Attached files
| file | filename |
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| 8-K - SRKP 23 Inc | v206302_8k.htm |
| EX-10.1 - SRKP 23 Inc | v206302_ex10-1.htm |
SUBSCRIPTION
AGREEMENT
This
SUBSCRIPTION AGREEMENT (the “Subscription
Agreement”) made as of this ____ day of __________, 2010, by and among
SRKP 23, Inc., a Delaware corporation (the “Company”); Wesen
Environmental Technology Limited, a company organized under the laws of the
British Virgin Islands and upon the Closing Date (as defined below), a
wholly-owned subsidiary of the Company (“Wesen BVI”); Weixin
International Co., Limited, a company organized under the laws of the British
Virgin Islands and a wholly-owned subsidiary of Wesen BVI (“Weixin BVI”); Wei Xin
Holding Group Limited, a company organized under the laws of Hong Kong and a
wholly-owned subsidiary of Weixin BVI (“Weixin HK”); Gangzhou
Kelida Intelligent Equipment Co., Ltd., a company organized under the laws of
the People’s Republic of China and a wholly-owned subsidiary of Weixin HK
(“Kelida”);
Zhaoqing Hua Su Plastic Trading Company (“Hua Su”), Zhaoqing
Chuang Yi Resources Recycle Co., Ltd. (“Chuang Yi”), Zhaoqing
Xin Ye Plastic Co., Ltd. (“Xin Ye”), and
Zhaoqing Li Jun Craftwork Co., Ltd. (“Li Jun”), each a
company organized under the laws of the People’s Republic of China and a
wholly-owned subsidiary of Kelida; and the undersigned (the “Subscriber”). Collectively,
Wesen BVI, Weixin BVI, Weixin HK, Kelida, Hua Su, Chuang Yi, Xin Ye and Li Jun
are referred to herein as the “Wesen
Entities.”
RECITALS
WHEREAS,
the Company, each of the Wesen Entities and [Zhang Hongyu], an individual and
the sole shareholder of Wesen BVI (the “Shareholder”) have
entered into a Share Exchange Agreement dated as of November [__], 2010 (the
“Exchange
Agreement”), pursuant to which Wesen BVI will become a wholly-owned
subsidiary of the Company and 100% of the outstanding securities of Wesen BVI
will be exchanged for securities in the Company (the “Share
Exchange”). Immediately after the effective time of the Share
Exchange (the “Closing
Date”), the Company will assume the business and operations of Wesen BVI
and its subsidiaries;
WHEREAS,
the Company has entered into a Share and Warrant Cancellation Agreement dated as
of November [__], 2010 with each of its stockholders (the “Cancellation
Agreement”), pursuant to which each of the Company’s stockholders has
agreed to cancel certain shares and warrants held by them in connection with the
transactions contemplated by the Exchange Agreement; and
WHEREAS,
as a condition to the closing of the Share Exchange, the Company intends to
obtain subscriptions for the purchase and sale, in a private placement
transaction (the “Offering”) pursuant
to Regulation D promulgated under the Securities Act of 1933, as amended (the
“Act”), of
shares of Common Stock of the Company, par value $0.0001 per share (the “Shares”), of a
minimum of $500,000 (222,222 Shares) (the “Minimum Offering
Amount”) and a maximum of $5,500,000 (2,444,444 Shares) (the “Maximum Offering
Amount”), on the terms and conditions hereinafter set forth, and the
Subscriber desires to acquire that number of Shares set forth on the signature
page hereof.
1
AGREEMENT
NOW,
THEREFORE, for and in consideration of the promises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Subscription
Procedure
1.1 Subject
to the terms and conditions hereinafter set forth, the Subscriber hereby
subscribes for and agrees to purchase from the Company such number of Shares as
is set forth upon the signature page hereof at a price of $2.25 per Share (the
“Purchase
Price”). The Company agrees to sell such Shares to the
Subscriber for the Purchase Price, subject to the provisions of Section 1.7
below.
1.2 The
subscription period will begin on November [8], 2010 and will terminate at 5:00
PM Eastern Standard Time on March 31, 2011, unless extended for up to an
additional 90 days by the Company, Wesen BVI and the Placement Agent (as defined
below) (the “Termination
Date”). The Shares will be offered as more particularly set
forth in a Confidential Private Placement Memorandum and any supplements thereto
(the “Offering
Memorandum”), which shall supersede in its entirety that Executive
Summary dated October 27, 2010, in addition to other offering
memoranda. The Offering will take place through an initial closing on
the Closing Date, and there may be one or more subsequent closings of the
Offering thereafter, with the closing applicable to this Subscription Agreement
being referred to as the “Closing.” The
final Offering Memorandum will be provided to Subscribers in the Offering no
later than one (1) day prior to the applicable Closing. The
consummation of the Offering is subject to the satisfaction of a number of
conditions to be further described in the Offering Memorandum, one or more of
which conditions may not occur.
1.3 Placement
of the Shares will be made by WestPark Capital, Inc. (the “Placement Agent”),
which will receive certain compensation therefore as will be more fully
described in the Offering Memorandum.
1.4 The
Purchase Price will be placed in escrow pursuant to an escrow agreement (the
“Escrow
Agreement”) by and among the Placement Agent, the Company and Wells
Fargo, National Association, as escrow agent (the “Escrow Agent”), and
such escrowed funds shall be transmitted and maintained in compliance with SEC
Rule 15c2-4, as promulgated under the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), as applicable, and shall be paid over to the Company at the
Closing. Such funds will be held for the Subscriber's benefit, and
will be returned promptly, without interest or offset if this Subscription
Agreement is not accepted by the Company, the Offering is terminated pursuant to
its terms or by the Company or the Placement Agent prior to the Closing, or the
Minimum Offering Amount is not sold.
1.5 The
certificates for the Shares bearing the name of the Subscriber will be delivered
by the Company within a reasonable amount of time following the final Closing of
the Offering. The Subscriber hereby authorizes and directs the
Company to deliver the Shares to be issued to such Subscriber pursuant to this
Subscription Agreement to the residential or business address indicated in the
Investor Questionnaire, as attached.
1.6 The
Purchase Price for the Shares purchased hereunder shall be paid to the Escrow
Agent pursuant to the following instructions:
2
If by wire transfer:
Wells
Fargo Bank, N.A.
ABA #
121000248
BNF:
Corporate Trust Clearing
FFC: Esc
A/C #: 80617700 SRKP 23/ WestPark Capital Subscription
Attn:
Kyle Lim (213) 614-3493
|
If
by check:
|
|
|
Payable
to:
|
“Wells
Fargo Bank, N.A.”
|
|
Memo:
|
“SRKP
23/ WestPark Capital”
|
|
Mailed
to:
|
1900
Avenue of the Stars, Suite 310
|
|
Los
Angeles, CA 90067
|
|
|
Attn:
Paul Rathwell (310)
843-9300
|
1.7 The
Company and/or Wesen BVI may, in their sole discretion, reject any subscription,
in whole or in part, or terminate or withdraw the Offering in its entirety at
any time prior to a Closing in relation thereto. If this subscription
is rejected in whole, the Offering is terminated or the Minimum Offering Amount
is not raised, all funds received from the Subscriber will be returned without
interest or offset, and this Subscription Agreement shall thereafter be of no
further force or effect. If this subscription is rejected in part,
the funds for the rejected portion of this subscription will be returned without
interest or offset, and this Subscription Agreement will continue in full force
and effect to the extent this subscription was accepted. Neither the
Company nor the Placement Agent shall be required to allocate among investors on
a pro
rata basis in the event of an over-subscription.
2. Representations and
Covenants of Subscriber
2.1 The
Subscriber recognizes that the purchase of the Shares involves a high degree of
risk in that (i) the Company will need additional capital to operate its
business but has no assurance of additional necessary capital; (ii) an
investment in the Company is highly speculative and only investors who can
afford the loss of their entire investment should consider investing in the
Company and the Shares; (iii) an investor may not be able to liquidate his, her
or its investment; (iv) transferability of the Shares is extremely limited; (v)
an investor could sustain the loss of his, her or its entire investment; and
(vi) the Company is and will be subject to numerous other risks and
uncertainties, including without limitation, significant and material risks
relating to the Company’s business and the business and operations of the Wesen
Entities and their subsidiaries, and the industries, markets and geographic
regions in which the Company will compete, as well as risks associated with the
Offering, the Share Exchange and the other transactions contemplated herein, in
the Offering Memorandum and in the Exchange Agreement, all as more fully set
forth herein and in the Offering Memorandum. For the avoidance of
doubt, all references to the Company in this Section 2.1 include the Company’s
business and operations after it acquires the business and operations of the
Wesen Entities and their subsidiaries through the Share Exchange.
2.2 The
Subscriber represents that he, she or it is an “accredited investor” as such
term is defined in Rule 501 of Regulation D promulgated under the Act, as
indicated by his, her or its responses to the Investor Questionnaire, the form
of which is attached hereto as Exhibit A, and that
he, she or it is able to bear the economic risk of an investment in the
Shares. The Subscriber must complete the applicable Investor
Questionnaire to enable the Company and Wesen BVI to assess the Subscriber’s
eligibility for the Offering.
3
2.3 The
Subscriber acknowledges that he, she or it has prior investment experience,
including without limitation, investment in non-listed and non-registered
securities, or he, she or it has employed the services of an investment advisor,
attorney or accountant to read all of the documents furnished or made available
by the Company or Wesen BVI both to him, her or it and to all other prospective
investors in the Shares and to evaluate the merits and risks of such an
investment on his, her or its behalf, and that he, she or it recognizes the
highly speculative nature of this investment.
2.4 The
Subscriber acknowledges receipt and careful review of the Offering Memorandum,
this Subscription Agreement, and the attachments hereto and thereto
(collectively, the “Offering Documents”)
and hereby represents that he, she or it has been furnished or given access by
the Company or the Wesen Entities during the course of this Offering with or to
all information regarding the Company and the Wesen Entities and their
respective financial conditions and results of operations which he, she or it
had requested or desired to know; that all documents which could be reasonably
provided have been made available for his, her or its inspection and review;
that he, she or it has been afforded the opportunity to ask questions of and
receive answers from duly authorized representatives of the Company and the
Wesen Entities concerning the terms and conditions of the Offering, and any
additional information which he, she or it had requested. The
Subscriber further represents and acknowledges that the Subscriber has not seen
or received any advertisement or general solicitation with respect to the sale
of any of the securities of the Company, including, without limitation, the
Shares.
2.5 The
Subscriber acknowledges that this Offering of the Shares may involve tax
consequences, and that the contents of the Offering Documents do not contain tax
advice or information. The Subscriber acknowledges that he, she or it
must retain his, her or its own professional advisors to evaluate the tax and
other consequences of an investment in the Shares.
2.6 The
Subscriber acknowledges that this Offering of the Shares has not been reviewed
or approved by the United States Securities and Exchange Commission (the “SEC”) because the
Offering is intended to be a nonpublic offering pursuant to Section 4(2) of the
Act. The Subscriber represents that the Shares are being purchased
for his, her or its own account, for investment and not for distribution or
resale to others. The Subscriber agrees that he, she or it will not
sell or otherwise transfer any of the Shares unless they are registered under
the Act or unless an exemption from such registration is available and, upon the
Company’s request, the Company receives an opinion of counsel reasonably
satisfactory to the Company confirming that an exemption from such registration
is available for such sale or transfer.
2.7 The
Subscriber understands that the Shares have not been registered under the Act by
reason of a claimed exemption under the provisions of the Act which depends, in
part, upon his, her or its investment intention. The Subscriber
realizes that, in the view of the SEC, a purchase now with the intention to
distribute would represent a purchase with an intention inconsistent with his,
her or its representation to the Company, and the SEC might regard such a
distribution as a deferred sale to which such exemption is not
available.
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2.8 The
Subscriber understands that Rule 144 (the “Rule”) promulgated
under the Act requires, among other conditions, no earlier than twelve (12)
months after the Form 10 information of Wesen BVI is filed with the SEC, in
addition to a six (6) month holding period prior to the resale (in limited
amounts) of securities acquired in a non-public offering, such as the Offering,
without having to satisfy the registration requirements under the
Act. Except as specifically set forth in Section 4.1, the Subscriber
understands that the Company makes no representation or warranty regarding its
fulfillment in the future of any reporting requirements under the Exchange Act,
or its dissemination to the public of any current financial or other information
concerning the Company, as is required by Rule 144 as one of the conditions of
its availability. The Subscriber consents that the Company may, if it
desires, permit the transfer of the Shares out of his, her or its name only when
his, her or its request for transfer is accompanied by an opinion of counsel
reasonably satisfactory to the Company that neither the sale nor the proposed
transfer results in a violation of the Act, any applicable state “blue sky” laws
or any applicable securities laws of any other country, province or jurisdiction
(collectively, the “Securities
Laws”). The Subscriber agrees to hold the Company, the Wesen
Entities and their respective directors, officers and controlling persons and
their respective heirs, representatives, successors and assigns harmless and to
indemnify them against all liabilities, costs and expenses incurred by them as a
result of any misrepresentation made by him, her or it contained herein or in
the Investor Questionnaire or any sale or distribution by the undersigned
Subscriber in violation of any Securities Laws.
2.9 The
Subscriber consents to the placement of one or more legends on any certificate
or other document evidencing his, her or its Shares stating that they have not
been registered under the Act and are subject to the terms of this Subscription
Agreement, including the lock-up restriction set forth in Section 4.10, and
setting forth or referring to the restrictions on the transferability and sale
thereof.
2.10 The
Subscriber understands that the Company and Wesen BVI will review this
Subscription Agreement and the Investor Questionnaire and, if the Subscriber is
a natural person, the Company and Wesen BVI are hereby given authority by the
undersigned to call his, her or its bank or place of employment. The Subscriber
further authorizes the Company and Wesen BVI to review the financial standing of
the Subscriber; and the Subscriber agrees that the Company and Wesen BVI reserve
the unrestricted right to reject or limit any subscription and to close the
offer at any time.
2.11 The
Subscriber hereby represents that the address of Subscriber furnished by him,
her or it at the end of this Subscription Agreement and in the Investor
Questionnaire is the undersigned’s principal residence if he or she is an
individual or its principal business address if it is a corporation or other
entity.
2.12 The
Subscriber acknowledges that if the Subscriber is a Registered Representative of
a Financial Industry Regulatory Authority (“FINRA”) member firm,
he, she or it must give such firm the notice required by the FINRA Conduct
Rules, or any applicable successor rules of the FINRA, receipt of which must be
acknowledged by such firm on the signature page hereof. The
Subscriber shall also notify the Company if the Subscriber or any affiliate of
Subscriber is a registered broker-dealer with the SEC, in which case the
Subscriber represents that the Subscriber is purchasing the Shares in the
ordinary course of business and, at the time of purchase of the Shares, has no
agreements or understandings, directly or indirectly, with any person to
distribute the Shares or any portion thereof.
5
2.13 The
Subscriber hereby represents that, except as set forth in the Offering
Documents, no representations or warranties have been made to the Subscriber by
either the Company or any of the Wesen Entities or their agents, employees or
affiliates and in entering into this transaction, the Subscriber is not relying
on any information, other than that contained in the Offering Documents and the
results of independent investigation by the Subscriber.
2.14 The
Subscriber agrees that he or she will purchase securities in the Offering only
if his or her intent at such time is to make such purchase for investment
purposes and not with a view toward resale.
2.15 If the
undersigned Subscriber is a partnership, corporation, trust or other entity,
such partnership, corporation, trust or other entity further represents and
warrants that: (i) it was not formed for the purpose of investing in
the Company; (ii) it is authorized and otherwise duly qualified to purchase and
hold the Shares; and (iii) that this Subscription Agreement has been duly and
validly authorized, executed and delivered and constitutes the legal, binding
and enforceable obligation of the undersigned.
2.16 If the
Subscriber is not a United States person, such Subscriber hereby represents that
it has satisfied itself as to the full observance of the laws of its
jurisdiction in connection with any invitation to subscribe for the Shares or
any use of this Subscription Agreement, including (i) the legal requirements
within its jurisdiction for the purchase of the Shares, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental or
other consents that may need to be obtained, and (iv) the income tax and other
tax consequences, if any, that may be relevant to the purchase, holding,
redemption, sale or transfer of the Shares. Such Subscriber’s
subscription and payment for, and his or her continued beneficial ownership of
the Shares, will not violate any applicable securities or other laws of the
Subscriber’s jurisdiction.
2.17 The
undersigned hereby covenants and agrees that neither it nor any of its
affiliates has or will have an open position (e.g., short sale) in the Shares
prior to the Registration Statement (as defined below) being declared effective
by the SEC with the intent of covering such open position with the Shares being
registered in the Registration Statement. The undersigned hereby
acknowledges and understands that the SEC has taken the position that such an
open position would constitute a violation of Section 5 of the Act.
2.18 The
Subscriber acknowledges that (i) the Offering Memorandum contains material,
non-public information concerning the Company within the meaning of Regulation
FD promulgated by the SEC, and (ii) the Subscriber is obtaining such material,
non-public information solely for the purpose of considering whether to purchase
the Shares pursuant to a private placement that is exempt from registration
under the Act. In accordance with Regulation FD and other applicable
provisions of the Securities Laws, the Subscriber agrees to keep such
information confidential and not to disclose it to any other person or entity
except the Subscriber’s legal counsel, other advisors and other representatives
who have agreed (i) to keep such information confidential, (ii) to use such
information only for the purpose set forth above, and (iii) to comply with
applicable securities laws with respect to such information. In
addition, the Subscriber further acknowledges that the Subscriber and such legal
counsel, other advisors and other representatives are prohibited from trading in
the Company’s securities while in possession of material, non-public information
and agree to refrain from purchasing or selling securities of the Company until
such material, non-public information has been publicly disseminated by the
Company. The Subscriber agrees to indemnify and hold harmless the
Company, the Wesen Entities and their respective officers, directors, employees
and affiliates and each other person, if any, who controls any of the foregoing,
against any loss, liability, claim, damage and expense whatsoever (including,
but not limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty by the Subscriber, or the Subscriber’s breach of, or
failure to comply with, any covenant or agreement made by the Subscriber herein
or in any other document furnished by the Subscriber to the Company, the Wesen
Entities or their respective officers, directors, employees or affiliates or
each other person, if any, who controls any of the foregoing in connection with
this transaction.
6
2.19 The
Subscriber understands and acknowledges that (i) the Shares are being
offered and sold to Subscriber without registration under the Act in a private
placement that is exempt from the registration provisions of the Act under
Section 4(2) of the Act and (ii) the availability of such exemption depends
in part on, and that the Company will rely upon the accuracy and truthfulness
of, the foregoing representations, and such Subscriber hereby consents to such
reliance.
2.20 The
Subscriber understands and acknowledges that he, she or it will at all times be
in compliance with any and all state and federal securities and other laws,
statutes and regulations regarding his, her or its ownership and/or any sale,
transfer or hypothecation of the Shares, including but not limited to those
rules and regulations promulgated by the SEC, FINRA and any exchange on which
the Company’s Common Stock (as defined below) is listed, and those of federal
and state governments and other agencies such as improper short selling of the
Company’s Common Stock and failure to properly file all documents required by
the SEC or otherwise.
3. Representations by the
Company and the Wesen Entities
Except as
set forth in the reports filed by the Company pursuant to the Exchange Act (the
“SEC Reports”),
each of the Company and, as applicable, the Wesen Entities severally represent
and warrant to the Subscriber that:
3.1 Organization and
Authority. The Company and each of the Wesen Entities, and
each of their respective subsidiaries, (i) is a corporation or company, as
applicable, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, as applicable, (ii) has all
requisite corporate power or company power, as applicable, and authority to own,
lease and operate its properties and to carry on its business as presently
conducted, and (iii) has all requisite corporate power or company power, as
applicable, and authority to execute, deliver and perform their obligations
under this Subscription Agreement and the Offering Documents being executed and
delivered by it in connection herewith, and to consummate the transactions
contemplated hereby and thereby.
7
3.2 Qualifications. Each
of the Company and the Wesen Entities, and each of their respective
subsidiaries, is duly qualified to do business as a foreign corporation or
foreign company, as applicable, and is in good standing in all jurisdictions
where such qualification is necessary and where failure so to qualify could have
a material adverse effect on the business, properties, operations, condition
(financial or other), results of operations or prospects of the Company and its
subsidiaries (after the effective time of the Share Exchange), taken as a
whole.
3.3 Capitalization of the
Company. Immediately after the effective time of the Share
Exchange (but before any Closing of this Offering), the authorized capital stock
of the Company will consist of 100,000,000 shares of common stock, $0.0001 par
value per share (the “Common Stock”) and
10,000,000 shares of “blank check” preferred stock, par value $0.0001 per
share. Of the authorized capital stock of the Company, immediately
after the effective time of the Share Exchange and including the Shares of
Common Stock issued in the Offering, assuming it is fully subscribed at such
effective time, and assuming the cancellation of the Maximum Cancelled Shares
and the Maximum Cancelled Warrants pursuant to the Cancellation Agreement at the
effective time (as such terms are defined in the Cancellation Agreement), there
will be outstanding 12,217,455 shares of Common Stock and 782,545 warrants to
purchase shares of Common Stock, and no options to purchase shares of Common
Stock. Except as disclosed in the SEC Reports or the Offering
Documents, there are no additional outstanding options, warrants, script rights
to subscribe to, calls or commitments of any character whatsoever relating to,
or securities, rights or obligations convertible into or exchangeable for, or
giving any person any right to subscribe for or acquire from the Company, any
shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any subsidiary is or may become bound to
issue additional shares of Common Stock, or securities or rights convertible or
exchangeable into shares of Common Stock. Except as described in the Offering
Documents, the issuance and sale of the Shares will not obligate the Company to
issue shares of Common Stock or other securities to any person (other than the
Subscribers) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under such
securities. The shares of the Company’s capital stock outstanding
immediately after the effective time of the Share Exchange (but before the
closing of the Offering) are or will be duly authorized and validly issued and
are or will be fully paid and nonassessable. None of the outstanding
shares of Common Stock or options, warrants, or rights or other securities
entitling the holders to acquire Common Stock has been issued in violation of
the preemptive rights of any security holder of the Company. No
holder of any of the Company’s securities has any rights, “demand,” “piggy-back”
or otherwise, to have such securities registered by reason of the intention to
file, filing or effectiveness of the Registration Statement (as defined below),
except as contemplated by the Exchange Agreement. The Shares to be
issued to the Subscriber have been duly authorized, and when issued and paid for
in accordance with this Subscription Agreement, the Shares will be duly and
validly issued, fully paid and non-assessable will be duly and validly issued,
fully paid and non-assessable.
3.4 Authorization. The
Offering Documents have been duly and validly authorized by the Company and the
Wesen Entities. This Subscription Agreement, assuming due execution
and delivery by the Subscriber, when the Subscription Agreement is executed and
delivered by the Company, will be, valid and binding obligations of the Company,
enforceable in accordance with their respective terms, except as the
enforceability hereof and thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors’ rights generally and general principles of
equity, regardless of whether enforcement is considered in a proceeding in
equity or at law.
8
3.5 Non-Contravention. The
execution and delivery of the Offering Documents by the Company and the Wesen
Entities, the issuance of the Shares as contemplated by the Offering Documents
and the completion by the Company and the Wesen Entities of the other
transactions contemplated by the Offering Documents do not and will not, with or
without the giving of notice or the lapse of time, or both, (i) result in any
violation of any provision of the articles of incorporation or by-laws or
similar instruments of the Company or the Wesen Entities or their respective
subsidiaries, (ii) conflict with or result in a breach by the Company or the
Wesen Entities or their respective subsidiaries of any of the terms or
provisions of, or constitute a default under, or result in the modification of,
or result in the creation or imposition of any lien, security interest, charge
or encumbrance upon any of the properties or assets of the Company or the Wesen
Entities or their respective subsidiaries, pursuant to any agreements,
instruments or documents filed as exhibits to the SEC Reports or any indenture,
mortgage, deed of trust or other agreement or instrument to which any of the
Wesen Entities or any of their subsidiaries is a party or by which the Wesen
Entities or any of their subsidiaries or any of their properties or assets are
bound or affected, in any such case which would have a material adverse effect
on the business, properties, operations, condition (financial or other), results
of operations or prospects of the Company and the Wesen Entities and their
respective subsidiaries, taken as a whole, or the validity or enforceability of,
or the ability of the Company or the Wesen Entities to perform their obligations
under, the Offering Documents, (iii) violate or contravene any applicable law,
rule or regulation or any applicable decree, judgment or order of any court,
United States federal or state regulatory body, administrative agency or other
governmental body having jurisdiction over the Wesen Entities or any of their
subsidiaries or any of their respective properties or assets that would have a
material adverse effect on the business, properties, operations, condition
(financial or other), results of operations or prospects of the Company and its
subsidiaries (after the effective time of the Share Exchange), taken as a whole,
or the validity or enforceability of, or the ability of the Company or the Wesen
Entities to perform their obligations under, the Offering Documents, or (iv)
have any material adverse effect on any permit, certification, registration,
approval, consent, license or franchise necessary for the Company or its
subsidiaries (after the effective time of the Share Exchange) to own or lease
and operate any of its properties and to conduct any of its business or the
ability of the Company or its subsidiaries to make use thereof.
3.6 Information
Provided. The Company hereby represents and warrants to the
Subscriber that the information set forth in the Offering Memorandum, the SEC
Reports and any other documents provided by the Company (or the Company’s
authorized representatives) to the Subscriber in connection with the
transactions contemplated by this Subscription Agreement, does not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, it being understood that for purposes of
this Section 3.6, any statement contained in such information shall be deemed to
be modified or superseded for purposes of this Section 3.6 to the extent that a
statement in any document included in such information which was prepared and
furnished to the Subscriber on a later date or filed with the SEC on a later
date modifies or replaces such statement, whether or not such later prepared and
furnished or filed statement so states. Each of the Wesen Entities
hereby represents and warrants to the Subscriber that the information set forth
in the Offering Memorandum and any other document provided by the Wesen Entities
(or their authorized representatives) to the Subscriber in connection with the
transactions contemplated by this Subscription Agreement, does not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading.
9
3.7 Absence of Certain
Proceedings. Except as disclosed in the SEC Reports, neither
the Company nor any of the Wesen Entities is aware of any action, suit,
proceeding, inquiry or investigation before or by any court, public board or
body, or governmental agency pending or threatened against or affecting the
Company or any of the Wesen Entities or any of their respective subsidiaries, in
any such case wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the business, properties, operations, condition
(financial or other), results of operations or prospects of the Company or the
Wesen Entities, or the transactions contemplated by the Offering Documents or
which could adversely affect the validity or enforceability of, or the authority
or ability of the Company or the Wesen Entities to perform their obligations
under, the Offering Documents; and to the Company’s and each of the Wesen
Entities’ knowledge there is no pending or contemplated, and there has been no,
investigation by the SEC involving the Company or Wesen BVI or any of their
current or former directors or officers.
3.8 Compliance with
Law. Neither the Company nor the Wesen Entities nor any of
their respective subsidiaries is in violation of or has any liability under any
statute, law, rule, regulation, ordinance, decision or order of any governmental
agency or body or any court, domestic or foreign, except where such violation or
liability would not individually or in the aggregate have a material adverse
effect on the business, properties, operations, condition (financial or other),
results of operations or prospects of the Company and its subsidiaries (after
the effective time of the Share Exchange), taken as a whole; and to the
knowledge of the Company and the Wesen Entities there is no pending
investigation that would reasonably be expected to lead to such a
claim.
3.9 Tax
Matters. The Company and the Wesen Entities and each of their
respective subsidiaries has filed all federal, state and local income and
franchise tax returns required to be filed and has paid all taxes shown by such
returns to be due, and no tax deficiency has been determined adversely to the
Company or the Wesen Entities or any of their respective subsidiaries which has
had (nor does the Company or the Wesen Entities or any of their respective
subsidiaries have any knowledge of any tax deficiency which, if determined
adversely to the Company or the Wesen Entities or any of their respective
subsidiaries, might have) a material adverse effect on the business, properties,
operations, condition (financial or other), results of operations, or prospects
of the Company or any of its subsidiaries (after the effective time of the Share
Exchange), taken as a whole.
4. Registration
Rights
4.1 Registration
Requirement. Subject to the terms and limitations hereof, the
Company shall file a registration statement on Form S-1 or other appropriate
registration document under the Act (the “Registration
Statement”) for resale of the Shares (the “Registrable
Securities”) and shall use its reasonable best efforts to maintain the
Registration Statement effective for a period of twelve (12) months at the
Company’s expense (the “Effectiveness
Period”). The Company shall file such Registration Statement
no later than thirty (30) days after the final Closing of the Offering (the
“Registration Filing
Date”), and shall use reasonable best efforts to cause such Registration
Statement to become effective within one hundred and fifty (150) days after the
Registration Filing Date, or one hundred eighty (180) days after the
Registration Filing Date if the Registration Statement is subject to a full
review by the SEC.
10
4.2 Limitation to Registration
Requirement. Notwithstanding the foregoing, the Company shall
not be obligated to effect any registration of the Registrable Securities or
take any other action pursuant to this Section 4: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Act, or (ii) during any period in which the
Company suspends the rights of a subscriber after giving the Subscriber written
notification of a Potential Material Event (defined below) pursuant to Section
4.6 hereof.
4.3 Expenses of
Registration. Except as otherwise expressly set forth, the
Company shall bear all expenses incurred by the Company in compliance with the
registration obligation of the Company, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company incurred in connection with any registration,
qualification or compliance pursuant to this Subscription Agreement and all
underwriting discounts, selling commissions and expense allowances applicable to
the sale of any securities by the Company for its own account in any
registration. All underwriting discounts, selling commissions and
expense allowances applicable to the sale by Subscriber of Registrable
Securities and all fees and disbursements of counsel for the Subscriber shall be
borne by the Subscriber.
4.4 Indemnification.
(a) To the
extent permitted by law the Company will indemnify each Subscriber, each of its
officers, directors, agents, employees and partners, and each person controlling
such Subscriber, with respect to each registration, qualification or compliance
effected pursuant to this Subscription Agreement, and each underwriter, if any,
and each person who controls any underwriter, and their respective counsel
against all claims, losses, damages and liabilities (or actions, proceedings or
settlements in respect thereof) arising out of or based on (i) any untrue
statement (or alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other document prepared by the Company
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or (ii) any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Act or any rule or regulation thereunder
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and subject to the provisions of Section 4.4(c) below, will reimburse each such
Subscriber, each of its officers, directors, agents, employees and partners, and
each person controlling such Subscriber, each such underwriter and each person
who controls any such underwriter, for any legal and any other expenses as they
are reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement (or
alleged untrue statement) or omission (or alleged omissions) based upon written
information furnished to the Company by (or on behalf of) such Subscriber or
underwriter, or if the person asserting any such loss, claim, damage or
liability (or action or proceeding in respect thereof) did not receive a copy of
an amended preliminary prospectus or the final prospectus (or the final
prospectus as amended and supplemented) at or before the written confirmation of
the sale of such Registrable Securities to such person because of the failure of
the Subscriber or underwriter to so provide such amended preliminary or final
prospectus (or the final prospectus as amended and supplemented); provided,
however, that the indemnity agreement contained in this subsection shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability or action to
the extent that it arises out of or is based upon a violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by the Subscriber, any such partner,
officer, director, employee, agent or controlling person of such Subscriber, or
any such underwriter or any person who controls any such underwriter; provided,
however, that the obligations of the Company hereunder shall be limited to an
amount equal to the portion of net proceeds represented by the Registrable
Securities pursuant to this Subscription Agreement.
11
(b) To the
extent permitted by law, each Subscriber whose Registrable Securities are
included in any registration, qualification or compliance effected pursuant to
this Subscription Agreement will indemnify the Company, and its directors,
officers, agents, employees and each underwriter, if any, of the Company’s
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of the Act and the rules and
regulations thereunder, each other such Subscriber and each of their officers,
directors, partners, agents and employees, and each person
controlling such Subscriber, and their respective counsel against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and such Subscribers,
directors, officers, partners, persons, underwriters or control persons for any
legal or any other expenses as they are reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by such Subscriber; provided, however, that the
obligations of any Subscriber hereunder shall be limited to an amount equal to
the net proceeds to such Subscriber from Registrable Securities sold under such
registration statement, prospectus, offering circular or other document as
contemplated herein; provided, further, that the indemnity agreement contained
in this subsection shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Subscriber, which consent shall not be unreasonably withheld
or delayed.
(c) Each
party entitled to indemnification under this Section (the “Indemnified Party”)
shall give notice to the party required to provide indemnification (the “Indemnifying Party”)
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party’s expense; and
provided further that if any Indemnified Party reasonably concludes that there
may be one or more legal defenses available to it that are not available to the
Indemnifying Party, or that such claim or litigation involves or could have an
effect on matters beyond the scope of this Subscription Agreement, then the
Indemnified Party may retain its own counsel at the expense of the Indemnifying
Party; and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Subscription Agreement unless and only to the extent that
such failure to give notice results in material prejudice to the Indemnifying
Party. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with defense of such claim and litigation resulting therefrom.
12
(d) If the
indemnification provided for in this Section is held by a court of competent
jurisdiction to be unavailable to an Indemnified Party with respect to any loss,
liability, claim, damage or expense referred to herein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party hereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and of the Indemnified Party on the other in connection with the statements
or omissions which resulted in such loss, liability, claim, damage or expense as
well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
4.5 Transfer or Assignment of
Registration Rights. Subject to Section 4.10 of this Subscription
Agreement, the Registrable Securities, and any related benefits to the
Subscriber hereunder may be transferred or assigned by the Subscriber to a
permitted transferee or assignee, as reasonably determined by the Company;
provided that the Company is given written notice of such transfer or
assignment, stating the name and address of said transferee or assignee and
identifying the Registrable Securities with respect to which such registration
rights are being transferred or assigned; provided further that the transferee
or assignee of such Registrable Securities shall be deemed to have assumed the
obligations of the Subscriber under this Subscription Agreement by the
acceptance of such assignment and shall, upon request from the Company, evidence
such assumption by delivery to the Company of a written agreement assuming such
obligations of the Subscriber.
13
4.6 Registration
Procedures. In the case of the registration effected by the
Company pursuant to this Subscription Agreement, the Company will keep the
Subscriber advised in writing as to the initiation of each registration and as
to the completion thereof. The Company will:
(a) Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Act with respect to the
disposition of securities covered by such registration statement;
(b) Respond
as promptly as reasonably practicable to any comments received from the SEC with
respect to a registration statement or any amendment thereto.
(c) Notify
the Subscriber as promptly as reasonably practicable and (if requested by any
such person) confirm such notice in writing no later than one (1) trading day
following the day (A) when a prospectus or any prospectus supplement or
post-effective amendment to a registration statement is proposed to be filed and
(B) with respect to a registration statement or any post-effective amendment,
when the same has become effective;
(d) Furnish
such number of prospectuses and other documents incident thereto, including
supplements and amendments, as the Subscriber may reasonably
request;
(e) Furnish
to the Subscriber, upon request, a copy of all documents filed with and all
correspondence from or to the SEC in connection with any such registration
statement other than non-substantive cover letters and the like;
(f) Use its
reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a registration
statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment; and
(g) Use its
reasonable best efforts to comply with all applicable rules and regulations of
the SEC.
Notwithstanding
the foregoing, if at any time or from time to time after the date hereof, the
Company notifies the Subscriber in writing of the existence of an event or
circumstance that is not disclosed in the Registration Statement and that may
have a material effect on the Company or its business (a “Potential Material
Event”), the Subscriber shall not offer or sell any Registrable
Securities, or engage in any other transaction involving or relating to the
Registrable Securities, from the time of the giving of notice with respect to a
Potential Material Event until the Company notifies the Subscriber that such
Potential Material Event either has been added to the Registration Statement by
amendment or supplement or no longer constitutes a Potential Material Event;
provided, that
the Company may not so suspend the right of Subscriber for more than one hundred
and twenty (120) days in the aggregate.
4.7 Statement of Beneficial
Ownership. The Company may require the Subscriber to furnish
to the Company a certified statement as to the number of shares of Common Stock
beneficially owned by such Subscriber and the controlling person thereof and any
other such information regarding the Subscriber, the Registrable Securities held
by the Subscriber and the intended method of disposition of such securities as
shall be reasonably required with respect to the registration of the
Subscriber’s Registrable Securities. The Subscriber hereby
understands and agrees that the Company may, in its sole discretion, exclude the
Subscriber’s shares of Common Stock from the Registration Statement in the event
that the Subscriber fails to provide such information requested by the Company
within the time period reasonably specified by the Company or is required to do
so by law or the SEC.
14
4.8 Compliance. Subscriber
covenants and agrees that if the Shares are sold under a registration statement,
that the Shares will only be disposed of pursuant to an effective registration
statement under, and in compliance with the requirements of, the Act,
including in accordance with the plan of distribution set forth in the
registration statement and in compliance with the prospectus delivery
requirements of the Act as applicable to such Subscriber in connection with
sales of Registrable Securities pursuant to the registration statement required
hereunder. Subscriber understands and acknowledges that the Company
and the Company’s counsel may rely on the statements and covenants made in this
Section for purposes of providing a legal opinion to the transfer agent for
removal of a restrictive legend under the Act.
4.9 Piggy-Back
Registrations. If at any time during the Effectiveness Period
there is not an effective registration statement covering all of the Registrable
Securities and the Company shall determine to prepare and file with the SEC a
registration statement relating to an offering for its own account or the
account of others under the Act of any of its Common Stock, other than an
offering of securities issued pursuant to a Strategic Issuance (as defined
below) and other than a Form S-4 or Form S-8 registration statement (each as
promulgated under the Act or their then equivalents relating to equity
securities to be issued solely in connection with any business combination
transaction, acquisition of any entity or business or equity securities issuable
in connection with stock option or other employee benefit plans), then the
Company shall send to the Subscriber (together with any other holders
of its Common Stock possessing “piggyback registration rights” comparable to
those granted to the Subscriber hereunder (the “Rightsholders”))
written notice of such determination and, if within fifteen (15) days after
receipt of such notice, the Subscriber shall so request in writing, the Company
shall include in such registration statement all or any part of such Registrable
Securities such Subscriber requests to be registered; provided that the Company
shall not be required to register any Registrable Securities pursuant to this
Section that are eligible for resale pursuant to Rule 144 promulgated under the
Act; and provided further that the Company may, without the consent of the
Subscriber, withdraw such registration statement before its becoming effective
if the Company or other stockholders have elected to abandon the proposal to
register the securities proposed to be registered thereunder. If the
registration statement is being filed for an underwritten public offering, the
Subscriber must timely execute and deliver the usual and customary agreement
among the Company, such Subscriber and the underwriters relating to the
registration including a lock-up agreement if requested by the underwriters with
respect to any shares of Common Stock not included in the registration, on terms
no less favorable than those agreed to by the Company, its directors and its
officers. If the registration statement is being filed for an
underwritten offer and sale by the Company of securities for its own account and
the managing underwriters advise the Company in writing that in their opinion
the offering contemplated by the registration statement cannot be successfully
completed if the Company were to also register the Registrable Securities of the
Subscriber requested to be included in such registration statement, then the
Company will include in the registration: (i) first, any securities the Company
proposes to sell, (ii) second, any securities of any person whose securities are
being registered as a result of the exercise of a demand registration right, and
(iii) third, that portion of the aggregate number of shares being requested for
inclusion in the registration statement by (X) the Subscriber and (Y) all other
Rightsholders, which in the opinion of such managing underwriters can
successfully be sold, such number of shares to be taken pro
rata from the Rightsholders on the basis of the total number of shares
being requested for inclusion in the registration statement by each
Rightsholder. “Strategic Issuance”
shall mean an issuance of securities: (i) in connection with a “corporate
partnering” transaction or a “strategic alliance” (as determined by the Board of
Directors of the Company in good faith); (ii) in connection with any financing
transaction in respect of which the Company is a borrower; or (iii) to a vendor,
lessor, lender, or customer of the Company, or a research, manufacturing or
other commercial collaborator of the Company, in a transaction approved by the
Board of Directors, provided in any case, that such issuance is not being made
primarily for the purpose of avoiding compliance with this Subscription
Agreement.
15
4.10 “Lock-Up”
Agreement.
(a) The
Subscriber agrees that it, he or she shall not, directly or indirectly sell,
assign, exchange, distribute, offer to sell, contract to sell (including,
without limitation, any short sale), hypothecate, pledge, grant any option to
purchase or otherwise transfer or dispose of any Shares of the Company held by
it, him or her and purchased further to this Subscription Agreement, at any time
from the date hereof except as provided below (the “Lock-Up
Restrictions”).
(b) 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”).
(c) 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 acquired hereunder shall be
automatically released from the Lock-Up Restrictions on the date that is ninety
(90) days after the Listing Date (the “Initial Release
Date”) and thereafter the Shares will be released every thirty (30) days
after the Initial Release Date on a pro
rata basis over the next nine (9) months.
(d) Notwithstanding
anything in this Section 4.10, there shall be no release from the Lock-Up
Restrictions, in any event, until and unless the Subscriber provides written
confirmation (the “Confirmation”) to
WestPark and the Company that he, she or it is and has at all times been in
compliance with the provisions of Section 2.20 herein, it being understood and
agreed that the failure to provide such written confirmation shall be sufficient
grounds to allow WestPark to decline, in its sole discretion, to allow the
automatic release of such Shares until the expiration in totality of the
referenced Lock-Up Restrictions.
(e) WestPark,
in its discretion, may release some or all the Shares earlier than the schedule
set forth in this section provided however that any such earlier release shall
be made pro rata with
respect to all shares sold in the Offering. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with
respect to and place restrictive legends (the “Lock-Up Legend”) with
the Company’s transfer agent on the certificates evidencing the Shares of the
Company, and the Subscriber agrees to further execute a lock-up agreement which
encompasses the terms of this Section 4.10, in substantially the form attached
hereto as Exhibit
B, the Lock-Up Legend being set forth and defined in such
agreement.
16
5. Miscellaneous
5.1 Any
notice or other communication given hereunder shall be deemed sufficient if in
writing and sent by registered or certified mail, return receipt requested,
addressed to the Company, at 3/F., Jin Peng Building, 9 Shen Zhou Road,
Guangzhou Science City, Guangzhou, People’s Republic of China,
Attention: Xiao Liu, with a copy to (which shall
not constitute notice) K&L Gates LLP, 10100 Santa Monica Blvd., Seventh
Floor, Los Angeles, California 90067, Attention: Thomas J. Poletti, Esq., and to
the Subscriber at his, her or its address indicated on the signature page of
this Subscription Agreement. Notices shall be deemed to have been
given three (3) business days after the date of mailing, except notices of
change of address, which shall be deemed to have been given when
received.
5.2 This
Subscription Agreement may be amended through a written instrument signed by the
Subscriber, the Wesen Entities and the Company; provided, however, that the
terms of Section 4 of this Subscription Agreement may be amended without the
consent or approval of the Subscriber so long as such amendment applies in the
same fashion to the subscription agreements of all of the other subscribers for
Shares in the Offering and at least holders of a majority of the Shares sold in
the Offering have given their approval of such amendment, which approval shall
be binding on all holders of Shares.
5.3 This
Subscription Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives, successors
and assigns. This Subscription Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them.
5.4 Notwithstanding
the place where this Subscription Agreement may be executed by any of the
parties hereto, the parties expressly agree that all the terms and provisions
hereof shall be construed in accordance with and governed by the laws of the
State of Delaware.
5.5 This
Subscription Agreement may be executed in counterparts. It shall not
be binding upon the Company and the Wesen Entities unless and until it is
accepted by the Company and the Wesen Entities. Upon the execution
and delivery of this Subscription Agreement by the Subscriber, this Subscription
Agreement shall become a binding obligation of the Subscriber with respect to
the purchase of Shares as herein provided; subject, however, to the right hereby
reserved to the Company to enter into the same agreements with other subscribers
and to add and/or to delete other persons as subscribers. This
Subscription Agreement may be executed and delivered by facsimile or by scanned
email.
5.6 The
holding of any provision of this Subscription Agreement to be invalid or
unenforceable by a court of competent jurisdiction shall not affect any other
provision of this Subscription Agreement, which shall remain in full force and
effect.
5.7 It is
agreed that a waiver by either party of a breach of any provision of this
Subscription Agreement shall not operate, or be construed, as a waiver of any
subsequent breach by that same party.
5.8 The
parties agree to execute and deliver all such further documents, agreements and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Subscription
Agreement.
17
5.9 The
Company agrees not to disclose the names, addresses or any other information
about the Subscribers, except as required by law, provided that the Company may
provide information relating to the Subscriber as required in any registration
statement under the Act that may be filed by the Company pursuant to the
requirements of this Subscription Agreement.
5.10 The
obligation of the Subscriber hereunder is several and not joint with the
obligations of any other subscribers for the purchase of Shares in the Offering
(the “Other
Subscribers”), and the Subscriber shall not be responsible in any way for
the performance of the obligations of any Other Subscribers. Nothing
contained herein or in any other agreement or document delivered at the Closing,
and no action taken by the Subscriber pursuant hereto, shall be deemed to
constitute the Subscriber and the Other Subscribers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Subscriber and the Other Subscribers are in any way acting
in concert with respect to such obligations or the transactions contemplated by
this Subscription Agreement. The Subscriber shall be entitled to
protect and enforce the Subscriber’s rights, including without limitation the
rights arising out of this Subscription Agreement, and it shall not be necessary
for any Other Subscriber to be joined as an additional party in any proceeding
for such purpose. The language used in this Subscription Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any
party. The Subscriber is not acting as part of a “group” (as that
term is used in Section 13(d) of the Exchange Act) in negotiating and entering
into this Subscription Agreement or purchasing, disposing of or voting any of
the Shares. The Company hereby confirms that it understands and
agrees that the Subscriber is not acting as part of any such group.
[SIGNATURE PAGES FOLLOW]
18
IN
WITNESS WHEREOF, the parties have executed this Subscription Agreement as of the
day and year first written above.
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Full
Legal Name of Subscriber
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Full
Legal Name of Co-Subscriber
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(please
print
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(if
applicable)
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Signature
of (or on behalf of) Subscriber
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Signature
of or on behalf of Co-Subscriber
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Name:
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(if
applicable)
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Title:
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Address
of Subscriber
|
Address
of Co-Subscriber (if applicable)
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Social
Security or Taxpayer
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Social
Security or Taxpayer Identification
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Identification
Number of Subscriber
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Number
of Co-Subscriber (if applicable)
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Number
of Shares Subscribed For
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Signature
Page to Subscription Agreement - Weixin
Subscription
Agreed to and Accepted:
SRKP
23, INC.
By:
Name:
Richard Rappaport
Title: President
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
By:
Name:
Title:
WEIXIN
INTERNATIONAL CO., LIMITED
By:
Name:
Title:
WEI
XIN HOLDING GROUP LIMITED
By:
Name:Title:
GANGZHOU
KELIDA INTELLIGENT EQUIPMENT CO., LTD.
By:
Name:Title:
Signature
Page to Subscription Agreement - Weixin
ZHAOQING
HUA SU PLASTIC TRADING COMPANY
By:
Name:Title:
ZHAOQING
CHUANG YI RESOURCES RECYCLE CO., LTD.
By:
Name:Title:
ZHAOQING
XIN YE PLASTIC CO., LTD.
By:
Name:Title:
ZHAOQING
LI JUN CRAFTWORK CO., LTD.
By:
Name:Title:
Signature
Page to Subscription Agreement - Weixin
EXHIBIT
A-1
Corporate
Investor and Selling Stockholder Questionnaire
Name:
IMPORTANT:
Please Complete.
CORPORATE
INVESTOR AND SELLING STOCKHOLDER QUESTIONNAIRE
__________________
SRKP
23, INC.
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
__________________
SRKP 23,
Inc.
c/o
WestPark Capital, Inc.
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
Attention: Paul
Rathwell
Wesen
Environmental Technology Limited
3/F., Jin
Peng Building, 9 Shen Zhou Road,
Guangzhou
Science City, Guangzhou
People’s
Republic of China
Attention: Xiao
Liu
The
information contained in this Corporate Investor and Selling Stockholder
Questionnaire is being furnished in order to determine whether the undersigned
Corporation’s subscription to purchase shares of Common Stock (the “Shares”) of Wesen
Environmental Technology Limited and SRKP 23, Inc. (collectively referred to as
the “Company”),
may proceed. In addition, the Company will prepare and file a
registration statement (the “Registration
Statement”) with the United States Securities and Exchange Commission
(the “SEC”) to
register the Shares held by certain stockholders as to be indicated in the
Registration Statement pursuant to which such stockholders, including shares
purchased in the private offering, may sell his, her or its Shares.
This
Questionnaire should be completed, signed, dated and a copy should be sent to
WestPark Capital, Inc. (the “Placement Agent”) via
facsimile at (323) 443-3531 or electronic format (e.g., PDF) to
prathwell@wpcapital.com. Please keep a copy for your files.
You must complete, sign and
return this Questionnaire in order to be eligible to purchase the Shares in the
private offering and to sell your Shares under the Registration
Statement. The Company intends to update the information regarding
selling stockholders in the Registration Statement based on information received
in this Questionnaire. The Company requires this information to
respond to SEC comments and make proper disclosures regarding the Selling
Stockholder Table.
A-1
(22)
Please
review and answer all questions below. If appropriate, use the words
“None”, “Not Applicable” or “N/A”. Unless otherwise indicated, please
answer every question as of the date you complete this
Questionnaire.
IF YOUR
ANSWER TO ANY QUESTION IS "YES," PLEASE FURNISH ALL RELEVANT EXPLANATORY
INFORMATION IN THE SPACE PROVIDED AT THE END OF THE PARTICULAR QUESTION OR ON A
SEPARATE SHEET OF PAPER AND ATTACH THE SHEET TO THE END OF THIS
QUESTIONNAIRE.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned Corporation understands, however,
that the Company may present this Questionnaire to such parties as it deems
appropriate if called upon to establish that the proposed offer and sale of the
Shares in the Company is exempt from registration under the Securities Act of
1933, as amended, or meets the requirements of applicable state securities or
“blue sky” laws. Further, the undersigned Corporation understands
that the offering is required to be reported to the SEC and to various state
securities or “blue sky” regulators.
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I.
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PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY
TO
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THE
CORPORATION.
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¨
1.
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Each
of the shareholders of the undersigned Corporation is able to certify that
such shareholder meets at least one of the following two
conditions:
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(a)
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The
shareholder is a natural person whose individual net worth* or joint net
worth with his or her spouse exceeds $1,000,000;
or
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(b)
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The
shareholder is a natural person who had an individual income* in excess of
$200,000 in each of the previous two years and who reasonably expects an
individual income in excess of $200,000 this
year.
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¨
2.
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Each
of the shareholders of the undersigned Corporation is able to certify that
such shareholder is a natural person who, together with his or her spouse,
has had a joint income in excess of $300,000 in each of the previous two
years and who reasonably expects a joint income in excess of $300,000 this
year.
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¨
3.
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The
undersigned Corporation: (a) was not formed for the specific purpose of
acquiring the Shares; and (b) has total assets in excess of
$5,000,000.
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____________________
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*
For purposes of this Questionnaire, the term “net worth” means the excess
of total assets (excluding the value of the natural person’s primary
residence) at fair market value over total liabilities (if the amount of
indebtedness incurred with respect to the natural person’s primary
residence exceeds the fair market value of the primary residence and there
is recourse against the natural person debtor personally for such
indebtedness, the amount of the excess must be included in total
liabilities). In
determining income, an investor should add to his or her adjusted gross
income any amounts attributable to tax-exempt income received, losses
claimed as a limited partner in any limited partnership, deductions
claimed for depletion, contributions to IRA or Keogh retirement plans,
alimony payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross
income.
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A-1
(23)
IF YOU CHECKED STATEMENT 1 OR STATEMENT 2
IN SECTION I, ABOVE, AND DID NOT CHECK STATEMENT 3, YOU MUST PROVIDE A
LETTER SIGNED BY AN OFFICER OF THE UNDERSIGNED CORPORATION LISTING THE NAME OF
EACH SHAREHOLDER AND THE REASON (UNDER STATEMENT 1 OR STATEMENT 2) WHY
SUCH SHAREHOLDER QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH,
INDIVIDUAL INCOME OR JOINT INCOME), OR EACH SHAREHOLDER MUST PROVIDE A COMPLETED
INDIVIDUAL INVESTOR AND SELLING STOCKHOLDER QUESTIONNAIRE (PAGES A-2 (1) TO
A-2 (10)).
II. OTHER
CERTIFICATIONS
By
signing the Signature Page, the undersigned certifies the
following:
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(a)
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that
the Corporation’s purchase of the Shares will be solely for the
Corporation’s own account and not for the account of any other person or
entity;
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(b)
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that
the Corporation’s name, address of principal office, place of
incorporation and taxpayer identification number as set forth in this
Questionnaire are true, correct and complete;
and
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(c)
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that
one of the following is true and correct (check
one):
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¨ (i)
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the
Corporation is a corporation organized in or under the laws of the United
States or any political subdivision
thereof.
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¨ (ii)
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the
Corporation is a corporation which is neither created nor
organized in or under the United States or any political subdivision
thereof, but which has made an election under either Section 897(1) or
897(k) of the United States Internal Revenue Code of 1986, as amended, to
be treated as a domestic corporation for certain purposes of United States
federal income taxation (A COPY OF THE INTERNAL REVENUE SERVICE
ACKNOWLEDGMENT OF THE UNDERSIGNED’S ELECTION MUST BE ATTACHED TO THIS
QUESTIONNAIRE IF THIS PROVISION IS
APPLICABLE).
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¨ (iii)
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neither
(1) nor (ii) above is true.
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A-1
(24)
III. GENERAL
INFORMATION
(a) PROSPECTIVE
PURCHASER (THE CORPORATION)
Name:__________________________________________________________________________________________________________
Principal
Place of
Business:__________________________________________________________________________________________
(Number
and Street)
_______________________________________________________________________________________________________________
(City) (State) (Zip
Code)
Address
for Correspondence (if
different):_______________________________________________________________________________
(Number and Street)
_______________________________________________________________________________________________________________
(City) (State) (Zip Code)
Telephone
Number:________________________________________________________________________________________________
(Area
Code) (Number)
Facsimile
Number:_________________________________________________________________________________________________
(Area
Code) (Number)
State of
Incorporation:______________________________________________________________________________________________
Date of
Formation:_________________________________________________________________________________________________
Taxpayer
Identification
Number:_______________________________________________________________________________________
FINRA
Affiliation or Association of the Corporation, if
any:__________________________________________________________________
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If
none, check here
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¨
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Number of
Shareholders:_____________________________________________________________________________________________
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(b)
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INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THE
CORPORATION
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Name:____________________________________________________________________________________________________________
Position
or
Title:____________________________________________________________________________________________________
A-1
(25)
IV. BENEFICIAL
OWNERSHIP OF THE EQUITY SECURITIES OF THECOMPANY
The
undersigned holder (the “Selling Stockholder”)
is the beneficial owner*
of the securities described herein and hereby provides the following information
to the Company and represents and warrants that such information is accurate and
complete.
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(a)
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List
the name, address, title, phone number and email address of the
natural person
or persons who will possess voting and investment power over the Shares
subscribed for herein:
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Name of
Natural
Person(s):______________________________________________________________________________________________
Address:____________________________________________________________________________________________________________
___________________________________________________________________________________________________________________
Title (if
any):_________________________________________________________________________________________________________
Phone:______________________________________________________________________________________________________________
Email
address (if
any):___________________________________________________________________________________________________
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(b)
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Full
legal name of registered holder (if not the same as in Item III above) of
securities listed in (c)
below: ______________________________
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(c)
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In
the table below, list all equity
securities of the Company or any of its subsidiaries that the Selling
Stockholder owned
beneficially* (directly or indirectly) as of the most recent
practicable date.
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Use the
letter “D” to indicate
your direct
beneficial
ownership*.
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Use
the letter “I” to
indicate your indirect beneficial ownership*
interests (for example: as an executor, trustee or guardian; as
the beneficiary of a trust or estate; through a partnership or personal
holding company; or owned by your spouse, minor children or relatives
residing in your home).
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Use
the letter “R” to
indicate any securities of which you or any such family member have the
right to
acquire (through exercise of options, warrants or other derivative
security) beneficial
ownership* and note the dates when the right is exercisable in the
Remarks column (e.g., vesting schedule). You should do this for
all securities you have the right to acquire, whether or not you expect to
exercise such right.
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If
there are any other beneficial owners* of
those equity securities, name them also in the Remarks column and indicate
the nature of beneficial ownership (e.g., position with entity, voting
and/or disposition power). If you need additional space, please
use and attach a separate sheet of
paper.
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A-1
(26)
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Name(s)
of Beneficial Owner(s)
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“D”
“I”
“R”
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Type
of Security
(e.g.,
Shares, Warrants, Options)
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No.
of Securities
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Remarks
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||||
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(d)
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Do
you, or does any person listed above as a beneficial owner*, share with
another person (i) the voting power and/or (ii) the investment
power with respect to any of such
securities?
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YES __________ NO __________
If “Yes,” please describe.
(e) Do
you disclaim
beneficial ownership* of
any specific securities listed above?
YES __________ NO __________
If “Yes,” please
describe.
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V.
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RELATIONSHIPS
WITH THE COMPANY
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Except as
set forth below, neither the Selling Stockholder nor any of its Affiliates*, officers,
directors or principal equity holders (5% or more) has held any position or
office or has had any other Material Relationship* with
the Company (or its predecessors or Affiliates*) during the past
three (3) years.
State any
exceptions here, if any:
A-1
(27)
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VI.
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BROKER-DEALERS
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(a)
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Are
you a registered broker-dealer*?
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YES _____
NO _____
(b) Are
you an affiliate* of
a
broker-dealer*?
YES _____
NO _____
If your
answer is “YES” to (a) or (b) above, please provide the following information
(provide responses to ALL
items, including if “N/A” or “None”):
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(i)
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Did
you receive the shares as underwriting
compensation?
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YES _____
NO _____
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(ii)
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Did
you acquire the shares with a view toward
distribution?
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YES _____
NO _____
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(iii)
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Did
you acquire the securities in the ordinary course of
business?
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YES _____
NO _____
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(iv)
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At
the time of acquisition of the securities, did you have any agreements,
arrangements or understandings, directly or indirectly, with any person to
distribute the securities; and if so, please provide the details of such
agreements, arrangements or understandings (e.g., parties, volume
limitations, conditions of
termination)?
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YES _____
NO _____
(v) The
nature of your affiliation or association with such broker-dealer*,
ifapplicable:
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(vi)
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Information
as to your relationship with the Company (including participation in any
capacity in the original placement of the
securities):
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(vii)
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Whether
you are in the business of underwriting
securities:
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(viii)
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The
date such securities were
acquired:
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(ix)
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The
price paid or other consideration provided for your
securities:
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A-1
(28)
NOTE: If
you are a broker-dealer*
that did not receive the securities as underwriting compensation or an affiliate* of a broker-dealer* that acquired
the securities with a view toward distribution, then you will be named as an
underwriter in the Registration Statement.
VII. SIGNATURE
The
Signature Page to this Questionnaire is contained on page A-1 (33), entitled
Corporation Signature Page.
A-1
(29)
Corporation
Signature Page
SRKP
23, INC.
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
The
undersigned represents that the information contained in this Questionnaire is
complete and accurate. The undersigned understands that this
information will be used in connection with the Registration Statement that will
be filed by the Company with the SEC seeking to register the Company’s issued
and outstanding Shares as of the date indicated in the Registration Statement
under to the Securities Act of 1933, as amended.
If, at
any time prior to the sale of the undersigned’s Shares under the Registration
Statement, any of the information set forth in the undersigned’s responses to
this Questionnaire has changed, or any development occurs which requires a
change in the undersigned’s answers, or has for any other reason become
incorrect, the undersigned will promptly furnish any necessary or appropriate
correcting information to (i) WestPark Capital, Inc., 1900 Avenue of the Stars,
Suite 310, Los Angeles, CA 90067, Attention: Paul Rathwell, phone number (310)
843-9300, facsimile (323) 443-3531 and (ii) Scott Galer, Esq., counsel to
WestPark Capital, Inc., at Stubbs, Alderton & Markiles, LLP, 15260 Ventura
Boulevard, 20th Floor,
Sherman Oaks, California 91403, phone number (818) 444-4500, facsimile (818)
444-4520. The undersigned understands and agrees that this
Questionnaire, as completed by the undersigned, and the undersigned’s further
communications regarding the matters contemplated herein, will be relied upon by
the Company.
The
undersigned understands that material misstatements or the omission of material
facts in the Registration Statement may give rise to civil and criminal
liabilities to the Company, to each officer and director of the Company signing
the Registration Statement and other persons signing such
documents. The undersigned will notify the Company of any such
misstatement of a material fact in the Registration Statement or any amendment
thereto related to the information contained in this Questionnaire, and of the
omission of any material fact necessary to make the statements contained therein
not misleading, as soon as practicable after, and if, the undersigned becomes
aware of any such misstatement.
The
undersigned Corporation hereby represents and warrants that the person signing
this Questionnaire on behalf of the Corporation has been duly authorized by all
requisite action on the part of the Corporation to acquire the Shares and sign
this Questionnaire and this Subscription Agreement on behalf of the Corporation
and, further, that the undersigned Corporation has all requisite authority to
purchase the Shares and enter into the Subscription Agreement.
[SIGNATURE
PAGE FOLLOWS]
A-1
(30)
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
________________________________________
Date
________________________________________
Name of
Corporation
(Please
Type or Print)
By: ____________________________________
Signature
Name:
__________________________________
(Please
Type or Print)
Title:
___________________________________
(Please Type or
Print)
THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH
SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
AN OPINION OF COUNSEL HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION OF SUCH
SECURITIES IS NOT REQUIRED.
A-1
(31)
APPENDIX
1
DEFINITIONS
For the
purpose of this Questionnaire, the following definitions apply:
Affiliate
means a person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, another
specified person.
Beneficial
Ownership, under the rules and pronouncements of the SEC, includes a wide
range of direct and indirect rights and interests in
securities. Direct beneficial
ownership includes securities registered in your name, individually or
jointly with others, as well as securities held for your account by a bank,
broker, custodian, agent or nominee. In the view of the SEC, you are
deemed to be the indirect beneficial
owner of securities held in the name of your spouse, your minor children
or any relative of yours or your spouse who shares your home, in the absence of
facts demonstrating the contrary (for example, legal separation from your
spouse). In addition, you may also have a reportable indirect
beneficial interest in securities owned by a partnership, estate or trust in
which you have a beneficial interest or in securities owned by a personal
holding company of which you are a control person.
Under the
SEC’s rules, you are deemed to be the beneficial owner of any securities over
which you have, or share, directly or indirectly (by any contract, arrangement,
understanding, relationship or otherwise) “voting power” and/or “investment
power.” For this purpose, “voting power” includes the power to vote,
or to direct the voting of, securities, and “investment power” includes the
power to dispose of, or to direct the disposition of, securities.
Also, you
are deemed to be the beneficial owner of securities which you have the right to
acquire beneficial ownership of within 60 days (whether or not you expect
to exercise such right), including but not limited to any right to acquire
securities (i) through the exercise of any option, warrant or right,
(ii) through the conversion of a security, (iii) pursuant to the power
to revoke a trust, discretionary account or similar arrangement, or
(iv) pursuant to the automatic termination of a trust, discretionary
account or similar arrangement.
In this
Questionnaire, please include the full amount of
securities in which you have any beneficial
ownership interest as described above, even though another individual or entity
may also have a beneficial ownership interest in the same
securities.
Broker-Dealer: The
term “broker” generally
means any person engaged in the business of effecting transactions in securities
for the account of others (Section 3(a)(4) of the Exchange Act). The term “dealer” generally means any
person engaged in the business of buying and selling securities for such
person’s own account through a broker or otherwise. (Section 3(a)(5) of the
Exchange Act). Broker-dealers are required to be registered pursuant
to Section 15(a) of the Exchange Act.
A-1
(32)
Control
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of another person, whether through
the ownership of voting securities, by contract or otherwise.
Exchange
Act means the Securities Exchange Act of 1934, as amended.
Material
Relationship. The term “material relationship” is to be
determined on the basis of the significance of the information in light of all
the circumstances of the particular case, including but not limited to the
likelihood that a reasonable investor would attach importance to the information
when making an investment decision with respect to the securities of the
Company. “Material” has not been defined by the Securities and
Exchange Commission (the “SEC”). The
SEC, however, is likely to construe as material any relationship which tends to
impact arm’s length bargaining in dealings with a company, whether arising from
a close business connection, family relationship, a relationship of control or
otherwise. For example, you should conclude that you have such a
relationship with any organization of which you own, directly or indirectly, 10%
more of the outstanding voting stock, or in which you have some other
substantial interest, and with any person or organization with whom you have, or
with whom any relative (or any other person or organization as to which you have
any of the foregoing other relationships) has, a contractual
relationship.
A-1
(33)
EXHIBIT
A-2
Individual
Investor and Selling Stockholder Questionnaire
Name:
IMPORTANT:
Please Complete.
INDIVIDUAL
INVESTOR AND SELLING STOCKHOLDER QUESTIONNAIRE
SRKP
23, INC.
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
SRKP 23,
Inc.
c/o
WestPark Capital, Inc.
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
Attention: Paul
Rathwell
Wesen
Environmental Technology Limited
3/F., Jin
Peng Building, 9 Shen Zhou Road,
Guangzhou
Science City, Guangzhou
People’s
Republic of China
Attention: Xiao
Liu
The
information contained in this Individual Investor and Selling Stockholder
Questionnaire is being furnished in order to determine whether the undersigned’s
subscription to purchase shares of Common Stock (the “Shares”) of Wesen
Environmental Technology Limited and SRKP 23, Inc. (collectively referred to as
the “Company”),
may proceed. In addition, the Company will prepare and file a
registration statement (the “Registration
Statement”) with the United States Securities and Exchange Commission
(the “SEC”) to
register the Shares held by certain stockholders as to be indicated in the
Registration Statement pursuant to which such stockholders, including shares
purchased in the private offering, may sell his, her or its Shares.
This
Questionnaire should be completed, signed, dated and a copy should be sent to
WestPark Capital, Inc. (the “Placement Agent”) via
facsimile at (323) 443-3531 or electronic format (e.g., PDF) to
prathwell@wpcapital.com. Please keep a copy for your
files.
You must complete, sign and
return this Questionnaire in order to be eligible to purchase the Shares in the
private offering and to sell your Shares under the Registration
Statement. The Company intends to update the information regarding
selling stockholders in the Registration Statement based on information received
in this Questionnaire. The Company requires this information to
respond to SEC comments and make proper disclosures regarding the Selling
Stockholder Table.
A-2
(1)
Please
review and answer all questions below. If appropriate, use the words
“None”, “Not Applicable” or “N/A”. Unless otherwise indicated, please
answer every question as of the date you complete this
Questionnaire.
IF YOUR
ANSWER TO ANY QUESTION IS "YES," PLEASE FURNISH ALL RELEVANT EXPLANATORY
INFORMATION IN THE SPACE PROVIDED AT THE END OF THE PARTICULAR QUESTION OR ON A
SEPARATE SHEET OF PAPER AND ATTACH THE SHEET TO THE END OF THIS
QUESTIONNAIRE.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned individual understands, however, that
the Company may present this Questionnaire to such parties as it deems
appropriate if called upon to establish that the proposed offer and sale of the
Shares in the Company is exempt from registration under the Securities Act of
1933, as amended, or meets the requirements of applicable state securities or
“blue sky” laws. Further, the undersigned individual understands that
the offering is required to be reported to the SEC and to various state
securities or “blue sky” regulators.
IF YOU
ARE PURCHASING SHARES WITH YOUR SPOUSE, YOU MUST BOTH SIGN THE SIGNATURE PAGE
(PAGE A-2 (10)).
IF YOU
ARE PURCHASING SHARES WITH ANOTHER PERSON NOT YOUR SPOUSE, YOU MUST EACH FILL
OUT A SEPARATE QUESTIONNAIRE. Please make a photocopy of pages A-2
(1) to A-2 (10) and return both completed Questionnaires to WestPark Capital,
Inc. in the same
envelope.
I. PLEASE
INDICATE DESIRED TYPE OF OWNERSHIP OF SHARES:
¨ Individual
¨ Joint
Tenants (rights of survivorship)
¨ Tenants
in Common (no rights of survivorship)
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II.
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PLEASE
CHECK ANY OF STATEMENTS 1-4 BELOW THAT APPLY TO
YOU.
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¨ 1. I
have an individual net worth* or joint net worth with my spouse
in excess of $1,000,000.
¨ 2. I
have had an individual income* in excess of $200,000 in each ofthe previous two
years and I reasonably expect an individual income inexcess of $200,000 this
year. NOTE: IF YOU ARE BUYING JOINTLY WITH YOUR SPOUSE, YOU MUST EACH
HAVE AN INDIVIDUAL INCOME IN EXCESS OF $200,000 IN EACH OF THESE YEARS IN ORDER
TO CHECK THIS BOX.
A-2
(2)
¨ 3.
My spouse and I have had a joint income* in excess of $300,000 ineach of the
previous two years and I reasonably expect a joint income inexcess of $300,000
this year.
¨ 4. I
am a director and/or an executive officer of Company as suchterms are defined in
Regulation D promulgated under the Securities Act of1933, as
amended.
______________________
* For
purposes of this Questionnaire, the term “net worth” “net worth” means the
excess of total assets (excluding the value of the natural person’s primary
residence) at fair market value over total liabilities (if the amount of
indebtedness incurred with respect to the natural person’s primary residence
exceeds the fair market value of the primary residence and there is recourse
against the natural person debtor personally for such indebtedness, the amount
of the excess must be included in total liabilities). In determining
income, an investor should add to his or her adjusted gross income any amounts
attributable to tax-exempt income received, losses claimed as a limited partner
in any limited partnership, deductions claimed for depletion, contributions to
IRA or Keogh retirement plans, alimony payments and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted gross
income.
III. OTHER
CERTIFICATIONS
By
signing the Signature Page, I certify the following (or, if I am purchasing
Shares with my spouse as co-owner, each of us certifies the
following):
|
(a)
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that
I am at least 21 years of age;
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(b)
|
that
my purchase of the Shares will be solely for my own account and not for
the account of any other person (other than my spouse, if
co-owner);
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(c)
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that
the name, home address and social security number or taxpayer
identification number as set forth in this Questionnaire are true, correct
and complete; and
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(d)
|
that
one of the following is true and correct (check
one):
|
Spouse, if
Co-owner
¨ (i) I
am a United States citizen or resident of the United States for UnitedStates
federal income tax purposes.
¨
(ii) I am neither a United
States citizen nor a resident of the United States forUnited States federal
income tax purposes.
A-2
(3)
IV. GENERAL
INFORMATION
Name:__________________________________________________________________________________________________________
Social
Security or Taxpayer Identification
Number:_________________________________________________________________________
Residence
Address:________________________________________________________________________________________________
(Number
and Street)
_______________________________________________________________________________________________________________
(City) (State) (Zip
Code)
Residence
Telephone
Number:________________________________________________________________________________________
(Area
Code) (Number)
Residence
Facsimile
Number:_________________________________________________________________________________________________
(Area
Code) (Number)
Name of
Business:_________________________________________________________________________________________________
Business Address:_________________________________________________________________________________________________
(Number and Street)
_______________________________________________________________________________________________________________
(City) (State) (Zip
Code)
Business Telephone
Number:_________________________________________________________________________________________
(Area
Code) (Number)
Business
Facsimile
Number:__________________________________________________________________________________________
(Area
Code) (Number)
I prefer
to have correspondence sent to: ¨
Residence ¨ Business
FINRA
Affiliation or Association, if
any:_________________________________________________________________________________
If none, check here ¨
Spouse, if
Co-owner
Name:___________________________________________________________________________________________________________
Social
Security or Taxpayer Identification
Number:__________________________________________________________________________
Residence
Address:_________________________________________________________________________________________________
(Number
and Street)
________________________________________________________________________________________________________________
(City) (State) (Zip
Code)
Residence
Telephone
Number:_________________________________________________________________________________________
(Area
Code) (Number)
Residence
Facsimile
Number:__________________________________________________________________________________________
(Area
Code) (Number)
A-2
(4)
Name of
Business:__________________________________________________________________________________________________
Business Address:__________________________________________________________________________________________________
(Number and Street)
________________________________________________________________________________________________________________
(City) (State) (Zip
Code)
Business Telephone
Number:__________________________________________________________________________________________
(Area
Code) (Number)
Business
Facsimile
Number:___________________________________________________________________________________________
(Area
Code) (Number)
I prefer
to have correspondence sent to: ¨
Residence ¨ Business
FINRA
Affiliation or Association, if
any:_________________________________________________________________________________
If none,
check here ¨
V. BENEFICIAL
OWNERSHIP OF THE EQUITY SECURITIES OF THECOMPANY
The
undersigned holder (the “Selling Stockholder”)
is the beneficial owner*
of the securities described herein and hereby provides the following information
to the Company and represents and warrants that such information is accurate and
complete.
|
(a)
|
Full
legal name of registered holder (if not the same as in Item IV above) of
securities listed in (b) below:
___________________________
|
|
(b)
|
In
the table below, list all equity
securities of the Company or any of its subsidiaries that the Selling
Stockholder owned
beneficially* (directly or indirectly) as of the most recent
practicable date.
|
Use the
letter “D” to indicate
your direct
beneficial
ownership*.
|
|
Use
the letter “I” to
indicate your indirect beneficial ownership*
interests (for example: as an executor, trustee or guardian; as
the beneficiary of a trust or estate; through a partnership or personal
holding company; or owned by your spouse, minor children or relatives
residing in your home).
|
|
|
Use
the letter “R” to
indicate any securities of which you or any such family member have the
right to
acquire (through exercise of options, warrants or other derivative
security) beneficial
ownership* and note the dates when the right is exercisable in the
Remarks column (e.g., vesting schedule). You should do this for
all securities you have the right to acquire, whether or not you expect to
exercise such right.
|
A-2
(5)
|
|
If
there are any other beneficial owners* of
those equity securities, name them also in the Remarks column and indicate
the nature of beneficial ownership (e.g., position with entity, voting
and/or disposition power). If you need additional space, please
use and attach a separate sheet of
paper.
|
|
Name(s)
of Beneficial Owner(s)
|
“D”
“I”
“R”
|
Type
of Security
(e.g.,
Shares, Warrants, Options)
|
No.
of Securities
|
Remarks
|
||||
|
(c)
|
Do
you, or does any person listed above as a beneficial owner*, share with
another person (i) the voting power and/or (ii) the investment
power with respect to any of such
securities?
|
YES __________ NO __________
If “Yes,” please describe.
(d) Do
you disclaim
beneficial ownership* of
any specific securities listed above?
YES __________ NO __________
If “Yes,” please
describe.
|
VI.
|
RELATIONSHIPS
WITH THE COMPANY
|
Except as
set forth below, neither the Selling Stockholder nor any of its Affiliates*, officers,
directors or principal equity holders (5% or more) has held any position or
office or has had any other Material Relationship* with
the Company (or its predecessors or Affiliates*) during the past
three (3) years.
State any
exceptions here, if any:
A-2
(6)
|
VII.
|
BROKER-DEALERS
|
|
(a)
|
Are
you a registered broker-dealer*?
|
YES _____
NO _____
(b) Are
you an affiliate* of
a
broker-dealer*?
YES _____
NO _____
If your
answer is “YES” to (a) or (b) above, please provide the following information
(provide responses to ALL
items, including if “N/A” or “None”):
|
(i)
|
Did
you receive the shares as underwriting
compensation?
|
YES _____
NO _____
|
(ii)
|
Did
you acquire the shares with a view toward
distribution?
|
YES _____
NO _____
|
|
(iii)
|
Did
you acquire the securities in the ordinary course of
business?
|
YES _____
NO _____
|
|
(iv)
|
At
the time of acquisition of the securities, did you have any agreements,
arrangements or understandings, directly or indirectly, with any person to
distribute the securities; and if so, please provide the details of such
agreements, arrangements or understandings (e.g., parties, volume
limitations, conditions of
termination)?
|
YES _____
NO _____
(v) The
nature of your affiliation or association with such broker-dealer*,
ifapplicable:
|
|
(vi)
|
Information
as to your relationship with the Company (including participation in any
capacity in the original placement of the
securities):
|
|
|
(vii)
|
Whether
you are in the business of underwriting
securities:
|
|
|
(viii)
|
The
date such securities were acquired:
|
A-2
(7)
|
|
(ix)
|
The
price paid or other consideration provided for your
securities:
|
NOTE: If
you are a broker-dealer*
that did not receive the securities as underwriting compensation or an affiliate* of a broker-dealer* that acquired
the securities with a view toward distribution, then you will be named as an
underwriter in the Registration Statement.
VIII. SIGNATURE
The
Signature Page to this Questionnaire is contained on page A-2 (10), entitled
Individual Signature Page.
A-2
(8)
INDIVIDUAL
SIGNATURE PAGE
SRKP
23, INC.
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
The
undersigned represents that the information contained in this Questionnaire is
complete and accurate. The undersigned understands that this
information will be used in connection with the Registration Statement that will
be filed by the Company with the SEC seeking to register the Company’s issued
and outstanding Shares as of the date indicated in the Registration Statement
under to the Securities Act of 1933, as amended.
If, at
any time prior to the sale of the undersigned’s Shares under the Registration
Statement, any of the information set forth in the undersigned’s responses to
this Questionnaire has changed, or any development occurs which requires a
change in the undersigned’s answers, or has for any other reason become
incorrect, the undersigned will promptly furnish any necessary or appropriate
correcting information to (i) WestPark Capital, Inc., 1900 Avenue of the Stars,
Suite 310, Los Angeles, CA 90067, Attention: Paul Rathwell, phone number (310)
843-9300, facsimile (323) 443-3531 and (ii) Scott Galer, Esq., counsel to
WestPark Capital, Inc., at Stubbs, Alderton & Markiles, LLP, 15260 Ventura
Boulevard, 20th Floor,
Sherman Oaks, California 91403, phone number (818) 444-4500, facsimile (818)
444-4520.
The
undersigned understands and agrees that this Questionnaire, as completed by the
undersigned, and the undersigned’s further communications regarding the matters
contemplated herein, will be relied upon by the Company.
The
undersigned understands that material misstatements or the omission of material
facts in the Registration Statement may give rise to civil and criminal
liabilities to the Company, to each officer and director of the Company signing
the Registration Statement and other persons signing such
documents. The undersigned will notify the Company of any such
misstatement of a material fact in the Registration Statement or any amendment
thereto related to the information contained in this Questionnaire, and of the
omission of any material fact necessary to make the statements contained therein
not misleading, as soon as practicable after, and if, the undersigned becomes
aware of any such misstatement.
[SIGNATURE
PAGE FOLLOWS]
A-2
(9)
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
_____________________________________________
Date
_____________________________________________
Name
(Please
Type or Print)
_____________________________________________
Signature
_____________________________________________
Name of
Spouse, if Co-owner
(Please
Type or Print)
_____________________________________________
Signature of Spouse, if
Co-ownerIF YOU
ARE PURCHASING SHARES WITH YOUR SPOUSE, YOU MUST BOTH SIGN THIS SIGNATURE PAGE
(PAGE A-2 (10)). IF YOU ARE PURCHASING SHARES WITH ANOTHER PERSON NOT
YOUR SPOUSE, YOU MUST EACH FILL OUT A SEPARATE QUESTIONNAIRE. Please
make a photocopy of pages A-2 (1) to A-2 (10) and return both completed
Questionnaires to WestPark Capital, Inc. in the same envelope.
THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH
SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
AN OPINION OF COUNSEL HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION OF SUCH
SECURITIES IS NOT REQUIRED.
A-2
(10)
APPENDIX
1
DEFINITIONS
For the
purpose of this Questionnaire, the following definitions apply:
Affiliate
means a person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, another
specified person.
Beneficial
Ownership, under the rules and pronouncements of the SEC, includes a wide
range of direct and indirect rights and interests in
securities. Direct beneficial
ownership includes securities registered in your name, individually or
jointly with others, as well as securities held for your account by a bank,
broker, custodian, agent or nominee. In the view of the SEC, you are
deemed to be the indirect beneficial
owner of securities held in the name of your spouse, your minor children
or any relative of yours or your spouse who shares your home, in the absence of
facts demonstrating the contrary (for example, legal separation from your
spouse). In addition, you may also have a reportable indirect
beneficial interest in securities owned by a partnership, estate or trust in
which you have a beneficial interest or in securities owned by a personal
holding company of which you are a control person.
Under the
SEC’s rules, you are deemed to be the beneficial owner of any securities over
which you have, or share, directly or indirectly (by any contract, arrangement,
understanding, relationship or otherwise) “voting power” and/or “investment
power.” For this purpose, “voting power” includes the power to vote,
or to direct the voting of, securities, and “investment power” includes the
power to dispose of, or to direct the disposition of, securities.
Also, you
are deemed to be the beneficial owner of securities which you have the right to
acquire beneficial ownership of within 60 days (whether or not you expect
to exercise such right), including but not limited to any right to acquire
securities (i) through the exercise of any option, warrant or right,
(ii) through the conversion of a security, (iii) pursuant to the power
to revoke a trust, discretionary account or similar arrangement, or
(iv) pursuant to the automatic termination of a trust, discretionary
account or similar arrangement.
In this
Questionnaire, please include the full amount of
securities in which you have any beneficial
ownership interest as described above, even though another individual or entity
may also have a beneficial ownership interest in the same
securities.
Broker-Dealer: The
term “broker” generally
means any person engaged in the business of effecting transactions in securities
for the account of others (Section 3(a)(4) of the Exchange Act). The term “dealer” generally means any
person engaged in the business of buying and selling securities for such
person’s own account through a broker or otherwise. (Section 3(a)(5) of the
Exchange Act). Broker-dealers are required to be registered pursuant
to Section 15(a) of the Exchange Act.
A-2
(11)
Control
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of another person, whether through
the ownership of voting securities, by contract or otherwise.
Exchange
Act means the Securities Exchange Act of 1934, as amended.
Material
Relationship. The term “material relationship” is to be
determined on the basis of the significance of the information in light of all
the circumstances of the particular case, including but not limited to the
likelihood that a reasonable investor would attach importance to the information
when making an investment decision with respect to the securities of the
Company. “Material” has not been defined by the Securities and
Exchange Commission (the “SEC”). The
SEC, however, is likely to construe as material any relationship which tends to
impact arm’s length bargaining in dealings with a company, whether arising from
a close business connection, family relationship, a relationship of control or
otherwise. For example, you should conclude that you have such a
relationship with any organization of which you own, directly or indirectly, 10%
more of the outstanding voting stock, or in which you have some other
substantial interest, and with any person or organization with whom you have, or
with whom any relative (or any other person or organization as to which you have
any of the foregoing other relationships) has, a contractual
relationship.
A-2
(12)
EXHIBIT
A-3
Limited
Partnership Investor and Selling Stockholder Questionnaire
Name:
IMPORTANT:
Please Complete.
LIMITED
PARTNERSHIP INVESTOR AND SELLING STOCKHOLDER QUESTIONNAIRE
SRKP
23, INC.
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
SRKP 23,
Inc.
c/o
WestPark Capital, Inc.
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
Attention: Paul
Rathwell
Wesen
Environmental Technology Limited
3/F., Jin
Peng Building, 9 Shen Zhou Road,
Guangzhou
Science City, Guangzhou
People’s
Republic of China
Attention: Xiao
Liu
The
information contained in this Limited Partnership Investor and Selling
Stockholder Questionnaire is being furnished in order to determine whether the
undersigned Limited Partnership’s subscription to purchase shares of Common
Stock (the “Shares”) of Wesen
Environmental Technology Limited and SRKP 23, Inc. (collectively referred to as
the “Company”),
may proceed. In addition, the Company will prepare and file a
registration statement (the “Registration
Statement”) with the United States Securities and Exchange Commission
(the “SEC”) to
register the shares of common stock in the Company held by certain stockholders
as to be indicated in the Registration Statement pursuant to which such
stockholders, including shares purchased in the private offering, may sell his,
her or its Shares.
This
Questionnaire should be completed, signed, dated and a copy should be sent to
WestPark Capital, Inc. (the “Placement Agent”) via
facsimile at (323) 443-3531 or electronic format (e.g., PDF) to
prathwell@wpcapital.com. Please keep a copy for your
files.
You must complete, sign and
return this Questionnaire in order to be eligible to purchase the Shares in the
private offering and to sell your Shares under the Registration
Statement. The Company intends to update the information regarding
selling stockholders in the Registration Statement based on information received
in this Questionnaire. The Company requires this information to
respond to SEC comments and make proper disclosures regarding the Selling
Stockholder Table.
A-3
(1)
Please
review and answer all questions below. If appropriate, use the words
“None”, “Not Applicable” or “N/A”. Unless otherwise indicated, please
answer every question as of the date you complete this
Questionnaire.
IF YOUR
ANSWER TO ANY QUESTION IS "YES," PLEASE FURNISH ALL RELEVANT EXPLANATORY
INFORMATION IN THE SPACE PROVIDED AT THE END OF THE PARTICULAR QUESTION OR ON A
SEPARATE SHEET OF PAPER AND ATTACH THE SHEET TO THE END OF THIS
QUESTIONNAIRE.
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned Limited Partnership understands,
however, that the Company may present this Questionnaire to such parties as it
deems appropriate if called upon to establish that the proposed offer and sale
of the Shares in the Company is exempt from registration under the Securities
Act of 1933, as amended, or meets the requirements of applicable state
securities or “blue sky” laws. Further, the undersigned Limited
Partnership understands that the offering required to be reported to the SEC and
to various state securities or “blue sky” regulators.
|
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY
TO
|
|
|
THE
LIMITED PARTNERSHIP.
|
|
¨
1.
|
Each
of the limited partners of the undersigned Limited Partnership is able to
certify that such limited partner meets at least one of the following two
conditions:
|
|
(a)
|
The
limited partner is a natural person whose individual net worth* or joint
net worth with his or her spouse exceeds $1,000,000;
or
|
|
(b)
|
The
limited partner is a natural person who had an individual income* in
excess of $200,000 in each of the previous two years and who reasonably
expects an individual income in excess of $200,000 this
year.
|
|
¨
2.
|
Each
of the limited partners of the undersigned Limited Partnership is able to
certify that such limited partner is a natural person who, together with
his or her spouse, has had a joint income in excess of $300,000 in each of
the previous two years and who reasonably expects a joint income in excess
of $300,000 this year.
|
|
¨
3.
|
The
undersigned Limited Partnership: (a) was not formed for the specific
purpose of acquiring the Shares; and (b) has total assets in excess of
$5,000,000.
|
____________________
|
|
*
For purposes of this Questionnaire, the term “net worth” “net worth” means
the excess of total assets (excluding the value of the natural person’s
primary residence) at fair market value over total liabilities (if the
amount of indebtedness incurred with respect to the natural person’s
primary residence exceeds the fair market value of the primary residence
and there is recourse against the natural person debtor personally for
such indebtedness, the amount of the excess must be included in total
liabilities). In determining income, an investor should add to
his or her adjusted gross income any amounts attributable to tax-exempt
income received, losses claimed as a limited partner in any limited
partnership, deductions claimed for depletion, contributions to IRA or
Keogh retirement plans, alimony payments and any amount by which income
from long-term capital gains has been reduced in arriving at adjusted
gross income.
|
A-3
(2)
IF YOU
CHECKED STATEMENT 1 OR STATEMENT 2 IN SECTION I, ABOVE, AND DID NOT
CHECK STATEMENT 3, YOU MUST PROVIDE A LETTER SIGNED BY AN OFFICER OF THE
UNDERSIGNED LIMITED PARTNERSHIP LISTING THE NAME OF EACH LIMITED PARTNER AND THE
REASON (UNDER STATEMENT 1 OR STATEMENT 2) WHY SUCH LIMITED PARTNER
QUALIFIES AS AN ACCREDITED INVESTOR (ON THE BASIS OF NET WORTH, INDIVIDUAL
INCOME OR JOINT INCOME), OR EACH LIMITED PARTNER MUST PROVIDE A COMPLETED
INDIVIDUAL INVESTOR AND SELLING STOCKHOLDER QUESTIONNAIRE (PAGES A-2 (1) TO
A-2 (10)).
II. OTHER
CERTIFICATIONS
By
signing the Signature Page, the undersigned certifies the
following:
|
(a)
|
that
the limited partnership’s purchase of Shares will be solely for the
limited partnership’s own account and not for the account of any other
person or entity;
|
|
(b)
|
that
the limited partnership’s name, address of principal office, place of in
limited partnership and taxpayer identification number as set forth in
this Questionnaire are true, correct and complete;
and
|
|
(c)
|
that
one of the following is true and correct (check
one):
|
|
|
¨
(i)
|
the
limited partnership is a limited partnership organized in or under the
laws of the United States or any political subdivision
thereof.
|
¨
(ii) the limited partnership is a
limited partnership which is neither created
nor
organized in or under the United States or any political subdivision thereof,
but which has made an election under either Section 897(1) or 897(k) of the
United States Internal Revenue Code of 1986, as amended, to be treated as a
domestic limited partnership for certain purposes of United States federal
income taxation (A COPY OF THE INTERNAL REVENUE SERVICE ACKNOWLEDGMENT OF THE
UNDERSIGNED’S ELECTION MUST BE ATTACHED TO THIS QUESTIONNAIRE IF THIS PROVISION
IS APPLICABLE).
¨
(iii) neither (1) nor (ii) above is
true.
A-3
(3)
III. GENERAL
INFORMATION
(a) PROSPECTIVE
PURCHASER (THE LIMITED PARTNERSHIP)
Name:__________________________________________________________________________________________________________
Social
Security or Taxpayer Identification
Number:_________________________________________________________________________
Residence
Address:________________________________________________________________________________________________
(Number
and Street)
_______________________________________________________________________________________________________________
(City) (State) (Zip
Code)
Residence
Telephone
Number:________________________________________________________________________________________
(Area
Code) (Number)
Residence
Facsimile
Number:_________________________________________________________________________________________________
(Area
Code) (Number)
Name of
Business:_________________________________________________________________________________________________
Business Address:_________________________________________________________________________________________________
(Number and Street)
_______________________________________________________________________________________________________________
(City) (State) (Zip
Code)
Business Telephone
Number:_________________________________________________________________________________________
(Area
Code) (Number)
Business
Facsimile
Number:__________________________________________________________________________________________
(Area
Code) (Number)
I prefer
to have correspondence sent to: ¨
Residence ¨ Business
FINRA
Affiliation or Association, if
any:_________________________________________________________________________________
If none, check here ¨
(b) INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THELIMITED
PARTNERSHIP
Name:____________________________________________________________________________________________________________
Position
or
Title:____________________________________________________________________________________________________
A-3
(4)
IV. BENEFICIAL
OWNERSHIP OF THE EQUITY SECURITIES OF THECOMPANY
The
undersigned holder (the “Selling Stockholder”)
is the beneficial owner*
of the securities described herein and hereby provides the following information
to the Company and represents and warrants that such information is accurate and
complete.
|
(a)
|
List
the name, address, title, phone number and email address of the
natural person
or persons who will possess voting and investment power over the Shares
subscribed for herein:
|
Name of
Natural
Person(s):_____________________________________________________________________________________________
Address:___________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
Title (if any):________________________________________________________________________________________________________
Phone:_____________________________________________________________________________________________________________
Email
address (if
any):_________________________________________________________________________________________________
|
(b)
|
Full
legal name of registered holder (if not the same as in Item III above) of
securities listed in (c)
below: ____________________________
|
|
(c)
|
In
the table below, list all equity
securities of the Company or any of its subsidiaries that the Selling
Stockholder owned
beneficially* (directly or indirectly) as of the most recent
practicable date.
|
Use the
letter “D” to indicate
your direct
beneficial
ownership*.
|
|
Use
the letter “I” to
indicate your indirect beneficial ownership*
interests (for example: as an executor, trustee or guardian; as
the beneficiary of a trust or estate; through a partnership or personal
holding company; or owned by your spouse, minor children or relatives
residing in your home).
|
|
|
Use
the letter “R” to
indicate any securities of which you or any such family member have the
right to
acquire (through exercise of options, warrants or other derivative
security) beneficial
ownership* and note the dates when the right is exercisable in the
Remarks column (e.g., vesting schedule). You should do this for
all securities you have the right to acquire, whether or not you expect to
exercise such right.
|
A-3
(5)
|
|
If
there are any other beneficial owners* of
those equity securities, name them also in the Remarks column and indicate
the nature of beneficial ownership (e.g., position with entity, voting
and/or disposition power). If you need additional space, please
use and attach a separate sheet of
paper.
|
|
Name(s)
of Beneficial Owner(s)
|
“D”
“I”
“R”
|
Type
of Security
(e.g.,
Shares, Warrants, Options)
|
No.
of Securities
|
Remarks
|
||||
|
(d)
|
Do
you, or does any person listed above as a beneficial owner*, share with
another person (i) the voting power and/or (ii) the investment
power with respect to any of such
securities?
|
YES __________ NO __________
If “Yes,” please describe.
(e) Do
you disclaim
beneficial ownership* of
any specific securities listed above?
YES __________ NO __________
If “Yes,” please
describe.
|
V.
|
RELATIONSHIPS
WITH THE COMPANY
|
Except as
set forth below, neither the Selling Stockholder nor any of its Affiliates*, officers,
directors or principal equity holders (5% or more) has held any position or
office or has had any other Material Relationship* with
the Company (or its predecessors or Affiliates*) during the past
three (3) years.
State any
exceptions here, if any:
A-3
(6)
|
VI.
|
BROKER-DEALERS
|
|
(a)
|
Are
you a registered broker-dealer*?
|
YES _____
NO _____
(b) Are
you an affiliate* of
a
broker-dealer*?
YES _____
NO _____
If your
answer is “YES” to (a) or (b) above, please provide the following information
(provide responses to ALL
items, including if “N/A” or “None”):
|
(i)
|
Did
you receive the shares as underwriting
compensation?
|
YES _____
NO _____
|
(ii)
|
Did
you acquire the shares with a view toward
distribution?
|
YES _____
NO _____
|
|
(iii)
|
Did
you acquire the securities in the ordinary course of
business?
|
YES _____
NO _____
|
|
(iv)
|
At
the time of acquisition of the securities, did you have any agreements,
arrangements or understandings, directly or indirectly, with any person to
distribute the securities; and if so, please provide the details of such
agreements, arrangements or understandings (e.g., parties, volume
limitations, conditions of
termination)?
|
YES _____
NO _____
(v) The
nature of your affiliation or association with such broker-dealer*,
ifapplicable:
|
|
(vi)
|
Information
as to your relationship with the Company (including participation in any
capacity in the original placement of the
securities):
|
|
|
(vii)
|
Whether
you are in the business of underwriting
securities:
|
|
|
(viii)
|
The
date such securities were acquired:
|
|
|
(ix)
|
The
price paid or other consideration provided for your
securities:
|
A-3
(7)
NOTE: If
you are a broker-dealer*
that did not receive the securities as underwriting compensation or an affiliate* of a broker-dealer* that acquired
the securities with a view toward distribution, then you will be named as an
underwriter in the Registration Statement.
VII.
SIGNATURE
The
Signature Page to this Questionnaire is contained on page A-3 (10), entitled
Limited Partnership Signature Page.
A-3
(8)
Limited
Partnership Signature Page
SRKP
23, INC.
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
The
undersigned represents that the information contained in this Questionnaire is
complete and accurate. The undersigned understands that this
information will be used in connection with the Registration Statement that will
be filed by the Company with the SEC seeking to register the Company’s issued
and outstanding Shares as of the date indicated in the Registration Statement
under to the Securities Act of 1933, as amended.
If, at
any time prior to the sale of the undersigned’s Shares under the Registration
Statement, any of the information set forth in the undersigned’s responses to
this Questionnaire has changed, or any development occurs which requires a
change in the undersigned’s answers, or has for any other reason become
incorrect, the undersigned will promptly furnish any necessary or appropriate
correcting information to (i) WestPark Capital, Inc., 1900 Avenue of the Stars,
Suite 310, Los Angeles, CA 90067, Attention: Paul Rathwell, phone number (310)
843-9300, facsimile (323) 443-3531 and (ii) Scott Galer, Esq., counsel to
WestPark Capital, Inc., at Stubbs, Alderton & Markiles, LLP, 15260 Ventura
Boulevard, 20th Floor,
Sherman Oaks, California 91403, phone number (818) 444-4500, facsimile (818)
444-4520.
The
undersigned understands and agrees that this Questionnaire, as completed by the
undersigned, and the undersigned’s further communications regarding the matters
contemplated herein, will be relied upon by the Company.
The
undersigned understands that material misstatements or the omission of material
facts in the Registration Statement may give rise to civil and criminal
liabilities to the Company, to each officer and director of the Company signing
the Registration Statement and other persons signing such
documents. The undersigned will notify the Company of any such
misstatement of a material fact in the Registration Statement or any amendment
thereto related to the information contained in this Questionnaire, and of the
omission of any material fact necessary to make the statements contained therein
not misleading, as soon as practicable after, and if, the undersigned becomes
aware of any such misstatement.
The
undersigned Limited Partnership hereby represents and warrants that the person
or entity signing this Questionnaire on behalf of the Limited Partnership has
been duly authorized by all requisite action on the part of the Limited
Partnership to sign this Questionnaire and this Subscription Agreement on behalf
of the Limited Partnership and, further, that the undersigned Limited
Partnership has all requisite authority to purchase the Shares and enter into
the Subscription Agreement.
[SIGNATURE
PAGE FOLLOWS]
A-3
(9)
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
_________________________________________
Date
_________________________________________
Name of
Limited Partnership
(Please
Type or Print)
By:_______________________________________
Signature
Name:_____________________________________
(Please
Type or Print)
Title:_______________________________________
(Please Type or
Print)
THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH
SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
AN OPINION OF COUNSEL HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION OF SUCH
SECURITIES IS NOT REQUIRED.
A-3
(10)
APPENDIX
1
DEFINITIONS
For the
purpose of this Questionnaire, the following definitions apply:
Affiliate
means a person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, another
specified person.
Beneficial
Ownership, under the rules and pronouncements of the SEC, includes a wide
range of direct and indirect rights and interests in
securities. Direct beneficial
ownership includes securities registered in your name, individually or
jointly with others, as well as securities held for your account by a bank,
broker, custodian, agent or nominee. In the view of the SEC, you are
deemed to be the indirect beneficial
owner of securities held in the name of your spouse, your minor children
or any relative of yours or your spouse who shares your home, in the absence of
facts demonstrating the contrary (for example, legal separation from your
spouse). In addition, you may also have a reportable indirect
beneficial interest in securities owned by a partnership, estate or trust in
which you have a beneficial interest or in securities owned by a personal
holding company of which you are a control person.
Under the
SEC’s rules, you are deemed to be the beneficial owner of any securities over
which you have, or share, directly or indirectly (by any contract, arrangement,
understanding, relationship or otherwise) “voting power” and/or “investment
power.” For this purpose, “voting power” includes the power to vote,
or to direct the voting of, securities, and “investment power” includes the
power to dispose of, or to direct the disposition of, securities.
Also, you
are deemed to be the beneficial owner of securities which you have the right to
acquire beneficial ownership of within 60 days (whether or not you expect
to exercise such right), including but not limited to any right to acquire
securities (i) through the exercise of any option, warrant or right,
(ii) through the conversion of a security, (iii) pursuant to the power
to revoke a trust, discretionary account or similar arrangement, or
(iv) pursuant to the automatic termination of a trust, discretionary
account or similar arrangement.
In this
Questionnaire, please include the full amount of
securities in which you have any beneficial
ownership interest as described above, even though another individual or entity
may also have a beneficial ownership interest in the same
securities.
Broker-Dealer: The
term “broker” generally
means any person engaged in the business of effecting transactions in securities
for the account of others (Section 3(a)(4) of the Exchange Act). The term “dealer” generally means any
person engaged in the business of buying and selling securities for such
person’s own account through a broker or otherwise. (Section 3(a)(5) of the
Exchange Act). Broker-dealers are required to be registered pursuant
to Section 15(a) of the Exchange Act.
A-3
(11)
Control
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of another person, whether through
the ownership of voting securities, by contract or otherwise.
Exchange
Act means the Securities Exchange Act of 1934, as amended.
Material
Relationship. The term “material relationship” is to be
determined on the basis of the significance of the information in light of all
the circumstances of the particular case, including but not limited to the
likelihood that a reasonable investor would attach importance to the information
when making an investment decision with respect to the securities of the
Company. “Material” has not been defined by the Securities and
Exchange Commission (the “SEC”). The
SEC, however, is likely to construe as material any relationship which tends to
impact arm’s length bargaining in dealings with a company, whether arising from
a close business connection, family relationship, a relationship of control or
otherwise. For example, you should conclude that you have such a
relationship with any organization of which you own, directly or indirectly, 10%
more of the outstanding voting stock, or in which you have some other
substantial interest, and with any person or organization with whom you have, or
with whom any relative (or any other person or organization as to which you have
any of the foregoing other relationships) has, a contractual
relationship.
A-3
(12)
EXHIBIT
A-4
Trust
Investor and Selling Stockholder Questionnaire
Name:
IMPORTANT:
Please Complete.
TRUST
INVESTOR AND SELLING STOCKHOLDER QUESTIONNAIRE
SRKP 23, INC.
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
SRKP 23,
Inc.
c/o
WestPark Capital, Inc.
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
Attention: Paul
Rathwell
Wesen
Environmental Technology Limited
3/F., Jin
Peng Building, 9 Shen Zhou Road,
Guangzhou
Science City, Guangzhou
People’s
Republic of China
Attention: Xiao
Liu
The
information contained in this Trust Investor and Selling Stockholder
Questionnaire is being furnished in order to determine whether the undersigned
Trust’s subscription to purchase shares of common stock (the “Shares”) of Wesen
Environmental Technology Limited and SRKP 23, Inc. (collectively referred to as
the “Company”),
may proceed. In addition, the Company will prepare and file a
registration statement (the “Registration
Statement”) with the United States Securities and Exchange Commission
(the “SEC”) to
register the Shares in the Company held by certain stockholders as to be
indicated in the Registration Statement pursuant to which such stockholders,
including shares purchased in the private offering, may sell his, her or its
Shares.
This
Questionnaire should be completed, signed, dated and a copy should be sent to
WestPark Capital, Inc. (the “Placement Agent”) via
facsimile at via facsimile at (323) 443-3531 or electronic format (e.g., PDF) to
prathwell@wpcapital.com. Please keep a copy for your
files.
You must complete, sign and
return this Questionnaire in order to be eligible to purchase the Shares in the
private offering and to sell your Shares under the Registration
Statement. The Company intends to update the information regarding
selling stockholders in the Registration Statement based on information received
in this Questionnaire. The Company requires this information to
respond to SEC comments and make proper disclosures regarding the Selling
Stockholder Table.
A-4 (1)
Please
review and answer all questions below. If appropriate, use the words
“None”, “Not Applicable” or “N/A”. Unless otherwise indicated, please
answer every question as of the date you complete this
Questionnaire.
IF YOUR
ANSWER TO ANY QUESTION IS "YES," PLEASE FURNISH ALL RELEVANT EXPLANATORY
INFORMATION IN THE SPACE PROVIDED AT THE END OF THE PARTICULAR QUESTION OR ON A
SEPARATE SHEET OF PAPER AND ATTACH THE SHEET TO THE END OF THIS
QUESTIONNAIRE.
|
(Number)
|
ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED
CONFIDENTIALLY. The undersigned Trust understands, however, that the
Company may present this Questionnaire to such parties as it deems appropriate
if called upon to establish that the proposed offer and sale of the Shares in
the Company is exempt from registration under the Securities Act of 1933, as
amended, or meets the requirements of applicable state securities or “blue sky”
laws. Further, the undersigned Trust understands that the offering
required to be reported to the SEC and to various state securities or “blue sky”
regulators.
|
I.
|
PLEASE
CHECK ANY OF STATEMENTS 1-3 BELOW THAT APPLY
TO
|
|
|
THE
TRUST.
|
|
¨
1.
|
The
Trust (i) has in excess of $5,000,000 of assets, (ii) was not formed for
the specific purpose of acquiring the Shares, and (iii) is directed by a
person who has such knowledge and experience in financial and business
matters that such person is capable of evaluating the merits and risks of
an investment in the Company.
|
|
¨
2.
|
One
of more of the trustees of the Trust is a bank, insurance company,
registered investment company or similar institution with the authority to
make investment decisions on behalf of the
Trust.
|
|
¨
3.
|
The
Trust is revocable by its grantor(s) and may be amended or revoked by the
grantor(s) at any time, and each of the grantor(s) is able to certify that
such grantor meets at least one of the following three
conditions:
|
|
(a)
|
The
grantor is a natural person whose individual net worth* or joint net worth
with his or her spouse exceeds
$1,000,000;
|
|
(b)
|
The
grantor is a natural person who had an individual income* in excess of
$200,000 in each of the previous two years and who reasonably expects an
individual income in excess of $200,000 this year;
or
|
|
(c)
|
The
grantor is a natural person who, together with his or her spouse, has had
a joint income in excess of $300,000 in each of the previous two years and
who reasonably expects a joint income in excess of $300,000 this
year.
|
A-4 (2)
____________________
|
|
*
For purposes of this Questionnaire, the term “net worth” means the excess
of total assets (excluding the value of the natural person’s primary
residence) at fair market value over total liabilities (if the amount of
indebtedness incurred with respect to the natural person’s primary
residence exceeds the fair market value of the primary residence and there
is recourse against the natural person debtor personally for such
indebtedness, the amount of the excess must be included in total
liabilities). In
determining income, an investor should add to his or her adjusted gross
income any amounts attributable to tax-exempt income received, losses
claimed as a limited partner in any limited partnership, deductions
claimed for depletion, contributions to IRA or Keogh retirement plans,
alimony payments and any amount by which income from long-term capital
gains has been reduced in arriving at adjusted gross
income.
|
IF
YOU CHECKED STATEMENT 3 IN SECTION I, ABOVE, AND DID NOT CHECK
STATEMENT 1 OR STATEMENT 2, YOU MUST PROVIDE A LETTER SIGNED BY A GRANTOR
OF THE UNDERSIGNED TRUST LISTING THE NAME OF EACH GRANTOR AND THE REASON (UNDER
STATEMENT 3) WHY SUCH GRANTOR QUALIFIES AS AN ACCREDITED INVESTOR (ON THE
BASIS OF NET WORTH, INDIVIDUAL INCOME OR JOINT INCOME), OR EACH GRANTOR MUST
PROVIDE A COMPLETED INDIVIDUAL INVESTOR AND SELLING STOCKHOLDER QUESTIONNAIRE
(PAGES A-2 (1) TO
A-2 (10)).
II. OTHER
CERTIFICATIONS
By
signing the Signature Page, the undersigned certifies the
following:
|
(a)
|
that
the Trust’s purchase of the Shares will be solely for the Trust’s own
account and not for the account of any other person or
entity;
|
|
(b)
|
that
the Trust’s name, address and taxpayer identification number as set forth
in this Questionnaire are true, correct and complete;
and
|
|
(c)
|
that
one of the following is true and correct (check
one):
|
|
|
¨
(i)
|
the
Trust is a trust organized in or under the laws of the United States or
any political subdivision thereof.
|
|
¨ (ii)
|
the
Trust is a trust which is neither created nor organized in or under the
United States or any political subdivision
thereof.
|
III. GENERAL
INFORMATION
(a) PROSPECTIVE
PURCHASER (THE TRUST)
Name:_______________________________________________________________________________________________________
Principal
Place of
Business:_______________________________________________________________________________________
(Number and Street)
A-4 (3)
_____________________________________________________________________________________________________________
(City) (State) (Zip
Code)
Address
for Correspondence (if
different):_____________________________________________________________________________
(Number and Street)
_____________________________________________________________________________________________________________
(City) (State) (Zip Code)
Telephone
Number:______________________________________________________________________________________________
(Area
Code) (Number)
Facsimile
Number:_______________________________________________________________________________________________
(Area
Code) (Number)
State of
Formation:_______________________________________________________________________________________________
Date of
Formation:_______________________________________________________________________________________________
Taxpayer
Identification
Number:_____________________________________________________________________________________
FINRA
Affiliation or Association of the Trust, if
any:_____________________________________________________________________
If none, check
here ¨
(b) INDIVIDUAL
WHO IS EXECUTING THIS QUESTIONNAIRE ON BEHALF OF THETRUST
Name:_________________________________________________________________________________________________________
Position
or
Title:_________________________________________________________________________________________________
IV. BENEFICIAL
OWNERSHIP OF THE EQUITY SECURITIES OF THECOMPANY
The
undersigned holder (the “Selling Stockholder”)
is the beneficial owner*
of the securities described herein and hereby provides the following information
to the Company and represents and warrants that such information is accurate and
complete.
|
(a)
|
List
the name, address, title, phone number and email address of the
natural person
or persons who will possess voting and investment power over the Shares
subscribed for herein:
|
Name of
Natural
Person(s):__________________________________________________________________________________________
A-4 (4)
Address:________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
Title (if
any):______________________________________________________________________________________________________
Phone:__________________________________________________________________________________________________________
Email
address (if
any):_______________________________________________________________________________________________
|
(b)
|
Full
legal name of registered holder (if not the same as in Item III above) of
securities listed in (c)
below: __________________________
|
|
(c)
|
In
the table below, list all equity
securities of the Company or any of its subsidiaries that the Selling
Stockholder owned
beneficially* (directly or indirectly) as of the most recent
practicable date.
|
Use the
letter “D” to indicate
your direct
beneficial
ownership*.
|
|
Use
the letter “I” to
indicate your indirect beneficial ownership*
interests (for example: as an executor, trustee or guardian; as
the beneficiary of a trust or estate; through a partnership or personal
holding company; or owned by your spouse, minor children or relatives
residing in your home).
|
|
|
Use
the letter “R” to
indicate any securities of which you or any such family member have the
right to
acquire (through exercise of options, warrants or other derivative
security) beneficial
ownership* and note the dates when the right is exercisable in the
Remarks column (e.g., vesting schedule). You should do this for
all securities you have the right to acquire, whether or not you expect to
exercise such right.
|
|
|
If
there are any other beneficial owners* of
those equity securities, name them also in the Remarks column and indicate
the nature of beneficial ownership (e.g., position with entity, voting
and/or disposition power). If you need additional space, please
use and attach a separate sheet of
paper.
|
A-4 (5)
|
Name(s)
of Beneficial Owner(s)
|
“D”
“I”
“R”
|
Type
of Security
(e.g.,
Shares, Warrants, Options)
|
No.
of Securities
|
Remarks
|
||||
|
(d)
|
Do
you, or does any person listed above as a beneficial owner*, share with
another person (i) the voting power and/or (ii) the investment
power with respect to any of such
securities?
|
YES __________ NO __________
If “Yes,” please describe.
(e) Do
you disclaim
beneficial ownership* of
any specific securities listed above?
YES __________ NO __________
If “Yes,” please
describe.
|
V.
|
RELATIONSHIPS
WITH THE COMPANY
|
Except as
set forth below, neither the Selling Stockholder nor any of its Affiliates*, officers,
directors or principal equity holders (5% or more) has held any position or
office or has had any other Material Relationship* with
the Company (or its predecessors or Affiliates*) during the past
three (3) years.
State any
exceptions here, if any:
A-4 (6)
|
VI.
|
BROKER-DEALERS
|
|
(a)
|
Are
you a registered broker-dealer*?
|
YES _____
NO _____
(b) Are
you an affiliate* of
a
broker-dealer*?
YES _____
NO _____
If your
answer is “YES” to (a) or (b) above, please provide the following information
(provide responses to ALL
items, including if “N/A” or “None”):
|
(i)
|
Did
you receive the shares as underwriting
compensation?
|
YES _____
NO _____
|
(ii)
|
Did
you acquire the shares with a view toward
distribution?
|
YES _____
NO _____
|
|
(iii)
|
Did
you acquire the securities in the ordinary course of
business?
|
YES _____
NO _____
|
|
(iv)
|
At
the time of acquisition of the securities, did you have any agreements,
arrangements or understandings, directly or indirectly, with any person to
distribute the securities; and if so, please provide the details of such
agreements, arrangements or understandings (e.g., parties, volume
limitations, conditions of
termination)?
|
YES _____
NO _____
(v) The
nature of your affiliation or association with such broker-dealer*,
ifapplicable:
|
|
(vi)
|
Information
as to your relationship with the Company (including participation in any
capacity in the original placement of the
securities):
|
|
|
(vii)
|
Whether
you are in the business of underwriting
securities:
|
|
|
(viii)
|
The
date such securities were acquired:
|
|
|
(ix)
|
The
price paid or other consideration provided for your
securities:
|
NOTE: If
you are a broker-dealer*
that did not receive the securities as underwriting compensation or an affiliate* of a broker-dealer* that acquired
the securities with a view toward distribution, then you will be named as an
underwriter in the Registration Statement.
A-4 (7)
VII.
SIGNATURE
The
Signature Page to this Questionnaire is contained on page A-4 (10), entitled
Trust Signature Page.
A-4 (8)
Trust
Signature Page
SRKP 23, INC.
WESEN
ENVIRONMENTAL TECHNOLOGY LIMITED
The
undersigned represents that the information contained in this Questionnaire is
complete and accurate. The undersigned understands that this
information will be used in connection with the Registration Statement that will
be filed by the Company with the SEC seeking to register the Company’s issued
and outstanding Shares as of the date indicated in the Registration Statement
under to the Securities Act of 1933, as amended.
If, at
any time prior to the sale of the undersigned’s Shares under the Registration
Statement, any of the information set forth in the undersigned’s responses to
this Questionnaire has changed, or any development occurs which requires a
change in the undersigned’s answers, or has for any other reason become
incorrect, the undersigned will promptly furnish any necessary or appropriate
correcting information to (i) WestPark Capital, Inc., 1900 Avenue of the Stars,
Suite 310, Los Angeles, CA 90067, Attention: Paul Rathwell, phone number (310)
843-9300, facsimile (323) 443-3531 and (ii) Scott Galer, Esq., counsel to
WestPark Capital, Inc., at Stubbs, Alderton & Markiles, LLP, 15260 Ventura
Boulevard, 20th Floor,
Sherman Oaks, California 91403, phone number (818) 444-4500, facsimile (818)
444-4520.
The
undersigned understands and agrees that this Questionnaire, as completed by the
undersigned, and the undersigned’s further communications regarding the matters
contemplated herein, will be relied upon by the Company.
The
undersigned understands that material misstatements or the omission of material
facts in the Registration Statement may give rise to civil and criminal
liabilities to the Company, to each officer and director of the Company signing
the Registration Statement and other persons signing such
documents. The undersigned will notify the Company of any such
misstatement of a material fact in the Registration Statement or any amendment
thereto related to the information contained in this Questionnaire, and of the
omission of any material fact necessary to make the statements contained therein
not misleading, as soon as practicable after, and if, the undersigned becomes
aware of any such misstatement.
The
undersigned Trust hereby represents and warrants that the person or entity
signing this Questionnaire on behalf of the Trust has been duly authorized by
all requisite action on the part of the Trust to sign this Questionnaire and
this Subscription Agreement on behalf of the Trust and, further, that the
undersigned Trust has all requisite authority to purchase the Shares and enter
into the Subscription Agreement.
[SIGNATURE
PAGE FOLLOWS]
A-4 (9)
IN
WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
_____________________________________
Date
_____________________________________
Name of
Trust
(Please
Type or Print)
By:___________________________________
Signature
Name:_________________________________
(Please
Type or Print)
Title:__________________________________
(Please Type or
Print)
THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS SUCH
SECURITIES ARE INCLUDED IN AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
AN OPINION OF COUNSEL HAS BEEN DELIVERED TO THE EFFECT THAT REGISTRATION OF SUCH
SECURITIES IS NOT REQUIRED.
A-4 (10)
APPENDIX
1
DEFINITIONS
For the
purpose of this Questionnaire, the following definitions apply:
Affiliate
means a person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, another
specified person.
Beneficial
Ownership, under the rules and pronouncements of the SEC, includes a wide
range of direct and indirect rights and interests in
securities. Direct beneficial
ownership includes securities registered in your name, individually or
jointly with others, as well as securities held for your account by a bank,
broker, custodian, agent or nominee. In the view of the SEC, you are
deemed to be the indirect beneficial
owner of securities held in the name of your spouse, your minor children
or any relative of yours or your spouse who shares your home, in the absence of
facts demonstrating the contrary (for example, legal separation from your
spouse). In addition, you may also have a reportable indirect
beneficial interest in securities owned by a partnership, estate or trust in
which you have a beneficial interest or in securities owned by a personal
holding company of which you are a control person.
Under the
SEC’s rules, you are deemed to be the beneficial owner of any securities over
which you have, or share, directly or indirectly (by any contract, arrangement,
understanding, relationship or otherwise) “voting power” and/or “investment
power.” For this purpose, “voting power” includes the power to vote,
or to direct the voting of, securities, and “investment power” includes the
power to dispose of, or to direct the disposition of, securities.
Also, you
are deemed to be the beneficial owner of securities which you have the right to
acquire beneficial ownership of within 60 days (whether or not you expect
to exercise such right), including but not limited to any right to acquire
securities (i) through the exercise of any option, warrant or right,
(ii) through the conversion of a security, (iii) pursuant to the power
to revoke a trust, discretionary account or similar arrangement, or
(iv) pursuant to the automatic termination of a trust, discretionary
account or similar arrangement.
In this
Questionnaire, please include the full amount of
securities in which you have any beneficial
ownership interest as described above, even though another individual or entity
may also have a beneficial ownership interest in the same
securities.
Broker-Dealer: The
term “broker” generally
means any person engaged in the business of effecting transactions in securities
for the account of others (Section 3(a)(4) of the Exchange Act). The term “dealer” generally means any
person engaged in the business of buying and selling securities for such
person’s own account through a broker or otherwise. (Section 3(a)(5) of the
Exchange Act). Broker-dealers are required to be registered pursuant
to Section 15(a) of the Exchange Act.
A-4 (11)
Control
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of another person, whether through
the ownership of voting securities, by contract or otherwise.
Exchange
Act means the Securities Exchange Act of 1934, as amended.
Material
Relationship. The term “material relationship” is to be
determined on the basis of the significance of the information in light of all
the circumstances of the particular case, including but not limited to the
likelihood that a reasonable investor would attach importance to the information
when making an investment decision with respect to the securities of the
Company. “Material” has not been defined by the Securities and
Exchange Commission (the “SEC”). The
SEC, however, is likely to construe as material any relationship which tends to
impact arm’s length bargaining in dealings with a company, whether arising from
a close business connection, family relationship, a relationship of control or
otherwise. For example, you should conclude that you have such a
relationship with any organization of which you own, directly or indirectly, 10%
more of the outstanding voting stock, or in which you have some other
substantial interest, and with any person or organization with whom you have, or
with whom any relative (or any other person or organization as to which you have
any of the foregoing other relationships) has, a contractual
relationship.
A-4 (12)
EXHIBIT
B
LOCK-UP
AGREEMENT
Wesen
Environmental Technology Limited
3/F., Jin
Peng Building, 9 Shen Zhou Road,
Guangzhou
Science City, Guangzhou
People’s
Republic of China
Attn: Xiao
Liu
WestPark
Capital, Inc.
1900
Avenue of the Stars, Suite 310
Los
Angeles, CA 90067
The undersigned, being a security
holder of Wesen Environmental Technology Inc. (formerly known as SRKP
23, Inc. and referred to herein as the “Company”) and
receiving his/her/its shares of Common Stock of the Company, par value $0.0001
per share (the “Shares”), as an
investor in the Company’s private offering that closed on _______________, 2010
(the “Private
Offering”), hereby delivers this Lock-Up Agreement to the
Company.
The undersigned recognizes that it is
in the best financial interests of the Company and of the undersigned, as a
shareholder of the Company, that the Shares received by the undersigned pursuant
to the Private Offering 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 received by the undersigned in the
Private Offering, or (ii) any interest (including, without limitation, an option
to buy or sell) in any such Shares, 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 Shares received by the undersigned in the Private
Offering 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 “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”).
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 undersigned’s Shares acquired in the Private Offering
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.
B-(1)
There shall be no release from the
Lock-Up Restrictions, in any event, until and unless the undersigned provides
written confirmation (the “Confirmation”) to
WestPark Capital, Inc. and the Company that he, she or it is and has at all
times been in compliance with the provisions of Section 2.20 of the Subscription
Agreement executed by the undersigned in connection with the Private Offering,
it being understood and agreed that the failure to provide such written
confirmation shall be sufficient grounds to allow WestPark Capital, Inc. to
decline, in its sole discretion, to allow the automatic release of such shares
until the expiration in totality of the referenced Lock-Up
Restrictions.
WestPark Capital, Inc., in its
discretion, may release from the Lock-Up Restrictions some or all the
undersigned’s Shares earlier than the schedule set forth in this Lock-Up
Agreement.
The certificates evidencing the Shares
received by the undersigned in the Private Offering shall bear a legend as set
forth below and such 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. 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]
B-(2)
IN WITNESS WHEREOF, the undersigned has
executed this Lock-Up Agreement as of the date first written above.
______________________________________
Printed
Name of Holder
______________________________________
Signature
By:____________________________________
Title (if
applicable):________________________
B-(3)
ACKNOWLEDGMENT AND
RECEIPT
The
undersigned hereby acknowledges receipt of the Confidential Private Placement
Memorandum (the “PPM”) of SRKP 23, Inc. (the “Company”) dated November [19],
2010, relating to the offer and sale by the Company of shares of its Common
Stock (the “Shares”). As described in the PPM, the PPM updates and supplements
information set forth in the “Chinese Plastic Processor & Recycler” (SRKP
23, Inc.) Executive Summary dated October 27, 2010.
The
undersigned further acknowledges that the recitals in the Subscription Agreement
sent to the undersigned between November 5 and November [18], 2010 (the
“Subscription Agreement”) has been changed to reflect that the Company entered
into a Share Exchange Agreement effective as of November 12, 2010 with Weixin
International Co., Limited, a company organized under the laws of the British
Virgin Islands; (“Weixin BVI”); Wei Xin Holding Group Limited, a company
organized under the laws of Hong Kong and a wholly-owned subsidiary of Weixin
BVI (“Weixin HK”); Gangzhou Kelida Intelligent Equipment Co., Ltd., a company
organized under the laws of the People’s Republic of China and a wholly-owned
subsidiary of Weixin HK (“Kelida”); Zhaoqing Hua Su Plastic Trading Company
(“Hua Su”), Zhaoqing Chuang Yi Resources Recycle Co., Ltd. (“Chuang Yi”),
Zhaoqing Xin Ye Plastic Co., Ltd. (“Xin Ye”), and Zhaoqing Li Jun Craftwork Co.,
Ltd. (“Li Jun”), each a company organized under the laws of the People’s
Republic of China and a wholly-owned subsidiary of Kelida; and all of the
shareholders of Weixin BVI (collectively, the
“Shareholders”).
The
undersigned further acknowledges that Wesen Environmental Technology Limited was
not a party to the Share Exchange Agreement and will not be a party to the
Subscription Agreement. The undersigned further acknowledges that all
references in the Subscription Agreement to “Wesen Environmental Technology
Limited” or “Wesen BVI” in the Subscription Agreement shall refer to Weixin
BVI.
The
undersigned further acknowledges that all references to the “Wesen Entities” in
the Subscription Agreement refers collectively to Weixin BVI, Weixin HK, Kelida,
Hua Su, Chuang Yi, Xin Ye and Li Jun.
The
undersigned further acknowledges and agrees that this Acknowledgement and
Receipt confirms his, her or its investment as stated in his, her or its
respective Subscription Agreement.
The
undersigned further acknowledges that the Subscription Agreement shall not be
binding until the Company receives this Acknowledgement and Receipt executed by
the undersigned and the Company accepts the subscription by counter-executing
the Subscription Agreement.
[SIGNATURE
ON NEXT PAGE]
[SIGNATURE
PAGE FOR ACKNOWLEDGMENT AND RECEIPT]
The undersigned has executed this
Acknowledgement and Receipt on the date set forth below.
(individual):
Signature:___________________________
By:
________________________________
Title:
_______________________________
Dated:
______________________________
(corporation,
partnership, trust or LLC):
Signature:___________________________
Name:______________________________
Dated:______________________________
[ONLY FOR
INVESTORS IN SECOND CLOSING OF PRIVATE PLACEMENT]
SUPPLEMENT TO ACKNOWLEDGMENT
AND RECEIPT
The
undersigned further acknowledges the following: (1) that the Company completed
the share exchange transaction on November 23, 2010 pursuant to the Share
Exchange Agreement (2) that the Company conducted an initial closing
of the Offering on November 23, 2010 by selling an aggregate of 1,111,099 shares of Common Stock
at $2.25 per share; (3) that the Company filed a Form 8-K with the Securities
and Exchange Commission on November 30, 2010 announcing the completion of the
share exchange transaction and the initial closing of the Offering (the “Final Closing 8-K”),
which is available on the Internet at: http://www.sec.gov/Archives/edgar/data/1421524/000114420410064130/0001144204-10-064130-index.htm;
(4) that the Final Closing 8-K supersedes the Draft Closing 8-K for purposes of
the PPM and that all references to Draft Closing 8-K in the PPM refer to the
Final Closing 8-K; and (5) that the Maximum Offering Amount in the PPM is
increased to $5,545,000.