Exhibit 10.4


 


ESCROW AGREEMENT


 


This ESCROW AGREEMENT
(this “Agreement”) is being made and entered into as of [●], 2015, by and among LONG ISLAND ICED TEA CORP.,
a Delaware corporation (“Holdco”), PHILIP THOMAS, on behalf of the members of Long Island Brand Beverages LLC
(the “Members”), in his capacity as the LIBB Representative under the Merger Agreement (as defined below) and
herein (the “LIBB Representative”), and not in his personal capacity, and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, as escrow agent (the “Escrow Agent”). Capitalized terms used herein that are not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.


 


WHEREAS, Holdco
has entered into the Agreement and Plan of Reorganization (“Merger Agreement”), dated as of December 31,
2014 and amended as of April 23, 2015, by and among Cullen Agricultural Holding Corp., a Delaware corporation
(“Parent”), Holdco, Cullen Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Holdco
(“Parent Merger Sub”), LIBB Acquisition Sub, LLC, a New York limited liability company and wholly owned
subsidiary of Holdco (“Company Merger Sub”), Long Island Brand Beverages LLC, a New York limited liability
company (the “Company”), and Phil Thomas (“Thomas”) and Thomas Panza
(“Panza” and together with Thomas, the “Founders”);


 


WHEREAS, pursuant to
the Merger Agreement, (i) Parent Merger Sub will merge with and into Parent, with Parent being the surviving entity and the stockholders
of Parent receiving one share of common stock, par value $0.0001 per share, of Holdco (together with any securities issued in exchange
therefore or in respect thereof, “Holdco Common Stock”) for every 15 shares of common stock, par value $0.0001 per
share, of Parent held by them, and (ii) Company Merger Sub will merge with and into the Company, with the Company being the surviving
entity and the Members receiving shares of Holdco Common Stock, as a result of which Parent and the Company will become wholly
owned subsidiaries of Holdco and Holdco will become a public company;


 


WHEREAS, pursuant to
the Merger Agreement, (i) Parent, Surviving Pubco and the Surviving Subsidiaries and their respective successors and permitted
assigns (the “Parent Indemnitees”) are entitled to be indemnified in certain respects by the Members and (ii)
the consideration payable to the Members is subject to downward adjustment based on the working capital of Parent and the Company
at the Closing;


 


WHEREAS, the parties
desire to establish segregated escrow funds as collateral security and the sole remedy for the Members’ indemnification obligations
under the Merger Agreement and as the sole means of providing for any such downward working capital adjustment;


 


WHEREAS, Paul Vassilakos
has been appointed as the sole member of the Committee under the Merger Agreement and herein (the “Committee”);
and


 


WHEREAS, (i) the LIBB
Representative has been designated pursuant to the Merger Agreement as each Signing Member’s representative and agent to
represent all of the Signing Members, and to act on their behalf for purposes of this Agreement, and (ii) the Committee has been
designated pursuant to the Merger Agreement to act on behalf of Parent and Holdco to take all necessary actions and make all decisions
pursuant to this Agreement after the Closing.


 




    	 



    	 



    

 


NOW, THEREFORE, the
parties hereto agree as follows:


 


1.          (a)          Concurrently
with the execution hereof, each of the Signing Members (or the LIBB Representative or Holdco, on their behalf) is delivering
to the Escrow Agent, to be held in escrow pursuant to the terms of this Agreement, (i) a stock certificate for the number of
shares of Holdco Common Stock set forth in a written notice delivered by the LIBB Representative to the Escrow Agent and the
Committee prior to the date hereof, to be held by the Escrow Agent as collateral security and the sole remedy for the
Members’ indemnification obligations under the Merger Agreement, all such certificates together representing 500,000
shares of Holdco Common Stock in the aggregate (the “Indemnity Escrow Shares”), and (ii) a stock
certificate for the number of shares of Holdco Common Stock set forth in a written notice delivered by the LIBB
Representative to the Escrow Agent and the Committee prior to the date hereof, to be held by the Escrow Agent as the sole
means of providing for any downward working capital adjustment under the Merger Agreement, all such certificates together
representing  66,667 shares of Holdco Common Stock in the aggregate (the “Adjustment Escrow Shares,” and
together with the Indemnity Escrow Shares, the “Escrow Shares”), each issued in the name of such Member
representing a portion of the Holdco Common Stock issued to such Member pursuant to the Merger Agreement, together with three
(3) assignments (separate from certificate) executed in blank by such Member, with medallion signature guarantees. The
Indemnity Escrow Shares so delivered by the Sellers to the Escrow Agent are herein referred to in the aggregate as the
“Indemnity Escrow Fund” and the Adjustment Escrow Shares so delivered by the Sellers to the Escrow Agent
are herein referred to in the aggregate as the “Adjustment Escrow Fund.” The Indemnity Escrow Fund and the
Adjustment Escrow Fund together are herein referred to in the aggregate as the “Escrow Fund.” The
Signing Members and any Permitted Transferees (as defined below), for as long as they continue to own any portion of the
Escrow Fund, are referred to herein as the “Owners.” The Escrow Agent shall maintain a separate account
for each Owner’s portion of the Indemnity Escrow Fund and for each Owner’s portion of the Adjustment Escrow
Fund.


 


(b)          The
LIBB Representative (on behalf of the Members) and the Committee (on behalf of the Parent Indemnitees) hereby appoint the Escrow
Agent as their escrow agent for the purposes set forth herein, and the Escrow Agent hereby agrees to act as escrow agent and to
hold, safeguard and disburse the Escrow Fund pursuant to the terms and conditions hereof. The Escrow Agent shall treat the Escrow
Fund as a trust fund in accordance with the terms of this Agreement and not as the property of Holdco. The Escrow Agent’s
duties hereunder shall terminate upon its distribution of the entire Escrow Fund in accordance with this Agreement.


 


(c)          Except
as herein provided, the Owners shall retain all of their rights as stockholders of Holdco with respect to shares of Holdco Common
Stock constituting the Escrow Fund during the period the Escrow Fund is held by the Escrow Agent (the “Escrow Period”),
including, without limitation, the right to vote their shares of Holdco Common Stock included in the Escrow Fund.


 




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(d)          During
the Escrow Period, all dividends payable with respect to the shares of Holdco Common Stock included in the Escrow Fund shall be
paid by Holdco directly to the Owners (or if received by the Escrow Agent, promptly forwarded to the Owners (as directed by the
LIBB Representative), except that any dividends payable in stock or other securities (“Securities Dividends”)
shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. As used herein, the term “Indemnity
Escrow Fund” shall be deemed to include the Securities Dividends distributed thereon, if any, and the “Adjustment
Escrow Fund” shall be deemed to include the Securities Dividends distributed thereon, if any.


 


(e)          During
the Escrow Period, except to the Parent Indemnitees as provided herein or with the prior written consent of Holdco, no sale, transfer
or other disposition may be made of any or all of the shares of Holdco Common Stock in the Escrow Fund except (i) to a Permitted
Transferee (as hereinafter defined), (ii) by virtue of the laws of descent and distribution upon death of any Owner, or (iii) pursuant
to a qualified domestic relations order; provided, however, that such permissive transfers may be implemented only upon the respective
transferee’s written agreement to be bound by the terms and conditions of this Agreement. As used in this Agreement, the
term “Permitted Transferee” shall include: (x) members of an Owner’s Immediate Family (as hereinafter
defined); (y) an entity in which (A) an Owner and/or members of an Owner’s Immediate Family directly or indirectly beneficially
own 100% of such entity’s voting and non-voting equity securities, or (B) an Owner and/or a member of such Owner’s
Immediate Family is a general partner and in which such Owner and/or members of such Owner’s Immediate Family directly or
indirectly beneficially own 100% of all capital accounts of such entity; and (z) a revocable trust established by an Owner during
his lifetime for the benefit of such Owner or for the exclusive benefit of all or any of such Owner’s Immediate Family. As
used in this Agreement, the term “Immediate Family” means, with respect to any Owner, a spouse, parents, lineal
descendants, the spouse of any lineal descendant, and brothers and sisters (or a trust, all of whose current beneficiaries are
members of an Immediate Family of the Owner). In connection with and as a condition to each permitted transfer, the Permitted Transferee
shall deliver to the Escrow Agent an assignment (separate from certificate) executed by the transferring Owner, with medallion
signature guaranty, or where applicable, an order of a court of competent jurisdiction, evidencing the transfer of shares to the
Permitted Transferee, together with three (3) assignments (separate from certificate) executed in blank by the Permitted Transferee,
with medallion signature guaranties, with respect to the shares transferred to the Permitted Transferee. Upon receipt of such documents,
the Escrow Agent shall deliver to Holdco’s transfer agent the original stock certificate out of which the assigned shares
are to be transferred, together with the executed assignment separate from certificate executed by the transferring Owner, or a
copy of the applicable court order, and shall request that Holdco issue new certificates representing (x) the number of shares,
if any, that continue to be owned by the transferring Owner, and (y) the number of shares owned by the Permitted Transferee as
the result of such transfer. Holdco, the transferring Owner and the Permitted Transferee shall cooperate in all respects with the
Escrow Agent in documenting each such transfer and in effectuating the result intended to be accomplished thereby. During the Escrow
Period, no Owner shall pledge or grant a security interest in such Owner’s shares of Holdco Common Stock included in the
Escrow Fund or grant a security interest in such Owner’s rights under this Agreement.


 




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2.          (a)          The
Committee, on behalf of the Parent Indemnitees, may make a claim for indemnification pursuant to the Merger Agreement (“Indemnification
Claim”) against the Indemnity Escrow Fund by giving notice (a “Notice”) to the LIBB Representative
(with a copy to the Escrow Agent) specifying (i) the covenant, representation, warranty, agreement, undertaking or obligation contained
in the Merger Agreement which it asserts has been breached or otherwise entitles the Parent Indemnitees to indemnification, (ii)
in reasonable detail, the nature and actual or estimated dollar amount of any Indemnification Claim, and (iii) whether the Indemnification
Claim results from a Third Party Claim against Parent Indemnitees; provided, that the copy provided to the Escrow Agent
may be redacted for confidential, proprietary or privileged information. The Committee also shall deliver to the Escrow Agent (with
a copy to the LIBB Representative (and affirmatively confirm receipt by the LIBB Representative)), concurrently with its delivery
to the Escrow Agent of the Notice, a certification as to the date on which the Notice was delivered to the LIBB Representative.


 


(b)          If
the LIBB Representative shall give a notice to the Committee (with a copy to the Escrow Agent) (a “Counter Notice”),
within 30 days following the date of receipt by the LIBB Representative of the Notice, disputing whether the Indemnification Claim
is indemnifiable under the Merger Agreement, the Committee and the LIBB Representative shall attempt to resolve such dispute by
voluntary settlement as provided in paragraph 2(c) below. If no Counter Notice with respect to an Indemnification Claim is received
by the Escrow Agent from the LIBB Representative within such 30-day period, the Indemnification Claim shall be deemed to be an
Established Claim (as hereinafter defined) for purposes of this Agreement.


 


(c)          If
the LIBB Representative delivers a Counter Notice to the Escrow Agent, the Committee and the LIBB Representative shall, during
the period of 30 days following the delivery of such Counter Notice or such greater period of time as the parties may agree to
in writing (with a copy to the Escrow Agent), attempt to resolve the dispute with respect to which the Counter Notice was given.
If the Committee and the LIBB Representative shall reach a settlement with respect to any such dispute, they shall jointly deliver
written notice of such settlement to the Escrow Agent specifying the terms thereof. If the Committee and the LIBB Representative
shall be unable to reach a settlement with respect to a dispute, such dispute shall be resolved by arbitration pursuant to paragraph
2(d) below.


 


(d)          If
the Committee and the LIBB Representative cannot resolve a dispute prior to expiration of the 30-day period referred to in paragraph
2(c) above (or such longer period as the parties may have agreed to in writing), then such dispute shall be submitted (and either
party may submit such dispute) for arbitration in accordance with Section 10. For the avoidance of doubt, nothing in this Section
‎2 will affect the rights and obligations of the parties with respect to Third Party Claims
under Section 7.2 of the Merger Agreement.


 


(e)          As
used in this Agreement, “Established Claim” means any (i) direct Indemnification Claim deemed established
pursuant to the last sentence of paragraph 2(b) above, (ii) direct Indemnification Claim resolved in favor of Parent Indemnitees
by settlement pursuant to paragraph 2(c) above, resulting in a dollar award to Parent Indemnitees, (iii) direct Indemnification
Claim established by the decision of an arbitrator pursuant to paragraph 2(d) above, resulting in a dollar award to Parent Indemnitees,
(iv) Third Party Claim that has been sustained by a final determination (after exhaustion of any appeals) of a court of competent
jurisdiction, or (v) Third Party Claim that the Committee and the Representative have jointly notified the Escrow Agent has been
settled in accordance with the provisions of the Merger Agreement; provided, however, that an Indemnification Claim
shall not be deemed an Established Claim to the extent that no amount is payable pursuant to Section 7.4(b) of the Merger Agreement.


 




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(f)          (i)          Promptly
after an Indemnification Claim becomes an Established Claim, the Committee and the LIBB Representative shall jointly deliver a
notice to the Escrow Agent (a “Joint Notice”) directing the Escrow Agent to pay to Parent Indemnitees, and the
Escrow Agent promptly shall pay to Parent Indemnitees, an amount equal to the aggregate dollar amount of the Established Claim
(or, if at such time there remains in the Escrow Fund less than the full amount so payable, the full amount remaining in the Escrow
Fund).


 


(ii)         Payment
of an Established Claim shall be made from the Indemnity Escrow Fund pro rata from the Indemnity Escrow Fund account maintained
on behalf of each Owner. For purposes of each payment, the shares of Holdco Common Stock shall be valued at the Fair Market Value
(as defined below). However, in no event shall the Escrow Agent be required to calculate Fair Market Value or make a determination
of the number of shares to be delivered to Holdco in satisfaction of any Established Claim; rather, such calculation shall be included
in and made part of the Joint Notice. The Escrow Agent shall transfer to the Parent Indemnitees out of the Indemnity Escrow Fund
that number of shares of Holdco Common Stock necessary to satisfy each Established Claim, as set out in the Joint Notice. Any dispute
between the Committee and the LIBB Representative concerning the calculation of Fair Market Value or the number of shares necessary
to satisfy any Established Claim, or any other dispute regarding a Joint Notice, shall be resolved between the Committee and the
LIBB Representative in accordance with the procedures specified in paragraph 2(d) above, and shall not involve the Escrow Agent.
Each transfer of shares in satisfaction of an Established Claim shall be made by the Escrow Agent delivering to Holdco one or more
stock certificates held in each Owner’s Indemnity Escrow Fund account evidencing not less than such Owner’s pro rata
portion of the aggregate number of shares specified in the Joint Notice, together with assignments (separate from certificate)
executed in blank by such Owner and completed by the Escrow Agent in accordance with instructions included in the Joint Notice.
Upon receipt of the stock certificates and assignments, Holdco shall deliver to the Escrow Agent new certificates representing
the number of shares owned by each Owner after such payment. The parties hereto (other than the Escrow Agent) agree that the foregoing
right to make payments of Established Claims in shares of Holdco Common Stock may be made notwithstanding any other agreements
restricting or limiting the ability of any Owner to sell any shares of Holdco stock or otherwise. The Committee and the LIBB Representative
shall be required to exercise utmost good faith in all matters relating to the preparation and delivery of each Joint Notice. As
used herein, “Fair Market Value” means the volume-weighted average price for a share of Holdco Common Stock,
as reported by Bloomberg, L.P. (or, if Bloomberg ceases to publish such price, any successor service reasonably chosen by Holdco),
for the twenty (20) consecutive trading days ending on the trading day immediately prior to the Measurement Date, or if such volume-weighted
average price is unavailable, the average of the closing sale price of one share of Holdco Common Stock for such period as reported
on the primary exchange on which Holdco Common Stock is traded or reported, or if such closing sale price is unavailable, the average
of the closing bid price of one share of Holdco Common Stock for such period as reported by the OTCBB. As used herein, “Measurement
Date” means (x) the day an Established Claim is paid with respect to Indemnification Claims paid on or before the Escrow
Termination Date and (y) the Escrow Termination Date with respect to shares constituting the Pending Claims Reserve.


 




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(iii)        Notwithstanding
anything herein to the contrary, at such time as an Indemnification Claim has become an Established Claim, the LIBB Representative
shall have the right, in its sole discretion, to substitute for any or all of the shares of Holdco Common Stock that otherwise
would be paid in satisfaction of such claim (such amount of shares actually substituted, the “Claim Shares”),
cash in an amount equal to the Fair Market Value of the Claim Shares (“Substituted Cash”). In such event (i)
the Joint Notice shall include a statement describing the substitution of Substituted Cash for the Claim Shares, and (ii) substantially
contemporaneously with the delivery of such Joint Notice, the LIBB Representative shall cause currently available funds to be delivered
to the Escrow Agent in an amount equal to the Substituted Cash. Upon receipt of such Joint Notice and Substituted Cash, the Escrow
Agent shall (y) in payment of the Established Claim described in the Joint Notice, deliver the Substituted Cash to the Parent Indemnitees
in lieu of the Claim Shares in which they were paid (along with any shares of Holdco Common Stock other than Claim Shares used
to satisfy the claim), and (z) cause the Claim Shares to be returned to the Owners, as directed by the LIBB Representative (which
will be based on the portion of Substituted Cash provided by each Owner, which is not required to be pro rata based on their ownership
of the Escrow Fund as of the date of this Agreement).


 


3.          (a)          On
the first Business Day after the Escrow Termination Date, upon receipt of a Joint Notice, the Escrow Agent shall distribute and
deliver to each Owner certificates representing shares of Holdco Common Stock then in such Owner’s account in the Escrow
Fund equal to the original number of shares placed in such Owner’s account less that number of shares in such Owner’s
account equal to the sum of (i) the number of shares applied in satisfaction of Indemnification Claims made prior to that date
or released as Claim Shares pursuant to Section 2(f)(iii) and (ii) the number of shares in the Pending Claims Reserve allocated
to such Owner’s account, as provided in the following sentence. If, at such time, there are any Indemnification Claims with
respect to which Notices have been received, but in respect of which the Escrow Agent has not been notified that such claim has
been resolved pursuant to Section 2 hereof, or in respect of which the Escrow Agent has not been notified of a settlement or notified
of, and received a copy of, a final determination (after exhaustion of any appeals) by a court of competent jurisdiction, as the
case may be (in any such case, “Pending Claims”), and which, if resolved or finally determined in favor of the
Parent Indemnitees, would result in a payment to the Parent Indemnitees, the Escrow Agent shall retain in the Pending Claims Reserve
that number of shares of Holdco Common Stock having a Fair Market Value equal to the dollar amount for which indemnification is
sought in such Indemnification Claim, allocated pro rata from the account maintained on behalf of each Owner. The Committee and
the LIBB Representative shall certify to the Escrow Agent the Fair Market Value to be used in calculating the Pending Claims Reserve
and the number of shares of Holdco Common Stock to be retained therefor. If any Pending Claim is or thereafter becomes an Established
Claim, the Committee and the LIBB Representative shall deliver to the Escrow Agent a Joint Notice directing the Escrow Agent to
deliver to Holdco the number of shares in the Pending Claims Reserve in respect thereof determined in accordance with paragraph
2(f) above and to deliver to each Owner the remaining shares in the Pending Claims Reserve allocated to such Pending Claim, all
as specified in a Joint Notice. If any Pending Claim is resolved against Holdco, the Committee and the LIBB Representative shall
deliver to the Escrow Agent a Joint Notice directing the Escrow Agent to pay to each Owner its pro rata portion of the number of
shares allocated to such Pending Claim in the Pending Claims Reserve.


 




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(b)          As
used herein, the “Pending Claims Reserve” shall mean, at the time any such determination is made, that number
of shares of Holdco Common Stock in the Indemnity Escrow Fund having a Fair Market Value equal to the sum of the aggregate dollar
amounts claimed to be due with respect to all Pending Claims (as shown in the Notices of such Claims).


 


4.          Not
later than three (3) Business Days after (i) if there are no Items of Dispute, the thirtieth (30th) calendar day after
the Independent Parties’ receipt of the Closing Net Working Capital Statement, or (ii) if there are Items of Dispute, the
day such Items of Dispute are finally resolved in accordance with the Section 1.5(d) of the Merger Agreement, the Committee and
the LIBB Representative shall deliver a joint notice (the “Adjustment Notice”) to the Escrow Agent instructing
the Escrow Agent to, and the Escrow Agent shall, (i) transfer to Holdco the aggregate number of Adjustment Escrow Shares determined
under Section 1.5(d)(iv) of the Merger Agreement, pro rata from each Owner’s Adjustment Escrow Fund account (or, if at such
time there remains in the Adjustment Escrow Fund less than such number of shares, the full number of shares remaining in the Adjustment
Escrow Fund), and (ii) thereafter distribute and deliver to each Owner certificates representing any shares of Holdco Common Stock
remaining in such Owner’s Adjustment Escrow Fund account. However, in no event shall the Escrow Agent be required to calculate
the number of Adjustment Escrow Shares to be transferred to Holdco under Section 1.5(d)(iv) of the Merger Agreement, which amounts
shall be set forth in the Adjustment Notice. Each transfer of Adjustment Escrow Shares to Holdco shall be made by the Escrow Agent
delivering to Holdco one or more stock certificates held in each Owner’s Adjustment Escrow Fund account evidencing not less
than such Owner’s pro rata portion of the aggregate number of shares specified in the Adjustment Notice, together with assignments
(separate from certificate) executed in blank by such Owner and completed by the Escrow Agent in accordance with instructions included
in the Adjustment Notice. Upon receipt of the stock certificates and assignments, Holdco shall deliver to the Escrow Agent for
distribution to the Owners in accordance with this Section 4 new certificates representing the number of shares owned by each Owner
after such transfer.


 


5.          Notwithstanding
anything to the contrary contained in this Agreement, no portion of the Escrow Fund shall be issued and delivered to any Owner
until such time as the Company Certificates representing the Company Membership Units in respect of which the Escrow Shares were
initially issued shall have been surrendered as provided by Section 1.6 of the Merger Agreement (or an affidavit in lieu thereof
shall have been delivered as provided by Section 1.8 of the Merger Agreement). In the event a distribution of a portion of the
Escrow Fund is to be made prior to such surrender, the portion of the Escrow Fund to which the Owner is otherwise entitled shall
be delivered in trust to Holdco, which shall hold such portion of the Escrow Fund pending surrender of such Company Certificates
or expiration of any period resulting in escheatment or forfeiture of same.


 




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6.            The
Escrow Agent, the Committee and the Representative shall cooperate in all respects with one another in the calculation of any amounts
determined to be payable to Holdco and the Owners in accordance with this Agreement and in implementing the procedures necessary
to effect such payments.


 


7.            (a)          The
Escrow Agent undertakes to perform only such duties as are expressly set forth herein. It is understood that the Escrow Agent is
not a trustee or fiduciary and is acting hereunder merely in a ministerial capacity.


 


(b)          The
Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgment,
and 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 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 believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement
unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights
of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.


 


(c)          The
Escrow Agent’s sole responsibility upon receipt of any notice requiring any payment to Parent Indemnitees pursuant to the
terms of this Agreement or, if such notice is disputed by the Committee or the LIBB Representative, the settlement with respect
to any such dispute, whether by virtue of joint resolution, arbitration or determination of a court of competent jurisdiction,
is to pay to Parent Indemnitees the amount specified in such notice, and the Escrow Agent shall have no duty to determine the validity,
authenticity or enforceability of any specification or certification made in such notice.


 


(d)          The
Escrow Agent shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the rights
or powers conferred upon it by this Agreement, and may consult with counsel of its own choice and shall have full and complete
authorization and indemnification under Section 5(g), below, for any action taken or suffered by it hereunder in good faith and
in accordance with the opinion of such counsel.


 


(e)          The
Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties
hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective
at such time that the Escrow Agent shall turn over the Escrow Fund to a successor escrow agent appointed jointly by the Committee
and the LIBB Representative. If no new escrow agent is so appointed within the 60 day period following the giving of such notice
of resignation, the Escrow Agent may deposit the Escrow Fund with any court of competent jurisdiction that it reasonably deems
appropriate.


 




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(f)          The
Escrow Agent shall be indemnified and held harmless by Holdco and the Members from and against any expenses, including counsel
fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving
any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent
hereunder, or the Escrow Fund held by it hereunder, other than expenses or losses arising from the gross negligence or willful
misconduct of the Escrow Agent or its affiliates. Promptly after the receipt by the Escrow Agent of notice of any demand or claim
or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the
event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader
in the any state or federal court located in New York County, State of New York. Notwithstanding the foregoing, solely as between Holdco and the LIBB Representative on behalf of the Members,
each of the Members shall be indemnified and held harmless by Holdco from and against any and all losses, damages, liability, costs
and expenses (including without limitation reasonable legal fees) incurred or suffered by such Member that arises out of or relates
to it obligation to indemnify the Escrow Agent pursuant to this Section 7(f).


 


(g)          The
Escrow Agent shall be entitled to reasonable compensation from Holdco for all services rendered by it hereunder in accordance with
the amounts set forth on Schedule A hereto. The Escrow Agent shall also be entitled to reimbursement from Holdco for all
reasonable documented out-of-pocket 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 taxes or other governmental charges.


 


(h)          From
time to time on and after the date hereof, the Committee and the LIBB Representative shall deliver or cause to be delivered to
the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent
shall reasonably 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.


 


(i)          Notwithstanding
anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own or its affiliates’
gross negligence or its own or its affiliates’ willful misconduct.


 


8.           This
Agreement expressly sets forth all the duties of the Escrow Agent with respect to any and all matters pertinent hereto. No implied
duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not be bound by the provisions
of any agreement among the parties hereto except this Agreement and shall have no duty to inquire into the terms and conditions
of any agreement made or entered into in connection with this Agreement, including, without limitation, the Merger Agreement.


 


9.           This
Agreement shall inure to the benefit of and be binding upon the parties and their respective heirs, successors, assigns and legal
representatives shall be governed by and construed in accordance with the law of New York applicable to contracts made and to be
performed therein. This Agreement cannot be changed or terminated except by a writing signed by Holdco, the Committee, the LIBB
Representative and the Escrow Agent.


 




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10.         All
disputes arising under this Agreement between the Committee, Holdco and the LIBB Representative, including a dispute arising from
a party’s failure or refusal to sign a Joint Notice (any of the foregoing, a “Dispute”), shall be submitted
to arbitration to the American Arbitration Association (“AAA”) in New York, New York and finally settled under
the AAA Commercial Arbitration Rules (the “Rules”), unless otherwise agreed, by an arbitral tribunal composed
of three (3) arbitrators, at least one (1) of whom shall be an attorney experienced in corporate transactions, appointed by agreement
of the parties to such Dispute in accordance with said Rules. In the event such parties fail to agree upon a panel of arbitrators
from the first list of potential arbitrators proposed by the AAA, the AAA will submit a second list in accordance with such Rules.
In the event such parties shall have failed to agree upon a full panel of arbitrators from such second list, any remaining arbitrators
to be selected shall be appointed by the AAA in accordance with such Rules. If at the time of the arbitration the parties to such
Dispute agree in writing to submit the dispute to a single arbitrator, such single arbitrator shall be appointed by agreement of
such parties in connection with the foregoing procedure or failing such agreement by the AAA in accordance with such Rules. All
arbitrators shall be neutral arbitrators and subject to the Rules. The arbitrators shall apply the laws of the State of New York,
shall not have the authority to add to, detract from, or modify any provision hereof. To the extent that the Rules and this Agreement
are in conflict, the terms of this Agreement shall control. A decision by a majority of the arbitrators shall be final, conclusive
and binding and may be entered and enforced in any court of competent jurisdiction. The arbitrators shall deliver a written and
reasoned award with respect to the dispute to each of the parties to the dispute, difference, controversy or claim, who shall promptly
act in accordance therewith. Time is of the essence and the proceedings shall be streamlined and efficient. The arbitration proceedings
conducted pursuant hereto shall be confidential. No party shall disclose any information about the arbitration proceedings or the
evidence adduced by the other parties in any arbitration proceeding or about documents provided by the other parties in connection
with the arbitration proceeding except in the course of a judicial, regulatory or arbitration proceeding or as may be requested
by a governmental authority or as required or advisable under law or exchange rules. Before making any disclosure permitted by
the preceding sentence, the party intending to make such disclosure shall give the other parties reasonable written notice of the
intended disclosure. The parties shall sign, and the arbitrator, expert witnesses and stenographic reporters shall be asked to
sign, appropriate non-disclosure agreements or orders in order to effectuate this Agreement of the parties as to confidentiality.
The provisions of this Section 10 may be enforced in any court having jurisdiction over the award or any of the parties or any
of their respective assets, and judgment on the award (including equitable remedies) granted in any arbitration hereunder may be
entered in any such court. Nothing contained in this Section10 shall prevent any party from seeking injunctive or other equitable
relief from any court of competent jurisdiction, without the need to resort to arbitration.


 


11.         This
Agreement shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to its
choice of law principles). Subject to paragraph ‎10, each party hereby irrevocably submits to the exclusive jurisdiction of
any federal or state court located in the county of New York, State of New York in respect of any action, suit or proceeding arising
in connection with this Agreement and the transactions contemplated hereby, and agrees that any such action, suit or proceeding
shall be brought only in such court (and waives any objection based on forum non conveniens or any other objection to venue therein);
provided, however, that such consent to jurisdiction is solely for the purpose referred to in this paragraph 11 and shall not be
deemed to be a general submission to the jurisdiction of said courts or in the State of New York other than for such purpose. Any
and all process may be served in any action, suit or proceeding arising in connection with this Agreement by complying with the
provisions of paragraph ‎13. Such service of process shall have the same effect as if the party being served were a resident
of the State of New York and had been lawfully served with such process in such jurisdiction. The parties hereby waive all claims
of error by reason of such service. Nothing herein shall affect the right of any party to service process in any other manner permitted
by law or to commence legal proceedings or otherwise proceed against the other in any other jurisdiction to enforce judgments or
rulings of the aforementioned courts.


 




    	-10-



    	 	 



    

 


12.         EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.


 


13.         All
notices and other communications under this Agreement shall be in writing and shall be deemed given if given by hand or delivered
by nationally recognized overnight carrier, or if given by telecopier with affirmative confirmation of receipt and confirmed by
mail (registered or certified mail, postage prepaid, return receipt requested), to the respective parties as follows:


 


A.           If
to the LIBB Representative, to it at:


 


Philip Thomas

c/o Long Island Brand Beverages LLC

P.O. Box 845

Long Beach, New York 11561

Telephone:

Facsimile:

E-mail:


 


			with a copy to:



Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas, 11th Floor

New York, NY 10105

Attention: Sarah Williams

Telephone: (212) 370-1300

Facsimile: (212) 370-7889

Email: swilliams@egsllp.com



 


B.           If
to Holdco or the Committee, to it at:


 


Paul Vassilakos

180 Madison Avenue

Suite 1702

New York, N.Y. 10016

Telephone:

Facsimile:

E-mail:


 




    	-11-



    	 	 



    

			with a copy to:



Graubard Miller

405 Lexington Avenue, 11th Floor

New York, N.Y. 10174

Attention: David Alan Miller, Esq.

Telephone: (212) 818-8800

Facsimile: (212) 818-8881

Email: dmiller@graubard.com



 


C.           If
to the Escrow Agent, to it at:


 


Continental Stock Transfer & Trust
Company

17 Battery Place

New York, New York 10004

Attention: Mark Zimkind

Telecopier No.: 212-509-5150


 


or to such other person or address as any
of the parties hereto shall specify by notice in writing to all the other parties hereto.


 


14.         This
Agreement and the rights and obligations hereunder may not be assigned without the prior written consent of each of the parties
hereto; provided, however, that if (a) the LIBB Representative is replaced in accordance with the terms of the Merger
Agreement, the replacement LIBB Representative shall automatically become a party to this Agreement as if it were the original
LIBB Representative hereunder upon providing (i) written notice to the Escrow Agent and the Committee of such replacement and accepting
its rights and obligations under this Agreement and (ii) the Escrow Agent with any documentation reasonably required by the Escrow
Agent from such replacement LIBB Representative to comply with applicable law and the Escrow Agent’s internal procedures
or (b) the Committee is replaced in accordance with the terms of the Merger Agreement, the replacement Committee shall automatically
become a party to this Agreement as if it were the original Committee hereunder upon providing (i) written notice to the Escrow
Agent and the LIBB Representative of such replacement and accepting its rights and obligations under this Agreement and (ii) the
Escrow Agent with any documentation reasonably required by the Escrow Agent from such replacement Committee to comply with applicable
law and the Escrow Agent’s internal procedures. This Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and permitted assigns.


 


15.         In
the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application
of such provision to other persons or entities or circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.


 


16.         No
failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed
to be a waiver of, or acquiescence in, any breach of any representation, warranty, covenant or agreement herein, nor will any single
or partial exercise of any such right preclude any other (or further) exercise thereof or of any other right. All rights and remedies
existing under this Agreement are cumulative to, and not exclusive to or exclusive of, any rights or remedies otherwise available
to a party hereunder.


 




    	-12-



    	 	 



    

  


17.         The
terms and provisions of this Agreement (including the Exhibits hereto, which are hereby incorporated by reference herein) constitute
the entire agreement between the Escrow Agent and the other parties hereto with respect to the subject matter hereof. Notwithstanding
the foregoing, as between Holdco, the Committee and the LIBB Representative, the terms of the Merger Agreement shall control and
govern over the terms of this Agreement in the event of any conflict or inconsistency between this Agreement and the Merger Agreement.
The actions of the Escrow Agent shall be governed solely by this Agreement.


 


18.         (a)          If
this Agreement requires a party to deliver any notice or other document, and such party refuses to do so, the matter shall be submitted
to arbitration pursuant to paragraph ‎10 of this Agreement.


 


(b)          All
notices delivered to the Escrow Agent shall refer to the provision of this Agreement under which such notice is being delivered
and, if applicable, shall clearly specify the aggregate dollar amount due and payable to Holdco.


 


(c)          This
Agreement may be executed in any number of counterparts (including by facsimile or other electronic transmission), each of which
shall be deemed to be an original instrument and all of which together shall constitute a single agreement.


 


[Signatures are on following page]


 




    	-13-



    	 	 



    

 


IN WITNESS WHEREOF,
each of the parties hereto has duly executed this Escrow Agreement as of the date first above written.


 


	 	HOLDCO:
	 	 
	 	LONG ISLAND ICED TEA CORP.
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	THE LIBB REPRESENTATIVE:
	 	 	 
	 	 	 
	 	Phil Thomas, in his capacity as the LIBB Representative 
under the Merger Agreement on behalf of the Members, and 
not in his personal capacity
	 	 	 
	 	THE ESCROW AGENT:
	 	 
	 	CONTINENTAL STOCK TRANSFER &
	 	TRUST COMPANY
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 


[Signature Page to Escrow Agreement]


 




    	 



    	 



    

 


Schedule A

Escrow Agent Fee Schedule 


 


	Item	 	Amount	 
	Review of the Agreement	 	$	1500	 
	Any subsequent review if the Agreement is extended	 	$	1500	 
	Monthly fee during the Escrow Period	 	$	500