EXHIBIT 10.24


FORM OF ESCROW AGREEMENT


 


This ESCROW AGREEMENT
(this “Agreement”) dated as of December 20, 2012, among MusclePharm Corporation, a Nevada corporation (the “Issuer”),
and Aegis Capital Corp. (the “Placement Agent”), whose addresses and other information appear on the Information
Sheet (as defined herein) attached to this Agreement, and Continental Stock Transfer & Trust Company, 17 Battery Place, 8th
Floor, New York, NY 10004 (the “Escrow Agent”).


 


WITNESSETH:


 


WHEREAS, the Issuer
is offering to qualified investors on a “best efforts” basis (the “Offering”), up to ____ shares
of the Issuer’s Series D Convertible Preferred Stock (the “Securities”) for aggregate consideration of
$__ (the “Maximum Offering Amount”), pursuant to closings as may be agreed upon from time to time by
the Issuer and the Placement Agent.


 


WHEREAS, the Issuer
and the Placement Agent propose to establish an escrow account (the “Escrow Account”), to which subscription
monies which are received by the Escrow Agent from the subscribers of the Securities (the “Investors”) or the
Placement Agent in connection with the Offering are to be credited, and the Escrow Agent is willing to establish the Escrow Account
on the terms and subject to the conditions hereinafter set forth; and


 


WHEREAS, the Escrow
Agent has agreed to establish a special bank account at J.P. Morgan Chase Bank (the “Bank”) into which the subscription
monies, which are received by the Escrow Agent from the Investors or the Placement Agent and credited to the Escrow Account, are
to be deposited.


 


NOW, THEREFORE, in
consideration of the premises and mutual covenants herein contained, the parties hereto hereby agree as follows:


 


1.           Information
Sheet. Each capitalized term not otherwise defined in this Agreement shall have the meaning set forth for such term on the
information sheet which is attached to this Agreement as Exhibit A and is incorporated by reference herein and made a part
hereof (the “Information Sheet”).


 


		2.	Establishment of the Bank Account.



 


2.1           The
Escrow Agent shall establish a non-interest-bearing bank account at the branch of Bank selected by the Escrow Agent, and bearing
the designation set forth on the Information Sheet (heretofore defined as the “Bank Account”). The purpose of
the Bank Account is for (a) the deposit of all subscription monies (checks or wire transfers) from prospective purchasers of the
Securities which are delivered to the Escrow Agent, (b) the holding of amounts of subscription monies which are collected through
the banking system and (c) the disbursement of collected funds, all as described herein.


 



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2.2          On
or before the date of the initial deposit in the Bank Account pursuant to this Agreement, the Placement Agent shall notify the
Escrow Agent in writing of the date of the commencement of the Offering (the “Effective Date”), and the Escrow
Agent shall not be required to accept any amounts for credit to the Escrow Account or for deposit in the Bank Account prior to
its receipt of such notification.


 


2.3          The
“Offering Period,” which shall be deemed to commence on the Effective Date, shall consist of the number of calendar
days or business days set forth on the Information Sheet. The Offering Period shall be extended at the Placement Agent’s
discretion (an “Extension Period”) only if the Escrow Agent shall have received written notice thereof prior
to the expiration of the Offering Period. The Extension Period, which shall be deemed to commence on the next calendar day following
the expiration of the Offering Period, shall consist of the number of calendar days or business days set forth on the Information
Sheet. The last day of the Offering Period, or the last day of the Extension Period (if the Escrow Agent has received written notice
thereof as herein above provided), is referred to herein as the “Termination Date”. Except as provided in Section
4.3 hereof, after the Termination Date, the Placement Agent shall not deposit, and the Escrow Agent shall not accept, any additional
amounts representing payments by Investors.


 


		3.	Deposits to the Bank Account.



 


3.1          The
Placement Agent shall promptly deliver to the Escrow Agent all monies which it receives from Investors of the Securities, which
monies shall be in the form of checks or wire transfers; provided, however that "Cashiers" checks and "Money Orders"
must be in amounts greater than $10,000; Cashiers checks or Money Orders in amounts less than $10,000 shall be rejected by the
Escrow Agent. Upon the Escrow Agent’s receipt of such monies, they shall be credited to the Escrow Account. All checks delivered
to the Escrow Agent shall be made payable to “CST&T AAF MusclePharm Escrow Account.” Any check payable other than
to the Escrow Agent as required hereby shall be returned to the prospective purchaser, or if the Escrow Agent has insufficient
information to do so, then to the Placement Agent (together with any Subscription Information, as defined below or other documents
delivered therewith) by noon of the next business day following receipt of such check by the Escrow Agent, and such check shall
be deemed not to have been delivered to the Escrow Agent pursuant to the terms of this Agreement.


 


3.2          Promptly
after receiving subscription monies as described in Section 3.1, the Escrow Agent shall deposit the same into the Bank Account.
Amounts of monies so deposited are hereinafter referred to as “Escrow Amounts”. The Escrow Agent shall cause
the Bank to process all Escrow Amounts for collection through the banking system. Simultaneously with each deposit to the Escrow
Account, the Placement Agent (or the Issuer, if such deposit is made by the Issuer) shall inform the Escrow Agent in writing of
the name, address, and the tax identification number of the Investor, the amount of Securities subscribed for by such purchase,
and the aggregate dollar amount of such subscription (collectively, the “Subscription Information”).


 



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3.3          The
Escrow Agent shall not be required to accept for credit to the Escrow Account or for deposit into the Bank Account checks which
are not accompanied by the appropriate Subscription Information, which at minimum shall include the name address, tax identification
number and the number of shares of securities. Wire transfers representing payments by Investors shall not be deemed deposited
in the Escrow Account until the Escrow Agent has received in writing the Subscription Information required with respect to such
payments.


 


3.4          The
Escrow Agent shall not be required to accept in the Escrow Account any amounts representing payments by Investors, whether by check
or wire, except during the Escrow Agent’s regular business hours.


 


3.5          Only
those Escrow Amounts, which have been deposited in the Bank Account and which have cleared the banking system and have been collected
by the Escrow Agent, are herein referred to as the “Fund.”


 


3.6          If
the Offering is terminated before the Termination Date, the Escrow Agent shall refund any portion of the Fund prior to disbursement
of the Fund in accordance with Article 4 hereof upon instructions in writing signed by both the Issuer and the Placement Agent.


 


3.7          If
prior to the disbursement of the Fund in accordance with Section 4.2 below, the Escrow Agent has received notice from the Issuer
that the subscription of a purchaser has been rejected since such purchaser does not qualify as an investor in the Offering, the
Escrow Agent shall promptly refund to such purchaser the amount of payment received from such purchaser which is then held in the
Fund or which thereafter clears the banking system, without interest thereon or deduction therefrom, by drawing a check on the
Bank Account for the amount of such payment and transmitting it to the Investor.


 


		4.	Disbursement from the Bank Account.



 


4.1          If
by the close of regular banking hours on the Termination Date the Escrow Agent determines that the amount in the account is less
than the amount indicated by the Subscription Information submitted to the Escrow Agent, then in either such case, the Escrow Agent
shall promptly refund to each Investor the amount of payment received from such purchaser which is then held in the Fund or which
thereafter clears the banking system, without interest thereon or deduction there from, by drawing checks on the Bank Account for
the amounts of such payments and transmitting them to the purchasers. In such event, the Escrow Agent shall promptly notify the
Issuer and the Placement Agent of its distribution of the Fund.


 


4.2          If
at any time up to the close of regular banking hours on the Termination Date, the Escrow Agent has received joint written instructions
from the Issuer and the Placement Agent that all conditions for release of funds have been met for closing of the Offering, the
Escrow Agent shall promptly disburse the Fund in accordance with instructions.


 



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4.3          Upon
disbursement of the Fund pursuant to the terms of this Article 4, the Escrow Agent shall be relieved of further obligations and
released from all liability under this Agreement. It is expressly agreed and understood that in no event shall the aggregate amount
of payments made by the Escrow Agent exceed the amount of the Fund.


 


5.          Rights,
Duties and Responsibilities of Escrow Agent. It is understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature, and that:


 


5.1          The
Escrow Agent shall notify the Placement Agent, on a daily basis, of the Escrow Amounts which have been deposited in the Bank Account
and of the amounts, constituting the Fund, which have cleared the banking system and have been collected by the Escrow Agent.


 


5.2          The
Escrow Agent shall not be responsible for or be required to enforce any of the terms or conditions of the selling agreement or
any other agreement between the Placement Agent and the Issuer nor shall the Escrow Agent be responsible for the performance by
the Placement Agent or the Issuer of their respective obligations under this Agreement.


 


5.3          The
Escrow Agent shall not be required to accept from the Placement Agent (or the Issuer) any Subscription Information pertaining to
prospective purchasers unless such Subscription Information is accompanied by checks or wire transfers meeting the requirements
of Section 3.1, nor shall the Escrow Agent be required to keep records of any information with respect to payments deposited by
the Placement Agent (or the Issuer) except as to the amount of such payments; however, the Escrow Agent shall notify the Placement
Agent within a reasonable time of any discrepancy between the amount set forth in any Subscription Information and the amount delivered
to the Escrow Agent therewith. Such amount need not be accepted for deposit in the Escrow Account until such discrepancy has been
resolved.


 


5.4          The
Escrow Agent shall be under no duty or responsibility to enforce collection of any check delivered to it hereunder. The Escrow
Agent, within a reasonable time, shall return to the Placement Agent any check received which is dishonored, together with the
Subscription Information, if any, which accompanied such check.


 


5.5          The
Escrow Agent shall be entitled to rely upon the accuracy, act in reliance upon the contents, and assume the genuineness of any
notice, instruction, certificate, signature, instrument or other document which is given to the Escrow Agent pursuant to this Agreement
without the necessity of the Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not be obligated to make
any inquiry as to the authority, capacity, existence or identity of any person purporting to give any such notice or instructions
or to execute any such certificate, instrument or other document.


 


5.6          If
the Escrow Agent is uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Bank Account,
the Escrow Amounts or the Fund which, in its sole determination, are in conflict either with other instructions received by it
or with any provision of this Agreement, it shall be entitled to hold the Escrow Amounts, the Fund, or a portion thereof, in the
Bank Account pending the resolution of such uncertainty to the Escrow Agent’s sole satisfaction, by final judgment of a court
or courts of competent jurisdiction or otherwise.


 



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5.7          The
Escrow Agent shall not be liable for any action taken or omitted hereunder, or for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct or gross negligence. The Escrow Agent shall be entitled to consult with
counsel of its own choosing and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice
of such counsel.


 


5.8          The
Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Escrow Amounts,
the Fund or any part thereof or to file any financing statement under the Uniform Commercial Code with respect to the Fund or any
part thereof.


 


6.          Amendment;
Resignation or Removal of Escrow Agent. This Agreement may be altered or amended only with the written consent of the Issuer,
the Placement Agent and the Escrow Agent. The Escrow Agent may resign and be discharged from its duties hereunder at any time by
giving written notice of such resignation to the Issuer and the Placement Agent specifying a date when such resignation shall take
effect and upon delivery of the Fund to the successor escrow agent designated by the Issuer or the Placement Agent in writing.
Such successor Escrow Agent shall become the Escrow Agent hereunder upon the resignation date specified in such notice. If the
Company fails to designate a successor Escrow Agent within thirty (30) days after such notice, then the resigning Escrow Agent
shall promptly refund the amount in the Fund to each prospective purchaser, without interest thereon or deduction. The Escrow Agent
shall continue to serve until its successor accepts the escrow and receives the Fund. The Company shall have the right at any time
to remove the Escrow Agent and substitute a new escrow agent by giving notice thereof to the Escrow Agent then acting. Upon its
resignation and delivery of the Fund as set forth in this Section 6, the Escrow Agent shall be discharged of and from any and all
further obligations arising in connection with the escrow contemplated by this Agreement. Without limiting the provisions of Section
8 hereof, the resigning Escrow Agent shall be entitled to be reimbursed by the Issuer and the Placement Agent for any expenses
incurred in connection with its resignation, transfer of the Fund to a successor escrow agent or distribution of the Fund pursuant
to this Section 6.


 


7.          Representations
and Warranties. The Issuer and the Placement Agent hereby severally represent and warrant to the Escrow Agent that:


 


7.1          No
party other than the parties hereto and the prospective purchasers have, or shall have, any lien, claim or security interest in
the Escrow Amounts or the Fund or any part thereof.


 


7.2          No
financing statement under the Uniform Commercial Code is on file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrow Amounts or the Fund or any part thereof.


 


7.3          The
Subscription Information submitted with each deposit shall, at the time of submission and at the time of the disbursement of the
Fund, be deemed a representation and warranty that such deposit represents a bona fide payment by the purchaser described therein
for the amount of Securities set forth in such Subscription Information.


 



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7.4          All
of the information contained in the Information Sheet is, as of the date hereof, and will be, at the time of any disbursement of
the Fund, true and correct.


 


7.5          Reasonable
controls have been established and required due diligence performed to comply with "Know Your Customer" regulations,
USA Patriot Act, Office of Foreign Asset Control (OFAC) regulations and the Bank Secrecy Act.


 


8.          Fees
and Expenses. The Escrow Agent shall be entitled to the Escrow Agent Fees set forth on the Information Sheet, payable as and
when stated therein. In addition, the Issuer and the Placement Agent jointly and severally agree to reimburse the Escrow Agent
for any reasonable expenses incurred in connection with this Agreement, including, but not limited to, reasonable counsel fees.


 


		9.	Indemnification and Contribution.



 


9.1          The
Issuer and the Placement Agent (collectively referred to as the “Indemnitors”) jointly and severally agree to
indemnify the Escrow Agent and its officers, directors, employees, agents and shareholders (collectively referred to as the “Indemnitees”)
against, and hold them harmless of and from, any and all loss, liability, cost, damage and expense, including without limitation,
reasonable counsel fees, which the Indemnitees may suffer or incur by reason of any action, claim or proceeding brought against
the Indemnitees arising out of or relating in any way to this Agreement or any transaction to which this Agreement relates, unless
such action, claim or proceeding is the result of the willful misconduct or gross negligence of the Indemnitees.


 


9.2          If
the indemnification provided for in Section 9.1 is applicable, but for any reason is held to be unavailable, the Indemnitors shall
contribute such amounts as are just and equitable to pay, or to reimburse the Indemnitees for, the aggregate of any and all losses,
liabilities, costs, damages and expenses, including counsel fees, actually incurred by the Indemnitees as a result of or in connection
with, and any amount paid in settlement of, any action, claim or proceeding arising out of or relating in any way to any actions
or omissions of the Indemnitors.


 


9.3          The
provisions of this Article 9 shall survive any termination of this Agreement, whether by disbursement of the Fund, resignation
of the Escrow Agent or otherwise.


 


10.          Termination
of Agreement. This Agreement shall terminate on the final disposition of the Fund pursuant to Section 4, provided that the
rights of the Escrow Agent and the obligations of the other parties hereto under Section 9 shall survive the termination hereof
and the resignation or removal of the Escrow Agent.


 



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11.          Governing
Law and Assignment. This Agreement shall be construed in accordance with and governed by the laws of the State of New York,
without regard to the conflicts of laws principles thereof, and shall be binding, upon the parties hereto and their respective
successors and assigns; provided, however, that any assignment or transfer by any party of its rights under this
Agreement or with respect to the Escrow Amounts or the Fund shall be void as against the Escrow Agent unless (a) written notice
thereof shall be given to the Escrow Agent; and (b) the Escrow Agent shall have consented in writing to such assignment or transfer.


 


12.          Notices.
All notices required to be given in connection with this Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by the Express Mail service offered by the United States Postal Service,
and addressed, if to the Issuer or the Placement Agent, at their respective addresses set forth on the Information Sheet, and if
to the Escrow Agent, at its address set forth above, to the attention of the Trust Department.


 


13.          Severability.
If any provision of this Agreement or the application thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of such provision to persons or circumstances other
than those to which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the
fullest extent permitted by law.


 


14.          Execution
in Several Counterparts. This Agreement may be executed in several counterparts or by separate instruments and by facsimile
transmission and all of such counterparts and instruments shall constitute one agreement, binding on all of the parties hereto.


 


15.          Entire
Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings (written or oral) of the parties in connection therewith.


 



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IN WITNESS WHEREOF,
the undersigned have executed this Agreement as of the day and year first above written.


 


	 	CONTINENTAL STOCK TRANSFER
	 	& TRUST COMPANY
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:
	 	 
	 	AEGIS CAPITAL CORP.
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:
	 	 
	 	MUSCLEPHARM CORPORATION
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:  Chief Executive Officer and President


 








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