ESCROW AGREEMENT
THIS ESCROW AGREEMENT (“Agreement”) is
made as of June 8, 2009, by and between Emazing Interactive, Inc., a Nevada
corporation (“Emazing”);
China Net Online Media Group Limited, a company organized under the laws
of the British Virgin Islands (the
“Company,” and together with Emazing, the
“Parties”), Xxxxxx Xxxxxxx,
the majority shareholder of Emazing, and Leser, Hunter, Taubman &
Taubman with offices at 00 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx
00000 (the “Escrow
Agent”).
W I T N E
S S E T H:
WHEREAS, pursuant to the Letter of
Intent dated as of June
8, 2009 (the “Letter”), which is
incorporated herein by reference, the Company agreed to pay certain fees for the
Cancelled Shares (as defined in the Letter).
WHEREAS, Emazing and the Company have
requested that the Escrow Agent hold the fees for the Cancelled Shares (the
“Escrow Funds”) in escrow and distribute such Escrow Funds pursuant to the terms
of this Agreement.
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:
I. ARTICLE
1
TERMS
OF THE ESCROW
1.1 The
parties hereby agree to have Leser, Hunter, Taubman & Taubman act as Escrow
Agent whereby the Escrow Agent shall receive the Escrow Funds in escrow and
release the same as set forth in this Agreement. Any capitalized
terms not defined herein shall have the meaning ascribed to them in the
Letter.
1.2 The Escrow Agent shall hold the Escrow
Funds until such time as the Company receives confirmation from
Emazing’s transfer agent that the Cancelled Shares have been received and
cancelled, which cancellation shall occur no earlier than the closing of the
Transaction (as defined in the Letter), at which time the Escrow Agent shall
release the Escrow Funds to
Xxxxxx Xxxxxxx, pursuant to
the written instructions in the form of Exhibit A attached
hereto and made a part hereof, or in a form and substance satisfactory to, the
Escrow Agent (the “Release Notice”). In the event that the
Transaction is not consummated, the Release Notice, signed by all of the Parties
shall be delivered to the Escrow Agent, and the Escrow Agent shall return the
Escrow Funds to the Company.
1.3 This
Agreement may be altered or amended only with the written consent of all of the
parties hereto. Should either of the Parties attempt to change this
Agreement in a manner, which, in the Escrow Agent’s discretion, shall be
undesirable, the Escrow Agent may resign as Escrow Agent by notifying the
Parties in writing five days in advance. In the case of the Escrow
Agent’s resignation or removal pursuant to the foregoing, his only duty, until
receipt of notice from the Parties that a successor escrow agent has been
appointed, shall be to hold and preserve the Escrow Funds that are in his
possession. Upon receipt by the Escrow Agent of said notice from the
Parties of the appointment of a successor escrow agent, the name of a successor
escrow account and a direction to transfer the Escrow Funds, the Escrow Agent
shall promptly thereafter transfer all of the Escrow Funds that it is still
holding in escrow, to said successor escrow agent. Immediately after
said transfer of the Escrow Funds, the Escrow Agent shall furnish the Parties
with proof of such transfer. The Escrow Agent is authorized to
disregard any notices, requests, instructions or demands received by it from
either of the Parties after the Escrow Agent promptly transfers all of the
Escrow Funds that it is still holding in escrow, to the above said successor
escrow agent.
1.4 The Escrow Agent
shall be reimbursed by the Parties for any reasonable expenses incurred in the
event there is a conflict between the parties and the Escrow Agent shall deem it
necessary to retain counsel, upon whose advice the Escrow Agent may rely. The
Escrow Agent shall also be reimbursed for the costs of any legal opinions that
it seeks in order to fulfill its obligations pursuant to this
Agreement. The Escrow Agent shall not be liable for any action taken
or omitted by him in good faith, including but not limited to any actions taken
in accordance with Sections 1. 2 or 1.3, and in no event shall the Escrow Agent
be liable or responsible except for the Escrow Agent’s own gross negligence or
willful misconduct. The Escrow Agent has made no representations or
warranties to either of the Parties in connection with this transaction. The
Escrow Agent has no liability hereunder to either party other than to hold the
Escrow Funds and to release them under the terms hereof. Each party
hereto agrees to indemnify and hold harmless the Escrow Agent from and with
respect to any suits, claims, actions or liabilities arising in any way out of
this transaction including the obligation to defend any legal action brought
which in any way arises out of or is related to this Agreement.
1.5 The
Escrow Agent has agreed to waive its fee in connection with this transaction as
it applies to the Escrow Agent acting in its capacity as an escrow agent
hereunder. The Escrow Agent’s expenses may be deducted, only with the
written consent of the Parties, from any funds held by the Escrow Agent
hereunder to the extent that they have not been paid or reimbursed by the
parties hereto upon written invoice from the Escrow Agent.
1.6 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 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.
1.7 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.
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1.8 The
Escrow Agent shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
1.9 If
the Escrow Agent reasonably requires other or further documents in connection
with this Agreement, the necessary parties hereto shall join in furnishing such
documents.
1.10 It
is understood and agreed that should any dispute arise with respect to the
delivery and/or ownership or right of possession of the Escrow Funds held by the
Escrow Agent hereunder, the Escrow Agent is authorized and directed in the
Escrow Agent's sole discretion (a) to retain in the Escrow Agent's possession
without liability to anyone all or any part of said Escrow Funds until such
disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of 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 (b) 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
State of New York in accordance with the applicable procedure
therefor.
ARTICLE
2
MISCELLANEOUS
2.1 No
waiver of 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 any extension of the time
for performance of any other obligation or act.
2.2 This
Agreement shall be binding upon and shall inure to the benefit of the permitted
successors and assigns of the parties hereto.
2.3 This
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 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.
2.4 Whenever
required by the context of this Agreement, the singular shall include the plural
and masculine shall include the feminine. This Agreement may be
executed in two or more counterparts, all of which taken together shall
constitute one instrument. Execution and delivery of this Agreement
by exchange of facsimile copies bearing the facsimile signature of a party shall
constitute a valid and binding execution and delivery of this Agreement by such
party. Such facsimile copies shall constitute enforceable original
documents.
3
2.5 The
parties hereto expressly agree that this Agreement shall be governed by,
interpreted under, and construed and enforced in accordance of the laws of the
State of New York. The parties agree that any dispute arising under or with
respect to or in connection with this Agreement, whether during the term of this
Agreement or at any subsequent time, shall be resolved fully and exclusively in
the federal or state courts resident in New York County, New York.
2.6 Any notice, demand, request, waiver or
other communication required or permitted to be given hereunder shall be in
writing and shall be effective (a) upon hand delivery by telex (with correct
answer back received), telecopy or facsimile at the address or number designated
below (if delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such delivery (if
delivered other than on a business day during normal business hours where such
notice is to be received) or (b) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first
occur. The addresses for such communications shall
be:
|
If to
Emazing:
|
Tel. No.:
Fax No.:
|
|
If to the
Company:
|
Xx.
0 Xxx Xxxxxx Xxxx, Xxxxxxxx 0,
Xx
Xxxx Xxx Xx Tuspark,
Haidian
District, Beijing, 100195
Tel.
No.: 00-00-00000000
Fax
No.: 00-00-00000000
|
|
WWith
a copy to:
|
Loeb
& Loeb LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxxx Xxxxxxxx, Esq
Tel
No.:000-000-0000
Fax
No.: 000-000-0000
|
|
If to the Escrow
Agent:
|
Leser, Hunter, Taubman &
Taubman
00 Xxxxx Xxxxxx, Xxxxx
0000
Xxx Xxxx, Xxx Xxxx
00000
Attention: Xxxxx
Xxxxxxx
Tel No.: (000)
000-0000
Fax No.: (000)
000-0000
|
Any party hereto may from time to time
change its address for notices by giving at least ten (10) days written notice
of such changed address to the other party hereto.
4
2.7 By
signing this Agreement, the Escrow Agent becomes a party hereto only for the
purpose of this Agreement; the Escrow Agent does not become a party to the
Letter or any related agreements.
2.8 Each
party acknowledges and agrees that this Agreement shall not be deemed prepared
or drafted by any one party. In the event of any dispute between the
parties concerning this Agreement, the parties agree that any rule of
construction, to the effect that any ambiguity in the language of the Agreement
is to be resolved against the drafting party, shall not apply.
signature
page follows
5
IN WITNESS WHEREOF, the parties hereto
have executed this Escrow Agreement as of the date first set forth
above.
| Executed: | ||||
| Emazing Interactive, Inc. | ||||
| /s/ G. Xxxxxx Xxxxxxx | ||||
| By: G. Xxxxxx Xxxxxxx | ||||
|
President and
Secretary
|
|
China
Net Online Media Group Limited
|
||||
| /s/ Xxxxx Xxxxxxx | ||||
| By: Xxxxx Xxxxxxx | ||||
|
Chief Executive
Officer
|
|
G.
Xxxxxx Xxxxxxx
|
||||
| /s/ G. Xxxxxx Xxxxxxx | ||||
| By: G. Xxxxxx Xxxxxxx | ||||
|
Leser,
Hunter, Taubman & Taubman
|
||||
| /s/ Xxxxx Xxxxxxx | ||||
| By: Xxxxx Xxxxxxx, Member | ||||
6
[Date]
Leser,
Hunter, Taubman & Taubman
00 Xxxxx
Xxxxxx, Xxxxx 00
Xxx Xxxx,
XX 00000
Dear Xx.
Xxxxxxx:
In
accordance with the terms of Section 1.2 of the Escrow Agreement dated as of
June [ ], 2009, by and among Emazing Interactive, Inc., a Nevada
corporation (“Emazing”);
China Net Online Media Group Limited, a company organized under the laws
of the British Virgin Islands (the
“Company,” and together with Emazing, the “Parties”) and you – as Escrow Agent, the
Parties hereby notify you to release the full $300,000 held in escrow (the
“Funds”).
PLEASE
DISTRIBUTE FUNDS BY WIRE TRANSFER AS FOLLOWS (wire instructions
attached):
7
| Very truly yours, | |||||
| Emazing Interactive, Inc. | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
|
China
Net Online Media Group Limited
|
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
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