxxxxx Xx Xxxxx |
||
| Title: Escrow Agent | ||
|
Chinamerica:
|
||
| |
Chinamerica Fund, L.P. |
|
| By: | Chinamerica Partners, LP, | |
|
Its
general partner,
By:
Chinamerica Holdings, L.L.C.
Its
general partner
|
||
| By: | /s/ Xxxx Xxxxxxx | |
|
Name: Xx. Xxxx Xxxxxxx |
||
| Title: Manager | ||
| Sinosmart Group Inc. | ||
| By: | /s/s Xxxx Xxx An | |
|
Name: Xxxx Xxx An |
||
| Title: Director | ||
Exhibit
A
CERTIFICATE
FOR DISBURSEMENT
SB-2
Certificate
To:
Gateway
National Bank, N.A.
00000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxxx XxXxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
We,
the
undersigned, hereby certify, pursuant to the terms of that certain Escrow
Agreement dated March 22, 2006 among Chinamerica Fund, L.P., Sinosmart Group,
Inc. and Gateway National Bank, N.A. (all capitalized but undefined terms in
this certificate are as defined in such Escrow Agreement), as
follows:
1. We
are
authorized to make this certification on behalf of Sinosmart and Chinamerica,
as
applicable.
2. We
certify that (i) the China-Biotics Exchange and Ford Acquisition have occurred,
and (ii) a registration statement on form SB-2 (the Registration Statement)
has
been filed with the Securities and Exchange Commission covering all of the
issued and outstanding Registrable Securities (as such term is defined in that
certain Registration Rights Agreement dated as of March 22, 2006 among the
Company and the persons listed on the signature pages thereto), and we agree
that the Escrow Agent shall disburse the Deposits as follows:
(a) US$4,222,143
of the Deposits shall be wired to the Sinosmart or the Company, pursuant to
the
following instructions:
[Insert
Sinosmart/Company bank account details for wiring instructions]
(b) US$87,699
shall be disbursed to Chinamerica, pursuant to the following
instructions:
[Insert
Chinamerica bank account details for wiring instructions]
| SINOSMART GROUP INC. | Chinamerica Fund, L.P. | |||
|
By:
|
Name:
SONG JINAN
Title:
Director
|
By:
Chinamerica Partners, LP
Its General Partner
By:
Chinamerica Holdings, LLC
Its General Partner
|
||
| By: | ||
|
Name:
Xxxx Xxxxxxx
Title:
Manager
|
||
Exhibit
B
CERTIFICATE
FOR DISBURSEMENT
Ford
Certificate
To:
Gateway
National Bank, N.A.
00000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxxx XxXxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
We,
the
undersigned, hereby certify, pursuant to the terms of that certain Escrow
Agreement dated March 22, 2006 among Chinamerica Fund, L.P., Sinosmart Group,
Inc. and Gateway National Bank, N.A. (all capitalized but undefined terms in
this certificate are as defined in such Escrow Agreement), as
follows:
1. We
are
authorized to make this certification on behalf of Sinosmart and Chinamerica,
as
applicable.
2. We
certify that the China-Biotics Exchange has occurred, and we agree that the
Escrow Agent shall disburse US$5,000.00 from the Deposits as
follows:
[Insert
Xxxx Xxxx bank account details for wiring instructions]
| SINOSMART GROUP INC. | Chinamerica Fund, L.P. | |||
|
By:
|
Name:
SONG JINAN
Title:
Director
|
By:
Chinamerica Partners, LP
Its General Partner
By:
Chinamerica Holdings, LLC
Its General Partner
|
||
| By: | ||
|
Name:
Xxxx Xxxxxxx
Title:
Manager
|
||
Exhibit
C
CERTIFICATE
FOR DISBURSEMENT
Put
Certificate
To:
Gateway
National Bank, N.A.
00000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxxx XxXxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
We,
the
undersigned, hereby certify, pursuant to the terms of that certain Escrow
Agreement dated March 22, 2006 among Chinamerica Fund, L.P., Sinosmart Group,
Inc. and Gateway National Bank, N.A. (all capitalized but undefined terms in
this certificate are as defined in such Escrow Agreement), as
follows:
1. I
am
authorized to make this certification on behalf of Chinamerica.
2. I
certify
that (i) a registration statement on form SB-2 (the Registration Statement)
covering all of the issued and outstanding Registrable Securities (as such
term
is defined in that certain Registration Rights Agreement dated as of March
22,
2006 among the Company and the persons listed on the signature pages thereto)
has not been filed with the Securities and Exchange Commission and (ii) the
put
rights pursuant to that certain Put Agreement dated as of the date hereof among
Sinosmart, Chinamerica and the other parties listed therein have been exercised,
and direct the Escrow Agent to disburse amounts from the Deposits as
follows:
[insert
amount to be disbursed and wiring instructions]
3. I
certify
that (a) Chinamerica has authorized and directed that any certificates in the
possession of Xxxxxxx Xxxxx & Xxxxx LLP relating to the shares of common
stock subject to the put right be released to the Company and (b) any other
certificates relating to the such shares not so held by Xxxxxxx Xxxxx &
Xxxxx LLP have been delivered to the Company.
| Chinamerica Fund, L.P. | ||||
|
|
|
By:
Chinamerica Partners, LP
Its General Partner
By:
Chinamerica Holdings, LLC
Its General Partner
|
||
| By: | ||
|
Name:
Xxxx Xxxxxxx
Title:
Manager
|
||
Exhibit
D
CERTIFICATE
FOR DISBURSEMENT
Marketing
Certificate
To:
Gateway
National Bank, N.A.
00000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxxx XxXxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
We,
the
undersigned, hereby certify, pursuant to the terms of that certain Escrow
Agreement dated March 22, 2006 among Chinamerica Fund, L.P., Sinosmart Group,
Inc. and Gateway National Bank, N.A. (all capitalized but undefined terms in
this certificate are as defined in such Escrow Agreement), as
follows:
1. We
are
authorized to make this certification on behalf of Sinosmart and Chinamerica,
as
applicable.
2. We
certify that pursuant to Section 5(a)(3) of the Escrow Agreement, Sinosmart
is
entitled to the disbursements below from the escrow account in connection with
an integrated investor and public relations campaign and/or the retention of
an
independent professional executive search firm to conduct an executive search
and for other executive search costs of the Company and Sinosmart, and we agree
that the Escrow Agent shall disburse amounts from the Deposits as
follows:
[insert
amount of disbursement(s) and wiring instructions]
| SINOSMART GROUP INC. | Chinamerica Fund, L.P. | |||
|
By:
|
Name:
SONG JINAN
Title:
Director
|
By:
Chinamerica Partners, LP
Its General Partner
By:
Chinamerica Holdings, LLC
Its General Partner
|
||
| By: | ||
|
Name:
Xxxx Xxxxxxx
Title:
Manager
|
||
