AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT, dated and
effective as of September ___, 2009 (the "Amendment
Agreement"), is entered into by and among China Electric Motor, Inc.
(formerly known as SRKP 21, Inc., hereinafter referred to as the “Company”), Attainment
Holdings Limited, the wholly-owned subsidiary of the Company (“Attainment”),
WestPark Capital, Inc. (“WestPark”), and the
undersigned security holder of the Company (the “Securityholder”). The
Company, Attainment, WestPark and the Securityholder are collectively referred
to herein as the “Parties.” Terms
not defined in this Amendment Agreement shall have the meanings as set forth in
the Agreements (as defined below).
WITNESSETH:
WHEREAS, the Company and the
Securityholder entered into that certain Subscription Agreement dated as of
[_________], 2009 (the “Subscription
Agreement”) and that certain Lock-Up Agreement dated as of [_________],
2009 attached as Exhibit B to the
Subscription Agreement (the “Lock-Up Agreement”
and together with the Subscription Agreement, the “Agreements”);
and
WHEREAS, the Parties, in their common
interests of having the Company successfully complete a private offering of
securities, desire to amend the Agreements by entering into this Amendment
Agreement.
NOW, THEREFORE, for good and valuable
consideration and in consideration of the respective representations,
warranties, covenants and agreements set forth in the Agreements, the parties
hereby agree to amend the Agreements as follows:
AGREEMENT:
1. The
first sentence of Section 1.2 of the Subscription Agreement is hereby amended
and restated in its entirety as follows:
The
subscription period began on April 1, 2009 and will terminate at 5:00 PM Eastern
Standard Time on October 15, 2009, unless extended for up to an additional 90
days by the Company, Attainment Holdings and the Placement Agent (as defined
below) (the “Termination
Date”).
2. Section
4.1 of the Subscription Agreement is hereby amended and restated in its entirety
as follows:
4.1 Registration
Requirement. Subject to the terms and limitations hereof, the
Company shall file a registration statement on Form S-1 or other appropriate
registration document under the Act (the “Registration
Statement”) for resale of the Shares and all shares held by the
stockholders of the Company immediately prior to the Closing Date, except those
shares held by affiliates of WestPark Capital, Inc. (the “Registrable
Securities”) and shall use its reasonable best efforts to maintain the
Registration Statement effective for a period of twelve (12) months at the
Company’s expense (the “Effectiveness
Period”). The Company shall file such Registration Statement
no later than thirty (30) days after the final Closing of the Offering (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
Registration Filing Date, or one hundred eighty (180) days after the
Registration Filing Date if the Registration Statement is subject to a full
review by the SEC.
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3.
Section 4.10 of the Subscription Agreement is
hereby amended and restated in its entirety as follows:
4.10. “Lock-Up”
Agreement. The Subscriber agrees that, during the period from the
date hereof until that date that is fifteen (15) months following the date on
which the Company's Common Stock begins to be listed or quoted on either the New
York Stock Exchange, NYSE Amex, 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 (1/10) 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 thereafter the Shares will be released every thirty (30) days
after the Initial Release Date on a pro rata basis over the next nine months,
provided that
the Subscriber provide written confirmation (the “Confirmation”) to
WestPark and the Company that he, she or it (i) is and has at all times been in
compliance with the provisions of Section 2.20 herein
and (ii) does not wish to have the Shares subject to such partial release to
continue to bear the Lock-Up Legend (as defined below) , it being understood and
agreed that the failure to provide such written confirmation shall be sufficient
grounds to allow WestPark to decline, in its sole discretion, to allow the
automatic release of such Shares until the expiration in totality of the
referenced lock-up. WestPark Capital, Inc., in its discretion, may
release some or all the Shares earlier than the schedule set forth in this
section provided however that any such earlier release shall be made pro rata
with respect to all shares sold in the Offering. In order to enforce
the foregoing covenant, the Company may impose stop-transfer instructions with
respect to and place restrictive legends with the Company’s Transfer Agent (the
“Transfer
Agent”) on the certificates evidencing the Shares of the Company (the
“Lock-Up
Legend”), 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, the
Lock-Up Legend being set forth and defined in such agreement.
4. The
fourth (4th) full
paragraph of the Lock-Up Agreement is hereby amended and restated in its
entirety as follows:
One-tenth (1/10) 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, NYSE AMEX, 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 every thirty (30) days 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, provided that, the
undersigned provide written confirmation to WestPark and the Company that
he/she/it (i) is and has at all times been in compliance with the provisions of
Section 2.20 of
the Subscription Agreement by and among the Company, Attainment Holdings Limited
and the undersigned, and (ii) does not wish to have the shares subject to such
partial release to continue to bear the Lock-Up Legend (as defined below) it
being understood and agreed that the failure to provide such written
confirmation shall be sufficient grounds to allow WestPark to decline, in its
sole discretion, to allow the automatic release of such shares until the
expiration in totality of the referenced lock-up. 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.
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5.
Except as amended herein, the Agreements shall remain in full
force and effect.
6.
This Amendment Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together
constitute one and the same instrument. This Amendment Agreement may
be executed and delivered by facsimile.
[SIGNATURE
PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned has
executed this Amendment Agreement as of the date first written
above.
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Printed
Name of Securityholder
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Signature
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By:_____________________________________
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Title
(if
applicable):________________________
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[SIGNATURE
PAGE OF SECURITYHOLDER]
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IN
WITNESS WHEREOF, the undersigned has executed this Amendment Agreement as of the
date first written above.
| CHINA ELECTRIC MOTOR, INC. | ||||
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(F/K/A
SRKP 21, INC.)
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ATTAINMENT HOLDINGS LIMITED | |||
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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[SIGNATURE
PAGE OF THE COMPANY AND ATTAINMENT]
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IN
WITNESS WHEREOF, the undersigned has executed this Amendment Agreement as of the
date first written above.
| WESTPARK CAPITAL, INC. | |
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By:
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Name:
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Title:
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[SIGNATURE
PAGE OF WESTPARK]
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