AMENDMENT TO MAKE GOOD SECURITIES ESCROW AGREEMENT
Exhibit
99.10
AMENDMENT
TO
THIS
AMENDMENT dated as of December 22, 2010 (“Amendment”), is by and among
Weikang Bio-Technology Group Company, Inc., a Nevada corporation (the “Company”), Lucky Wheel Limited
(the “Principal
Shareholder”), a British Virgin Islands corporation, and Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP with an address at 00 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000 (the “Escrow
Agent”).
WITNESSETH
WHEREAS,
the Company, Principal Shareholder and Escrow Agent entered into a Make Good
Securities Escrow Agreement dated as of December 2, 2010 (the “Agreement”), and
WHEREAS,
Section 1.4 of the Agreement did not reflect the understanding of the parties
and the parties have agreed to amend said provisions, in the manner, and on the
terms and conditions, set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises herein contained and
intending to be legally bound, the parties hereby agree as follows:
1. Definitions. Capitalized terms
not otherwise defined herein (including the Recitals) shall have the meanings
ascribed to them in the Agreement.
2. Amendment to Section 1.4 of
the Agreement. Section 1.4 of the Agreement is hereby amended
and restated in its entirety as of the date hereof to read as
follows:
The
parties hereby agree that the Escrow Shares shall be delivered to the Buyers as
set forth below:
If the Company fails to achieve the
2010 Performance Threshold or 2011 Performance Threshold for the relevant fiscal
periods, the Company shall instruct the Escrow Agent to deliver such number of
Escrow Shares to Buyer on a pro-rata basis, based on the following
formula:
Number of
Make-Good Shares due to investor = A * B
where A
= the number of shares of Common Stock issued to the Buyer, and
B
= (the target ATNI minus the actual applicable ATNI) / the target
ATNI,
as
calculated to four decimal places (or to two decimal places, if expressed
as a percentage)
For
example, if the shortfall for 2010 is 10.00% and the minimum Offering amount is
raised, with 416,667 shares of Common Stock issued to Buyers, then the total
number of Escrow Shares to be transferred for 2010 is 41,667, to be transferred
on a pro-rata basis to the Buyers.
3. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York. The representations
and warranties contained in this Agreement shall survive the execution and
delivery hereof and any investigations made by any party. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect any of the terms thereof.
4. Execution of
Counterparts. This Agreement may be executed in a number of
counterparts, by facsimile, each of which shall be deemed to be an original as
of those whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become
binding when one or more of the counterparts hereof, individually or taken
together, are signed by all the parties.
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WEIKANG
BIO-TECHNOLOGY GROUP
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COMPANY,
INC.
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By:
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/s/ Xxx Xxxx
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Name:
Xxx Xxxx
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Title:
Chief Executive Officer
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ESCROW
AGENT:
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Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
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By:
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/s/ Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title:
Partner
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PRINCIPAL
SHAREHOLDER:
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Lucky
Wheel Limited
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By:
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/s/ Xxx Xxxx
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Name:
Xxx Xxxx
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Title: Chief
Executive Officer
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