MAKE GOOD ESCROW AGREEMENT
This
Make
Good Escrow Agreement (the "Make
Good Agreement"),
dated
effective
as of December 24, 2007, is entered into by and among Discovery Technologies,
Inc., a Nevada corporation (the
"Company"),
the
Investors (as defined below), Yinshing Xxxxx To
(the
"Make
Good Pledgor")
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 December 24,
2007
(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, (i) the Make Good Pledgor agreed 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.
WHEREAS,
pursuant to the requirements of the SPA, the Company and the Make Good
Pledgor has 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. The 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.
Within
three Trading Days following the Closing, the Make Good Pledgor shall
deliver, or cause to be delivered, to the Escrow Agent certificates evidencing
the 2009
Make Good Shares
(the
"Escrow
Shares"),
along
with bank signature stamped stock powers executed in blank (or such other signed
instrument
of transfer acceptable to the Company’s Transfer Agent). For purposes hereof,
“2009 Make Good Shares” means
the
following, as
equitably adjusted for any stock splits, stock combinations, stock dividends
or
similar transactions:
the
Shares (as defined in the SPA) times 50%.
As used
in this Make
Good
Agreement, “Transfer
Agent”
means
Corporate Stock Transfer, a transfer agent based in the state of Colorado,
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. The Make Good
Pledgor hereby agrees that his obligation to transfer shares of Common Stock
to
Investors pursuant to Section 4.11 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 Investors 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. The Make Good Pledgor hereby
irrevocably agrees that other than in accordance with Section 4.11 of the SPA
and this Make
Good
Agreement, the 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
covered by any registration statements, (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 the Make Good
Pledgor to resell or transfer any Escrow Shares under such registration
statements or otherwise in violation of Section 4.11 of the SPA and this Make
Good Agreement. If within
ten (10) business days following the Closing, the Make Good Pledgor shall not
have deposited
all potential 2009 Make Good Shares into escrow in accordance with this Make
Good Agreement along with bank signature stamped stock powers executed in blank
(or such other signed instrument of transfer acceptable to the Company’s
transfer agent), then, upon written demand from an Investor, the Make Good
Pledgor agrees that the Company may promptly
cancel the Escrow Shares and reissue new Escrow Shares to
the
Escrow Agent. The Company will notify the Investors within a reasonable time
that the Escrow Shares have been deposited with
the
Escrow Agent.
3. Representations
of the Make Good Pledgors and the Company. The
Make
Good Pledgor, and the Company as to itself only,
hereby
represent and warrant to
the
Investors as follows:
a. 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.
b. 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 any of
the
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.
4. Disbursement
of Escrow Shares.
a.
The
Make Good Pledgor agrees that in the event that either (i) the Earnings Per
Share (as defined in the SPA) reported in the in
the
Annual Report on Form 10-KSB of the Company for the fiscal year ending June
30,
2009, as filed with the Commission
(the
“2009
Annual Report”),
is
less than the “2009
Guaranteed EPS”,
as
defined in the SPA, meaning, ninety
three percent of the 2009 Guaranteed ATNI, as defined below, divided by the
Closing Outstanding Shares (as defined in the SPA), as
may be
equitably adjusted for any stock splits, stock combinations, stock dividends
or
similar transactions:
| 2009 Guaranteed ATNI × 93% | ||
|
Closing
Outstanding Shares
|
1
or
(ii)
the After Tax Net Income
(as
defined in the SPA) reported in the 2009 Annual Report,
is less
than $12,000,000 (the “2009
Guaranteed ATNI”),
the
Make Good Pledgors will transfer 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 payment of their
respective Investment Amount paid at Closing, the
2009
Make Good Shares.
Notwithstanding
anything to the contrary contained herein, in determining
whether the Company has achieved the 2009 Guaranteed ATNI or 2009 Guaranteed
EPS, the Company may disregard any compensation charge or expense required
to be
recognized by the Company under GAAP resulting from
the
release of the 2009 Make Good Shares to Make
Good
Pledgor if and to the extent such charge or expense is specified in
the
Company’s
independent auditor’s report
for the
relevant
year, as filed with the Commission. No other exclusions shall be made for any
non-recurring expenses of the Company, including liquidated damages under the
Transaction Documents, in determining whether
2009
Guaranteed ATNI or 2009 Guaranteed EPS
have
been achieved. If prior to the second anniversary of the filing of the 2009
Annual Report, the Company or their 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 the 2009 Guaranteed ATNI or Earnings Per Share of less
than the 2009 Guaranteed EPS, as applicable, then notwithstanding any prior
return of
2009
Make Good Shares
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 2009 Make Good Shares to the Investors. In
the
event that the After Tax Net Income reported in the 2009 Annual
Report
is equal
to or greater than the 2009 Guaranteed ATNI
and
the Earnings Per Share for the fiscal year ending June 30, 2009, as reported
in
the 2009 Annual Report is equal to or greater than the 2009 Guaranteed EPS,
no
transfer of the 2009 Make Good Shares shall be required by the Make Good Pledgor
to the Investors under this Section and such 2009 Make Good Shares shall be
conveyed to Xxx
Xx in
accordance with this Make Good Agreement. Any
transfer of the 2009 Make Good Shares under this Section
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 otherwise in accordance
with this Make Good Agreement. In
the
event that either (i) the
Earnings Per Share for the fiscal year ending June 30, 2009 is
less
than the 2009 Guaranteed EPS or (ii) the After
Tax
Net Income
for the
fiscal year ending June 30, 2009, as reported in the 2009 Annual
Report is
less
than the 2009 Guaranteed ATNI, the Company has agreed that
Pinnacle
Fund L.P. (“Pinnacle”) will
provide prompt written instruction to the Escrow Agent with regard to the
distribution of the 2009 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 Pinnacle in this regard and, notwithstanding
anything to the contrary contained herein, will disregard any contrary
instructions. In
the
event that the
(i)
Earnings
Per Share for the fiscal year ending June 30, 2009 reported in the 2009 Annual
Report
is
equal
to or greater than the 2009 Guaranteed EPS and (ii)
After
Tax Net Income
reported
in the 2009 Annual Report is equal to or greater than the 2009 Guaranteed ATNI,
Pinnacle
shall provide prompt written instructions to the Escrow Agent for the release
of
the
2009
Make Good Shares to the Make Good Pledgor.
2
b.
Pursuant to Section 4(a), if Pinnacle delivers a notice to the Escrow Agent
that
the 2009 Make Good Shares are to be transferred to the Investors, then the
Escrow Agent shall immediately
forward the 2009 Make Good Shares to the Company’s Transfer Agent for reissuance
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 2009 Make Good Shares to the
Investors in accordance with this Make Good Agreement, the Company shall
promptly instruct its Transfer Agent to reissue such 2009 Make Good Shares
in
the applicable Investor’s name and deliver the same 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 Pinnacle
is
hereby
authorized to give such re-issuance instruction to the Transfer Agent
of
the
Company. If a notice from Pinnacle pursuant to Section 4(a) indicates that
the
2009 Make Good Shares are to be conveyed to Xxx
Xx,
then
the Escrow Agent will promptly deliver the 2009 Make Good Shares to Xxx
Xx.
c.
The
Company and Make Good Pledgor covenant and agree, jointly and severally, 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. The Company and the Make Good
Pledgor understand that if such tax reporting documentation is not provided
and
certified
to the Escrow Agent, the Escrow Agent may be required by the Internal
Revenue
Code of 1986, as amended, and the Regulations promulgated thereunder, to
withhold
a portion of any interest or other income earned on the investment of the
Escrow
property.
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 the 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 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, any dividends
payable in respect of the Escrow Shares and all voting rights applicable to
the
Escrow Shares shall be retained by the Make Good Pledgor. 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 the Make Good Pledgor and
shall not be invested or held for any
time
longer than is needed to effectively re-route such items to the 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
the
Make Good Pledgor; provided,
that
the
cash or exchanged shares are instructed to be
redeposited into the Escrow Account. The Make Good Pledgor shall be responsible
for all taxes resulting from any such conversion or exchange.
3
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 Pinnacle 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 Pinnacle 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 Escrow Agent and Pinnacle. If Escrow Agent
or Pinnacle 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 Virginia, and
the Escrow Shares in dispute shall be deposited with the court and in such
event
Escrow Agent and Pinnacle 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 Pinnacle.
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. Pinnacle’s sole obligation under this
Make Good Agreement is to provide joint written instruction to Escrow Agent
(following such time as the Company files certain
periodic financial reports document as specified in Section 4 hereof) directing
the distribution
of the Escrow Shares. Pinnacle will provide such written instructions upon
review of the relevant earnings per share and/or after-tax net income amount
reported in such
periodic financial reports as specified in Section 4 hereof or receipt of notice
from the Company under Section 4(d). Pinnacle 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 Pinnacle)
in
connection with such financial reports of the Company and Pinnacle shall have
no
obligation or liability to any
party
hereunder.
4
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 Virginia 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.
c. The
Company and Make Good Pledgor each hereby, jointly and severally, indemnify
and
hold harmless each of Escrow Agent and Pinnacle 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
Pinnacle 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 Pinnacle hereunder; except, that if Escrow Agent or Pinnacle is guilty
of
willful misconduct or gross negligence under this Make Good Agreement, then
Escrow Agent or Pinnacle, 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 Pinnacle 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 Pinnacle, 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.
5
10. Resignation
of Escrow Agent. At
any
time, upon ten (10) days' written notice to the Company, 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-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 may interplead the Escrow Shares into
the
registry of any court having jurisdiction.
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 any of the parties
hereto may not be assigned without the prior written consent of the other
parties hereto. Subject to the foregoing, this Make Good Agreement will be
binding upon and inure to the benefit of each of the parties hereto and
their
respective successors and permitted assigns. No other person will acquire or
have any
rights under, or by virtue of, this Make Good Agreement. 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. This
Make
Good
Agreement may be amended or modified only in writing signed by all of the
parties hereto.
6
15. Applicable
Law. This
Make
Good Agreement shall be governed by and construed in accordance with the laws
of
the State of Virginia without giving effect to the principles of conflicts
of
laws thereof.
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.
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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
7
IN
WITNESS WHEREOF, the parties have duly executed this Make Good Agreement as
of
the date set forth above.
| COMPANY: | ||
| DISCOVERY TECHNOLOGIES, INC. | ||
| |
|
|
| By: |
/s/
Xxx Xx
|
|
|
Name: Xxx Xx |
||
|
Title:
Chairman of the Board,
President
and Chief Executive Officer
Address:
Facsimile:
Attn.:
|
||
|
MAKE
GOOD PLEDGOR:
|
||
| |
|
|
| /s/ Yinshing Xxxxx To | ||
|
Yinshing Xxxxx To |
||
|
ESCROW
AGENT:
|
||
|
TRI
STATE TITLE & ESCROW, LLC,
as
Escrow Agent
|
||
| |
|
|
| By: | ||
|
Name: |
||
|
Title:
|
||
|
Address:
Facsimile:
Attn.:
|
||
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK -
SIGNATURE
PAGE FOR OTHER PARTIES FOLLOWS]
8
|
NAME
OF INVESTOR
|
||
| |
|
|
| By: | ||
|
Name: |
||
|
Title:
|
||
|
Address:
Facsimile:
Attn.:
|
||
9
Exhibit
A (attached
as a MS Excel spreadsheet)
ESCROW
SHARES TO BE ISSUED TO INVESTORS
|
Investor’s Legal Name
|
Investor’s
Investment
Amount
|
2009
Make Good Shares Shares)
|
10
Exhibit
B
Initial
Escrow Account Fee: $2,000.00
Fee
for
each disbursement of shares : $ 500.00
