SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
This
SUBSCRIPTION AGREEMENT (“Subscription
Agreement”)
made
as of this [___] day of [________],
2007,
by and among SRKP 11, Inc., a Delaware corporation (the “Company”);
Hong
Kong Highpower Technology Company Limited, a company incorporated in Hong Kong
and upon the Closing Date (as defined below) a wholly-owned subsidiary of the
Company (“Highpower”);
and
the undersigned (the “Subscriber”).
WHEREAS,
the Company, Highpower, and the shareholders of Highpower are parties to a
certain Share Exchange Agreement dated as of [_____________] [__], 2007 (the
“Exchange
Agreement”),
pursuant to which Highpower will become a wholly-owned subsidiary of the Company
and 100% of the outstanding securities of Highpower will be exchanged for
securities in the Company (the “Share
Exchange”).
Immediately after the effective time of the Share Exchange (the “Closing
Date”),
the
Company will assume the business and operations of Highpower.
WHEREAS,
as a condition to the closing of the Share Exchange, the Company intends to
obtain subscriptions for the purchase and sale, in a private placement
transaction (the “Offering”)
pursuant to Regulation D promulgated under the Securities Act of 1933, as
amended (the “Act”),
of
shares of common stock (the “Shares”)
of the
Company, par value $0.001 per share (“Common
Stock”)
on the
terms and conditions hereinafter set forth, and the Subscriber desires to
acquire that number of Shares set forth on the signature page
hereof.
NOW,
THEREFORE, for and in consideration of the promises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Subscription
Procedure
1.1 Subject
to the terms and conditions hereinafter set forth, the Subscriber hereby
subscribes for and agrees to purchase from the Company such number of Shares
as
is set forth upon the signature page hereof at a price of $1.10 per Share (the
“Purchase
Price”).
The
Company agrees to sell such Shares to the Subscriber for the Purchase
Price.
1.2 The
subscription period will begin as of August 1, 2007 and will terminate (if
the
Closing Date has not earlier occurred) at 5:00 PM Eastern Standard Time on
September 30, 2007, unless extended by the Company, Highpower and the Placement
Agent (as defined below) for up to an additional 90 days (the “Termination
Date”).
The
Shares will be offered on a “best efforts” basis as more particularly set forth
in a Confidential Private Placement Memorandum and any supplements thereto
(the
“Offering
Memorandum”)
which
shall supersede in its entirety that Executive Summary dated July 17, 2007.
The
final Offering Memorandum will be provided to Subscribers in the Offering no
later than one (1) day prior to the Termination Date. The consummation of the
Offering is subject to the satisfaction of a number of conditions to be further
described in the Offering Memorandum, one or more of which conditions may not
occur.
1.3 Placement
of Shares will be made by WestPark Capital, Inc. (the “Placement
Agent”),
which
will receive certain compensation therefore as will be more fully described
in
the Offering Memorandum.
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1.4 The
Purchase Price will be placed in escrow pursuant to an escrow agreement (the
“Escrow
Agreement”)
by and
among the Placement Agent, the Company and Xxxxx Xxxxx, Esq. as escrow agent,
and shall be paid over to the Company at the closing of the purchase of the
Shares in the Offering (the “Closing”)
to
occur on the Closing Date.
1.5 The
certificates for the Common Stock bearing the name of the Subscriber will be
delivered by the Company no later than thirty (30) days following the Closing
Date. The Subscriber hereby authorizes and directs the Company to deliver the
securities to be issued to such Subscriber pursuant to this Subscription
Agreement to the residential or business address indicated in the Investor
Questionnaire, as attached.
1.6 The
Purchase Price for the Shares purchased hereunder shall be paid by certified
check, payable to Law Offices of Xxxxx X. Xxxxx, a Professional Corporation,
as
escrow agent, or by wire transfer to Law Offices of Xxxxx X. Xxxxx pursuant
to
the following instructions:
Law
Offices of Xxxxx X. Xxxxx, a Professional Corporation
Subscription
Escrow Account #2
Xxxxx
Fargo Bank
1801
Avenue of the Stars
Xxx
Xxxxxxx, XX 00000
Account
#
5763556098
ABA
#
000000000
1.7 The
Company and/or Highpower may, in their sole discretion, reject any subscription,
in whole or in part, or terminate or withdraw the Offering in its entirety
at
any time prior to a closing in relation thereto. Neither the Company nor the
Placement Agent shall be required to allocate among investors on a pro rata
basis in the event of an over-subscription.
2. Representations
and
Covenants of Subscriber
2.1 The
Subscriber recognizes that the purchase of Shares involves a high degree of
risk
in that (i) the Company will need additional capital to operate its business
but
has no assurance of additional necessary capital; (ii) an investment in the
Company is highly speculative and only investors who can afford the loss of
their entire investment should consider investing in the Company and the Shares;
(iii) an investor may not be able to liquidate his or her investment; (iv)
transferability of the securities comprising the Shares is extremely limited;
(v) an investor could sustain the loss of his or her entire investment; and
(vi)
the Company is and will be subject to numerous other risks and uncertainties,
including without limitation, significant and material risks relating to the
Company’s business and the business and operations of Highpower, and the
industries, markets and geographic regions in which the Company will compete,
as
well as risks associated with the Offering, the Share Exchange and the other
transactions contemplated herein, in the Offering Memorandum and in the Exchange
Agreement, all as more fully set forth herein and in the Offering Memorandum.
For the avoidance of doubt, all references to the Company in this Section
2.1
include
the Company’s business and operations after it acquires the business and
operations of Highpower through the Share Exchange.
2.2 The
Subscriber represents that he or she is an “accredited investor” as such term is
defined in Rule 501 of Regulation D promulgated under the Act, as indicated
by
his or her responses to the Investor Questionnaire, the form of which is
attached hereto as Exhibit
A,
and
that he or she is able to bear the economic risk of an investment in the Shares.
The Subscriber must complete the applicable Investor Questionnaire to enable
the
Company and Highpower to assess the Subscriber’s eligibility for the
Offering.
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2.3 The
Subscriber acknowledges that he or she has prior investment experience,
including without limitation, investment in non-listed and non-registered
securities, or he or she has employed the services of an investment advisor,
attorney or accountant to read all of the documents furnished or made available
by the Company or Highpower both to him and to all other prospective investors
in the Shares and to evaluate the merits and risks of such an investment on
his
or her behalf, and that he or she recognizes the highly speculative nature
of
this investment.
2.4 The
Subscriber acknowledges receipt and careful review of the Offering Memorandum,
this Subscription Agreement, and the attachments hereto and thereto
(collectively, the “Offering
Documents”)
and
hereby represents that he or she has been furnished or given access by the
Company or Highpower during the course of this Offering with or to all
information regarding the Company and Highpower and their respective financial
conditions and results of operations which he or she had requested or desired
to
know; that all documents which could be reasonably provided have been made
available for his or her inspection and review; that he or she has been afforded
the opportunity to ask questions of and receive answers from duly authorized
representatives of the Company and Highpower concerning the terms and conditions
of the Offering, and any additional information which he or she had requested.
The Subscriber further represents and acknowledges that the Subscriber has
not
seen or received any advertisement or general solicitation with respect to
the
sale of any of the securities of the Company, including, without limitation,
the
Shares.
2.5 The
Subscriber acknowledges that this Offering of Shares may involve tax
consequences, and that the contents of the Offering Documents do not contain
tax
advice or information. The Subscriber acknowledges that he or she must retain
his or her own professional advisors to evaluate the tax and other consequences
of an investment in the Shares.
2.6 The
Subscriber acknowledges that this Offering of Shares has not been reviewed
or
approved by the United States Securities and Exchange Commission (“SEC”)
because the Offering is intended to be a nonpublic offering pursuant to Section
4(2) of the Act. The Subscriber represents that the Shares are being purchased
for his or her own account, for investment and not for distribution or resale
to
others. The Subscriber agrees that he or she will not sell or otherwise transfer
any of the securities comprising the Shares unless they are registered under
the
Act or unless an exemption from such registration is available and, upon the
Company’s request, the Company receives an opinion of counsel reasonably
satisfactory to the Company confirming that an exemption from such registration
is available for such sale or transfer.
2.7 The
Subscriber understands that the Shares have not been registered under the Act
by
reason of a claimed exemption under the provisions of the Act which depends,
in
part, upon his investment intention. The Subscriber realizes that, in the view
of the SEC, a purchase now with the intention to distribute would represent
a
purchase with an intention inconsistent with his or her representation to the
Company, and the SEC might regard such a distribution as a deferred sale to
which such exemption is not available.
2.8 The
Subscriber understands that Rule 144 (the “Rule”)
promulgated under the Act requires, among other conditions, a one year holding
period prior to the resale (in limited amounts) of securities acquired in a
non-public offering, such as the Offering, without having to satisfy the
registration requirements under the Act. Except as specifically set forth in
Section
4.1,
the
Subscriber understands that the Company makes no representation or warranty
regarding its fulfillment in the future of any reporting requirements under
the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
or
its dissemination to the public of any current financial or other information
concerning the Company, as is required by Rule 144 as one of the conditions
of
its availability. The Subscriber consents that the Company may, if it desires,
permit the transfer of the Shares out of his or her name only when his or her
request for transfer is accompanied by an opinion of counsel reasonably
satisfactory to the Company that neither the sale nor the proposed transfer
results in a violation of the Act, any applicable state “blue sky” laws or any
applicable securities laws of any other country, province or jurisdiction
(collectively, “Securities
Laws”).
The
Subscriber agrees to hold the Company, Highpower and their respective directors,
officers and controlling persons and their respective heirs, representatives,
successors and assigns harmless and to indemnify them against all liabilities,
costs and expenses incurred by them as a result of any misrepresentation made
by
him contained herein or in the Investor Questionnaire or any sale or
distribution by the undersigned Subscriber in violation of any Securities
Laws.
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2.9 The
Subscriber consents to the placement of one or more legends on any certificate
or other document evidencing his or her Shares and the Common Stock included
in
the Shares stating that they have not been registered under the Act and are
subject to the terms of this Subscription Agreement, and setting forth or
referring to the restrictions on the transferability and sale
thereof.
2.10 The
Subscriber understands that the Company and Highpower will review this
Subscription Agreement and the Investor Questionnaire and, if the Subscriber
is
a natural person, the Company and Highpower are hereby given authority by the
undersigned to call his or her bank or place of employment. The Subscriber
further authorizes the Company and Highpower to review the financial standing
of
the Subscriber; and the Subscriber agrees that the Company and Highpower reserve
the unrestricted right to reject or limit any subscription and to close the
offer at any time.
2.11 The
Subscriber hereby represents that the address of Subscriber furnished by him
at
the end of this Subscription Agreement and in the Investor Questionnaire is
the
undersigned’s principal residence if he or she is an individual or its principal
business address if it is a corporation or other entity.
2.12 The
Subscriber acknowledges that if the Subscriber is a Registered Representative
of
a National Association of Securities Dealers, Inc. (“NASD”)
member
firm, he or she must give such firm the notice required by the NASD Conduct
Rules, or any applicable successor rules of the NASD, receipt of which must
be
acknowledged by such firm on the signature page hereof. The Subscriber shall
also notify the Company if the Subscriber or any affiliate of Subscriber is
a
registered broker-dealer with the SEC, in which case the Subscriber represents
that the Subscriber is purchasing the Shares in the ordinary course of business
and, at the time of purchase of the Shares, has no agreements or understandings,
directly or indirectly, with any person to distribute the Shares or any portion
thereof.
2.13 The
Subscriber hereby represents that, except as set forth in the Offering
Documents, no representations or warranties have been made to the Subscriber
by
either the Company or Highpower or their agents, employees or affiliates and
in
entering into this transaction, the Subscriber is not relying on any
information, other than that contained in the Offering Documents and the results
of independent investigation by the Subscriber.
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2.14 The
Subscriber agrees that he or she will purchase securities in the Offering only
if his or her intent at such time is to make such purchase for investment
purposes and not with a view toward resale.
2.15 If
the
undersigned Subscriber is a partnership, corporation, trust or other entity,
such partnership, corporation, trust or other entity further represents and
warrants that: (i) it was not formed for the purpose of investing in the
Company; (ii) it is authorized and otherwise duly qualified to purchase and
hold
the Shares; and (iii) that this Subscription Agreement has been duly and validly
authorized, executed and delivered and constitutes the legal, binding and
enforceable obligation of the undersigned.
2.16 If
the
Subscriber is not a United States person, such Subscriber hereby represents
that
it has satisfied itself as to the full observance of the laws of its
jurisdiction in connection with any invitation to subscribe for the Shares
or
any use of this Subscription Agreement, including (i) the legal requirements
within its jurisdiction for the purchase of the Shares, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental or
other consents that may need to be obtained, and (iv) the income tax and other
tax consequences, if any, that may be relevant to the purchase, holding,
redemption, sale or transfer of the Shares. Such Subscriber’s subscription and
payment for, and his or her continued beneficial ownership of the Shares, will
not violate any applicable securities or other laws of the Subscriber’s
jurisdiction.
2.17 The
undersigned hereby covenants and agrees that neither it nor any of its
affiliates has or will have an open position (e.g., short sale) in the Common
Stock prior to the Registration Statement (as defined below) being declared
effective by the SEC with the intent of covering such open position with Common
Stock being registered in the Registration Statement. The undersigned hereby
acknowledges and understands that the SEC has taken the position that such
an
open position would constitute a violation of Section 5 of the Act.
2.18 The
Subscriber acknowledges that (i) the Offering Memorandum contains material,
non-public information concerning the Company within the meaning of Regulation
FD promulgated by the SEC, and (ii) the Subscriber is obtaining such material,
non-public information solely for the purpose of considering whether to purchase
the Shares pursuant to a private placement that is exempt from registration
under the Act. In accordance with Regulation FD and other applicable provisions
of the Securities Laws, the Subscriber agrees to keep such information
confidential and not to disclose it to any other person or entity except the
Subscriber’s legal counsel, other advisors and other representatives who have
agreed (i) to keep such information confidential, (ii) to use such information
only for the purpose set forth above, and (iii) to comply with applicable
securities laws with respect to such information. In addition, the Subscriber
further acknowledges that the Subscriber and such legal counsel, other advisors
and other representatives are prohibited from trading in the Company’s
securities while in possession of material, non-public information and agrees
to
refrain from purchasing or selling securities of the Company until such
material, non-public information has been publicly disseminated by the Company.
The Subscriber agrees to indemnify and hold harmless the Company, Highpower
and
their respective officers, directors, employees and affiliates and each other
person, if any, who controls any of the foregoing, against any loss, liability,
claim, damage and expense whatsoever (including, but not limited to, any and
all
expenses whatsoever reasonably incurred in investigating, preparing or defending
against any litigation commenced or threatened or any claim whatsoever) arising
out of or based upon any false representation or warranty by the Subscriber,
or
the Subscriber’s breach of, or failure to comply with, any covenant or agreement
made by the Subscriber herein or in any other document furnished by the
Subscriber to the Company, Highpower or their respective officers, directors,
employees or affiliates or each other person, if any, who controls any of the
foregoing in connection with this transaction.
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2.19 The
Subscriber understands and acknowledges that (i) the Shares are being
offered and sold to Subscriber without registration under the Act in a private
placement that is exempt from the registration provisions of the Act under
Section 4(2) of the Act and (ii) the availability of such exemption depends
in part on, and that the Company will rely upon the accuracy and truthfulness
of, the foregoing representations, and such Subscriber hereby consents to such
reliance.
3. Representations
by the Company
and
Highpower
Except
as
set forth in the reports filed by the Company pursuant to the Securities
Exchange Act of 1934, as amended (the “SEC
Reports”),
each
of the Company and, as applicable, Highpower severally represent and warrant
to
the Subscriber that:
3.1 Organization
and Authority.
The
Company and Highpower, and each of their respective subsidiaries, (i) is a
corporation and company, respectively, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and formation,
respectively, (ii) has all requisite corporate power and company power,
respectively, and authority to own, lease and operate its properties and to
carry on its business as presently conducted, and (iii) has all requisite
corporate power and company power, respectively, and authority to execute,
deliver and perform their obligations under this Subscription Agreement and
the
Offering Documents being executed and delivered by it in connection herewith,
and to consummate the transactions contemplated hereby and thereby.
3.2 Qualifications.
The
Company and Highpower, and each of their respective subsidiaries, is duly
qualified to do business as a foreign corporation and foreign company,
respectively, and is in good standing in all jurisdictions where such
qualification is necessary and where failure so to qualify could have a material
adverse effect on the business, properties, operations, condition (financial
or
other), results of operations or prospects of the Company and its subsidiaries
(after the effective time of the Share Exchange), taken as a whole.
3.3 Capitalization
of the Company.
Immediately after the effective time of the Share Exchange (but before the
closing of this Offering), the authorized capital stock the capitalization
of
the Company will consist of 100,000,000 shares of Common Stock, $0.001 par
value
per share and 10,000,000 shares of “blank check” Preferred Stock, par value
$0.001 per share. Of the authorized capital stock of the Company, immediately
after the effective time of the Share Exchange, there will be outstanding
20,572,000 shares of Common Stock and warrants to purchase shares of Common
Stock, and no options to purchase shares of Common Stock. Except as disclosed
in
the SEC Reports or the Offering Documents, there are no additional outstanding
options, warrants, script rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations
convertible into or exchangeable for, or giving any person any right to
subscribe for or acquire from the Company, any shares of Common Stock, or
contracts, commitments, understandings or arrangements by which the Company
or
any subsidiary is or may become bound to issue additional shares of Common
Stock, or securities or rights convertible or exchangeable into shares of Common
Stock. Except as described in the Offering Documents, the issuance and sale
of
the Shares will not obligate the Company to issue shares of Common Stock or
other securities to any person (other than the Subscribers) and will not result
in a right of any holder of Company securities to adjust the exercise,
conversion, exchange or reset price under such securities. The shares of the
Company’s capital stock outstanding immediately after the effective time of the
Share Exchange (but before the closing of the Offering) are or will be duly
authorized and validly issued and are or will be fully paid and nonassessable.
None of the outstanding shares of Common Stock or options, warrants, or rights
or other securities entitling the holders to acquire Common Stock has been
issued in violation of the preemptive rights of any security holder of the
Company. No holder of any of the Company’s securities has any rights, “demand,”
“piggy-back” or otherwise, to have such securities registered by reason of the
intention to file, filing or effectiveness of the Registration Statement (as
defined below), except as contemplated by the Exchange Agreement. The Shares
to
be issued to the Subscriber have been duly authorized, and when issued and
paid
for in accordance with this Subscription Agreement, the Common Stock will be
duly and validly issued, fully paid and non-assessable will be duly and validly
issued, fully paid and non-assessable.
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3.4 Authorization.
The
Offering Documents have been duly and validly authorized by the Company and
Highpower. This Subscription Agreement, assuming due execution and delivery
by
the Subscriber, when the Subscription Agreement is executed and delivered by
the
Company, will be, valid and binding obligations of the Company, enforceable
in
accordance with their respective terms, except as the enforceability hereof
and
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or
other similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally and general principles of equity, regardless of
whether enforcement is considered in a proceeding in equity or at
law.
3.5 Non-Contravention.
The
execution and delivery of the Offering Documents by the Company and Highpower,
the issuance of the Shares as contemplated by the Offering Documents and the
completion by the Company and Highpower of the other transactions contemplated
by the Offering Documents do not and will not, with or without the giving of
notice or the lapse of time, or both, (i) result in any violation of any
provision of the articles of incorporation or by-laws or similar instruments
of
the Company or Highpower or their respective subsidiaries, (ii) conflict with
or
result in a breach by the Company or Highpower or their respective subsidiaries
of any of the terms or provisions of, or constitute a default under, or result
in the modification of, or result in the creation or imposition of any lien,
security interest, charge or encumbrance upon any of the properties or assets
of
the Company or Highpower or their respective subsidiaries, pursuant to any
agreements, instruments or documents filed as exhibits to the SEC Reports or
any
indenture, mortgage, deed of trust or other agreement or instrument to which
Highpower or any of its subsidiaries is a party or by which Highpower or any
of
its subsidiaries or any of its properties or assets are bound or affected,
in
any such case which would have a material adverse effect on the business,
properties, operations, condition (financial or other), results of operations
or
prospects of the Company and Highpower and their respective subsidiaries, taken
as a whole, or the validity or enforceability of, or the ability of the Company
or Highpower to perform their obligations under, the Offering Documents, (iii)
violate or contravene any applicable law, rule or regulation or any applicable
decree, judgment or order of any court, United States federal or state
regulatory body, administrative agency or other governmental body having
jurisdiction over Highpower or any of its subsidiaries or any of its respective
properties or assets that would have a material adverse effect on the business,
properties, operations, condition (financial or other), results of operations
or
prospects of the Company and its subsidiaries (after the effective time of
the
Share Exchange), taken as a whole, or the validity or enforceability of, or
the
ability of the Company or Highpower to perform its obligations under, the
Offering Documents, or (iv) have any material adverse effect on any permit,
certification, registration, approval, consent, license or franchise necessary
for the Company or its subsidiaries (after the effective time of the Share
Exchange) to own or lease and operate any of its properties and to conduct
any
of its business or the ability of the Company or its subsidiaries to make use
thereof.
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3.6 Information
Provided.
The
Company hereby represents and warrants to the Subscriber that the information
set forth in the Offering Memorandum, the SEC Reports and any other document
provided by the Company (or the Company’s authorized representatives) to the
Subscriber in connection with the transactions contemplated by this Subscription
Agreement, does not contain any untrue statement of a material fact or omit
to
state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they are made, not misleading, it
being understood that for purposes of this Section 3.6, any statement contained
in such information shall be deemed to be modified or superseded for purposes
of
this Section
3.6
to the
extent that a statement in any document included in such information which
was
prepared and furnished to the Subscriber on a later date or filed with the
SEC
on a later date modifies or replaces such statement, whether or not such later
prepared and furnished or filed statement so states. Highpower hereby represents
and warrants to the Subscriber that the information set forth in the Offering
Memorandum and any other document provided by Highpower (or Highpower’s
authorized representatives) to the Subscriber in connection with the
transactions contemplated by this Subscription Agreement, does not contain
any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they are made, not misleading.
3.7 Absence
of Certain Proceedings.
Except
as disclosed in the SEC Reports, neither the Company nor Highpower is aware
of
any action, suit, proceeding, inquiry or investigation before or by any court,
public board or body, or governmental agency pending or threatened against
or
affecting the Company or Highpower or any of their respective subsidiaries,
in
any such case wherein an unfavorable decision, ruling or finding would have
a
material adverse effect on the business, properties, operations, condition
(financial or other), results of operations or prospects of the Company or
Highpower, or the transactions contemplated by the Offering Documents or which
could adversely affect the validity or enforceability of, or the authority
or
ability of the Company or Highpower to perform its obligations under, the
Offering Documents; and to the Company’s and Highpower’s knowledge there is not
pending or contemplated any, and there has been no, investigation by the SEC
involving the Company or Highpower or any of their current or former directors
or officers.
3.8 Compliance
with Law.
Neither
the Company nor Highpower nor any of their respective subsidiaries is in
violation of or has any liability under any statute, law, rule, regulation,
ordinance, decision or order of any governmental agency or body or any court,
domestic or foreign, except where such violation or liability would not
individually or in the aggregate have a material adverse effect on the business,
properties, operations, condition (financial or other), results of operations
or
prospects of the Company and its subsidiaries (after the effective time of
the
Share Exchange), taken as a whole; and to the knowledge of the Company and
Highpower there is no pending investigation that would reasonably be expected
to
lead to such a claim.
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3.9 Tax
Matters.
The
Company and Highpower and each of their respective subsidiaries has filed all
federal, state and local income and franchise tax returns required to be filed
and has paid all taxes shown by such returns to be due, and no tax deficiency
has been determined adversely to the Company or Highpower or any of their
respective subsidiaries which has had (nor does the Company or Highpower or
any
of their respective subsidiaries have any knowledge of any tax deficiency which,
if determined adversely to the Company or Highpower or any of their respective
subsidiaries, might have) a material adverse effect on the business, properties,
operations, condition (financial or other), results of operations, or prospects
of the Company or any of its subsidiaries (after the effective time of the
Share
Exchange), taken as a whole.
4. Registration
Rights
4.1 Registration
Requirement.
Subject
to the terms and limitations hereof, the Company shall file a registration
statement on Form SB-2 or other appropriate registration document under the
Act
(the “Registration
Statement”)
for
resale of the Shares all shares held by the shareholders of the Company
immediately prior to the Close (the “Registrable
Securities”)
and
shall use its reasonable best efforts to maintain the Registration Statement
effective for a period of twenty-four (24) months at the Company’s expense (the
“Effectiveness
Period”).
The
Company shall file such Registration Statement no later than thirty (30) days
after the Closing Date (the “Registration
Filing Date”),
and
shall use reasonable best efforts to cause such Registration Statement to become
effective within one hundred and fifty (150) days after the Closing Date, or
one
hundred eighty (180) days after the Closing Date if the Registration Statement
is subject to a full review by the SEC.
4.2 Limitation
to Registration Requirement.
Notwithstanding the foregoing, the Company shall not be obligated to effect
any
registration of the Registrable Securities or take any other action pursuant
to
this Section
4:
(i) in
any particular jurisdiction in which the Company would be required to execute
a
general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service
in
such jurisdiction and except as may be required by the Act, or (ii) during
any
period in which the Company suspends the rights of a subscriber after giving
the
Subscriber written notification of a Potential Material Event (defined below)
pursuant to Section
4.6
hereof.
4.3 Expenses
of Registration.
Except
as otherwise expressly set forth, the Company shall bear all expenses incurred
by the Company in compliance with the registration obligation of the Company,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company incurred in
connection with any registration, qualification or compliance pursuant to this
Subscription Agreement and all underwriting discounts, selling commissions
and
expense allowances applicable to the sale of any securities by the Company
for
its own account in any registration. All underwriting discounts, selling
commissions and expense allowances applicable to the sale by Subscriber of
Registrable Securities and all fees and disbursements of counsel for the
Subscriber shall be borne by the Subscriber.
9
4.4 Indemnification.
(a) To
the
extent permitted by law the Company will indemnify each Subscriber, each of
its
officers, directors, agents, employees and partners, and each person controlling
such Subscriber, with respect to each registration, qualification or compliance
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter, and their respective counsel against all
claims, losses, damages and liabilities (or actions, proceedings or settlements
in respect thereof) arising out of or based on (i) any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document prepared by the Company (including any
related registration statement, notification or the like) incident to any such
registration, qualification or compliance, or (ii) any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by
the
Company of the Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in connection
with any such registration, qualification or compliance, and subject to the
provisions of Section
4.4(c)
below,
will reimburse each such Subscriber, each of its officers, directors, agents,
employees and partners, and each person controlling such Subscriber, each such
underwriter and each person who controls any such underwriter, for any legal
and
any other expenses as they are reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent
that
any such claim, loss, damage, liability or expense arises out of or is based
on
any untrue statement (or alleged untrue statement) or omission (or alleged
omissions) based upon written information furnished to the Company by (or on
behalf of) such Subscriber or underwriter, or if the person asserting any such
loss, claim, damage or liability (or action or proceeding in respect thereof
did
not receive a copy of an amended preliminary prospectus or the final prospectus
(or the final prospectus as amended and supplemented) at or before the written
confirmation of the sale of such Registrable Securities to such person because
of the failure of the Subscriber or underwriter to so provide such amended
preliminary or final prospectus (or the final prospectus as amended and
supplemented); provided, however, that the indemnity agreement contained in
this
subsection shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld),
nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by
the Subscriber, any such partner, officer, director, employee, agent or
controlling person of such Subscriber, or any such underwriter or any person
who
controls any such underwriter; provided, however, that the obligations of the
Company hereunder shall be limited to an amount equal to the portion of net
proceeds represented by the Registrable Securities pursuant to this Subscription
Agreement.
(b) To
the
extent permitted by law, each Subscriber whose Registrable Securities are
included in any registration, qualification or compliance effected pursuant
to
this Subscription Agreement will indemnify the Company, and its directors,
officers, agents, employees and each underwriter, if any, of the Company’s
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of the Act and the rules
and
regulations thereunder, each other such Subscriber and each of their officers,
directors, partners, agents and employees, and each person controlling such
Subscriber, and their respective counsel against all claims, losses, damages
and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained
in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such Subscribers, directors,
officers, partners, persons, underwriters or control persons for any legal
or
any other expenses as they are reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
in
each case to the extent, but only to the extent, that such untrue statement
(or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by such Subscriber; provided,
however,
that
the obligations of any Subscriber hereunder shall be limited to an amount equal
to the net proceeds to such Subscriber from Registrable Securities sold under
such registration statement, prospectus, offering circular or other document
as
contemplated herein; provided, further, that the indemnity agreement contained
in this subsection shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Subscriber, which consent shall not be unreasonably withheld
or delayed.
10
(a) Each
party entitled to indemnification under this Section (the “Indemnified
Party”)
shall
give notice to the party required to provide indemnification (the “Indemnifying
Party”)
promptly after such Indemnified Party has actual knowledge of any claim as
to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and
the
Indemnified Party may participate in such defense at such party’s expense; and
provided further that if any Indemnified Party reasonably concludes that there
may be one or more legal defenses available to it that are not available to
the
Indemnifying Party, or that such claim or litigation involves or could have
an
effect on matters beyond the scope of this Agreement, then the Indemnified
Party
may retain its own counsel at the expense of the Indemnifying Party; and
provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement unless and only to the extent that such failure to give
notice results in material prejudice to the Indemnifying Party. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof
the
giving by the claimant or plaintiff to such Indemnified Party of a release
from
all liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as
an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
11
(b) If
the
indemnification provided for in this Section is held by a court of competent
jurisdiction to be unavailable to an Indemnified Party with respect to any
loss,
liability, claim, damage or expense referred to herein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party hereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the
one
hand and of the Indemnified Party on the other in connection with the statements
or omissions which resulted in such loss, liability, claim, damage or expense
as
well as any other relevant equitable considerations. The relative fault of
the
Indemnifying Party and of the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such statement or omission.
4.5 Transfer
or Assignment of Registration Rights.
The
Registrable Securities, and any related benefits to the Subscriber hereunder
may
be transferred or assigned by the Subscriber to a permitted transferee or
assignee, provided that the Company is given written notice of such transfer
or
assignment, stating the name and address of said transferee or assignee and
identifying the Registrable Securities with respect to which such registration
rights are being transferred or assigned; provided further that the transferee
or assignee of such Registrable Securities shall be deemed to have assumed
the
obligations of the Subscriber under this Subscription Agreement by the
acceptance of such assignment and shall, upon request from the Company, evidence
such assumption by delivery to the Company of a written agreement assuming
such
obligations of the Subscriber.
4.6 Registration
Procedures.
In the
case of the registration effected by the Company pursuant to this Subscription
Agreement, the Company will keep the Subscriber advised in writing as to the
initiation of each registration and as to the completion thereof. The Company
will:
(a) Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Act with respect to
the
disposition of securities covered by such registration statement;
(b) Respond
as promptly as reasonably practicable to any comments received from the SEC
with
respect to a registration statement or any amendment thereto.
(c) Notify
the Subscriber as promptly as reasonably practicable and (if requested by any
such person) confirm such notice in writing no later than one trading day
following the day (A) when a prospectus or any prospectus supplement or
post-effective amendment to a registration statement is proposed to be filed
and
(B) with respect to a registration statement or any post-effective amendment,
when the same has become effective;
(d) Furnish
such number of prospectuses and other documents incident thereto, including
supplements and amendments, as the Subscriber may reasonably request;
12
(e) Furnish
to the Subscriber, upon request, a copy of all documents filed with and all
correspondence from or to the SEC in connection with any such registration
statement other than non-substantive cover letters and the like;
(f) Use
its
reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a registration
statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment; and
(g) Use
its
reasonable best efforts to comply with all applicable rules and regulations
of
the SEC.
Notwithstanding
the foregoing, if at any time or from time to time after the date hereof, the
Company notifies the Subscriber in writing of the existence of an event or
circumstance that is not disclosed in the Registration Statement and that may
have a material effect on the Company or its business (a “Potential
Material Event”),
the
Subscriber shall not offer or sell any Registrable Securities, or engage in
any
other transaction involving or relating to the Registrable Securities, from
the
time of the giving of notice with respect to a Potential Material Event until
the Company notifies the Subscriber that such Potential Material Event either
has been added to the Registration Statement by amendment or supplement or
no
longer constitutes a Potential Material Event; provided,
that
the Company may not so suspend the right of Subscriber for more than 120 days
in
the aggregate.
4.7 Statement
of Beneficial Ownership.
The
Company may require the Subscriber to furnish to the Company a certified
statement as to the number of shares of Common Stock beneficially owned by
such
Subscriber and the controlling person thereof and any other such information
regarding the Subscriber, the Registrable Securities held by the Subscriber
and
the intended method of disposition of such securities as shall be reasonably
required with respect to the registration of the Subscriber’s Registrable
Securities. The Subscriber hereby understands and agrees that the Company may,
in its sole discretion, exclude the Subscriber’s shares of Common Stock from the
Registration Statement in the event that the Subscriber fails to provide such
information requested by the Company within the time period reasonably specified
by the Company or is required to do so by law or the SEC.
4.8 Compliance.
Subscriber covenants and agrees that if the Shares are sold under a registration
statement, that the Shares will only be disposed of pursuant to an effective
statement under, and in compliance with the requirements of, the Act, including
in accordance with the plan of distribution set forth in the registration
statement and in compliance with the prospectus delivery requirements of the
Act
as applicable to such Subscriber in connection with sales of Registrable
Securities pursuant to the registration statement required hereunder. Subscriber
understands and acknowledges that the Company and the Company’s counsel may rely
on the statements and covenants made in this Section for purposes of providing
a
legal opinion to the transfer agent for removal of a restrictive legend under
the Act.
4.9 Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective registration
statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the SEC a registration statement relating
to
an offering for its own account or the account of others under the Act of any
of
its Common Stock, other than an offering of securities issued pursuant to a
Strategic Issuance (as defined below) and other than a Form S-4 or Form S-8
registration statement (each as promulgated under the Act or their then
equivalents relating to equity securities to be issued solely in connection
with
any business combination transaction, acquisition of any entity or business
or
equity securities issuable in connection with stock option or other employee
benefit plans), then the Company shall send to the Subscriber (together with
any
other holders of its Common Stock possessing “piggyback registration rights”
comparable to those granted to the Subscriber hereunder (“Rightsholders”))
written notice of such determination and, if within fifteen (15) days after
receipt of such notice, the Subscriber shall so request in writing, the Company
shall include in such registration statement all or any part of such Registrable
Securities such Subscriber requests to be registered; provided that the Company
shall not be required to register any Registrable Securities pursuant to this
Section that are eligible for resale pursuant to Rule 144(k) promulgated under
the Act; and provided further that the Company may, without the consent of
the
Subscriber, withdraw such registration statement before its becoming effective
if the Company or other stockholders have elected to abandon the proposal to
register the securities proposed to be registered thereunder. If the
registration statement is being filed for an underwritten public offering,
the
Subscriber must timely execute and deliver the usual and customary agreement
among the Company, such Subscriber and the underwriters relating to the
registration including a lock-up agreement if requested by the underwriters
with
respect to any shares of Common Stock not included in the registration, on
terms
no less favorable than those agreed to by the Company, its directors and its
officers. If the registration statement is being filed for an underwritten
offer
and sale by the Company of securities for its own account and the managing
underwriters advise the Company in writing that in their opinion the offering
contemplated by the registration statement cannot be successfully completed
if
the Company were to also register the Registrable Shares of the Subscriber
requested to be included in such registration statement, then the Company will
include in the registration: (i) first, any securities the Company proposes
to
sell, (ii) second, any securities of any person whose securities are being
registered as a result of the exercise of a demand registration right, and
(iii)
third, that portion of the aggregate number of shares being requested for
inclusion in the registration statement by (X) the Subscriber and (Y) all other
Rightsholders, which in the opinion of such managing underwriters can
successfully be sold, such number of shares to be taken pro
rata
from the
Rightsholders on the basis of the total number of shares being requested for
inclusion in the registration statement by each Rightsholder. “Strategic
Issuance” shall mean an issuance of securities: (i) in connection with a
“corporate partnering” transaction or a “strategic alliance” (as determined by
the Board of Directors of the Company in good faith); (ii) in connection with
any financing transaction in respect of which the Company is a borrower; or
(iii) to a vendor, lessor, lender, or customer of the Company, or a research,
manufacturing or other commercial collaborator of the Company, in a transaction
approved by the Board of Directors, provided in any case, that such issuance
is
not being made primarily for the purpose of avoiding compliance with this
Subscription Agreement.
13
4.10 “Lock-Up”
Agreement.
The Subscriber agrees that, during the period from the date hereof until that
date that is twelve (12) months following the date on which the Company's Common
Stock begins to be listed or quoted on either the New York Stock Exchange,
American Stock Exchange, NASDAQ Global Market, NASDAQ Capital Market or the
OTC
Bulletin Board (the "Listing
Date")
that,
it, he or she shall not, directly or indirectly sell, assign, exchange,
distribute, offer to sell, contract to sell (including, without limitation,
any
short sale), hypothecate, pledge, grant any option to purchase or otherwise
transfer or dispose of any Shares of the Company held by it, him or her and
purchased further to this Subscription Agreement, at any time during such
period, except that one-tenth of the Shares acquired hereunder shall be
automatically released from this lock-up provision on the date that is ninety
(90) days after the Listing Date (the “Initial
Release Date”)
and
then the Shares will be released
on a
monthly
basis after the Initial Release Date on a pro rata basis over the next nine
months. WestPark Capital, Inc., in its discretion, may release some
or all the Shares earlier than the schedule set forth in this
section.
In
order
to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to and place restrictive legends on the certificates
evidencing the Shares of the Company, and the Subscriber agrees to further
execute a lock-up agreement which encompasses the terms of this Section
4.10,
in
substantially the form attached hereto as Exhibit
B.
14
5. Miscellaneous
5.1 Any
notice or other communication given hereunder shall be deemed sufficient if
in
writing and sent by registered or certified mail, return receipt requested,
addressed to the Company, at Hong Kong Highpower Technology Co., Ltd., c/o
Shenzhen Highpower Technology Co., Ltd., Xxxx X0, X0 Xxxxxxx Xxxxxxxxxx Xxxx
Shanxia, Pinghu, Longgang, Shenzhen, Guangdong, China 518111., Attention: Xx.
Xxxxxx Pan with
a copy to
(which
shall not constitute notice) Xxxxxxxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP,
00000 Xxxxx Xxxxxx Xxxx., Xxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, Esq., and to the Subscriber at his address
indicated on the signature page of this Subscription Agreement. Notices shall
be
deemed to have been given three (3) business days after the date of mailing,
except notices of change of address, which shall be deemed to have been given
when received.
5.2 This
Subscription Agreement may be amended through a written instrument signed by
the
Subscriber, Highpower and the Company; provided, however, that the terms of
Section 4 of this Subscription Agreement may be amended without the consent
or
approval of the Subscriber so long as such amendment applies in the same fashion
to the subscription agreements of all of the other subscribers for Shares in
the
Offering and at least holders of a majority of the Shares sold in the Offering
have given their approval of such amendment, which approval shall be binding
on
all holders of Shares.
5.3 This
Subscription Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors
and assigns. This Subscription Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges
and
supersedes all prior discussions, agreements and understandings of any and
every
nature among them.
5.4 Notwithstanding
the place where this Subscription Agreement may be executed by any of the
parties hereto, the parties expressly agree that all the terms and provisions
hereof shall be construed in accordance with and governed by the laws of the
State of Delaware.
5.5 This
Subscription Agreement may be executed in counterparts. It shall not be binding
upon the Company and Highpower unless and until it is accepted by the Company
and Highpower. Upon the execution and delivery of this Subscription Agreement
by
the Subscriber, this Subscription Agreement shall become a binding obligation
of
the Subscriber with respect to the purchase of Shares as herein provided;
subject, however, to the right hereby reserved to the Company to enter into
the
same agreements with other subscribers and to add and/or to delete other persons
as subscribers. This Agreement may be executed and delivered by
facsimile.
15
5.6 The
holding of any provision of this Subscription Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Subscription Agreement, which shall remain in full force
and
effect.
5.7 It
is
agreed that a waiver by either party of a breach of any provision of this
Subscription Agreement shall not operate, or be construed, as a waiver of any
subsequent breach by that same party.
5.8 The
parties agree to execute and deliver all such further documents, agreements
and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Subscription
Agreement.
5.9 The
Company agrees not to disclose the names, addresses or any other information
about the Subscribers, except as required by law, provided that the Company
may
provide information relating to the Subscriber as required in any registration
statement under the Act that may be filed by the Company pursuant to the
requirements of this Subscription Agreement.
5.10 The
obligation of the Subscriber hereunder is several and not joint with the
obligations of any other subscribers for the purchase of Shares in the Offering
(the “Other Subscribers”), and the Subscriber shall not be responsible in any
way for the performance of the obligations of any Other Subscribers. Nothing
contained herein or in any other agreement or document delivered at the Closing,
and no action taken by the Subscriber pursuant hereto, shall be deemed to
constitute the Subscriber and the Other Subscribers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Subscriber and the Other Subscribers are in any way acting
in concert with respect to such obligations or the transactions contemplated
by
this Subscription Agreement. The Subscriber shall be entitled to protect and
enforce the Subscriber’s rights, including without limitation the rights arising
out of this Subscription Agreement, and it shall not be necessary for any Other
Subscriber to be joined as an additional party in any proceeding for such
purpose. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party. The Subscriber is not acting
as
part of a “group” (as that term is used in Section 13(d) of the 0000 Xxx) in
negotiating and entering into this Subscription Agreement or purchasing the
Shares or acquiring, disposing of or voting any of the underlying shares of
Common Stock. The Company hereby confirms that it understands and agrees that
the Subscriber is not acting as part of any such group.
[SIGNATURE
PAGE FOLLOWS]
16
IN
WITNESS WHEREOF, the parties have executed this Subscription Agreement as of
the
day and year first written above.
| Full Legal Name of Subscriber (Please print) | Full Legal Name of Co-Subscriber (if applicable) | |
|
Signature
of (or on behalf of) Subscriber
Name:
Title:
|
Signature of or on behalf of Co-Subscriber (if applicable) | |
| Address of Subscriber | Address of Co-Subscriber (if applicable) | |
|
Social Security or Taxpayer
Identification Number of Subscriber
|
Social Security or Taxpayer Identification
Number of Co-Subscriber (if
applicable)
|
|
| Number of Shares Subscribed For | ||
| Subscription Agreed to and Accepted | ||
| SRKP 11, INC. |
HONG KONG HIGHPOWER
TECHNOLOGY COMPANY
LIMITED
|
|
| By:_________________________ | By:_________________________ | |
| Name:_______________________ | Name:_______________________ | |
| Title:________________________ | Title:________________________ |
17
Exhibit
B
LOCK-UP
AGREEMENT
Highpower
Technology Company, Inc.
c/o
Shenzhen Highpower Technology Co., Ltd.
Xxxx
X0,
X0 Xxxxxxx Xxxxxxxxxx Xxxx Shanxia,
Pinghu,
Longgang, Shenzhen, Guangdong
China
518111
WestPark
Capital, Inc.
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
The
undersigned, being a security holder of Highpower Technology Company, Inc.
(formerly known as SRKP 11, Inc. and referred to herein as the “Company”)
and
receiving his/her/its shares of Common Stock as an investor in the Company’s
private offering that closed on [__________], 2007 (the “Private
Offering”),
hereby delivers this Lock-up Agreement to the Company.
The
undersigned recognizes that it is in the best financial interests of the Company
and of the undersigned, as a shareholder of the Company, that the Company Common
Stock received by the undersigned pursuant to the Private Offering be subject
to
certain restrictions and hereby agrees as follows:
Other
than as set forth below, the undersigned shall not: (a) sell, assign, exchange,
transfer, pledge, distribute or otherwise dispose of (i) any shares of the
Company Common Stock received by the undersigned in the Private Offering, or
(ii) any interest (including, without limitation, an option to buy or sell)
in
any such shares of the Company Common Stock, in whole or in part, and no such
attempted transfer shall be treated as effective for any purpose; or (b) engage
in any transaction in respect to any shares of the Company Common Stock received
by the undersigned in the Private Offering or any interest therein, the intent
or effect of which is the effective economic disposition of such shares
(including, but not limited to, engaging in put, call, short-sale, straddle
or
similar market transactions) (the foregoing restrictions are referred to herein
as “Lock-Up
Restrictions”).
One-tenth
of the undersigned’s shares of the Company’s Common Stock acquired in the
Private Offering shall be released from the Lock-Up Restrictions on the date
that is ninety (90) days subsequent to the date on which the Company’s Common
Stock begins to be listed or quoted on either the New York Stock Exchange,
American Stock Exchange, NASDAQ Global Market, NASDAQ Capital Market or the
OTC
Bulletin Board (the “Initial
Release Date”),
and
the undersigned’s shares will automatically be released from the Lock-Up
Restrictions on a monthly basis after the Initial Release Date on a pro rata
basis over the next nine months, until all of the shares are released from
the
Lock-Up Restrictions. WestPark Capital, Inc., in its discretion, may release
from the Lock-up Restrictions some or all the undersigned’s shares of the
Company’s Common Stock earlier than the schedule set forth in this Lock-up
Agreement.
The
certificates evidencing the Company Common Stock received by the undersigned
in
the Private Offering bear a legend as set forth below and such legend shall
remain during the term of this Lock-Up Agreement as set forth
above:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER RESTRICTIONS
SET
FORTH IN THAT CERTAIN LOCK-UP AGREEMENT BY AND BETWEEN HIGHPOWER TEXHNOLOGY
COMPANY, INC., A DELAWARE CORPORATION, AND THE HOLDER HEREOF (THE “LOCK-UP
AGREEMENT”), AND MAY NOT BE SOLD, ASSIGNED, EXCHANGED, TRANSFERRED, ENCUMBERED,
PLEDGED, DISTRIBUTED OR OTHERWISE DISPOSED OF PRIOR TO THAT CERTAIN TIME PERIOD
DETAILED IN THE LOCK-UP AGREEMENT. THE ISSUER AGREES TO REMOVE THIS RESTRICTIVE
LEGEND (AND ANY STOP ORDER PLACED WITH THE TRANSFER AGENT) UPON THE EXPIRATION
OF THE TIME PERIOD SPECIFIED IN THE LOCK-UP AGREEMENT. A COPY OF THE LOCK-UP
AGREEMENT IS AVAILABLE FOR REVIEW AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
ISSUER.
[SIGNATURE
ON NEXT PAGE]
IN
WITNESS WHEREOF, the undersigned has executed this Lock-Up Agreement as of
the
date first written above.
________________________________________
Printed
Name of Holder
Signature_______________________________________
By:____________________________________________
Title
(if
applicable):________________________________
