AMENDMENT NO. 1 TO THE SHARE EXCHANGE AGREEMENT
AMENDMENT
NO. 1 TO THE
This
AMENDMENT NO. 1 TO THE SHARE EXCHANGE AGREEMENT, dated and effective as of May
6, 2009 (this "Amendment"), is entered into by and among SRKP 21, Inc., a
Delaware corporation (the “Company”), Attainment Holdings Limited, a British
Virgin Islands corporation (“Attainment”), and Excel Profit Global Group
Limited, a British Virgin Islands corporation (“EPGG”); and, as to
Sections 4.2 and Articles X only, each of the designees listed on Schedule I
hereto (the “Designees”). The
Company, Attainment and EPGG are collectively referred to herein as the “Parties”. Terms
not defined in this Amendment shall have such meanings as set forth in the
Agreement (as defined below).
WITNESSETH:
WHEREAS, the Parties and the Designees
entered into that certain Share Exchange Agreement dated as of March 3, 2009
(the “Agreement”);
WHEREAS, the Parties desire to amend
the Agreement by entering into this Amendment;
WHEREAS,
Section 10.5 of the Agreement permits the Parties to amend the Agreement only by
a written instrument executed by the Parties.
NOW,
THEREFORE, for good and valuable consideration and in consideration of the
respective representations, warranties, covenants and agreements set forth in
the Agreement, the parties hereby agree to amend the Agreement as
follows:
AGREEMENT
1. Section
2.5 of the Agreement is hereby amended and restated in its entirety as
follows:
2.5 No Assets or
Liabilities. As of the Closing, the Company shall have no more
than $72,500 in liabilities. Except for the foregoing or as set forth
on the Financial Statements, the Company does not have any (a) assets of any
kind or (b) liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or
otherwise.
2. Section
3.8(iv) of the Agreement is hereby deleted in its entirety.
3. Section
3.8(v) of the Agreement is hereby amended and restated in its entirety as
follows:
(v) Xxxxx XxXxxxxx, who is
the Executive Vice President of Corporate Finance of WestPark, is a stockholder
of the Company beneficially holding approximately 6.8% of the Company’s Common
Stock and Warrants (prior to the Share Exchange);
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4. Section
7.1(e) and Section 7.1(f) of the Agreement are hereby deleted in their entirety
and a new Section 9.3 is added to the Agreement in “Article IX. Covenants
Subsequent To Closing” as follows:
9.3 Engagement of Public
Relations Firm and Equity Research Firm. Within 60 days of the
Closing, the Company shall engage (i) a public relations firm, which shall
conduct two (2) non-Share Exchange related road shows each year for two (2)
years, that is mutually acceptable to the Company and WestPark, and (ii) a
Company-sponsored equity research firm that is mutually acceptable to the
Company and WestPark.
5. Section
7.1(g) of the Agreement is hereby amended and restated in its entirety as
follows:
(g) The
Company shall have concluded an equity financing at the time of Closing (the
“Equity
Financing”).
6. Section
9.2 of the Agreement is hereby amended and restated in its entirety as
follows:
9.2 NYSE Amex
Listing. The Company shall take reasonable efforts to cause
the Company’s securities to be listed on the NYSE Amex as soon as practicable
after the Closing.
7. A
new Section 9.4 is added to the Agreement in “Article IX. Covenants Subsequent
To Closing” as follows:
9.4 Lock-Up
Restriction. EPGG and the Designees, as set forth in Schedule I, shall
enter into a lock-up agreement with WestPark, a form of which is attached hereto
as Exhibit C,
pursuant to which EPGG and the Designees agree not to sell their shares of
Company Common Stock until twenty-four (24) months after the date of the
Company’s proposed initial public offering.
8. Except
as amended herein, the Agreement shall remain in full force and
effect.
9. This
Amendment may be executed in any number of facsimile counterparts, each of which
shall be an original, but which together constitute one and the same instrument.
This Amendment may be executed and delivered by facsimile.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of
the date first set forth above.
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SRKP
21, INC.
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By:
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/s/ Xxxxxxx Xxxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxxx
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Title:
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President
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ATTAINMENT
HOLDINGS LIMITED
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By:
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/s/ To Xxxx Sun
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Name:
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To
Xxxx Sun
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Title:
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Director
of Board
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EXCEL
PROFIT GLOBAL GROUP LIMITED
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By:
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/s/ Xx XxxxXxxx
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Name:
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Xx
XxxxXxxx
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Title:
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Director
of Board
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Solely for purposes of Section 4.2
and
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Article X, XXXX
XXXX
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/s/ Xxxx Xxxx
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By: Xxxx
Xxxx
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Solely for purposes of Section 4.2
and
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Article X,
XXXXXX XXXXX
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/s/ Xxxxxx Xxxxx
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By: Xxxxxx
Xxxxx
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[SIGNATURE
PAGE CONTINUED ON NEXT PAGE]
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Solely for purposes of Section 4.2
and
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Article X, XXXX
XXX
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/s/ Xxxx Xxx
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By: Xxxx
Xxx
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Solely for purposes of Section 4.2
and
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Article X,
JOYRISE HOLDINGS LIMITED
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/s/ Zhang Yura Ming
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By: Zhang
Yura Ming
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Its:
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Solely for purposes of Section 4.2
and
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Article X, KEEN
DRAGON GROUP LIMITED
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/s/ Xxxxx Xxxx Xxxx
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By: Xxxxx
Xxxx Rong
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Its:
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Solely for purposes of Section 4.2
and
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Article X,
GOLDWIDE HOLDINGS LIMITED
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/s/ Xxxxx Xxxx Xxxx
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By:
Xxxxx Xxxx Xxxx
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Its:
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Solely for purposes of Section 4.2
and
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Article X,
RICHEVER LIMITED
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/s/ Xxxxxxx Xx
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By: Xxxxxxx
Xx
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Its:
Director
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EXHIBIT
C
FORM
OF LOCK-UP AGREEMENT
___________,
0000
XXXXXXXX
CAPITAL, INC.
As
representative of the several Underwriters
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
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Re:
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______________________________
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Proposed
Offering of Common Stock
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Dear
Ladies and Gentlemen:
This
letter is being delivered to you in accordance with the proposed Underwriting
Agreement (the “Underwriting Agreement”) between China Electric Motor, Inc. (the
“Company’) and WestPark Capital, Inc. (“WestPark”), as representative of the
several Underwriters named in Schedule A thereto (the “Underwriters”), relating
to an underwritten public offering of common stock of the Company, par value
$0.0001 per share, (the “Common Stock”). The undersigned, the
beneficial owner of shares of the Company’s Common Stock, understands that the
Company intends to sell shares of Common Stock of the Company and to grant to
the Underwriters an over-allotment option to purchase additional shares of
Common Stock (the “Offering”). All capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Underwriting Agreement.
In order
to induce the Company and the Underwriters to enter into the Underwriting
Agreement and to proceed with the Offering, and in recognition of the benefit
that such Offering will confer upon the undersigned as a stockholder of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned irrevocably
agrees, with each Underwriter to be named in the Underwriting Agreement, for the
benefit of the Company, you and the other Underwriters, that the undersigned
will not publicly announce any intention to, will not allow any affiliate or
subsidiary, if applicable, to, and will not itself, without the prior written
consent of WestPark on behalf of the Underwriters, directly or indirectly, (i)
offer, pledge, sell, offer to sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of any of
the shares of Common Stock or any securities convertible into, or exercisable or
exchangeable for, shares of Common Stock, or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the shares of Common Stock or such other securities convertible
into, or exercisable or exchangeable for, shares of Common Stock (whether any
such transaction described in clause (i) or (ii) above is to be settled by
delivery of the shares of Common Stock or such other securities, in cash or
otherwise), in each case, beneficially owned (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended) or otherwise controlled
by the undersigned on the date hereof or hereafter acquired or otherwise
controlled, for a period beginning from the date hereof and continuing to and
including the date twenty-four (24) months after the date of the Prospectus (as
such term is defined in the Underwriting Agreement); provided, however, that, if
the undersigned is an individual, the undersigned may, without the prior written
consent of WestPark on behalf of the Underwriters, (i) transfer shares of
Common Stock or any securities convertible into, or exercisable or exchangeable
for, Common Stock either during his or her lifetime or, on death, by bona fide
gifts, will or intestacy to members of the undersigned’s immediate family or to
trusts exclusively for the benefit of members of the undersigned’s immediate
family, provided that, prior to any such transfer, such transferee executes an
agreement, satisfactory to WestPark, pursuant to which such transferee agrees to
receive and hold such shares subject to the provisions hereof and that there
shall be no further transfer except in accordance with the provisions hereof,
and (ii) exercise options held in the undersigned's name to purchase shares
of Common Stock provided that, any securities obtained upon the exercise of such
option will be held subject to the provisions hereof and that there shall be no
further transfer of any such securities except in accordance with the provisions
hereof. For purposes of this paragraph, “immediate family” shall mean
the undersigned’s spouse, lineal descendents, father, mother, brothers or
sisters (including any such relatives by adoption).
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The
restriction on transfers described in the immediately preceding paragraph shall
not apply to the sale of any shares of Common Stock to the Underwriters pursuant
to the Underwriting Agreement.
The
undersigned confirms that he, she or it understands that the Underwriters and
the Company will rely upon the representations set forth in this agreement in
proceeding with the Offering. The undersigned agrees and consents to
the entry of stop transfer instructions with the Company’s transfer agent
against the transfer of Common Stock except in compliance with this
agreement. This agreement shall be binding on the undersigned and
his, her or its respective successors, heirs, personal representatives and
assigns. If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as such term is defined in the
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
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Sincerely,
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Signature
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Name
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Title
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