SUBSCRIPTION AGREEMENT
This
subscription agreement (this “Subscription
Agreement”) is dated October 2, 2009, by and between the investor
identified on the signature page hereto (“Investor”), and China
Ritar Power Corp., a Nevada corporation (the “Company”), whereby
the parties agree as follows:
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1.
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Subscription.
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a)
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Investor
agrees to buy and the Company agrees to sell and issue to Investor such
number of shares of the Company’s common stock, $0.001 par value per share
(the “Common
Stock”), set forth on the signature page hereto for the aggregate
purchase price set forth on the signature page hereto (the “Purchase
Price”). The shares of Common Stock to be issued to
Investor are hereinafter referred to as the “Shares”.
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b)
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The
Shares have been registered on a Form S-3, File No. 333-161281, which
registration statement (the “Registration
Statement”) has been declared effective by the Securities and
Exchange Commission, has remained effective since such date and is
effective on the date hereof. The Shares are being issued in
connection with an offering (the “Offering”)
described in a Prospectus Supplement dated October 5, 2009, along with the
Base Prospectus dated August 21, 2009, which has been delivered to the
Investor (collectively, the “Prospectus”).
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c)
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On
October 8, 2009 (the “Closing Date”),
in accordance with Rule 15c6-1 promulgated under the Securities Exchange
Act of 1934, as amended, and subject to the satisfaction or waiver of all
of the closing conditions set forth in the Placement Agency Agreement (the
“Placement
Agreement”), dated October 2, 2009, by and among the Company and
the placement agent named therein (the “Placement
Agent”), the Placement Agent will disburse, or cause to be
disbursed, to the Company an amount equal to the Purchase Price for such
Shares, less its commissions and reimbursable expenses. Upon
receipt of such disbursement by the Company and the Placement Agent, the
Company shall immediately cause the Shares to be delivered directly to
Investor. The transfer of the Shares shall be made through the facilities
of The Depository Trust Company’s DWAC system in accordance with the
instructions set forth on the signature page attached hereto under the
heading “DWAC Instructions.”
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2. Company Representations and
Warranties. The Placement Agreement contains representations,
warranties, covenants and agreements of the Company that may be relied upon by
the Investor, which shall be a third party beneficiary of the representations
and warranties contained therein. The
Company confirms that neither it nor any other person acting on its behalf has
provided the Investor or their agents or counsel with any information that
constitutes or could reasonably be expected to constitute material, nonpublic
information, except as will be disclosed in the Prospectus and the Company’s
press release and Form 8-K filed with the Commission in connection with the
Offering. The Company understands and confirms that the Investor will
rely on the foregoing in effecting transactions in securities of the
Company. In addition to and without limiting the foregoing,
the Company represents and warrants that: (a) it has full right, power
and authority to enter into this Subscription Agreement and to perform all of
its obligations hereunder; (b) this Subscription Agreement has been duly
authorized and executed by and constitutes a valid and binding agreement of the
Company enforceable in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the rights and remedies of creditors generally; (c) the execution
and delivery of this Subscription Agreement and the consummation of the
transactions contemplated hereby do not conflict with or result in a breach of
(i) the Company’s articles of incorporation or by-laws, or (ii) any material
agreement or any law or regulation to which the Company is a party or by which
any of its property or assets is bound; (d) the Shares have been duly authorized
for sale and issuance, and when issued and delivered, will be validly issued,
fully paid and nonassessable; (e) the Registration Statement and any
post-effective amendment thereto filed pursuant to the Securities Act of 1933,
as amended (the “Securities Act”), at
the time it became effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; (f) the Prospectus did not
contain as of its respective date, and as of the date hereof does not contain,
and on the Closing Date will not contain, any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and (g) all preemptive rights or rights of first refusal held by
stockholders of the Company and applicable to the transactions contemplated
hereby, if any, have been duly satisfied or waived in accordance with the terms
of the agreements between the Company and such stockholders conferring such
rights.
3. Investor Representations,
Warranties and Acknowledgments. Investor represents and
warrants that: (a) it has full right, power and authority to enter into this
Subscription Agreement and to perform all of its obligations hereunder; (b) this
Subscription Agreement has been duly authorized and executed by and constitutes
a valid and binding agreement of Investor enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights and remedies of
creditors generally; (c) the execution and delivery of this Subscription
Agreement and the consummation of the transactions contemplated hereby do not
conflict with or result in a breach of (i) Investor’s certificate of
incorporation or by-laws (or other similar governing documents), or (ii) any
material agreement or any law or regulation to which Investor is a party or by
which any of its property or assets is bound; and (d) prior to the execution
hereof, Investor has had full access to and relied only upon (i) the Base
Prospectus, (ii) any prospectus supplements to the Base Prospectus, including in
each case information incorporated by reference therein, and (iii) the pricing,
placement agency and expense information contained in this
Agreement. The Investor further acknowledges that other investors
(“Other
Investors”) are concurrently entering into subscription agreements in
substantially the same form as this Subscription Agreement as part of the
Offering.
4. Company
Covenants. The Company and the Investor agree that the Company
shall, prior to the opening of the financial markets in New York City on the
business day immediately after the date hereof, issue a press release announcing
the Offering and disclosing all material information regarding the Offering,
unless this Subscription Agreement is executed by the parties hereto during the
regular trading hours of the financial markets in New York City, in which case
such press release shall be issued prior to the close of the financial markets
on the date hereof if reasonably feasible, but in no event will such press
release be issued before the last Subscription Agreement relating to the
Offering has been executed by the Company and the applicable Other
Investor.
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5. Conditions to the Company’s
Obligations. In addition to any other conditions set forth
herein, the Company’s obligation to issue and sell the Shares to the Investor
shall be subject to: (a) the receipt by the Company of the Purchase Price for
the Shares being purchased hereunder as set forth on the Signature Page and (b)
the accuracy in all material respects of the representations and warranties made
by the Investor and the fulfillment of those undertakings of the Investor to be
fulfilled prior to the Closing Date.
6. Conditions to the Investor’s
Obligations. In addition to any other conditions set forth herein,
the Investor’s obligation to purchase the Shares will be subject to (a) the
condition that the Placement Agent shall not have terminated the Placement
Agreement pursuant to the terms thereof, (b) the satisfaction in all material
respects of the conditions to the Placement Agent’s obligation to closing in the
Placement Agreement, and (c) the accuracy in all material respects of the
representations and warranties made by the Company and the fulfillment of those
undertakings of the Company to be fulfilled prior to the Closing Date. The
Investor’s obligations are not conditioned on the purchase of Common Stock by
the Other Investors in the Offering.
7. Miscellaneous.
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a)
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Xxxx
Capital Partners, LLC is serving as placement agent in this transaction
and consummation of the transaction is subject to the terms and conditions
of the Placement Agreement.
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b)
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Except
as otherwise provided herein, this Subscription Agreement constitutes the
entire understanding and agreement between the parties with respect to its
subject matter and there are no agreements or understandings with respect
to the subject matter hereof which are not contained in this Subscription
Agreement. This Subscription Agreement may be modified only in
writing signed by the parties
hereto.
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c)
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In
the event that the Placement Agreement is terminated by the Placement
Agent prior to the closing to occur on the Closing Date pursuant to the
terms thereof, this Agreement shall terminate without any further action
or liability on the part of the parties
hereto.
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d)
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This
Subscription Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument and
shall become effective when counterparts have been signed by each party
and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart. Execution may be
made by delivery by facsimile or
PDF.
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e)
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The
provisions of this Subscription Agreement are severable and, in the event
that any court or officials of any regulatory agency of competent
jurisdiction shall determine that any one or more of the provisions or
part of the provisions contained in this Subscription shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Subscription Agreement and this
Subscription Agreement shall be reformed and construed as if such invalid
or illegal or unenforceable provision, or part of such provision, had
never been contained herein, so that such provisions would be valid, legal
and enforceable to the maximum extent possible, so long as such
construction does not materially adversely effect the economic rights of
either party hereto.
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f)
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All
communications hereunder shall be in writing and shall be mailed, hand
delivered, sent by a recognized overnight courier service such as Federal
Express, or sent via facsimile and confirmed by letter, to the party to
whom it is addressed at the following addresses or such other address as
such party may advise the other in
writing:
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To the
Company: as set forth on the signature page hereto.
To the
Investor: as set forth on the signature page hereto.
All
notices hereunder shall be effective upon receipt by the party to which it is
addressed.
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g)
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This
Agreement shall be governed by and interpreted in accordance with the laws
of the State of New York for contracts to be wholly performed in such
state and without giving effect to the principles thereof regarding the
conflict of laws. To the extent determined by such court, the
prevailing party shall reimburse the other party for any reasonable legal
fees and disbursements incurred in enforcement of, or protection of any of
its rights under this Agreement.
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*****
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If the
foregoing correctly sets forth our agreement, please confirm this by signing and
returning to us the duplicate copy of this letter.
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COMPANY:
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By:
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Name:
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Its:
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Address for
Notice:
Xxxx 000,
Xxxxx X, Xxxxxx Xxxxxxxx,
00
Xxxxxxxx Xxxx, Xxxxx High-Tech Industrial Park,
Nanshan
District,
Shenzhen,
China, 518057
Attention:
Chief Executive Officer
Telephone:
(00) 000-00000000
With a
copy to:
The Xxxxx
Law Group
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Facsimile: (000)
000-0000
Attn.: Xxxx
Xxxxx, Esq.
Wire
Instructions:
INVESTOR:
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Number of
Shares:____________
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By:
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Name:
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Purchase Price per
Share:______
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Its:
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Aggregate Purchase
Price:______
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Name and address for
notice:
DWAC
Instructions:
Name of
DTC Participant:
DTC
Participant Number:
Account
Number:
-6-
