PLACEMENT AGENCY AGREEMENT November 23, 2010
November
23, 2010
WestPark
Capital, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
SRKP 23,
Inc. a Delaware corporation and Weixin International Co., Limited, a company
organized under the laws of the British Virgin Islands (collectively, the “Company”), proposes,
subject to the terms and conditions of that certain form of Subscription
Agreement in the form attached hereto as Exhibit A between the
Company and certain Investors (the “Purchase Agreement”),
as described in that Private Placement Memorandum dated November 22, 2010 (the
“PPM”) and
further to a Share Exchange Agreement dated November 12, 2010, a copy of which
is attached hereto as Exhibit B (the “Share Exchange
Agreement”), to issue and sell a minimum of $500,000 and up to an
aggregate of up to $5,500,000 in shares (the “Shares”) of its
Common Stock, $0.0001 par value per share (the “Common Stock” or the
“Securities”),
directly to the Investors (the “Offering”). The
Company previously engaged WestPark Capital, Inc. (“WestPark”), as the
Company’s exclusive placement agent (in such capacity, the “Placement Agent”), on
a best efforts basis, in connection with the Offering, pursuant to that certain
Engagement Letter executed as of May 10, 2010 between WestPark and the Company
(the “Engagement
Letter”), attached hereto as Exhibit
C. The Purchase Agreement, PPM and Share Exchange Agreement
are together the “Transaction Documents”. Capitalized Terms not otherwise
defined herein shall have the meanings set forth in the Purchase
Agreement.
The
Company hereby confirms and clarifies its agreement with the Placement Agent as
follows:
Section
1. Placement Agent Services,
Compensation and Expenses.
(a) The
Company acknowledges that WestPark has acted pursuant to the Engagement Letter
as the Company’s exclusive placement agent, on a best efforts basis, in
connection with the issuance and sale by the Company of the Securities in a
private offering pursuant to Regulation D as promulgated under the Securities
Act of 1933, as amended (the “Securities Act”), and
that the terms of the Offering are subject to market conditions and negotiations
between the Company and the Investors.
(b) The
Company confirms that as compensation for services rendered in connection with
the Offering, and provided that the Securities are sold to Investors in the
Offering, at each Closing (as defined in the Purchase Agreement) of the
Offering, the Company shall pay to the Placement Agent (i) a cash fee equal to
10% of the gross proceeds received from the sale of the Securities sold at such
Closing and (ii) a non-accountable expense allowance cash fee equal to 4% of the
gross proceeds received from the sale of the Securities at such
Closing. Additionally, upon the final Closing, the Company shall pay
to the Placement Agent cash fee equal to $140,000 as a success fee for services
provided in connection with the Share Exchange Agreement.
(c) The
Company acknowledges and agrees that the Placement Agent itself has made no
commitment to purchase any of the Securities, and the Placement Agent
acknowledges and agrees that it shall have no authority to bind the Company
regarding a sale and issuance of the Securities. The Company
acknowledges that any advice given by the Placement Agent or its representatives
to the Company is solely for the benefit and use of the Company, the Board of
Directors of the Company (the “Board”) and the
management of the Company and may not be used, reproduced, disseminated, quoted
or referred to, without the Placement Agent’s prior written
consent.
1
(d) Whether
or not the sale to the Investors of the Securities on the Closing Date is
consummated, the Company agrees to reimburse all costs, fees and expenses
incurred by the Placement Agent in connection with the Offering, including
attorneys’ fees and expenses and costs related to travel and meetings with the
Investors and potential investors.
(e) The
“Term” of the Placement Agent’s exclusive engagement is defined in and governed
by the Engagement Letter, including the rights and obligations of the parties
hereto if the Offering is not consummated as contemplated hereby or within the
Term.
Section
2. Representations, Warranties and
Covenants of the Company.
The
Company hereby represents, warrants and covenants to the Placement Agent as of
the date hereof, and as of the Closing Date of the Offering, as
follows:
(a) Transaction
Documents. The representations and warranties made by the
Company in the Purchase Agreement qualified as to materiality are true and
correct as of the date made and shall be true and correct at all times prior to
and on each Closing Date as so qualified, except to the extent any such
representation or warranty expressly speaks as of an earlier date, in which case
such representation or warranty shall be true and correct as of such earlier
date as so qualified, and, the representations and warranties made by the
Company in the Purchase Agreement not qualified as to materiality are true and
correct in all material respects as of the date made and shall be true and
correct at all times prior to and on each Closing Date, except to the extent any
such representation or warranty expressly speaks as of an earlier date, in which
case such representation or warranty shall be true and correct in all material
respects as of such earlier date. The Company shall perform in all
material respects all obligations and covenants required to be performed by it
pursuant to the Purchase Agreement on or prior to each Closing
Date. The Placement Agent shall be made party to the Registration
Rights Agreement contemplated by the Purchase Agreement.
(b) Authorization;
Enforceability. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnification and contribution hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable
principles.
(c) UDF Account. At
the closing of the WRASP Offering (as defined in the Engagement Letter), the
Company will deposit a minimum of US$1,000,000 (one million dollars) in a U.S.
Dollar account to fund payment of professional fees related to the Company’s
obligations as a U.S. public company.
(d) Use of
Proceeds. The Company will not use any proceeds of the
Offering for (i) investment in other companies, (ii) establishment of new
business ventures either within the Company’s existing operations or outside
them, or (iii) for any purpose not disclosed to investors in the
PPM.
(e) Lock-up Agreements. Prior to
the initial Closing Date and in connection with the Share Exchange Agreement,
WestPark shall have received (a) executed lock-up agreements in the form
attached hereto as Exhibit D from the
shareholders of SRKP 23, Inc., (b) executed lock-up agreements in the form
attached hereto as Exhibit E from each
of the Company’s shareholder(s) and/or designees, and (c) an executed lock-up
agreement in the form attached hereto as Exhibit F from the
Company, in each case as further provided by the Share Exchange
Agreement.
2
(f) SEC Filings. The
Company will file a Notice of Sale of Securities Pursuant to Regulation D
Section 4(6), and/or Uniform Limited Offering Exemption (“Form D”) with the
Securities and Exchange Commission within 15 days of Closing
Date. Once filed, the Company will provide a copy of the Form D as
filed to WestPark. Filing the Form D is the responsibility of the
Company and failure to do so will result in a material breach of this
Agreement.
(g) Consulting Agreement. After the Closing of
the Private Placement, the Company will retain the Placement Agent as its
consultant to assist and advise the Company in its financial strategy for a
period of six (6) months. The Company will compensate the Placement
Agent $4,000 per month, in advance, payable on or before the first day of
each month.
(h) Chief Financial
Officer. The Company shall select and hire a Chief Financial
Officer within 60 days of the initial Closing Date, such Chief Financial Officer
to be mutually agreeable to the Company and WestPark.
Section
3. Indemnification and
Contribution.
The Company and the Placement Agent
hereby affirm their agreement set forth in Section 14 of the Engagement Letter,
and Appendix 1 to the Engagement Letter as referenced therein, regarding the
Placement Agent’s rights to indemnification and contribution from the Company in
connection with the Offering, provided, however, that
nothing in this Section 3 or in the documentation incorporated by reference
shall reduce or vitiate the Placement Agent’s rights to indemnification pursuant
to the terms and conditions of the Registration Rights Agreement.
Section
4. Representations,
Warranties and Covenants of the Placement Agent
The
Placement Agent hereby represents, warrants and covenants to the Company as of
the date hereof, and as of the Closing Date of the Offering, as
follows:
(a) Regulation D
Compliance. The Placement Agent has not engaged in any
activity that constitutes general solicitation or general advertising in
connection with the Offering.
(b) Other
Compliance. The Placement Agent has complied and will comply
with Regulation M, applicable FINRA rules and regulations and any other rules
and regulations setting forth restrictions on the dissemination of research
reports and the activities of analysts in connection with this Offering, and is
a member in good standing with FINRA and any applicable state licensing
authorities.
(c) No Unauthorized Distribution of
Materials. The Placement Agent has not distributed and will
not distribute any offering material in connection with the Offering and sale of
the Securities other than copies of the Company’s SEC Filings and the
Transaction Documents or as otherwise instructed by the Company.
Section
5. Representations and Indemnities to
Survive Delivery.
The
respective indemnities, agreements, representations, warranties and other
statements of the Company or any person controlling the Company, including its
officers and directors, and of the Placement Agent set forth in or made pursuant
to this Agreement, including, but not limited to the indemnity and contribution
agreements contained in Section 3 above, will remain in full force and effect,
regardless of (i) any investigation made by or on behalf of any Placement Agent
or any person controlling such Placement Agent, the Company, its directors or
officers or any persons controlling the Company; and (ii) any termination of
this Agreement. A successor to any Placement Agent, or to the
Company, its directors or officers or any person controlling the Company, shall
be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in Sections 1 and 3 above.
3
Section
6. Notices.
All
communications to the parties hereto hereunder shall be in writing and shall be
mailed, hand delivered or sent by facsimile, with confirmation of receipt by the
intended recipient confirmed as follows:
If to the
Placement Agent:
WestPark
Capital, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: Managing
Director
With a
copy to (which shall not constitute notice):
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Markiles LLP
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇
▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇, Esq.
If to the
Company:
3/F., ▇▇▇
▇▇▇▇ Building
9 ▇▇▇▇
▇▇▇▇ Road
Guangzhou
Science City, Guangzhou,
People’s
Republic of China
Attention: ▇▇▇▇
▇▇▇
Facsimile:__________________________
With a
copy to (which shall not constitute notice):
K&L
Gates LLP
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
Any party
hereto may change the address for receipt of communications by giving written
notice to the others.
4
Section
7. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto,
and to the benefit of their respective employees, officers and directors and
controlling persons, and to their respective successors, and personal
representatives, and no other person will have any right or obligation
hereunder. Neither the Company nor the Placement Agent shall be
entitled to assign their rights, or delegate their responsibilities, hereunder
without the prior written consent of the other party hereto.
Section
8. Partial
Unenforceability.
The
invalidity or unenforceability of any section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
Section
9. Governing Law
Provisions.
(a) Governing
Law. This agreement shall be governed by and construed in
accordance with the internal laws of the state of California applicable to
agreements made and to be performed in such state.
(b) Consent to
Jurisdiction. Any legal suit, action or proceeding arising out
of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”)
may be instituted in the federal courts of the United States of America located
in Los Angeles County, California, or the courts of the State of California in
each case located in Los Angeles County (collectively, the “Specified Courts”),
and each party irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such
court (a “Related
Judgment”), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. Service of any
process, summons, notice or document by mail to such party’s address set forth
above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit,
action or other proceeding brought in any such court has been brought in an
inconvenient forum.
Section
10. General
Provisions.
This
Agreement and the Engagement Letter, as each is informed by the further
agreements referenced therein, together constitute the entire agreement of the
Placement Agent and the Company with respect to the Offering, and supersede all
prior or contemporaneous written or oral agreements, understandings and
negotiations with respect to the subject matter hereof. For clarity,
it is the parties’ intent that this Agreement supplements and amends the
Engagement Letter solely to the extent set forth herein; if a provision of this
Agreement and the Engagement Letter are contradictory, this Agreement shall
control.
5
This
Agreement may be executed in two or more counterparts (including via facsimile
or by emailed document in PDF format), each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in
writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit. Section headings herein are for the convenience
of the parties only and shall not affect the construction or interpretation of
this Agreement.
[The remainder of this page has been
intentionally left blank. Signature page follows.]
6
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in
accordance with its terms.
| Very truly yours, | |||
| WEIXIN INTERNATIONAL CO., LIMITED, | |||
| a company organized under the laws of the British Virgin Islands | |||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇ Yu | |
| Name: ▇▇▇▇▇ ▇▇▇▇ Yu | |||
| Title: Director | |||
| SRKP 23, INC., | |||
| a Delaware corporation | |||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: President | |||
The
foregoing Placement Agency Agreement is hereby confirmed and accepted by the
Placement Agent as of the date first above written.
| WESTPARK CAPITAL, INC. | |||||
| By: |
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
||||
|
Title: CEO
|
|
||||
7
EXHIBIT
A
Purchase
Agreement
8
EXHIBIT
B
Share Exchange
Agreement
9
EXHIBIT
C
Engagement Letter Executed
May 10, 2010
10
WRASP™ENGAGEMENT
AGREEMENT
May 10, 2010
Chairman of the
Board
Wei Xin
Holdings Group Co., Ltd.
Re: WRASP Engagement
Mr. Chairman:
Consistent
with our understanding of the goals and objectives of the Company, WestPark
Capital, Inc. (“WestPark”) proposes to structure a series of transactions
through which Shenzhen
Wei Xin Holdings Group Co.,
Ltd. and its affiliated companies (the “Company”) will list directly on the NYSE
Amex U.S. stock exchange (“NYSE Amex”) in a process referred to as the WestPark Reverse Alternative Senior Exchange Process
(“WRASP”). This
Engagement Agreement (the
“WRASP Agreement”) sets forth the terms and conditions by which
WestPark Capital, Inc. (“WestPark”) will provide financial advisory and
other professional services
to the Company throughout
the WRASP process. WestPark will act as the
Company’s Investment Banker regarding a
merger/acquisition (“RTO
Transaction”) of a shell
company (the “Shell”) and as the Company’s Exclusive Placement Agent to assist it in a private offering of its securities (the
“Private
Placement”) on a “best-efforts” basis pursuant to the terms and
conditions as set forth herein.
|
1.
|
Structure
of the Transaction. WestPark will act as
the Company’s Investment Banker respecting
matters relating to the Company’s proposed RTO Transaction. These services
include but are not limited to the following: (i) overall control and coordination of
the process; (ii)
undertaking
activities related to the collection and analysis of due diligence;
(iii) interacting with shell principals and
negotiating definitive purchase agreement; (iv) financial analysis including
valuation analysis; and (v) managing the interrelationship of
legal and accounting activities to ensure the transaction moves according
to time table. WestPark will also advise the Shell with respect to structuring the merger with the approval of
the Company.
|
It is the Company’s intention to effect a WRASP, through
which the Company will list its stock for trading on the NYSE Amex as part of
the merger process with the
Shell, which is fully-reporting with the United States Securities and Exchange
Commission. The
amount of equity required
to acquire the shell will be 9.0% (Nine Percent) of the total shares outstanding
the day after the RTO Transaction has closed. The final amount of cash required to
acquire the shell will be
US$600,000 (Six Hundred Thousand Dollars), which shall be
payable from the proceeds of the Private Placement of common stock, preferred
stock or convertible notes of the Company (the
“Securities”). The RTO
Transaction is subject to the satisfaction of due diligence on the part of
both the Company and
WestPark. However, the Company must meet
WestPark’s WRASP qualification standards (as
defined by WestPark and the NYSE Amex) prior to initiating the WRASP
Offering. After closing the Private Placement and as part of the
WRASP, WestPark will manage a firm commitment underwritten offering of common
stock of the Company (the “WRASP Offering”), for which WestPark will receive
compensation through customary fees, warrants and
expense reimbursement as regulated by FINRA and governed by a separate letter of
intent.
Initials:
Wei Xin Holdings Group Co.,
Ltd.
Page 2
May 10,
2010
WestPark will act as the
Company’s Private Placement Agent respecting
matters relating to the financing of its business as follows. The Company proposes to conduct Private
Placements to raise up to
$25,000,000 (Twenty-Five Million Dollars) of capital through
transactions (the “Financings”) involving the issuance the Securities.
It is anticipated that the Company will raise capital according to the following financing
schedule (the “Schedule”):
|
Stage
|
Amount
|
Timing
|
|||
|
Private
Placement
|
$ | 3,000,000 to $5,000,000 |
Closing
concurrent with RTO
|
||
|
WRASP
Offering*
|
$ | 15,000,000 to $20,000,000 |
Closing
ASAP after RTO
|
||
|
|
*
Governed by separate Letter of Intent. Size and pricing subject
to market conditions.
|
|
2.
|
Term. The term of this WRASP
Agreement shall be for a period of two (2) years from the date of execution hereof
(the “Effective
Date”) or upon the
completion of the completion of the PIPE Financing as referenced in the Schedule,
whichever occurs later. This WRASP Agreement will
automatically renew on a month-to-month basis unless cancelled. For any transaction that is in process at the time of
termination, the Company agrees to pay WestPark all of
the cash fee
compensation in this WRASP Agreement agreed upon herein earned by WestPark up to the point the transaction
closes. This WRASP Agreement may be cancelled by either party after the
initial two-year
period upon thirty days written
notice.
|
|
3.
|
Company
and WestPark Responsibilities. The Company represents and
warrants to WestPark that, to the best of its knowledge, any and all
information provided in connection with any transaction that may be
initiated under the terms and conditions of this WRASP Agreement, in a form including but not
limited to a business plan, private placement memorandum, correspondence
and collateral material, whether it is for or to anyone connected with the
WRASP or distributed to
outside parties, will 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.
|
|
|
The Company agrees and
acknowledges that any and all due diligence conducted by WestPark is for
the sole benefit and
use by WestPark and will not and can not be relied on by any other person
or entity and all prospective investors will conduct their own due
diligence prior to participating in the
transaction.
|
|
|
The Company represents that it
will achieve U.S.
GAAP net income of no less than US$5,200,000 (Five Million Two Hundred Thousand Dollars) and
US$6,500,000
(Six Million Five Hundred Thousand Dollars) for the
fiscal years ending December 31, 2009 and 2010, respectively, as the terms
herein are based upon
the Company achieving these financial results. In the event
these financial results are not obtained, the equity percentage in Section
1 above may be adjusted.
|
|
|
The
Company agrees to refer any and all investors, lenders and/or any other
interested person or entity to which it has or will come in contact to
WestPark and WestPark will present, discuss and negotiate with said
contact.
|
Initials:
Wei Xin Holdings Group Co.,
Ltd.
Page 3
May 10,
2010
|
4.
|
Fees. The Company will pay to WestPark
the following financial advisory fees as consideration for the services
related to the RTO
Transaction described
herein:
|
|
I.
|
Cash – RTO
Transaction
|
|
(a)
|
Upon receipt of this Engagement,
WestPark shall be paid the sum of $25,000 (Twenty-Five Thousand Dollars), which will
serve as a retainer. In addition, upon the Company’s execution of a Share Exchange Agreement, the Company
shall pay to WestPark $60,000 (Sixty Thousand
Dollars).
|
|
(b)
|
Upon
the closing of the RTO Transaction (the “Closing”), WestPark will be paid a cash fee
of $60,000 (Sixty
Thousand
Dollars). An escrow, trust or
similar third party
agent will be used for the closing of the RTO Transaction and the Private
Placement to which WestPark shall be a party; all consideration due
WestPark shall be paid directly to
WestPark.
|
|
II.
|
Warrants – RTO
Transaction
|
Five (5) year warrants (the
“Warrants”) for the purchase of an equity
interest of the Company
equal to 2.0% (Two Percent)
of the outstanding shares of the surviving company based upon the number of
shares outstanding the day after the Closing of the RTO Transaction and Private
Placement Transaction. The shares underlying
the Warrants will have standard piggyback rights and a cashless exercise
provision.
The Company will pay to WestPark
the following
fees as consideration for
the services related to the
Private Placement described
herein:
|
III.
|
Cash – Private
Placement
|
Concurrent with each closing under the Private Placement (each such event a “Closing” and all such events together the
“Closings”), WestPark will be paid a fee of 8.0% (Eight Percent) of up to $25,000,000
(Twenty-Five Million
Dollars) as set forth in the Schedule. An escrow, trust or similar
third party agent will be used for each closing to which WestPark shall be a
party. All consideration due WestPark shall be paid to WestPark directly from the
proceeds at each Closing.
|
IV.
|
Warrants – Private
Placement
|
Five (5) year warrants (the
“Warrants”) for the purchase of an equity interest
of the Company equal to 9.0% (Nine Percent) of the securities subject to the
Private Placement Transaction, including but not limited to securities issued,
to be issued through
exercise of a convertible instrument and/or exercisable
warrants. These Warrants shall be exercisable at the per share price
of securities sold in this Private Placement and shall contain price
anti-dilution provisions. The shares underlying the Warrants will have standard
demand registration and piggyback rights and a cashless exercise
provision.
Initials:
Wei Xin Holdings Group Co.,
Ltd.
Page 4
May 10,
2010
|
5.
|
Consulting
Agreement. After the closing of
the Private Placement, the Company will retain WestPark as its consultant,
to assist the Company
with its efforts to act as the Company’s Investment Banker and to assist
and/or advise the Company in its financial strategy for a period of six
(6) months. The Company will compensate WestPark $4,000 (Four Thousand Dollars) per month, in
advance, payable on
or before the first day of each
month.
|
All forms of compensation set forth in
this WRASP Agreement are due and payable to WestPark with respect to any
completed transaction by and between the Company and any person or entity and
their affiliates having
previously met with, spoken to and/or introduced by WestPark for the period from
the execution date of this WRASP Agreement through the end of the 24th month
following the termination date of this WRASP Agreement, after giving effect to
any and all extensions to this WRASP
Agreement.
All consideration payable to WestPark
pursuant to the terms and conditions of this WRASP Agreement, are due and
payable on or before its respective due date. WestPark, as an accommodation may
present the Company with an
invoice for such amounts due, however payment is not subject to the receipt of
an invoice. This WRASP Agreement shall serve as the Company’s documentation for payment processing
and remittances.
|
6.
|
Expenses. The Company is
responsible for all costs related to the WRASP, which may include
but is not limited to the Company’s legal fees, printing and
reproduction costs, accounting and other professional services, Blue Sky
registration fees, road show and travel related expense (any road show and
travel related expenses must be approved by the
Company) and
miscellaneous out-of-pocket expenses incurred in connection with this
engagement. Specifically, the Company is
responsible for all legal fees and expenses related to listing on the AMEX
as well as those of filing a registration statement,
which includes WestPark’s legal expenses for review of the
Private Placement Memorandum and other related services. The Company will pay
the cost of one diligence trip to the Company’s facilities in China; such
trip will be for two individuals traveling business class to and from
China. Any
expenses incurred by WestPark on behalf of the Company, related to this
engagement will be invoiced and due upon receipt. Approved expenses (by
the Company) not paid by the Company due WestPark will be deducted from the
proceeds of a Close. In general, all the expenses are pre-approved by the
Company or are incurred as a result of engagements entered into by the
Company.
|
|
7.
|
Conflict
of Interest. The Company intends to become
public by merging
with a newly created Shell company (the “Blank Check Shell”) that is controlled by certain
affiliates of WestPark Capital. The Company has been made aware
that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ indirectly owns 100% of WestPark Capital, Inc., and
both he and his minor children are substantial
shareholders of the Blank Check Shell. In addition, certain principals and
employees of WestPark Capital, Inc. and its affiliates may hold direct or
indirect shareholder interests in the Blank Check Shell. As a
consequence of the foregoing, conflicts of interest
may exist between the Company and WestPark Capital, Inc. in its role as
the Company’s financial adviser with respect
to this transaction. By executing this agreement, the Company
hereby waives the aforementioned conflicts.
|
|
8.
|
Approval
of Professionals. WestPark
and the Company will mutually agree upon the retention of all
professionals related to the WRASP (Private Placement, RTO Transaction,
and Firm Commitment Underwriting) including but not limited to Company
counsel, Company accountants, and Investor Relations
firm(s).
|
Initials:
Wei Xin Holdings Group Co.,
Ltd.
Page 5
May 10,
2010
|
9.
|
Exclusive
Agency. WestPark is hereby
engaged as the Company’s exclusive agent respecting all
investment banking services that may be required by the Company related to
this reverse merger transaction. WestPark will make its best efforts
to assist the Company to achieve its goals as envisioned in this WRASP
Agreement.
|
|
10.
|
Interim
Financing. The Company agrees that if, during
the period from the Closing of the RTO Transaction and
the listing of its stock for trading (Section 1), the Company raises additional
capital by means of any issuance of equity, convertible debt or other
convertible securities, WestPark shall be entitled to receive a fee of three and one-half percent (3.5%) of the gross proceeds of such
financing, which
amount shall be paid directly from the proceeds at the
closing.
|
|
11.
|
Future
Investment Banking Roles. The Company agrees
that if, during the period of its engagement hereunder or at any time
within 12 months following the closing of a reverse merger transaction, the Company
determines to raise additional capital by means of a public offering or
private placement of equity, debt or convertible securities, WestPark
shall have the right to act as the lead underwriter or placement agent
with respect to such
financing. Any decision by WestPark to act in such capacity
will be documented in a separate agreement or amendment hereto, which
would include, among other things, customary fees, indemnification of
WestPark, the terms of any such financing, conditions precedent including due
diligence, and current conditions, as well as customary representations
and warranties.
|
During the term of this WRASP Agreement
or at any time within 12 months following the closing of a reverse merger
transaction, if the Company
or any of its affiliates proposes (i) to dispose of an interest in any material
assets or businesses of the Company (including sale or merger of the Company),
or (ii) to acquire or purchase any material interest or investment in any other
company or business, WestPark shall have the
right, at its option, to act as exclusive financial advisor with respect to such
transaction. Any decision by WestPark to act as exclusive financial
advisor with respect to such proposed disposition or acquisition transaction will be documented in a separate
agreement or amendment hereto, which would include, among other things, the
terms of any such transaction, provisions for customary fees for transactions of
similar size and nature, indemnification of WestPark, conditions precedent including due
diligence, and customary representations and warranties.
|
12.
|
SEC
Filings. The Company
will file a Notice of Sale of Securities Pursuant to Regulation D Section
4(6), and/or Uniform Limited Offering Exemption (“Form D”) with the Securities and Exchange Commission
within 15 days of closing of the Private Placement. Once filed, the
Company will provide a copy of the Form D as filed to
WestPark. Filing the Form D is the responsibility of the
Company and failure to do so will result in a material breach of this
Agreement.
|
|
13.
|
Representations
and Warranties. The Company represents
and warrants to WestPark that: the Company will not cause or knowingly
permit any action to be taken in connection with the Private Placement
which violates the
Securities Act of 1933 or any state securities laws; the Company will
cooperate with WestPark so as to permit the Private Placement to be
conducted in a manner consistent with the applicable state and federal
securities laws; that all information and statements provided by the Company
and included in, but not limited to the PPM, business plan, correspondence
and any and all collateral material will be true and correct; that the PPM
will not be misleading or violate the anti-fraud provisions of the
Securities and Exchange Act of 1934;
current Company management, as disclosed to WestPark, will continue in
place after the Private Placement for a reasonable period of time;
there will be included in the PPM financial statements of the Company for
the last three fiscal
years or for such shorter period as the Company was in existence and the
latest unaudited comparative quarterly or other interim financial
statements; the financial statements will fairly reflect the financial
condition of the Company and the results of its operations at a time
and for the periods covered by such financial statements, and such
statements will be substantially as heretofore represented to WestPark;
the Company does not know of any undisclosed facts adversely affecting the
PPM or the Private Placement; the Company
will immediately disclose to WestPark, in writing, any new facts as they
may arise that may adversely affect the PPM or the Private Placement; the Company will prepare and
deliver to WestPark its most recent estimate of sales, earnings, and cash flow and
agrees to update those estimates on a monthly basis during the term of the
Private
Placement. The Company agrees to
indemnify and hold WestPark and its attorneys, accountants, agents and
employees, officers and directors, free and harmless from any
liability, cost and expense, including attorneys' fees in the event of a
breach of this representation and
warranty.
|
Initials:
Wei Xin Holdings Group Co.,
Ltd.
Page 6
May 10,
2010
|
14.
|
Indemnification.
In consideration of
the services to be provided by WestPark under this WRASP Agreement, the
Company
shall:
|
Indemnify and hold harmless WestPark and
any of its directors, officers, employees, consultants or agents (each
individually an “Indemnified Person”) from and against any losses, claims,
damages or liabilities to which such Indemnified Person may become subject arising out of our
in connection with the rendering of services by WestPark hereunder, except to
the extent that such losses, claims, damages or liabilities are determined in
judicial rulings to have primarily resulted from the negligence or willful misconduct of such
Indemnified Person and reimburse such Indemnified Person for reasonable legal
and other expenses as they are incurred, that arise in connection with
investigating, preparing to defend or defending any lawsuit, claim or
proceeding and any appeals therefrom
arising in any manner out of or in connection with the rendering of services by
WestPark, provided, however that in the event a final judicial determination is
made to the effect specified above, such Indemnified Person will promptly remit to the Company any
amounts reimbursed under the section.
The Company and WestPark agree that (i)
the indemnification and reimbursement commitments set forth above shall apply
whether or not such Indemnified Person is a named party to any such lawsuit, claim or other
proceeding; and (ii) promptly after receipt by WestPark or the Financing; the
Company will immediately disclose to WestPark, in writing, any new facts as they
may arise that may adversely affect the Financing; This indemnification shall survive any termination of
this WRASP Agreement.
|
15.
|
Conditions
of Performance by the Investment Banker. Notwithstanding
anything to the contrary set forth hereinabove, the performance of the
obligations of WestPark as provided in this WRASP Agreement is specifically subject to
and conditioned upon the completion of in-depth investigative procedures,
with satisfactory reports of the Company, its directors and officers as
well as the Company’s operations and general
performance (also referred to as “due diligence” procedures). WestPark will
determine, in its sole discretion, the determination and interpretation of
any and all information provided as a result of said investigative
procedures.
|
Initials:
Wei Xin Holdings Group Co.,
Ltd.
Page 7
May 10,
2010
|
16.
|
Successors. This WRASP Agreement is binding
upon the parties
hereto and their respective permissible assigns, successors, heirs and
personal representatives, and shall inure to their
benefit.
|
|
17.
|
Assignment. Neither this WRASP
Agreement nor any right pursuant hereto nor interest herein shall be
assignable by any of
the parties hereto without the prior written consent of the other parties
hereto, except as expressly permitted
herein.
|
|
18.
|
Governing
Law and Jurisdiction. This Agreement shall
be governed and construed and enforced in accordance with the laws of the
State of California
applicable to Agreements to be entered into and entirely performed in such
State, and subject to the exclusive jurisdiction of state and federal
courts located in the County of Los Angeles,
California.
|
|
19.
|
Costs
and Attorneys’
Fees. Any
claim or controversy
arising out of or relating to this WRASP Agreement, or the interpretation
thereof, or any issue as to whether or not this WRASP Agreement is subject
to arbitration, shall be settled by arbitration and shall be conducted in
Los Angeles, California. Judgment based
upon decision of the arbitrators may be entered in any court having
jurisdiction hereof. Both parties agree to accept telephonic
testimony in lieu of personal appearances. The prevailing party
shall be entitled to recovery of costs, fees (including
attorneys’ fees) and taxes paid or incurred
in obtaining the award. Further, any costs, fees or taxes
incurred in enforcing the award shall be fully assessed against and paid
by the party against whom the reward is to be
enforced. Both parties agree to limit their
respective testimony during the arbitration session to three hours
each.
|
|
20.
|
Waiver
and Amendment. No waiver, amendment
or modification of any provision of this WRASP Agreement shall be
effective unless consent by both parties in writing. No failure
or delay by either party in exercising any rights, power or remedy under
this WRASP Agreement shall operate as a waiver of such right, power or
remedy. Any terms and/or conditions of this WRASP Agreement may
be waived at any time, pursuant to this section, but a
waiver in one instance shall not be deemed to constitute a waiver in any
other instance.
|
|
21.
|
Severability. If
any term, provision, covenant or restriction of this WRASP Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or
unenforceable.
|
Initials:
Wei Xin Holdings Group Co.,
Ltd.
Page 8
May 10,
2010
|
22.
|
Section
Headings; Defined Terms. Numbered and titled section headings and
defined terms are for convenience only and shall not he construed as
amplifying or limiting any of the provisions of this WRASP
Agreement.
|
|
23.
|
Entire
Agreement. This WRASP Agreement
and any exhibits herein incorporated and attached hereto supersede all prior
and contemporaneous negotiations and agreements (whether written or oral)
and constitute the entire understanding among the
parties.
|
Initials:
Wei Xin Holdings Group Co.,
Ltd.
Page 9
May 10,
2010
Please confirm your understanding and
acceptance of this Agreement by faxing, or electronically returning, an executed copy of
this Agreement to our
offices by May 21, 2010
and then mailing one
original executed copy of this Agreement to our office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Should we fail to receive
the faxed
and/or electronically
communicated acknowledgement within the time period set forth above, the offer of
Engagement contained in
this letter shall automatically terminate, time being of the essence
herein.
| Very truly yours, | |||
| WestPark Capital, Inc. | |||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Its: Chief Executive Officer | |||
Accepted and agreed to this 20th day of May, 2010, Los Angeles,
California.
| Wei Xin Holdings Group Co., Ltd. | ||||
|
/s/
▇▇▇▇▇▇▇▇ ▇▇▇
|
|
|||
|
By:
|
|
|||
|
Its: Chairman of the
Board
|
|
Initials:
EXHIBIT D
FORM
OF LOCK-UP AGREEMENT FOR SHELL STOCKHOLDERS
______________,
2010
3/F., ▇▇▇
▇▇▇▇ Building
9 ▇▇▇▇
▇▇▇▇ Road
Guangzhou
Science City, Guangzhou,
People’s
Republic of China
WestPark
Capital, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned is a security holder of
China Wesen Recycling Technology, Inc. (formerly known as SRKP 23, Inc. and
referred to herein as the “Company”) and hereby
delivers this Lock-Up Agreement to the Company. Capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed to
them in that certain Share Exchange Agreement dated November 12, 2010 (the
“Share Exchange
Agreement”) by and among the Company; Weixin International Co., Limited,
a company organized under the laws of the British Virgin Islands; Wei Xin
Holding Group Limited, a company organized under the laws of Hong Kong; Gangzhou
Kelida Intelligent Equipment Co., Ltd., a company organized under the laws of
the People’s Republic of China; Zhaoqing Hua Su Plastic Trading Company,
Zhaoqing ▇▇▇▇▇▇ ▇▇ Resources Recycle Co., Ltd., Zhaoqing Xin Ye Plastic Co.,
Ltd, and Zhaoqing ▇▇ ▇▇▇ Craftwork Co., Ltd., each a company organized under the
laws of the People’s Republic of China, and all of the shareholders of Weixin
International Co., Ltd.
The
undersigned recognizes that, as a condition to the Share Exchange and the
transactions contemplated therein, it is in the best financial interests of the
Company and of the undersigned, as a stockholder of the Company, that the
securities of the Company held by the undersigned 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’s Common Stock held by the undersigned or (ii) any
interest (including, without limitation, an option to buy or sell) in any such
shares of the Company’s 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 such shares of the Company’s Common Stock held
by the undersigned 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 the “Lock-Up
Restrictions”).
If the
aggregate dollar amount of shares sold in the underwritten public offering,
including the dollar amount of shares sold in any over-allotment options
exercised in connection therewith (the “Public Offering”),
that the Company intends to conduct in connection with its application for
listing or quotation of the Company's Common Stock on either the New York Stock
Exchange, NYSE Amex, NASDAQ Global Market, NASDAQ Capital Market or the OTC
Bulletin Board (the “Listing”) is in an
amount that is equal to or greater than $5,000,000, the Lock-up Restrictions
shall be released in full on the date that is six (6) months from the date of
such Listing (the “Listing
Date”).
11
If the
aggregate dollar amount of shares sold by the Company in the Public Offering is
less than $5,000,000, one-tenth (1/10) of the shares of the Company’s Common
Stock held as of the date hereof by the undersigned shall be released from the
Lock-Up Restrictions on the date that is ninety (90) days after the Listing Date
(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 (9) 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 held by the undersigned shall
bear a legend as set forth below (the “Lock-Up Legend”) and
such Lock-Up 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 THE COMPANY, 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. UPON SATISFACTION OF THE REQUIREMENTS SET FORTH THEREIN, 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
PAGE FOLLOWS]
12
IN
WITNESS WHEREOF, the undersigned has executed this Lock-Up Agreement as of the
date first written above.
| Printed Name of Holder | |||||
|
|
|
||||
| Signature: |
|
|
|||
|
|
|
| Date: |
|
|
|||
|
|
|
| Amount of Shares: |
|
|
13
EXHIBIT
E
FORM
OF LOCK-UP AGREEMENT FOR COMPANY SHAREHOLDER(S) AND DESIGNEES
___________,
▇▇▇▇
▇▇▇▇▇▇▇▇
CAPITAL, INC.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear
Ladies and Gentlemen:
The
undersigned is a security holder of China Wesen Recycling Technology, Inc.
(formerly known as SRKP 23, Inc. and referred to herein as the “Company”) and hereby
delivers this Lock-Up Agreement to the Company. Capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed to
them in that certain Share Exchange Agreement dated November 12, 2010 (the
“Share Exchange
Agreement”) by and among the Company; Weixin International Co., Limited,
a company organized under the laws of the British Virgin Islands; Wei Xin
Holding Group Limited, a company organized under the laws of Hong Kong; Gangzhou
Kelida Intelligent Equipment Co., Ltd., a company organized under the laws of
the People’s Republic of China; Zhaoqing Hua Su Plastic Trading Company,
Zhaoqing ▇▇▇▇▇▇ ▇▇ Resources Recycle Co., Ltd., Zhaoqing Xin Ye Plastic Co.,
Ltd, and Zhaoqing ▇▇ ▇▇▇ Craftwork Co., Ltd., each a company organized under the
laws of the People’s Republic of China, and all of the shareholders of Weixin
International Co., Ltd.
The
undersigned recognizes that, as a condition to the Share Exchange and the
transactions contemplated therein, it is in the best financial interests of the
Company and of the undersigned, as a stockholder of the Company that the
securities of the Company held by the undersigned be subject to certain
restrictions and hereby agrees as follows:
As a
condition to the Share Exchange Agreement, and in recognition of the benefit
that such Share Exchange 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 of the recipients identified above, joint and severally, for
the benefit of the Company and you, 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 Capital, Inc., 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 of listing or
quotation of the Company's Common Stock on either the New York Stock Exchange,
NYSE Amex, NASDAQ Global Market, NASDAQ Capital Market or the OTC Bulletin Board
(the “Listing
Date”) and continuing to and including the date twenty-four (24) months
after the Listing Date; provided, however, that, if the undersigned is an
individual, the undersigned may, without the prior written consent of WestPark
Capital, Inc., (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 Capital, Inc., 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).
14
The
undersigned confirms that he, she or it understands that WestPark Capital, Inc.
and the Company will rely upon the representations set forth in this agreement
as a condition to the Share Exchange. 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.
| Sincerely, | |||
|
|
|
||
| Signature | |||
|
Name
|
|||
| Title | |||
15
EXHIBIT
F
FORM
OF LOCK-UP AGREEMENT FOR COMPANY
November
23, 2010
WESTPARK
CAPITAL, INC.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear
Ladies and Gentlemen:
The
undersigned, SRKP 23, Inc., a Delaware corporation (referred to herein as the
“Company”),
hereby delivers this Lock-Up Agreement to WestPark Capital, Inc. (“WestPark” or “you”). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in that certain Placement Agency Agreement dated November 23,
2010 (the “Placement
Agency Agreement”) by and among the Company, Weixin International Co.,
Limited, a company organized under the laws of the British Virgin Islands, and
WestPark.
As a
condition to the Placement Agency Agreement, and in recognition of the benefit
that the Offering will confer upon the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned irrevocably covenants and agrees that except as expressly
contemplated by the Share Exchange and the Offering, it will not, directly or
indirectly, (a) 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 (b) 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 (a) or (b) above is to be
settled by delivery of the shares of Common Stock or such other securities, in
cash or otherwise), other than repurchases at cost or without cost pursuant to
the terms of the Company’s option and restricted stock purchase agreements, 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
Company on the date hereof or hereafter acquired or otherwise controlled, for a
period beginning from the date of listing or quotation of the Company's Common
Stock on either the New York Stock Exchange, NYSE Amex, NASDAQ Global Market,
NASDAQ Capital Market or the OTC Bulletin Board (the “Listing Date”) and
continuing to and including the date eighteen (18) months after the Listing
Date, without the prior written consent of WestPark; provided, however, that the
Company may, without the prior written consent of WestPark, issue equity awards
to employees of the Company pursuant to equity incentive plans approved by the
board of directors and shareholders of the Company (provided that such grants do
not exceed 7% of the outstanding shares, which includes the issuance of the
shares issued in connection with the Offering).
16
The
Company confirms that it understands that WestPark Capital, Inc. will rely upon
the representations set forth in this agreement as a condition to the Placement
Agency Agreement. This agreement shall be binding on the undersigned
and its successors, heirs, personal representatives and assigns.
| Sincerely, | |||
| SRKP 23, INC., | |||
| a Delaware corporation | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| RATIFIED, ACCEPTED & AGREED: | |||||
| CHINA WESEN RECYCLING TECHNOLOGY, INC., | |||||
| a Delaware corporation | |||||
| By: |
|
|
|||
|
Name: ▇▇▇▇
▇▇▇
|
|
||||
|
Title: Chief
Executive Officer
|
|
||||
17