ESCROW AGREEMENT
ESCROW AGREEMENT dated as of this
25th
day of September 2009, by and among Emerald Acquisition Corporation, a Cayman
Islands corporation (the “Company”), Merit Times International Limited, a company
incorporated under the laws of the British Virgin Islands (“Merit Times”),
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, a financial institution
chartered under the laws of the State of New York (the “Agent”) and Grandview
Capital, Inc., a Florida corporation (the “Placement Agent”).
WITNESSETH:
WHEREAS, the Company is offering
securities in a private equity financing (the “Financing”) to “accredited
investors” (the “Purchasers”) as such term is defined in Regulation D
promulgated under the Securities Act of 1933, as amended;
WHEREAS, the Financing is conditioned
upon the completion of a
share exchange agreement, pursuant to which Merit Times shall become the wholly
owned subsidiary of the Company (the “Combination”);
WHEREAS, in connection with the
Financing, such securities are being sold in units (the “Units”) with each Unit
consisting Fifty Thousand (50,000) shares of the Company’s common stock (the
“Common Shares”) and warrants to purchase Twenty Five Thousand (25,000) shares
of the Company’s common stock (the “Warrants” and collectively the
“Securities”);
WHEREAS, the Units are being offered at
a price of $150,000 per Unit (the “Offering Price”); and
WHEREAS,
the Company desires to sell in the Financing a minimum of Units in the aggregate
amount of $15,000,000 (the “Minimum Amount”) and a maximum of Units in the
aggregate amount of $20,000,000 (the “Maximum Amount”); and
WHEREAS:
(a) The
Financing will commence immediately and will continue until the earlier of: (i)
the date upon which subscriptions for the Maximum Amount have been accepted;
(ii) September 30, 2009, unless extended by the Company, Merit Times and the
Placement Agent without notice to Purchasers to a date not later than November
30, 2009; or (iii) the date upon which the Company, Merit Times and the
Placement Agent elect to terminate the Financing;
(b) Once
the Purchasers have subscribed and the Company has accepted subscriptions for
the Minimum Amount, the Company and the Placement Agent may conduct an initial
closing (the “First Closing”) with respect to such Units. Thereafter,
the Company and the Placement Agent may decide to conduct one or more closings
for the sale of additional Units (each, together with the First Closing, a
“Closing”);
(c) Proceeds
received from subscriptions for the Units shall be held in escrow by the Agent
pending a Closing; and
(d) If
the Minimum Amount is not sold prior to the end of the Offering Period, the
Financing will be terminated and all funds received from Purchasers will be
promptly returned, without interest, penalty or deduction. The day
that the Offering Period terminates is hereinafter referred to as the
“Termination Date.”
NOW, THEREFORE, in consideration of the
mutual promises herein contained and intending to be legally bound, the parties
hereby agree as follows:
1. Appointment of
Agent. The Company hereby appoints the Agent as escrow agent
in accordance with the terms and conditions set forth herein, and the Agent
hereby accepts such appointment.
2. Delivery of Subscription
Proceeds. All checks, drafts, or other instruments or wire
transfer funds received from Purchasers as payment for the Units will be
delivered by the Company or Placement Agent to the Agent, made payable to
“American Stock Transfer & Trust Company, as Escrow Agent for Emerald
Acquisition Corporation” The Placement Agent will provide the Agent
with a chart setting forth, as to each Purchaser, his name, address, social
security number or employer identification number, amount of Units purchased,
and the amount paid in connection with such purchase. The Agent is
hereby empowered on behalf of the Company to endorse and collect all checks,
drafts, wire funds transfers, or other instruments received on account of
purchases of the Units.
3. Agent to Hold and Disburse
Funds. The Agent will hold in a segregated account established
for the benefit of the Company and disburse all funds received by it pursuant to
the terms of this Escrow Agreement, as follows:
3.1 In
the event that prior to the Termination Date the Agent has received funds equal
to or greater than the Minimum Amount (and such funds are cleared within ten
(10) days following the Termination Date) from the sale of Units, the Agent
will, on the date of a Closing, pursuant to written instructions signed by the
Company, Merit Times and the Placement Agent, pay to the Company, and/or to any
other person designated in such instructions, the proceeds received by the Agent
from the sale of such Units, provided that the Company’s counsel and the
Placement Agent’s counsel has confirmed in writing that all conditions for the
release of the escrow funds have been met and that the securities have been
issued and delivered to the Purchasers.
3.2 In
the event that prior to the Termination Date the Agent has not received funds
equal to or greater than the Minimum Amount (or such funds have not cleared
within ten (10) days of the Termination Date) from the sale of the Units, or in
the event that a Closing has not taken place within ten days of the Termination
Date, the Agent will return all funds to the Purchasers, without interest,
penalty or deduction.
4. Exculpation and
Indemnification of Agent.
4.1 The
Agent shall have no duties or responsibilities other than those expressly set
forth herein. The Agent shall have no duty to enforce any obligation
of any person to make any payment or delivery, or to direct or cause any payment
or delivery to be made, or to enforce any obligation of any person to perform
any other act. The Agent shall be under no liability to the other
parties hereto or to anyone else by reason of any failure on the part of any
party hereto or any maker, guarantor, endorser or other signatory of any
document or any other person to perform such person’s obligations under any such
document. Except for amendments to this Agreement referred to below,
and except for instructions given to the Agent by the Company and the Placement
Agent relating to the funds deposited with the Agent under this Agreement, the
Agent shall not be obligated to recognize any agreement between any and all of
the persons referred to herein, notwithstanding that references thereto may be
made herein and whether or not it has knowledge thereof.
4.2 The
Agent shall not be liable to the Company or to anyone else 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. The Agent may
rely conclusively and shall be protected in acting upon any order, notice,
demand, certificate, opinion or advice of counsel (including counsel chosen by
the 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 believed by the Agent to be genuine and to be signed or
presented by the proper person or persons. The Agent shall not be
bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement or any of the terms thereof, unless evidenced by a
writing delivered to the Agent signed by the proper party or parties and, if the
duties or rights of the Agent are affected, unless it shall give its prior
written consent thereto.
4.3 The
Agent shall not be responsible for the sufficiency or accuracy of the form of,
or the execution, validity, value or genuineness of, any document or property
received, held or delivered by it hereunder, or of any signature or endorsement
thereon, or for any lack of endorsement thereon, or for any description therein;
nor shall the Agent be responsible or liable to the other parties hereto or to
anyone else in any respect on account of the identity, authority or rights of
the persons executing or delivering or purporting to execute or deliver any
document or property or this Agreement. The Agent shall have no
responsibility with respect to the use or application of any funds or other
property paid or delivered by the Agent pursuant to the provisions
hereof. The Agent shall not be liable to the Company or to anyone
else for any loss which may be incurred by reason of any investment of any
monies which it holds hereunder provided the Agent has complied with the
provisions of Section 3.2 hereunder.
4.4 The
Agent shall have the right to assume in the absence of written notice to the
contrary from the proper person or persons that a fact or an event by reason of
which an action would or might be taken by the Agent does not exist or has not
occurred, without incurring liability to the other parties hereto or to anyone
else for any action taken or omitted, or any action suffered by it to be taken
or omitted, in good faith and in the exercise of its own best judgment, in
reliance upon such assumption.
4.5 To
the extent that the Agent becomes liable for the payment of taxes, including
withholding taxes, in respect of income derived from the investment of funds
held hereunder or any payment made hereunder, the Agent may pay such
taxes. The Agent shall be indemnified and held harmless against any
liability for taxes and for any penalties or interest in respect of taxes, on
such investment income or payments in the manner provided in Section
4.6.
4.6 The
Agent will be indemnified and held harmless by the Company from and against any
and all expenses, including reasonable counsel fees and disbursements, or loss
suffered by the Agent in connection with any action, suit or other proceeding
involving any claim, or in connection with any claim or demand, which in any
way, directly or indirectly, arises out of or relates to this Agreement, the
services of the Agent hereunder, the monies or other property held by it
hereunder or any income earned from investment of such monies, except for the
Escrow Agent’s gross negligence or misconduct. Promptly after the
receipt by the Agent or notice of any demand or claim or the commencement of any
action, suit or proceeding, the Agent shall, if a claim in respect thereof is to
be made against the Company, notify the Company thereof in writing, but the
failure by the Agent to give such notice shall not relieve the Company from any
liability which the Company may have to the Agent hereunder.
4.7 For
the purposes hereof, the term “expense or loss” shall include all amounts paid
or payable to satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the Agent, and all costs and expenses, including, but not limited to,
reasonable counsel fees and disbursements, paid or incurred in investigating or
defending against any such claim, demand, action, suit or
proceeding.
5. Termination of Agreement and
Resignation of Agent.
5.1 This
Escrow Agreement shall terminate on the final disposition of the monies and
property held in escrow hereunder, provided that the rights of the Agent and the
obligations of the other parties hereto under Sections 4 and 7 shall survive the
termination hereof.
5.2 The
Agent may resign at any time and be discharged from its duties as Agent
hereunder by giving the Company, Merit Times and the Placement Agent at least 30
days notice thereof. As soon as practicable after its resignation,
the Agent shall turn over to a successor escrow agent appointed by the Company
all monies and property held hereunder upon presentation of the document
appointing the new escrow agent and its acceptance thereof. If no new
Agent is so appointed within the 60-day period following such notice of
resignation, the Agent may deposit the aforesaid monies and property with any
court it deems appropriate.
6. Form of Payments by
Agent.
6.1 Any
payments by the Agent to Purchasers or to persons other than the Company
pursuant to the terms of this Agreement shall be made by check, payable to the
order of each respective subscriber or other person or wire.
6.2 All
amounts referred to herein are expressed in United States Dollars and all
payments by the Agent shall be made in such dollars.
7. Compensation of
Agent. For services rendered, the Agent shall receive as
compensation $2,500.00, $1,250.00 of which shall be paid by the Company promptly
following the signing of this Agreement and $1,250.00 of which shall be paid by
the Company at the First Closing. The Agent shall also be entitled to
retain any income earned on the funds in the escrow account as part of the
Agent’s compensation. The Agent shall also be entitled to
reimbursement from the Company for all expenses paid or incurred by it in the
administration of its duties hereunder, including, but not limited to, all
counsel, advisors’ and Agents’ fees and disbursements and all reasonable taxes
or other governmental charges. It is anticipated that such
disbursement shall not exceed $500.00 barring any unforeseen
circumstances.
8. Notices. All
notices, requests, demands and other communications provided for herein shall be
in writing, shall be delivered by hand or by first-class mail, shall be deemed
given when received and shall be addressed to the parties hereto at their
respective addresses listed below or to such other persons or addresses as the
relevant party shall designate as to itself from time to time in writing
delivered in like manner.
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If
to the Company:
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Emerald
Acquisition Corporation
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c/o
Nautilus Global Partners
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000
Xxxxxx, Xxxxx 000
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Xxxxxxx,
XX 00000
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Attention: Xxxxxx
Xxxxxxx
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Tel.
# (000) 000-0000
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If
to Merit Time:
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Merit
Times International Limited
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Xx.
00 Xxxxx Xxxxxxxx Xxxx
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Xxxxxxx
Xxxx, Xxxxxxxx 265200
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People’s
Republic of China
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Attention: Xxxx
Xxxxx
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Tel.
# (000) 000-0000 Phone
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Fax
# (000)
000-0000
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With
a copy to:
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Xxxxxx
& Xxxxxx LLP
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000
Xxxxx 0 Xxxxx
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Xxxxxxxxx,
XX, 00000
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Attention:
Xxxxx Xxxxxx, Esq.
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Tel.
# (000) 000-0000
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Fax
# (000) 000-0000
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If
to the Agent:
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American
Stock Transfer & Trust Company, LLC
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00
Xxxxxx Xxxx—Xxxxx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention: Xxxxx
Xxxxxxxx
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Tel.
# (000) 000-0000
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Fax
# (000) 000-0000
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If to the Placement Agent:
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Grandview
Capital, Inc.
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0000
Xxxxxx Xxxx, Xxxxx 0000
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Xxxxxxxxxx,
XX 00000
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Attention:
Xxxxx Xxxxxxxxx
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Tel.
# (000) 000-0000
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Fax
# (000) 000-0000
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With
a copy to:
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Ellenoff
Xxxxxxxx & Schole LLP
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000
Xxxx 00xx
Xxxxxx, 00xx
Xxxxx
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Xxx
Xxxx Xxxx, XX 00000
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Attention: Xxxxx
X. Xxxxxxxx, Esq.
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Tel.
# (000) 000-0000
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Fax
# 000-000-0000
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9. Further
Assurances: From time to time on and after the date hereof,
the Company shall deliver or cause to be delivered to the Agent such further
documents and instruments and shall do and cause to be done such further acts as
the Agent shall reasonably request (it being understood that the Agent shall
have no obligation to make any such request) to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance herewith or to
assure itself that it is protected in acting hereunder.
10. Consent to Service of
Process. Each of the Company, Merit Times and the Placement
Agent hereby irrevocably consents to the jurisdiction of the courts of the State
of New York and of any federal court located in such State in connection with
any action, suit or other proceeding arising out of or relating to this
Agreement or any action taken or omitted hereunder, and waives personal service
of any summons, complaint or other process and agrees that the service thereof
may be made by certified or registered mail directed to each of the Company and
the Placement Agent at its address for purposes of notices
hereunder.
11. Miscellaneous.
11.1 This
Agreement shall be construed without regard to any presumption or other rule
requiring construction against the party causing such instrument to be
drafted. The terms “hereby”, “hereof”, “hereto”, “hereunder” and any
similar terms, as used in this Agreement, refer to the Agreement in its entirety
and not only to the particular portion of this Agreement where the term is
used. The word “person” shall mean any natural person, partnership,
company, government and any other form of business or legal
entity. All words or terms used in this Agreement, regardless of the
number or gender, in which they are used, shall be deemed to include any other
number and any other gender as the context may require. This
Agreement shall not be admissible in evidence to construe the provisions of any
prior agreement.
11.2 Succession and
Assignment. This Agreement and the rights and obligations
hereunder of the Company may be assigned by the Company only to a successor to
the Company’s entire business. This Agreement and the rights and
obligations hereunder of the Agent may be assigned by the Agent only to a
successor to its entire business. This Agreement shall be binding
upon and inure to the benefit of each party’s respective successors, heirs and
permitted assigns. No other person shall acquire or have any rights
under or by virtue of this Agreement. This Agreement may not be
changed orally or modified, amended or supplemented without an express written
agreement executed by the Agent, the Company, Merit Times and the Placement
Agent. This Agreement is intended to be for the sole benefit of the
parties hereto, and (subject to the provisions of this Section 11.2) their
respective successors, heirs and assigns, and none of the provisions of this
Agreement are intended to be, nor shall they be construed to be, for the benefit
of any third person.
11.3 Amendments and
Waivers. This Agreement may be amended only with the written
consent of the Agent, the Company, Merit Times and the Placement
Agent. 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.
11.4 Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York. The
representations and warranties contained in this Agreement shall survive the
execution and delivery hereof and any investigations made by any
party. The headings in this Agreement are for purposes of reference
only and shall not limit or otherwise affect any of the terms
hereof.
12. Execution in
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signature of all of the parties reflected hereon as the
signatures.
[Signatures
to Follow on Next Page]
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement on the
day and year first above written.
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AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
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By:
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/s/ Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title: Vice
President
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EMERALD
ACQUSITION CORPORATION, INC.
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name:
Xxxxxx Xxxxxxx
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Title: President
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MERIT
TIMES INTERNATIONAL LIMITED
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By:
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/s/ Zhide Jiang
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Name:
Zhide Jiang
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Title: CEO
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GRANDVIEW
CAPITAL, INC.
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By:
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/s/ Xxxxx Xxxxxxxxx
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Name:
Xxxxx Xxxxxxxxx
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Title: Chairman
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