March 23, 2010
Exhibit
10.11
March 23,
2010
c/o
Xxxxxx Xxxxxx, Counsel to Deer Consumer Products, Inc.
The
Xxxxxx Law Firm, PLLC
00 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
This
letter agreement (“Letter Agreement”) is being entered into by and among the
undersigned, individually and on behalf of the entity set forth below which is
controlled by the undersigned, and Deer Consumer Products, Inc., a Nevada
corporation (the “Company”), with the intent to be legally bound. The
undersigned hereby acknowledges and agrees that this Letter
Agreement replaces in its entirety the original letter agreement dated
September 3, 2008 (the “Original Agreement”) between the Company and the
undersigned, individually and on behalf of the entity set forth below which is
controlled by the undersigned and the Original Agreement is hereby terminated.
The undersigned understands that this Letter Agreement shall remain applicable
to the 1,255,654 shares of the Company’s common stock, par value $.001 per share
(the “Common Stock”), represented by the share certificates numbered 1258 and
2062, to which the Original Agreement applied. The undersigned understands that
the Company was, as of the date of the Original Agreement, intending to commence
an offer and sale (the “Offering”) and/or securities convertible
thereto.
In
recognition of the benefit that the 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 agrees
that, during the Lock-Up Period (as defined below), the undersigned will not,
except in the event of a Change of Control of the Company and with the prior
written consent of the Company’s Board of Directors, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of the Company’s
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, whether now owned or hereafter acquired by the undersigned
(collectively, the “Lock-Up Securities”) or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Lock-Up Securities,
whether any such swap or transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise. The foregoing sentence shall
not apply to transfers of shares of Common Stock or any security convertible
into Common Stock (a) to any other member of the Company’s management or (b) as
a bona fide gift by will or intestacy or to a family member or trust for the
benefit of a family member; provided, that in
case of any transfer of distribution pursuant to this sentence (A) each member
of the Company’s management, donee or distributee shall sign and deliver a
lockup up letter substantially in the form of this letter and (B), in the case
of subclause (b) of this sentence, no filing under Section 16(a) of the
Securities Exchange Act of 1934, as amended, reporting a reduction in beneficial
ownership of shares of Common Stock shall be required or shall be voluntarily
made during the Lock-Up Period. For the purposes of this Letter
Agreement, “Change of Control” means (i) the approval by the shareholders of the
Company of a plan of complete liquidation or dissolution of the Company, (ii)
the consummation of a sale of all or substantially all of the assets of the
Company; (iii) the consummation of any transaction as a result of which any
individual or entity becomes the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing more than fifty percent (50%) of the total voting power of all
voting securities of the Company then issued and outstanding; or (iv) the
consummation of a merger, consolidation, reorganization, or business
combination, other than a merger, consolidation, reorganization or business
combination which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting
securities of the Company or the surviving entity immediately after such merger,
consolidation, reorganization of business combination.
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In
furtherance thereof, the Company will (x) place a stop order on all Shares (as
defined below) and (y) notify its transfer agent in writing of the stop
order and the restrictions on such Shares under this Letter Agreement and direct
the transfer agent not to process any attempts by the undersigned to resell or
transfer any Shares in violation of this Agreement. The undersigned
shall deliver the share certificates representing the Shares so they may be held
in custody during the Lock-Up Period by the Company’s counsel, The Xxxxxx Law
Firm, or such other custodian designated by the Company.
No
provision in this letter shall be deemed to restrict or prohibit the exercise or
exchange by the undersigned of any option or warrant to acquire shares of Common
Stock, or securities exchangeable or exercisable for or convertible into Common
Stock, provided that the undersigned does not transfer the Common Stock acquired
on such exercise or exchange during the Lock-Up Period, unless otherwise
permitted pursuant to the terms of this Letter Agreement.
The
undersigned hereby represents and warrants that he/she/it does not beneficially
own (as determined in accordance with Section 13(d) of the Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder) any shares of
Common Stock, or any economic interest therein or derivative therefrom, other
than those shares of Common Stock specified on its signature page to this
Agreement as of the date of this Agreement (the “Shares”).
The
undersigned hereby represents and warrants that the undersigned has full power
an authority to enter into this Lock-Up Agreement. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned and any obligations of the undersigned shall be binding upon the
heirs, personal representatives, successors and assigns of the
undersigned. The undersigned has consulted an attorney and hereby
waives his/her/its right to all defenses of inadequate representation of
counsel.
This
Letter Agreement shall commence as of the date hereof and automatically
terminate on January 17, 2013 (the “Lock-Up Period”).
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This
Agreement may be executed in facsimile and in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which shall together constitute one and the same agreement.
If any
provision of this Letter Agreement is held to be invalid or unenforceable for
any reason, such provision will be conformed to prevailing law rather than
voided, if possible, in order to achieve the intent of the parties and, in any
event, the remaining provisions of this Letter Agreement shall remain in full
force and effect and shall be binding upon the parties hereto.
This
Letter Agreement may not be amended or modified in any manner except by a
written agreement executed by each of the parties hereto.
The
Company shall have the right to specifically enforce all of the obligations of
the undersigned under this Letter Agreement (without posting a bond or other
security), in addition to recovering damages by reason of any breach of any
provision of this Letter Agreement and to exercise all other rights granted by
law. Furthermore, the undersigned recognizes that if it fails to
perform, observe, or discharge any of its obligations under this Letter
Agreement, any remedy at law may prove to be inadequate relief to the
Company. Therefore, the undersigned agrees that the Company shall be
entitled to seek temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages and without posting a bond or
other security.
The terms
and provisions of this Agreement shall be construed in accordance with the laws
of the State of New York, without giving effect to the principles of conflicts
of laws, and the federal laws of the United States of America applicable
therein. The parties agree to the exclusive laying of venue in a State or
Federal court located in New York State.
[Signature
Page Follows]
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Very
truly yours,
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GREAT
SCALE HOLDINGS LIMITED
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Holder
of 1,255,654 shares of Common Stock
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By:
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/s/ Fa Min He
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Name:
Fa Min He
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Title:
President
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/s/ Fa Min He
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Fa
Min He, Individually
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AGREED
AND ACCEPTED
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By:
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/s/ Xxxx Xx
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Name:
Xxxx Xx
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Title:
Chairman & Chief Executive Officer
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