Exhibit 2.2
MAKE GOOD ESCROW AGREEMENT
This Make Good Escrow Agreement (the "MAKE GOOD AGREEMENT"), dated
effective as of June 23, 2011, is entered into by and among Stevia Corp., a
Nevada corporation (the "COMPANY"), Xxxxxxxxx Xxxxxxx, LLP, as escrow agent
("ESCROW AGENT") and Xxxxxx Xxxxxxxxxxxx (the "SELLING SHAREHOLDER").
WHEREAS, in connection with the execution of this Make Good Agreement, the
Company, Stevia Ventures International Ltd., a company organized under the laws
of the British Virgin Islands ("BVI") and the Selling Shareholder have entered
into the Exchange Agreement pursuant to which the Selling Shareholder exchanged
all the outstanding shares of BVI for shares of common stock in the Company (the
"EXCHANGE");
WHEREAS, as an inducement to the Company to enter into the Exchange, the Selling
Shareholder agreed to have a portion of the Exchange Shares placed into escrow
for the benefit of the Company in the event the combined business of the Company
after the Exchange fails to achieve certain business milestones as set forth on
Exhibit A hereto (each a "MILESTONE" and collectively, the "MILESTONES"); and
WHEREAS, the Escrow Agent has agreed to act as escrow agent pursuant to the
terms and conditions of this Make Good Agreement.
NOW, THEREFORE, in consideration of the mutual promises of the parties and the
terms and conditions hereof, the parties hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Exchange Agreement will have the meanings given such
terms in the Exchange Agreement.
2. Appointment of Escrow Agent. The Selling Shareholder and the Company
hereby appoint Escrow Agent to act in accordance with the terms and conditions
set forth in this Make Good Agreement. Escrow Agent hereby agrees to act as
escrow agent in this transaction and subject to the terms of this Make Good
Agreement. The Parties hereby appoint the Escrow Agent as their joint agent for
the purpose of holding and disbursing the Escrow Shares (as defined below)
stated herein pursuant to the terms and provisions hereof. The Selling
Shareholder agrees to waive any actual or potential conflicts that may arise out
of Escrow Agent's duties hereunder, and agrees that in the event of any
controversy of dispute hereunder, Escrow Agent may continue its legal
representation of the Company. Additionally, in the event of any controversy or
litigation between the Company and the Selling Shareholder, the Selling
Shareholder agrees to waive any actual or potential conflicts, and agrees and
acknowledges that Escrow Agent shall not be precluded from its legal
representation of the Company as against the Selling Shareholder or any third
party.
3. Establishment of Escrow. Within seven business days following the
Closing Date, the Company shall deliver, or cause to be delivered, to the Escrow
Agent certificates evidencing 6,000,000 shares of common stock of the Company
(as equitably adjusted for any stock splits, stock combinations, stock dividends
or similar transactions) registered in the names of the Selling Shareholder in
such proportions as set forth on Exhibit A to the Exchange Agreement (the
"ESCROW SHARES"), and the Selling Shareholder shall deliver a stock power
executed in blank (or such other instruments of transfer as in accordance with
the requirements of the Company's Transfer Agent). The Company understands and
agrees that the Selling Shareholder's right to return of the Escrow Shares shall
continue to run to the benefit of the Selling Shareholder even if the Selling
Shareholder shall have transferred or sold all or any portion of its Escrow
Shares, and that the Selling Shareholder shall have the right to assign its
rights to return of all or any such shares of common stock to other persons in
conjunction with negotiated sales or transfers of any of its Escrow Shares. As
used in this Make Good Agreement, "TRANSFER AGENT" means Xxxxx Stock Transfer,
Inc. or such other entity hereafter retained by the Company as its stock
transfer agent as specified in writing from the Company to the Escrow Agent and
the Selling Shareholder.
4. Representations of Selling Shareholder. The Selling Shareholder
represents and warrants to the Company as follows:
a. The Selling Shareholder has all individual power and authority to enter
into this Agreement and to carry out its obligations hereunder. This Agreement
has been duly executed by the Selling Shareholder, and when delivered by the
Selling Shareholder in accordance with the terms hereof, will constitute the
valid and legally binding obligation of the Selling Shareholder, enforceable
against it in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors' rights and remedies or by other equitable principles of general
application.
b. 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 the Company hereunder,
the Company will receive full right, title and authority to such shares.
c. 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 the Selling Shareholder pursuant to the terms of any indenture,
mortgage, deed of trust or other agreement or instrument binding upon the
Selling Shareholder, other than such breaches, defaults or liens which would not
have a material adverse effect taken as a whole.
5. Disbursement of Escrow Shares.
a. Upon achievement of any Milestone on or before the date associated with
such Milestone on Exhibit A, the Company shall promptly provide written notice
to the Escrow Agent and the Selling Shareholder of such achievement (each a
"COMPLETION NOTICE"). Upon the passage of any Milestone date set forth on
Exhibit A for which the Company has not achieved the associated Milestone, the
Company shall promptly provide written notice to the Escrow Agent and the
Selling Shareholder of such failure to achieve the milestone (each a
"NONCOMPLETION NOTICE"). In carrying out its duties under this Make Good
Agreement, the Escrow Agent need only rely on such written notices received from
the Company and will disregard any contrary instructions.
b. The Selling Shareholder agrees that if the Escrow Agent has received a
Noncompletion Notice with respect to a Milestone, the Escrow Agent shall
instruct the Transfer Agent to transfer to the Company for no additional
consideration, the portion of the Escrow Shares allocated to such Milestone, as
indicated on Exhibit A, (as adjusted for any stock splits, stock combinations,
stock dividends or similar transactions). The Selling Shareholder shall promptly
provide any written instruction (with a copy to the Company) requested by the
Escrow Agent in connection with such transfer, provided that the failure of the
Selling Shareholder to provide such written instructions shall not affect the
authority of the Escrow Agent to make such transfer.
c. Upon receipt of a Completion Notice, the Selling Shareholder shall
immediately provide written instruction (with a copy to the Company) to the
Escrow Agent to release the Escrow Shares associated with the Milestone
described in the Completion Notice to the Selling Shareholder within seven
business days of receipt of such instruction.
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6. Duration. This Make Good Agreement shall terminate on the sooner of (i)
the distribution of all the Escrow Shares, or (ii) December 31, 2013.
7. Escrow Shares. If Escrow Shares are deliverable to the Company in
accordance with this Make Good Agreement, the Selling Shareholder 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 Selling Shareholder to the Company, to
the extent not done so in accordance with Section 5. Until such time as (if at
all) the Escrow Shares are required to be delivered 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 Selling
Shareholder.
8. Interpleader and Other Resolutions of Controversies Among the Parties.
Should any controversy arise among the parties hereto with respect to this Make
Good Agreement or with respect to the right to receive any Escrow Shares, Escrow
Agent 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 is also hereby authorized to institute an appropriate interpleader action
upon receipt of a written letter of direction executed by the parties so
directing the Escrow Agent. If Escrow Agent 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 8 shall be filed in any court of competent
jurisdiction in the State of California, and the Escrow Shares in dispute shall
be deposited with the court and in such event Escrow Agent. Should any
controversy arise among the parties hereto or any third person with respect to
this Make Good Agreement, Escrow Agent may also, at its discretion, hold all
funds, documents and instruments, and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in the
Escrow Agent's sole discretion, it deems reasonable. Escrow Agent may await
settlement of any controversy by appropriate legal proceeding or otherwise,
notwithstanding any provision of this Escrow Agreement or related agreements to
the contrary. In the event of a controversy, Escrow Agent shall not be liable
for interest on any money held in escrow or damages for nondelivery thereunder.
9. Exculpation and Indemnification of Escrow Agent.
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. Escrow Agent is not charged with any obligation to conduct
any investigation into the Milestone 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 in connection with delivery or failure to
deliver a Completion Notice or Noncompletion Notice, Escrow Agent shall not have
any obligation or liability to any party hereunder.
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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
California 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 the Selling Shareholder each hereby, jointly and
severally, indemnify and hold harmless each of Escrow Agent, and any of its
principals, partners, agents, employees and affiliates from and against any
expenses, including reasonable attorneys' fees and disbursements, damages or
losses suffered by Escrow Agent 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 hereunder; except, that if Escrow
Agent is guilty of willful misconduct or gross negligence under this Make Good
Agreement, then Escrow Agent 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 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 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 9 shall survive the termination of this Make Good
Agreement, and the resignation or removal of the Escrow Agent.
10. Resignation of Escrow Agent. At any time, upon ten 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 designated by both the
Company and the Selling Shareholder, 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 ten day period following the giving of
notice of resignation by Escrow Agent, the Company and Selling Shareholder shall
have failed to appoint a successor escrow agent, Escrow Agent may interplead the
Escrow Shares into the registry of any court having jurisdiction. Upon the
transfer of and accounting for the Escrow Shares as set forth in this Section
10, the Escrow Agent shall be fully relieved of all liability under this
Agreement to any and all parties.
11. 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 fax, registered or certified mail, return
receipt requested, or overnight courier, to the addresses listed below:
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If to the Company:
Stevia Corp.
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx, LLP
Attention: Xxxx X. Xxx, Esq.
0000 X Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Escrow Agent:
Xxxxxxxxx Xxxxxxx, LLP
Attention: Xxxx X. Xxx, Esq.
0000 X Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Selling Shareholder:
Xxxxxx Xxxxxxxxxxxx
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
If to the Transfer Agent:
Xxxxx Stock Transfer, Inc.
0000 X Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
12. 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.
13. 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
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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.
14. Applicable Law. This Make Good Agreement shall be governed by and
construed in accordance with the laws of the State of California without giving
effect to the principles of conflicts of laws thereof.
15. 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.
16. 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.
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IN WITNESS WHEREOF, the parties have duly executed this Make Good Agreement as
of the date set forth opposite their respective names.
COMPANY:
STEVIA CORP.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
ESCROW AGENT:
XXXXXXXXX XXXXXXX, LLP
By: /s/ Xxxxxxxxx Traurig, LLP
-------------------------------------
Xxxxxxxxx Xxxxxxx, LLP
Its: Escrow Agent
SELLING SHAREHOLDER:
XXXXXX XXXXXXXXXXXX
/s/ Xxxxxx Xxxxxxxxxxxx
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