MAKE GOOD ESCROW AGREEMENT
This
Make
Good Escrow Agreement (the “Make Good Agreement”), dated effective as of
September 5, 2008, is entered into by and among Yongye
Biotechnology International, Inc., a Nevada corporation
(the
“Company”), the Investors (as defined below), Full Alliance
International Limited, an international business incorporated under the laws
of
the British Virgin Islands, (“Make Good Pledgor”), XXXX Capital Partners, LLC
(“Xxxx”)
and
Tri-State Title & Escrow LLC, as escrow agent (“Escrow Agent”).
WHEREAS,
each of the investors in the private offering of securities of the Company
(the
“Investors”) has entered into a Securities Purchase Agreement, dated of even
date herewith (the “SPA”), evidencing their participation in the Company's
private offering (the “Offering”) of securities. As an inducement to the
Investors to participate in the Offering and as set forth in the SPA, Make
Good
Pledgor agrees to place certain shares of the Company’s common stock, par value
$0.001 per share (the “Common Stock”) into escrow for the benefit of the
Investors in the event the Company fails to satisfy certain financial thresholds
or complete the Restructuring (as defined in the SPA).
WHEREAS,
pursuant to the requirements of the SPA, the Company and Make Good Pledgor
have
agreed to establish an escrow on the terms and conditions set forth in this
Make
Good Agreement;
WHEREAS,
the Escrow Agent has agreed to act as escrow agent pursuant to the terms and
conditions of this Make Good Agreement; and
WHEREAS,
all capitalized terms used but not defined herein shall have the meanings
assigned them in the SPA;
NOW,
THEREFORE, in consideration of the mutual promises of the parties and the terms
and conditions hereof, the parties hereby agree as follows:
1.
Appointment of Escrow Agent.
Make
Good Pledgor and the Company hereby appoint Escrow Agent to act in accordance
with the terms and conditions set forth in this Make Good Agreement, and Escrow
Agent hereby accepts such appointment and agrees to act in accordance with
such
terms and conditions.
2.
Establishment of Escrow.
(a)
Contemporaneously with the Closing, Make Good Pledgor shall deliver or cause
to
be delivered, to the Escrow Agent to be held in escrow, a certificate evidencing
no less than 4,000,000 shares of the Company’s Common Stock (such shares
delivered by Make Good Pledgor being collectively referred to as the “Escrow
Shares”), along with stock powers executed in blank (or such other signed
instrument of transfer acceptable to the Company’s Transfer Agent). As used in
this Make Good Agreement, “Transfer Agent” means Empire Stock Transfer, or such
other entity hereafter retained by the Company as its stock transfer agent
as
specified in a writing from the Company to the Escrow Agent.
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(b)
Make
Good Pledgor understands and agrees that the Investors’ right to receive
Earnings Make Good Shares pursuant to Sections 4.11 and 4.12 of the SPA and
Restructuring Make Good Shares as defined in Section 4.13 of the SPA and this
Make Good Agreement shall continue to run to the benefit of each Investor even
if such Investor shall have transferred or sold all or any portion of its
Shares, and that each Investor shall have the right to assign its rights to
receive all or any such shares of Common Stock to other Persons in conjunction
with negotiated sales or transfers of any of its Shares. Make Good Pledgor
hereby irrevocably agrees that, other than in accordance with Sections 4.11,
4.12 and 4.13 of the SPA and this Make Good Agreement, Make Good Pledgor will
not offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or
warrant to purchase or otherwise transfer or dispose of, directly or indirectly,
or announce the offering of any of the Escrow Shares (including any securities
convertible into, or exchangeable for, or representing the rights to receive
Escrow Shares). In furtherance thereof, the Company will (x) place a stop order
on all Escrow Shares which shall expire on the date the Escrow Shares are
delivered to the Investors or returned to Make Good Pledgor, (y) notify the
Transfer Agent in writing of the stop order and the restrictions on such Escrow
Shares under this Make Good Agreement and direct the Transfer Agent not to
process any attempts by Make Good Pledgor to resell or transfer any Escrow
Shares before the date the Escrow Shares delivered to the Investors are
delivered to the investors or returned to Make Good Pledgor, or otherwise in
violation of Sections 4.11, 4.12 and 4.13 of the SPA and this Make Good
Agreement. The Company shall deliver a written notice to the Investors
confirming delivery of the Escrow Shares to the Escrow Agent.
(c)
It is
acknowledged by the parties hereto that Make Good Pledgor has in its possession
for delivery into escrow in accordance with Section 2(a) above, one certificate
evidencing an aggregate of 4,748,107 shares of the Company’s Common Stock (the
“Certificate”). The parties hereto agree that immediately after the Closing, the
Escrow Agent shall forward the Certificate to the Transfer Agent, along with
executed written instructions from the Make Good Pledgor to (a) re-issue three
new stock certificates each in the name of the Make Good Pledgor in the
following denominations (i) two stock certificates each in the amount of
2,000,000 shares (the “Escrow Certificates”), and (ii) one stock certificate in
the amount of 748,107 shares (the “Make Good Pledgor Certificate”), and (b)
return the Escrow Certificates to the Escrow Agent and the Make Good Pledgor
Certificate to the Make Good Pledgor.
3. Representations
of Make Good Pledgor and the Company.
Make
Good Pledgor and the Company hereby represent and warrant, severally and not
jointly, as to itself only, to the Investors as follows:
(i)
All
of the Escrow Shares are validly issued, fully paid and nonassessable shares
of
the Company, and free and clear of all pledges, liens and encumbrances. Upon
any
transfer of Escrow Shares to Investors hereunder, Investors will receive full
right, title and authority to such shares as holders of Common Stock of the
Company.
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(ii) Performance
of this Make Good Agreement and compliance with the provisions hereof will
not
violate any provision of any applicable law and will not conflict with or result
in any breach of any of the terms, conditions or provisions of, or constitute
a
default under, or result in the creation or imposition of any lien, charge
or
encumbrance upon, any of the properties or assets of Make Good Pledgor pursuant
to the terms of any indenture, mortgage, deed of trust or other agreement or
instrument binding upon Make Good Pledgor, other than such breaches, defaults
or
liens which would not have a material adverse effect taken as a
whole.
(iii)
Make Good Pledgor has carefully considered and understands its obligations
and
rights under Sections 4.11, 4.12 and 4.13 of the SPA and this Make Good
Agreement, and in furtherance thereof (x) has consulted with its legal and
other
advisors with respect thereto and (y) hereby forever waives and agrees that
it
may not assert any equitable defenses in any Proceeding involving the Escrow
Shares.
(iv)
Make
Good Pledgor is the sole record and beneficial owner of the Escrow Shares,
and
holds the Escrow Shares free and clear of all Liens and each has the power
and
authority to deposit the Escrow Shares into escrow with the Escrow Agent and
to
transfer or cause the Escrow Agent to transfer the Escrow Shares to the
Investors pursuant to the provisions of this Make Good Agreement.
4.
Disbursement of Escrow Shares.
4.1
2008
Earnings Make Good Shares.
(a)
The
Make Good Pledgor agrees that in the event that (i) the 2008 After Tax Net
Income (as defined below) reported in the 2008 Annual Report is less than
$10,263,919 (the “2008 Guaranteed ATNI”), or (ii) the Fully Diluted Earnings Per
Share (as defined below) reported in the 2008 Annual Report ) is less than
$0.42
(the “2008 Guaranteed EPS”), the Escrow Agent (on behalf of the Make Good
Pledgor) will transfer the Earnings Make Good Shares (as defined below) to
the
Investors on a pro-rata basis (determined by dividing each Investor's Investment
Amount by the aggregate of all Investment Amounts delivered to the Company
by
the Investors under the SPA) for no consideration other than their respective
Investment Amounts paid to the Company at Closing. After giving effect to such
transfer of the Earnings Make Good Shares to the Investors pursuant to this
Section 4.1(a), the Make Good Escrow shall terminate (solely with respect to
the
Earnings Make Good Shares) and the provisions of Section 4.2 hereof shall not
be
operative. The “Earnings Make Good Shares” means the 2,000,000 shares of Common
Stock (as equitably adjusted for any stock splits, stock combinations, stock
dividends or similar transactions) deposited with the Escrow Agent pursuant
to
the terms of this Make Good Agreement. “Fully Diluted Earnings Per Share” means
After Tax Net Income divided by the weighted average diluted shares of Common
Stock outstanding.
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Any
such
transfer of the Earnings Make Good Shares shall be made to the Investors within
10 Business Days after the date which the 2008 Annual Report is filed with
the
Commission and a copy thereof is delivered to the Escrow Agent. In
the
event that the 2008 After Tax Net Income or Fully Diluted Earnings Per Share
reported in the 2008 Annual Report is less than the 2008 Guaranteed ATNI or
2008
Guaranteed EPS, respectively, Xxxx shall provide prompt written instruction
to
the Escrow Agent with regard to the distribution of the Earnings Make Good
Shares in an amount to each Investor as set forth on Exhibit
A
attached
hereto (as determined as set forth above). The Escrow Agent need only rely
on
the letter of instruction from Xxxx in this regard and notwithstanding anything
to the contrary contained herein will disregard any contrary instructions.
(b)
In
the event that (i) the 2008 After Tax Net Income reported in the 2008 Annual
Report is equal to or greater than the 2008 Guaranteed ATNI and (ii) the Fully
Diluted Earnings Per Share reported in the 2008 Annual Report is equal to or
greater than the 2008 Guaranteed EPS, no transfer of the Earnings Make Good
Shares shall be required by the Escrow Agent (on behalf of the Make Good
Pledgor) to the Investors and the Earnings Make Good Shares shall be retained
by
the Escrow Agent, as provided in written instructions to be given to the Escrow
Agent by Xxxx, and shall be available in connection with the Make Good Pledgor’s
obligations under Section 4.2 hereof.
(c)
Notwithstanding the foregoing or anything else to the contrary herein, for
purposes of determining whether or not each of the 2008 Guaranteed ATNI and
the
2008 Guaranteed EPS has been met, the following items shall not be deemed to
be
an expense, charge, or any other deduction from revenues even though GAAP may
require contrary treatment or the 2008 Annual Report filed with the Commission
by the Company may report otherwise: (i) any accounting charges for issuing
warrants, (ii) the release of any of the Earnings Make Good Shares to the
Investors as a result of the operation of this Section 4.1, (iii) the release
of
any Existing Make Good Shares and (iv) the increase in the equity ownership
of
the CJV by Xxxx Xx in excess of 1.15% in connection with the Restructuring,
as
reflected in the provision for minority interest on the Company’s statement of
operations. No
other
exclusions shall be made for any non-recurring expenses of the Company,
including liquidated damages under the Transaction Documents, in determining
whether any of the 2008 Guaranteed ATNI and 2008 Guaranteed EPS has been
achieved.
(d)
If
prior to the second anniversary of the filing of the 2008 Annual Report, the
Company or its auditors report or recognize that the financial statements
contained in such report are subject to amendment or restatement such that
the
Company would recognize or report adjusted 2008 After Tax Net Income of less
than the 2008 Guaranteed ATNI or adjusted Fully Diluted Earnings Per Share
less
than the 2008 Guaranteed EPS, then notwithstanding the retention of the Earnings
Make Good Shares in the escrow by the Escrow Agent in connection with the Make
Good Pledgor’s obligations under Section 4.2, or any prior return of Earnings
Make Good Shares to the Make Good Pledgor under Section 4.2, as the case may
be,
the Make Good Pledgor will, within 10 Business Days following the earlier of
the
filing of such amendment or restatement or recognition, deliver the Earnings
Make Good Shares to the Investors. For the purposes hereof, “2008 After Tax Net
Income” shall mean the Company's operating income after taxes for the fiscal
year ending December 31, 2008, determined in accordance with GAAP as reported
in
the 2008 Annual Report.
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(e) If
the
2008 Annual Report is not filed timely with the Commission and remains unfiled
for a period in excess of 45 days after the last day that the same was required
to have been filed (taking into account the relief permitted under Rule 12(b)-25
of the Exchange Act), then 2008 After Tax Net Income shall
be
deemed to be less than the 2008 Guaranteed ATNI, and all
of
the Earnings Make Good Shares shall be transferred to the Investors on a
pro-rata basis in accordance with the provisions of this Make Good
Agreement.
(f) Pursuant
to Section 4.1(a), if Xxxx delivers a notice to the Escrow Agent that the
Earnings Make Good Shares are to be transferred to the Investors, then the
Escrow Agent shall immediately forward the Earnings Make Good Shares to the
Company’s Transfer Agent for re-issuance to the Investors in an amount to each
Investor as set forth on Exhibit
A
attached
hereto and otherwise in accordance with this Make Good Agreement. The Company
covenants and agrees that upon any transfer of Earnings Make Good Shares to
the
Investors in accordance with this Make Good Agreement, the Company shall
promptly instruct its Transfer Agent to reissue such Earnings Make Good Shares
in the applicable Investor’s name and deliver the same, or cause the same to be
delivered as directed by such Investor in an amount to each Investor as set
forth on Exhibit
A
attached
hereto. If the Company does not promptly provide such instructions to the
Transfer Agent of the Company, then Xxxx is hereby authorized to give such
re-issuance instruction to the Transfer Agent of the Company. If a notice from
Xxxx pursuant to Section 4.1(b) indicates that the Earnings Make Good Shares
are
to be retained in the escrow, then the Escrow Agent will continue to retain
the
Earnings Make Good Shares.
(d) The
Company and Make Good Pledgor covenant and agree to provide the Escrow Agent
with certified tax identification numbers by furnishing appropriate forms W-9
or
W-8 and such other forms and documents that the Escrow Agent may request,
including appropriate W-9 or W-8 forms for each Investor.
4.2
2009 Earnings Make Good Shares. This
Section 4.2 shall only be operative in the event that the Earnings Make Good
Shares have not been distributed to the Investors as described in Section 4.1(a)
and have been retained by the Escrow Agent to be available in connection with
the Company’s obligations to meet the 2009 Guaranteed ATNI (as defined below)
and 2009 Guaranteed EPS (as defined below).
(a)
The
Make Good Pledgor agrees that in the event that (i) the 2009 After Tax Net
Income (as defined below) reported in the 2009 Annual Report equals or exceeds
$12,649,248 and is less than $15,811,560 (the “2009 Guaranteed ATNI”), or (ii)
the Fully Diluted Earnings Per Share reported in the 2009 Annual Report equals
or exceeds $0.42 and is less than $0.53 (the “2009 Guaranteed EPS”), then, in
accordance with written instructions from Xxxx, the Escrow Agent (on behalf
of
the Make Good Pledgor) will transfer a number of Earnings Make Good Shares
equal
to the product of (i) (A) $15,811,560 minus the 2009 After Tax Net Income,
divided by (B) $15,811,560, and (ii) Earnings Make Good Shares, to the Investors
on a pro-rata basis (determined by dividing each Investor's Investment Amount
by
the aggregate of all Investment Amounts delivered to the Company by the
Investors hereunder) for no consideration other than their respective Investment
Amounts paid to the Company at Closing. The Xxxx instructions shall provide
that
any remaining Earnings Make Good Shares after transfer to the Investors in
accordance with this Section 4.2(a) shall be transferred to the Make Good
Pledgor.
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(b)
In
the event that (i) the 2009 After Tax Net Income reported in the 2009 Annual
Report is less than $12,649,248 or (ii) the Fully Diluted Earnings Per Share
reported in the 2009 Annual Report is less than $0.42, then, in accordance
with
written instructions from Xxxx, the Escrow Agent (on behalf of the Make Good
Pledgor) will transfer the Earnings Make Good Shares to the Investors on a
pro-rata basis (determined by dividing each Investor's Investment Amount by
the
aggregate of all Investment Amounts delivered to the Company by the Investors
hereunder) for no consideration other than their respective Investment Amounts
paid to the Company at Closing.
(c)
In
the event that (i) the 2009 After Tax Net Income reported in the 2009 Annual
Report is equal to or greater than $15,811,560 and (ii) the Fully Diluted
Earnings Per Share reported in the 2009 Annual Report is equal to or greater
than $0.53, then in accordance with written instructions from Xxxx, no transfer
of the Earnings Make Good Shares pursuant to this Section 4.2 to the Investors
by the Escrow Agent (on behalf of the Make Good Pledgor) shall be required
and
the Earnings Make Good Shares shall be returned to the Make Good Pledgor. Any
such transfer of the Earnings Make Good Shares, or any portion thereof, pursuant
to this Section 4.2, shall be made to the Investors or the Make Good Pledgor,
as
applicable, within 10 Business Days after the date which the 2009 Annual Report
is filed with the Commission and a copy thereof is delivered to the Escrow
Agent.
(d)
Notwithstanding the foregoing or anything else to the contrary herein, for
purposes of determining whether or not each of the 2009 Guaranteed ATNI and
the
2009 Guaranteed EPS has been met, the following items shall not be deemed to
be
an expense, charge, or any other deduction from revenues even though GAAP may
require contrary treatment or the Annual Report for the fiscal year filed with
the Commission by the Company may report otherwise: (i) any accounting charges
for issuing warrants, (ii) the release of any of the Earnings Make Good Shares
to the Make Good Pledgor or the Investors, as applicable, as a result of the
operation of this Section 4.2, (iii) the release of any Existing Make Good
Shares and (iv) the increase in the equity ownership of the CJV by Xxxx Xx
in
excess of 1.15% in connection with the Restructuring, as reflected in the
provision for minority interest on the Company’s statement of operations. No
other exclusions shall be made for any non-recurring expenses of the Company,
including liquidated damages under the Transaction Documents, in determining
whether the 2009 Guaranteed ATNI and 2009 Guaranteed EPS has been achieved.
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(e)
If
prior to the second anniversary of the filing of the 2009 Annual Report, the
Company or its auditors report or recognize that the financial statements
contained in such report are subject to amendment or restatement such that
the
Company would recognize or report adjusted After Tax Net Income of less than
$12,649,248 or adjusted Fully Diluted Earnings Per Share less than $0.42, then
notwithstanding any prior return of the Earnings Make Good Shares, or any
portion thereof, pursuant to this Section 4.2, to the Make Good Pledgor, the
Make Good Pledgor will, within 10 Business Days following the earlier of the
filing of such amendment or restatement or recognition, deliver the relevant
Earnings Make Good Shares to the Investors on a pro rata basis; provided,
however, that if any Earnings Make Good Shares have been transferred to the
Investors as provided for in the second paragraph of Section 4.1(d), the Make
Good Pledgor shall only be responsible for transferring such number of Earnings
Make Good Shares pursuant to this paragraph of Section 4.2 (e), up to the number
of Earnings Make Good Shares that were previously returned to the Make Good
Pledgor. In no event shall the Make Good Pledgor be responsible for transferring
any number of Earnings Make Good Shares in excess of what has been previously
returned to the Make Good Pledgor pursuant to the provisions of Section 4.1
or
4.2, as applicable. For the purposes hereof, “2009 After Tax Net Income” shall
mean the Company's operating income after taxes for the fiscal year ending
December 31, 2009, determined in accordance with GAAP as reported in the 2009
Annual Report.
(f)
If
the 2009 Annual Report is not filed timely with the Commission and remains
unfiled for a period in excess of 45 days after the last day that the same
was
required to have been filed (taking into account the relief permitted under
Rule
12(b)-25 of the Exchange Act), then 2009 After Tax Net Income shall be deemed
to
be less than the 2009 Guaranteed ATNI, and in accordance with written
instructions from Xxxx, the Escrow Agent (on behalf of the Make Good Pledgor)
shall transfer the
Earnings Make Good Shares to the Investors on a pro-rata basis.
4.3 Restructuring
Make Good Shares.
(a)
The
Make Good Pledgor agrees that in the event that the License has not been issued
to, and received by the CJV by June 30, 2009, or such later date as the Company
and Investors holding a majority of the Shares at such time consent to in
writing (the “License Grant Date”), in accordance with written instructions from
Xxxx, the Escrow Agent (on behalf of the Make Good Pledgor) shall transfer
the
Restructuring Make Good Shares (as defined below), to the Investors on a
pro-rata basis (determined by dividing each Investor's Investment Amount by
the
aggregate of all Investment Amounts delivered to the Company by the Investors
hereunder) for no consideration other than their respective Investment Amounts
paid to the Company at Closing. In the event the License has been issued by
the
License Grant Date, but the Restructuring is not completed by the Restructuring
Completion Date (as defined below), the Restructuring Make Good Shares shall
be
transferred in accordance with the Make Good Escrow Agreement to the Investors
on a pro-rata basis (determined by dividing each Investor’s Investment Amount by
the aggregate of all Investment Amounts delivered to the Company by the
Investors under the SPA) for no consideration other than their respective
Investment Amounts paid to the Company at Closing.
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(b)
The
“Restructuring
Make Good Shares”
means
2,000,000 shares of Common Stock (as equitably adjusted for any stock splits,
stock combinations, stock dividends or similar transactions) required to be
deposited with the Escrow Agent pursuant to the terms of this Make Good
Agreement.
(c)
The
“Restructuring
Completion Date”
means
the License Grant Date plus 132 calendar days.
(d)
In
the event that the Restructuring is consummated by the Restructuring Completion
Date, in accordance with written instructions from Xxxx, the Escrow Agent (on
behalf of the Make Good Pledgor) shall not be required to transfer the
Restructuring Make Good Shares to the Investors, but shall return the
Restructuring Make Good Shares to the Make Good Pledgor. Any such transfer
of
the Restructuring Make Good Shares shall be made to the Investors or the Make
Good Pledgor, as applicable, within 10 Business Days after the earlier of (i)
the date of consummation of the Restructuring and (ii) the Restructuring
Completion Date. Notwithstanding the foregoing or anything else to the contrary
herein, for purposes of determining whether or not the Restructuring has been
consummated, the following conditions (which shall not be deemed to be a
complete list of all closing conditions required to be satisfied) shall have
been satisfied: (A) execution and completion of the asset transfer agreement
(in
such form acceptable to the Investors) in relation to the Xxxx Xx Assets
Acquisition, (B) the increase and full contribution of the registered capital
of
the CJV in relation to the Xxxx Xx Assets Acquisition, (C) the amendments of
the
articles of association of the CJV and the joint venture agreement between
the
CJV and its shareholders (in such forms acceptable to the Investors) to enable
the CJV to distribute 95% of its distributable profits to Asia Standard Oil
Ltd.
and 5% of its distributable profits to Xxxx Xx, (D) bring down of
representations and warranties contained in the asset transfer agreement,
including, but not limited to, representations and warranties relating to the
valid title of the Xxxx Xx Assets being transferred, (E) issuance of a legal
opinion by Han Kun Law Offices, the legal advisers to the CJV, in a form
acceptable to the Investors, and (F) securing and drawing down the CJV Bank
Loan.
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4.4.
Limitation on Disbursement of Earnings Make Good Shares and Restructuring Make
Good Shares to Investors.
The
Escrow Agent (on behalf of the Make Good Pledgor) shall not disburse any of
the
Earnings Make Good Shares or Restructuring Make Good Shares to the Investors
as
provided for in this Section 4, and an Investor shall not have the right to
have
any such Earnings Make Good Shares or Restructuring Make Good Shares issued
to
such Investor, pursuant to Section 4 or otherwise, to the extent that after
giving effect to such issuance in accordance with instructions provided by
Xxxx,
an Investor (together with such Investor’s Affiliates, and any other person or
entity acting as a group together with such Investor or any of such Investor’s
Affiliates), would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by such Investor and its
Affiliates shall include the number of shares of Common Stock issuable upon
disbursement of the Earnings Make Good Shares or the Restructuring Make Good
Shares with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (A) exercise
of any Warrants beneficially owned by an Investor or any of its Affiliates
and
(B) exercise or conversion of the unexercised or unconverted portion of any
other securities of the Company (including, without limitation, any other Common
Stock Equivalents) subject to a limitation on conversion or exercise analogous
to the limitation contained herein beneficially owned by such Investor or any
of
its Affiliates.
Except
as set forth in the preceding sentence, for purposes of this Section 4.4,
beneficial ownership shall be calculated in accordance with Section 13(d) of
the
Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Investors that none of the Escrow Agent, the Company, the
Make Good Pledgor and Xxxx are representing to the Investors that such
calculation is in compliance with Section 13(d) of the Exchange Act and the
Investors are solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained in this
Section 4.4 applies, the determination of whether the relevant Earnings Make
Good Shares or Restructuring Make Good Shares should be disbursed to such
Investor (in relation to other securities owned by such Investor together with
any Affiliates) shall be in the sole discretion of such Investor, and the
submission of a Notice of Disbursement to the Escrow Agent, along with the
written instructions the Escrow Agent will receive from Xxxx that the Investor
shall be entitled to such disbursement, shall be deemed to be the Investor’s
determination of whether such Earnings Make Good Shares or Restructuring Make
Good Shares (in
relation to other securities owned by such Investor together with any
Affiliates) subject to the Beneficial Ownership Limitation, and none of Escrow
Agent, the Company, the Make Good Pledgor and Xxxx shall have any obligation
to
verify or confirm the accuracy of such determination. In addition, a
determination as to any group status as contemplated above shall be determined
in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder. For purposes of this Section 4.4, in
determining the number of outstanding shares of Common Stock, an Investor may
rely on the number of outstanding shares of Common Stock as reflected in (A)
the
Company’s most recent periodic or annual report, as the case may be, (B) a more
recent public announcement by the Company or (C) any other notice by the Company
or the Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of an Investor, the Company shall
within two Trading Days confirm orally and in writing to the Investor the number
of shares of Common Stock then outstanding. With respect to Black River Small
Cap Fund Ltd. and Black River Commodity Select Fund Ltd, the “Beneficial
Ownership Limitation” shall be 9.99%, and with respect to the other Investors,
the “Beneficial Ownership Limitation” shall be 4.99%, of the number of shares of
the Common Stock outstanding at the time of such disbursement. The Investor,
upon not less than 75 days’ prior notice to the Escrow Agent, the Company, the
Make Good Pledgor and Xxxx, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 4.4 and the provisions of this Section
4.4
shall continue to apply. Any such increase or decrease will not be effective
until the 75th
day
after such notice is delivered to the Escrow Agent, the Company, the Make Good
Pledgor and Xxxx. The provisions of this paragraph shall be construed and
implemented in a manner otherwise than in strict conformity with the terms
of
this Section 4.4 to correct this paragraph (or any portion hereof) which may
be
defective or inconsistent with the intended Beneficial Ownership Limitation
herein contained or to make changes or supplements necessary or desirable to
properly give effect to such limitation. The limitations contained in this
paragraph shall apply to a successor holder of the Earnings Make Good Shares
or
Restructuring Make Good Shares. The provisions of this Section 4.4. shall not
apply to the Special Situations Private Equity Fund, L.P. or to the Special
Situations Cayman Fund, L.P.
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5.
Duration.
This
Make Good Agreement shall terminate upon the distribution of all the Escrow
Shares in accordance with the terms of this Make Good Agreement. The Company
agrees to promptly provide the Escrow Agent written notice of the filing with
the Commission of any financial statements or reports referenced
herein.
6.
Escrow Shares.
If any
Escrow Shares are deliverable to the Investors pursuant to the SPA and in
accordance with this Make Good Agreement, (i) Make Good Pledgor covenants and
agrees to execute all such instruments of transfer (including stock powers
and
assignment documents) as are customarily executed to evidence and consummate
the
transfer of the Escrow Shares from Make Good Pledgor to the Investors, to the
extent not done so in accordance with Section 2, and (ii) following its receipt
of the documents referenced in Section 6(i), the Company consent to any such
transfer and will provide to the Investors and to the Transfer Agent written
confirmation of such consent, and each of the Company and Escrow Agent covenant
and agree to cooperate with the Transfer Agent so that the Transfer Agent
promptly reissues such Escrow Shares in the applicable Investor’s name and
delivers the same as directed by such Investor. Until such time as (if at all)
the Escrow Shares are required to be delivered pursuant to the SPA and in
accordance with this Make Good Agreement, (i) any dividends payable in respect
of the Escrow Shares and all voting rights applicable to the Escrow Shares
shall
be retained by Make Good Pledgor and (ii) should the Escrow Agent receive
dividends or voting materials, such items shall not be held by the Escrow Agent,
but shall be passed immediately on to Make Good Pledgor and shall not be
invested or held for any time longer than is needed to effectively re-route
such
items to Make Good Pledgor. In the event that the Escrow Agent receives a
communication requiring the conversion of the Escrow Shares to cash or
the exchange of the Escrow Shares for that of an acquiring company, the Escrow
Agent shall solicit and follow the written instructions of Make Good
Pledgor; provided,
that
the cash or exchanged shares are instructed to be redeposited into the Escrow
Account. Make Good Pledgor shall be responsible, respectively, for all taxes
resulting from any such conversion or exchange.
10
7.
Interpleader.
Should
any controversy arise among the parties hereto with respect to this Make Good
Agreement or with respect to the right to receive the Escrow Shares, Escrow
Agent and/or Xxxx shall have the right to consult and hire counsel and/or to
institute an appropriate interpleader action to determine the rights of the
parties. Escrow Agent and/or Xxxx are also each hereby authorized to institute
an appropriate interpleader action upon receipt of a written letter of direction
executed by the parties so directing either Escrow Agent or Xxxx. If Escrow
Agent or Xxxx is directed to institute an appropriate interpleader action,
it
shall institute such action not prior to thirty (30) days after receipt of
such
letter of direction and not later than sixty (60) days after such date. Any
interpleader action instituted in accordance with this Section 7 shall be filed
in any court of competent jurisdiction in the State of New York, and the Escrow
Shares in dispute shall be deposited with the court and in such event Escrow
Agent and Xxxx shall be relieved of and discharged from any and all obligations
and liabilities under and pursuant to this Make Good Agreement with respect
to
the Escrow Shares and any other obligations hereunder.
8. Exculpation
and Indemnification of Escrow Agent and Xxxx.
a. Escrow
Agent is not a party to, and is not bound by or charged with notice of any
agreement out of which this escrow may arise. Escrow Agent acts under this
Make
Good Agreement as a depositary only and is not responsible or liable in any
manner whatsoever for the sufficiency, correctness, genuineness or validity
of
the subject matter of the escrow, or any part thereof, or for the form or
execution of any notice given by any other party hereunder, or for the identity
or authority of any person executing any such notice. Escrow Agent will have
no
duties or responsibilities other than those expressly set forth herein. Escrow
Agent will be under no liability to anyone by reason of any failure on the
part
of any party hereto (other than Escrow Agent) or any maker, endorser or other
signatory of any document to perform such person's or entity's obligations
hereunder or under any such document. Except for this Make Good Agreement and
instructions to Escrow Agent pursuant to the terms of this Make Good Agreement,
Escrow Agent will not be obligated to recognize any agreement between or among
any or all of the persons or entities referred to herein, notwithstanding its
knowledge thereof. Xxxx’x sole obligation under this Make Good Agreement is to
provide written instruction to Escrow Agent (following such time as the Company
files certain periodic financial reports as specified in Section 4 hereof)
directing the distribution of the Escrow Shares. Xxxx will provide such written
instructions upon review of the relevant After Tax Net Income amount reported
in
such periodic financial reports as specified in Section 4 hereof. Xxxx is not
charged with any obligation to conduct any investigation into the financial
reports or make any other investigation related thereto. In the event of any
actual or alleged mistake or fraud of the Company, its auditors or any other
person (other than Xxxx) in connection with such financial reports of the
Company, Xxxx shall have no obligation or liability to any party
hereunder.
b. Escrow
Agent will not be liable for any action taken or omitted by it, or any action
suffered by it to be taken or omitted, absent gross negligence or willful
misconduct. Escrow Agent may rely conclusively on, and will be protected in
acting upon, any order, notice, demand, certificate, or opinion or advice of
counsel (including counsel chosen by 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 reasonably believed
by Escrow Agent to be genuine and to be signed or presented by the proper person
or persons. The duties and responsibilities of the Escrow Agent hereunder shall
be determined solely by the express provisions of this Make Good Agreement
and
no other or further duties or responsibilities shall be implied, including,
but
not limited to, any obligation under or imposed by any laws of the State of
New
York upon fiduciaries. THE
ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES,
LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN
DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE DIRECTLY
RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II)
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ESCROW AGENT HAS
BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE
FORM
OF ACTION.
11
c. The
Company and Make Good Pledgor each hereby, jointly and severally, indemnify
and
hold harmless each of Escrow Agent, Xxxx and any of their principals, partners,
agents, employees and affiliates from
and
against any expenses, including reasonable attorneys' fees and disbursements,
damages or losses suffered by Escrow Agent or Xxxx in connection with any claim
or demand, which, in any way, directly or indirectly, arises out of or relates
to this Make Good Agreement or the services of Escrow Agent or Xxxx hereunder;
except, that if Escrow Agent or Xxxx is guilty of willful misconduct or gross
negligence under this Make Good Agreement, then Escrow Agent or Xxxx, as the
case may be, will bear all losses, damages and expenses arising as a result
of
its own willful misconduct or gross negligence. Promptly after the receipt
by
Escrow Agent or Xxxx of notice of any such demand or claim or the commencement
of any action, suit or proceeding relating to such demand or claim, Escrow
Agent
or Xxxx, as the case may be, will notify the other parties hereto in writing.
For the purposes hereof, the terms "expense" and "loss" will include all amounts
paid or payable to satisfy any such claim or demand, or in settlement of any
such claim, demand, action, suit or proceeding settled with the express written
consent of the parties hereto, and all costs and expenses, including, but not
limited to, reasonable attorneys' fees and disbursements, paid or incurred
in
investigating or defending against any such claim, demand, action, suit or
proceeding. The provisions of this Section 8 shall survive the termination
of
this Make Good Agreement, and the resignation or removal of the Escrow Agent.
9.
Compensation of Escrow Agent.
Escrow
Agent shall be entitled to compensation for its services as stated in the fee
schedule attached hereto as Exhibit
B,
which
compensation shall be paid by the Company. The fee agreed upon for the services
rendered hereunder is intended as full compensation for Escrow Agent's services
as contemplated by this Make Good Agreement; provided,
however,
that in
the event that Escrow Agent renders any material service not contemplated in
this Make Good Agreement, or there is any assignment of interest in the subject
matter of this Make Good Agreement, or any material modification hereof, or
if
any material controversy arises hereunder, or Escrow Agent is made a party
to
any litigation pertaining to this Make Good Agreement, or the subject matter
hereof, then Escrow Agent shall be reasonably compensated by the Company for
such extraordinary services and reimbursed for all costs and expenses, including
reasonable attorney's fees, occasioned by any delay, controversy, litigation
or
event, and the same shall be recoverable from the Company. Prior
to
incurring any costs and/or expenses in connection with the foregoing sentence,
Escrow Agent shall be required to provide written notice to the Company of
such
costs and/or expenses and the relevancy thereof and Escrow Agent shall not
be
permitted to incur any such costs and/or expenses which are not related to
litigation prior to receiving written approval from the Company, which approval
shall not be unreasonably withheld.
12
10.
Resignation of Escrow Agent.
At any
time, upon ten (10) Business Days' written notice to the Company and the
Investors, Escrow Agent may resign and be discharged from its duties as Escrow
Agent hereunder. As soon as practicable after its resignation, Escrow Agent
will
promptly turn over to a successor escrow agent appointed by the Company the
Escrow Shares held hereunder upon presentation of a document appointing the
new
escrow agent and evidencing its acceptance thereof. If, by the end of the
10-Business Day period following the giving of notice of resignation by Escrow
Agent, the Company shall have failed to appoint a successor escrow agent, Escrow
Agent shall deposit the Escrow Shares as directed by Xxxx with the understanding
that such Escrow Shares will continue to be subject to the provisions of this
Make Good Agreement.
11.
Records.
Escrow
Agent shall maintain accurate records of all transactions hereunder. Promptly
after the termination of this Make Good Agreement or as may reasonably be
requested by the parties hereto from time to time before such termination,
Escrow Agent shall provide the parties hereto, as the case may be, with a
complete copy of such records, certified by Escrow Agent to be a complete and
accurate account of all such transactions. The authorized representatives of
each of the parties hereto shall have access to such books and records at all
reasonable times during normal business hours upon reasonable notice to Escrow
Agent and at the requesting party’s expense.
12.
Notice.
All
notices, communications and instructions required or desired to be given under
this Make Good Agreement must be in writing and shall be deemed to be duly
given
if sent by registered or certified mail, return receipt requested, or overnight
courier, to the addresses listed on the signature pages hereto.
13.
Execution in Counterparts.
This
Make Good Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
14.
Assignment and Modification.
This
Make Good Agreement and the rights and obligations hereunder of the Company
may
be assigned by the Company only following the prior written consent of Xxxx.
This Make Good Agreement and the rights and obligations hereunder of the Escrow
Agent may be assigned by the Escrow Agent only with the prior consent of the
Company and Xxxx. This Make Good Agreement and the rights and obligations
hereunder of Make Good Pledgor may not be assigned by the Make Good Pledgor.
Subject to the requirements under federal and state securities laws, an Investor
may assign its rights under this Make Good Agreement without any consent from
any other party. This Make Good Agreement may not be changed orally or modified,
amended or supplemented without an express written agreement executed by the
Escrow Agent, the Company, Make Good Pledgor and Xxxx. This Make Good Agreement
is binding upon and intended to be for the sole benefit of the parties hereto
and their respective successors, heirs and permitted assigns, and none of the
provisions of this Make Good Agreement are intended to be, nor shall they be
construed to be, for the benefit of any third person. No portion of the Escrow
Shares shall be subject to interference or control by any creditor of any party
hereto, or be subject to being taken or reached by any legal or equitable
process in satisfaction of any debt or other liability of any such party hereto
prior to the disbursement thereof to such party hereto in accordance with the
provisions of this Make Good Agreement.
13
15.
Applicable Law.
This
Make Good 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 Make Good Agreement shall survive the execution and delivery
hereof and any investigations made by any party. Each party agrees that all
legal proceedings concerning the interpretations, enforcement and defense of
the
transactions contemplated by this Make Good Agreement shall be commenced
exclusively in the state and federal courts sitting in the City of New York,
Borough of Manhattan (the “New York Courts”). Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the New York Courts for
the
adjudication of any dispute hereunder or in connection herewith, and hereby
irrevocably waives, and agrees not to assert in any such proceeding, any claim
that it is not personally subject to the jurisdiction of any such New York
Court, or that such proceeding has been commenced in an improper or inconvenient
forum. Each party hereto hereby irrevocably waives personal service of process
and consents to process being served in any such proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence
of
delivery) to such party at the address in effect for notices to it under this
Make Good Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
16.
Headings.
The
headings contained in this Make Good Agreement are for convenience of reference
only and shall not affect the construction of this Make Good Agreement.
17.
Attorneys' Fees.
If any
action at law or in equity, including an action for declaratory relief, is
brought to enforce or interpret the provisions of this Make Good Agreement,
the
prevailing party shall be entitled to recover reasonable attorneys' fees from
the other party (unless such other party is the Escrow Agent), which fees may
be
set by the court in the trial of such action or may be enforced in a separate
action brought for that purpose, and which fees shall be in addition to any
other relief that may be awarded.
14
18.
Merger or Consolidation.
Any
corporation or association into which the Escrow Agent may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer all or substantially all of its corporate trust business and assets
as
a whole or substantially as a whole, or any corporation or association resulting
from any such conversion, sale, merger, consolidation or transfer to which
the
Escrow Agent is a party, shall be and become the successor escrow agent under
this Make Good Agreement and shall have and succeed to the rights, powers,
duties, immunities and privileges as its predecessor, without the execution
or
filing of any instrument or paper or the performance of any further act.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
15
IN
WITNESS WHEREOF, the parties have duly executed this Make Good Agreement as
of
the date set forth opposite their respective names.
|
COMPANY:
YONGYE
BIOTECHNOLOGY
INTERNATIONAL,
INC.
|
MAKE
GOOD PLEDGOR:
FULL
ALLIANCE INTERNATIONAL
LIMITED.
|
|||
|
By:
|
/s/ Zishen Wu |
By:
|
/s/ Zhong Xingmei | |
|
Name:
Zishen Wu
Title:
CEO
Address:
6th
Floor, Suite 608 Xxx Xxxx International Tower
Xx.
0 Xxxxxx Xxxx
Xxxxxxx
Xxxxxxxx
Xxxxxxx,
XXX
Facsimile:
x00 00.0000.0000
Email:
xxx@xxxxx-xxxxxx.xxx
|
Name:
Zhong Xingmei
Title:
Director
Address:
OMC
Xxxxxxxx
P.O.
Box 3152,
Road
Town, Tortola,
British
Virgin Islands
|
|||
|
ESCROW
AGENT:
TRI-STATE
TITLE & ESCROW, LLC
|
XXXX
CAPITAL PARTNERS, LLC
|
|||
|
By:
|
/s/ Xxxxx X. Xxxxxx |
By:
|
/s/ Xxxxx X. Xxxxxxxx | |
|
Name:
Xxxxx
X. Xxxxxx
Title:
Address:
0000
Xxx Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxx,
XX 00000
Facsimile:
|
Name: Xxxxx
X. Xxxxxxxx
Title:
Managing Director, Head of Equity Capital Markets
Address:
00
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Facsimile:
(000) 000-0000
|
|||
[Investor
Signature Pages to Follow]
16
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow Agreement
to be duly executed by their respective authorized signatories as of the
date
first indicated above.
|
NAME OF
INVESTOR
Black
River Small Capitalization Fund Ltd.
by:
Black
River Asset Management
LLC,
its
Investment Adviser
|
| /s/ Xxxx Xxxxxx | |
|
Name:
Xxxx Xxxxxx
Title:
Principal
|
|
|
Address: c/o
Black River Asset Management
|
|
|
00000
Xxxxxxxxxx
Xxxxx
|
|
|
Xxxxxxxxxx,
XX
00000
|
|
|
Facsimile:
000-000-0000
|
|
|
Attn.: Xxxxx
Xxxxx
|
|
17
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow Agreement
to be duly executed by their respective authorized signatories as of the
date
first indicated above.
|
NAME OF
INVESTOR
Black
River Commodity Select Fund Ltd.
by:
Black
River Asset Management
LLC
its
Investment Adviser
|
| /s/ Xxxx Xxxxxx | |
|
Name:
Xxxx Xxxxxx
Title:
Principal
|
|
|
Address:
c/o Black River Asset Management
LLC
|
|
|
00000
Xxxxxxxxxx
Xxxxx
|
|
|
Xxxxxxxxxx,
XX
00000
|
|
|
Facsimile:
000-000-0000
|
|
|
Attn.: Xxxxx
Xxxxx
|
|
18
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow
Agreement
to be duly executed by their respective authorized signatories as of
the date
first indicated above.
| NAME OF INVESTOR : Xxxxxx Xxxxxx |
| By: | /s/ Xxxxx Xxxxxx |
Name:
Xxxxx Xxxxxx
Title:
Agent / Advisor
Address:
000 Xxxxxx Xx., 0xx xxxxx
Xxxxxxxx,
XX 00000
Facsimile:
000-000-0000
Attn.:
Xxxxx Xxxxxx
19
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow
Agreement
to be duly executed by their respective authorized signatories as of
the date
first indicated above.
| NAME OF INVESTOR : Ardsley Partners Fund II, L.P. |
| By: | /s/ Xxxxx Xxxxxx |
Name:
Xxxxx Xxxxxx
Title:
Partner
Address: 000
Xxxxxx Xx., 0xx xxxxx
Xxxxxxxx,
XX 00000
Facsimile:
000-000-0000
Attn.:
Xxxxx Xxxxxx
20
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow
Agreement
to be duly executed by their respective authorized signatories as
of the date
first indicated above.
| NAME OF INVESTOR : 1998 Xxxxxxxxx Family Trust |
| By: | /s/ Xxxx Xxxxxxxxx |
Name:
Xxxx Xxxxxxxxx
Title:
Advisor / Trustee
Address: 000
Xxxxxx Xx., 0xx xxxxx
Xxxxxxxx,
XX 00000
Facsimile:
000-000-0000
Attn.:
Xxxxx Xxxxxx
21
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow
Agreement
to be duly executed by their respective authorized signatories as
of the date
first indicated above.
| NAME OF INVESTOR : Ardsley Partners Institutional Fund, L.P. |
| By: |
/s/
Xxxxx Xxxxxx
|
|
Name: Xxxxx
Xxxxxx
Title:
Partner
|
Address: 000
Xxxxxx Xx., 0xx xxxxx
Xxxxxxxx,
XX 00000
Facsimile:
000-000-0000
Attn.:
Xxxxx Xxxxxx
22
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow
Agreement
to be duly executed by their respective authorized signatories as of
the date
first indicated above.
| NAME OF INVESTOR Special Situations Private Equity Fund, L.P. |
| /s/ Xxxxx Greenhouse | |
|
Name:
Xxxxx Greenhouse
Title:
Managing Director
|
|
|
Address: 000
Xxxxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxx
Xxxx, X.X. 10022
|
|
|
Facsimile:
212-319-6677
|
|
|
Attn.: Xxxxx
Greenhouse / Xxxxxxxx Xxxxx
|
|
23
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow
Agreement
to be duly executed by their respective authorized signatories as
of the date
first indicated above.
| NAME OF INVESTOR Special Situations Cayman Fund, L.P. |
| /s/ Xxxxx Greenhouse | |
|
Name:
Xxxxx Greenhouse
Title:
Managing Director
|
|
|
Address:
000 Xxxxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxx
Xxxx, X.X. 10022
|
|
|
Facsimile:
212-319-6677
|
|
|
Attn.: Xxxxx
Greenhouse / Xxxxxxxx Xxxxx
|
|
24
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good
Escrow Agreement
to be duly executed by their respective authorized signatories
as of the date
first indicated above.
25
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good
Escrow Agreement
to be duly executed by their respective authorized signatories
as of the date
first indicated above.
26
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good Escrow
Agreement
to be duly executed by their respective authorized signatories as
of the date
first indicated above.
27
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good
Escrow Agreement
to be duly executed by their respective authorized signatories
as of the date
first indicated above.
28
IN
WITNESS WHEREOF, the parties hereto have caused this Make Good
Escrow Agreement
to be duly executed by their respective authorized signatories
as of the date
first indicated above.
29
Exhibit
A
(attached as a MS Excel spreadsheet)
ESCROW
SHARES TO BE ISSUED TO INVESTORS
|
Investor’s Legal
Name
|
Investor’s
Investment
Amount
|
Make Good
(2008)
|
Make Good
(2009)
|
Restructuring
Make Good
|
|||||||||
30
Exhibit
B
Make
Good
Escrow Fee
Tri-State
Title & Escrow LLC $1,000.00
31
