AMENDMENT TO THE MAKE GOOD AGREEMENT
Exhibit 10.21
AMENDMENT TO THE MAKE GOOD AGREEMENT
THIS AMENDMENT TO THE MAKE GOOD ESCROW AGREEMENT, dated as of October 10, 2008 (this "Amendment"), is entered into by and among China Nutrifruit Group Limited (formerly known as Fashion Tech International, Inc.), a Nevada corporation (the "Company"), KUNG Yiu Fai (the "Make Good Pledgor"), WLT Brothers Capital, Inc., as Investor agent ("Investor Agent") and Securities Transfer Corporation, as escrow agent ("Escrow Agent"). Capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Make Good Agreement (as defined below).
W I T N E S S E T H
WHEREAS, the Company, the Make Good Pledgor, the Investment Agent and the Escrow Agent are parties to that certain Make Good Escrow Agreement, dated as of August 14, 2008 (the "Make Good Agreement"); and
WHEREAS, the parties to the Make Good Agreement wish to amend certain provisions of the Make Good Agreement; and
WHEREAS, Section 14 of the Make Good Agreement provides that the 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, the Make Good Pledgor and the Investor Agent;
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1. Amendment. The parties hereto agree that the Make Good Agreement shall be amended as set forth in this Section 1.1.
(a) The first sentence of Section 2 is hereby amended and restated in its entirety as follows:
"2. Establishment of Escrow. Within three Trading Days following the Closing, the Make Good Pledgor shall deliver, or cause to be delivered, to the Escrow Agent certificates evidencing an aggregate of 3,085,840 shares of the Company’s Common Stock (the "Escrow Shares"), along with stock powers executed in blank (or such other signed instrument of transfer acceptable to the Company’s Transfer Agent).
(b) Exhibit A attached to the Make Good Escrow Agreement is hereby deleted in its entirety and is replaced with Exhibit A attached hereto.
SECTION 1.2. Full Force and Effect. For the avoidance of doubt, all other provisions of the Make Good Agreement shall remain in full force and effect.
1
ARTICLE II
MISCELLANEOUS
SECTION 2.1. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 2.2. Entire Agreement. This Amendment along with the Make Good Agreement and the other Transaction Documents contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, discussions and representations, oral or written, with respect to such matters, which the parties acknowledge have been merged into this Amendment.
SECTION 2.3. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized signatories as of the date first indicated above.
| THE COMPANY: |
| CHINA NUTRIFRUIT GROUP LIMITED |
| By:/s/ Xxxxxxx Xxx |
| Name: Xxxxxxx Xxx |
| Title: Chief Executive Officer |
| MAKE GOOD PLEDGOR: |
| KUNG YIU FAI |
| /s/ Xxxx Xxx Fai |
| ESCROW AGENT: |
| Securities Transfer Corporation, as Escrow Agent |
| By:/s/Xxxxx Xxxxxx Xx. |
| Name: Xxxxx Xxxxxx Xx. |
| Title: President |
| INVESTOR AGENT |
| WLT Brothers Capital, Inc., as Investor Agent |
| By:/s/ Xxxxx X. Xxxx |
| Name: Xxxxx X. Xxxx |
| Title: President and CEO |
Signature Page to the Amendment to Make Good Agreement
Exhibit A
ESCROW SHARES TO BE ISSUED TO INVESTORS
|
|
Investor’s | Make Good | Make Good |
|
Investor’s Legal Name |
Investment Amount | (2009) | (2010) |
|
Xxxxxxxx Xxxxx |
600,000.00 | 107,914 | 107,913 |
|
Xxxxxx X. Xxxxxxx |
100,000.00 | 17,986 | 17,985 |
|
FALLKLANDY x.x. |
150,000.00 | 26,978 | 26,978 |
|
FILUMA Spol S.R.O. |
250,000.00 | 44,964 | 44,964 |
|
Xxxxxxxx Xxxxxxxx |
81,086.26 | 14,584 | 14,583 |
|
Xxxxxx X. Gear |
75,000.00 | 13,489 | 13,489 |
|
Xxxxxxxx Xxxxxxxxx |
150,000.00 | 26,978 | 26,978 |
|
Grandmark Limited Partnership |
25,000.00 | 4,496 | 4,496 |
|
Halter Global Opportunity Fund |
325,000.00 | 58,453 | 58,453 |
|
Xxxxx Xxxxxx, Xx. |
100,000.00 | 17,986 | 17,985 |
|
Xxxxx X. Xxxxx and W. Xxxxxxx Xxxxx |
15,000.00 | 2,698 | 2,697 |
|
Xxxxx Xxxxxxxx |
99,975.00 | 17,981 | 17,981 |
|
Xxxxxx Xxxxxxxxxxxx |
135,426.69 | 24,357 | 24,357 |
|
Xxxxxx Xxxxxxxxxx |
200,000.00 | 35,971 | 35,971 |
|
Eva Xxxxxxx Xxxx |
150,000.00 | 26,978 | 26,978 |
|
Xxxxxx X. XxXxxxxx |
25,000.00 | 4,496 | 4,496 |
|
Xxxxx Xxxxxxx |
149,973.00 | 26,974 | 26,973 |
|
Xxxxxx Xxxxxxx |
299,968.00 | 53,951 | 53,951 |
|
Xxxxxxxx Xxxxxxxxx |
150,000.00 | 26,978 | 26,978 |
|
RESBEX Sp. z.o.o. |
150,000.00 | 26,978 | 26,978 |
|
Support2trading LTD. |
125,000.00 | 22,482 | 22,482 |
|
Xxxxxx Xxxx |
149,973.00 | 26,974 | 26,973 |
|
The USX China Fund |
250,200.00 | 45,000 | 45,000 |
|
X. Xxxxxxxx LLC |
20,000.00 | 3,597 | 3,597 |
|
Xxxxx Xxxxxxxx |
200,000.00 | 35,971 | 35,971 |
|
Xxxxxxxxx Xxxxxx |
50,000.00 | 8,993 | 8,992 |
|
Xxxxxx Xxxxxxxxxxx |
200,000.00 | 35,971 | 35,971 |
|
Xxxxx Xxxxxxxxxx |
130,000.00 | 23,381 | 23,381 |
|
Xxxxx Xxxxxxxxxx |
100,000.00 | 17,986 | 17,985 |
|
Xxxxxx Xxxxxx |
100,000.00 | 17,986 | 17,985 |
|
Xxxxx Xxxxxxx |
149,865.20 | 26,954 | 26,954 |
|
Xxxxxxx X. Xxxxxx Trust U/A/D 03/28/94 |
$100,000.00 | 17,986 | 17,985 |
|
Xxxx Xxxxxx Xxxxxxxxxx |
$50,000.00 | 8,993 | 8,992 |
|
Xxxxxx Xxxxxx III |
$100,000.00 | 17,986 | 17,985 |
|
Xxxxxxxxx Xxxx & Xxxx Xxxx JTWROS |
$100,000.00 | 17,986 | 17,985 |
|
Halter Global Opportunity Fund |
$200,000.00 | 35,971 | 35,971 |
|
Xxxxx & Xxxxx Xxxxx JTWROS |
$100,000.00 | 17,986 | 17,985 |
|
Xxxxx X. and R. Xxxxxxx Xxxxxxx JTWROS |
$200,000.00 | 35,971 | 35,971 |
|
Xxxxxx X. & Parnela X. Xxxxxxx Living |
$80,000.00 | 14,388 | 14,388 |
|
Trust UA 5/11/04 |
|||
|
Xxxxxx Xxxxxxxx |
$20,000.00 | 3,597 | 3,597 |
|
Xxxx X. Xxxxxxx & Xxxxx X. Xxxxxxx Xx. |
$100,000.00 | 17,986 | 17,985 |
|
Ten. |
|
|
Investor’s | Make Good | Make Good |
|
Investor’s Legal Name |
Investment Amount | (2009) | (2010) |
|
Xxxxxxx X. Xxxxxxx |
$100,000.00 | 17,986 | 17,985 |
|
Xxxxx X. Xxxxx |
$55,600.00 | 10,000 | 10,000 |
|
Xxxxxx Xxxxxx |
$100,000.00 | 17,986 | 17,985 |
|
Xxxxxxx Xxxx & Xxxxxx Xxxx JTWROS |
$50,000.00 | 8,993 | 8,992 |
|
Xxxx X. Xxxxxx & Xxxxxxxx Xxxxxx |
$100,000.00 | 17,986 | 17,985 |
|
JTWROS |
|||
|
Xxxx X. Xxxxxxxx Trust UAD 9/15/95 |
$50,000.00 | 8,993 | 8,992 |
|
Xxxxxxx Xxxxxxxxx |
$300,000.00 | 53,957 | 53,956 |
|
Xxxxx Xxxxx |
$100,000.00 | 17,986 | 17,985 |
|
Mehran Xxxxxxxx Xxxxxxx |
$200,000.00 | 35,971 | 35,971 |
|
The Xxxxx Family Trust UAD 4/12/2002 |
$500,000.00 | 89,928 | 89,928 |
|
Xxxxx Family Trust UAD 07/01/01 |
$50,000.00 | 8,993 | 8,992 |
|
Greystone Financial Services Inc. Profit |
$100,000.00 | 17,986 | 17,985 |
|
Sharing Plan |
|||
|
Xxxxx Xxxxx |
$121,662.04 | 21,882 | 21,881 |
|
Xxxxx Xxxxxxxx |
$94,975.00 | 17,082 | 17,081 |
|
Xxxxxx X. and Xxxx X. Xxxxxxxxxxx |
$200,000.00 | 35,971 | 35,971 |
|
Xxxxxx Xxxxxx |
$150,000.00 | 26,978 | 26,978 |
|
Ma gorzata P usa |
$170,000.00 | 30,576 | 30,575 |
|
Xxxxxxxxx Xxxxxxxxx |
$250,000.00 | 44,964 | 44,964 |
|
Xxxxxx X. Xxxxxxx |
$100,000.00 | 17,986 | 17,985 |
|
Xxxxx Xxxxxxxxxx |
$30,000.00 | 5,396 | 5,395 |
|
Totals: |
8,578,704.19 | 1,542,935 | 1,542,905 |
