As filed with the Securities and Exchange Commission on December 28, 2017

Registration No. 333-

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

 

Washington, D.C. 20549

 

 

FORM S-8  

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

HIGHPOWER INTERNATIONAL, INC.

(Exact name of registrant as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

20-4062622

(I.R.S. Employer
Identification No.)

 

Building A1, Luoshan Industrial Zone, Shanxia, Pinghu, Longgang, Shenzhen, Guangdong, 518111, China

(Address of principal executive offices)

 

(86) 755-89686238

(Registrant’s telephone number, including area code)

 

 

Highpower International, Inc. 2017 Omnibus Incentive Plan

(Full Title of the plans)

 

Corporation Service Company Copy to:  
2711 Centerville Road Katherine J. Blair, Esq.  
Suite 400 Manatt, Phelps & Phillips, LLP
Wilmington, DE 19808 11355 West Olympic Boulevard
800-222-2122 Los Angeles, CA 90064
(Name, address and telephone number of agent Telephone: (310) 312-4252
for service)  Facsimile: (310) 312-4224

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:

 

Large accelerated filer ¨ Accelerated filer  ¨
Non-accelerated filer ¨ Smaller reporting company  x

(Do not check if a smaller reporting

company)

 

Emerging growth company

¨

 

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨

 

 

 

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities

to be Registered  (1)

 

 

Amount to be

Registered (2)

 

 

Proposed

Maximum

Offering

Price per

Share

 

 

Proposed Maximum

Aggregate Offering

Price

 

 

Amount of
Registration Fee

 

 

Common stock, $0.0001 par value per share

 

 

2,250,000 shares

 

 

$3.85 (3)  

 

 

$8,662,500   $1,078.48

 

 

 

(1)  Includes certain preferred stock purchase rights associated with the shares of Common Stock pursuant to the Rights Agreement, dated September 12, 2017.

 

(2)  This Registration Statement also covers an indeterminate number of shares of Common Stock which may be issuable by reason of stock splits, stock dividends or similar transactions pursuant to Rule 416 of the Securities Act of 1933, as amended.

 

(3) Estimated in accordance with Rule 457(c) and (h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the total registration fee. Computation is based upon the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Global Market on December 26, 2017.

 

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

As permitted by the rules of the Securities and Exchange Commission (the “Commission”), this registration statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I of this registration statement will be sent or given to eligible employees as specified in Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed by the Registrant with the Securities and Exchange Commission, or SEC, (File No. 001-34098) are incorporated herein by reference:

 

· The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed on March 28, 2017;
· The Registrant’s Quarterly Reports on Form 10-Q for the quarter ended March 31, 2017, as filed on May 10, 2017, the quarter ended June 30, 2017, as filed on August 10, 2017, and, the quarter ended September 30, 2017, as filed on November 14, 2017;
· The Registrant’s Current Reports on Form 8-K (other than information furnished pursuant to Item 2.02 or Item 7.01 thereof) filed on February 15, 2017, June 14, 2017, June 16, 2017, September 7, 2017, September 13, 2017, October 19, 2017, December 7, 2017, and December 15, 2017;
· The description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form 8-A, including all amendments and reports filed for the purpose of updating such description, filed pursuant to Section 12(b) of the Exchange Act (File No. 001-34098); and
· The description of the Registrant’s preferred stock purchase rights contained in its registration statement on Form 8-A, including all amendments and reports filed for the purpose of updating such description, filed pursuant to Section 12(b) of the Exchange Act initially on September 13, 2017 (File No. 001-34098).

 

The Registrant incorporates by reference the documents listed above and any documents subsequently filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, (except for information furnished under Item 2.02 or Item 7.01 of Form 8-K, which is not deemed filed and not incorporated by reference herein) prior to the filing of a post-effective amendment, which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration Statement and to be part thereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

 

 

 

Item 6. Indemnification of Directors and Officers.

 

Section 102 of the Delaware General Corporation Law permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporation law or obtained an improper personal benefit. The Registrant’s certificate of incorporation provides that, to the fullest extent permitted by Delaware General Corporation Law, its directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty as a director. This provision in the certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of nonmonetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty to the Registrant or its stockholders, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of the law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws.

 

Section 145 of the Delaware General Corporation Law provides that a corporation has the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.

 

The Registrant has been advised that in the opinion of the Securities and Exchange Commission, insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event a claim for indemnification against such liabilities (other than the Registrant’s payment of expenses incurred or paid by its director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by the Registrant is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

The Registrant may enter into indemnification agreements with each of its directors and officers that are, in some cases, broader than the specific indemnification provisions permitted by Delaware law, and that may provide additional procedural protection. The Registrant has not entered into any indemnification agreements with its directors or officers, but may choose to do so in the future. Such indemnification agreements may require the Registrant, among other things, to:

 

· indemnify officers and directors against certain liabilities that may arise because of their status as officers or directors;

 

· advance expenses, as incurred, to officers and directors in connection with a legal proceeding, subject to limited exceptions; or

 

· obtain directors’ and officers’ insurance.

 

The Company maintains directors and officers liability insurance.

 

 

 

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit
Number

 

 

 

 

 

5.1

 

 

 

Opinion of Manatt, Phelps & Phillips, LLP

 

23.1

 

 

 

Consent of Marcum Bernstein & Pinchuk LLP

 

23.2

 

 

 

Consent of Manatt, Phelps & Phillips, LLP (contained in Exhibit 5.1)

 

24.1

 

 

Power of Attorney (contained on signature page)

 

99.1

 

 

2017 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.1 of Registrant’s Current Report on Form 8-K, filed with the SEC on December 7, 2017)

 

99.2

 

 

 

Form of Stock Option Agreement for 2017 Omnibus Incentive Plan

 

99.3

 

 

 

Form of Restricted Stock Agreement for 2017 Omnibus Incentive Plan

  

 

Item 9. Undertakings.

 

The Registrant hereby undertakes:

 

(a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)       To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)      To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no greater than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

 

(iii)     To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

 

provided , however , that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;

 

(2)       That, for the purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bonafide offering thereof; and

 

(3)       To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

 

 

 

(b)       The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(h)       Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to the directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by final adjudication of such issue.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on this 28th day of December, 2017.

 

  HIGHPOWER INTERNATIONAL, INC.
     
  By /s/ Shengbin (Sunny) Pan
  By: Shengbin (Sunny) Pan
    Chief Financial Officer

 

POWER OF ATTORNEY

 

We, the undersigned officers and directors of Highpower International, Inc., do hereby constitute and appoint Dang Yu Pan and Shengbin (Sunny) Pan, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution for him in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

 

Name and Signature   Title   Date

 

/s/ Dang Yu Pan   Chairman of the Board, Chief Executive Officer   December 28, 2017
Dang Yu Pan   and Director (Principal Executive Officer)    
         
/s/ Shengbin (Sunny) Pan   Chief Financial Officer   December 28, 2017
Shengbin (Sunny) Pan   (Principal Financial and Accounting Officer)    
         
/s/ T. Joseph Fisher III   Director   December 28, 2017
T. Joseph Fisher III        
         
/s/ Ping Li   Director   December 28, 2017
Ping Li        
         
/s/ Wen Liang Li   Director   December 28, 2017
Wen Liang Li        
         
/s/ Jie Wang   Director   December 28, 2017
Jie Wang        

 

 

 

 

EXHIBIT INDEX

 

Exhibit
Number

 

 

 

 

 

5.1

 

 

 

Opinion of Manatt, Phelps & Phillips, LLP

 

23.1

 

 

 

Consent of Marcum Bernstein & Pinchuk LLP

 

23.2

 

 

 

Consent of Manatt, Phelps & Phillips, LLP (contained in Exhibit 5.1)

 

24.1

 

 

Power of Attorney (contained on signature page)

 

99.1

 

 

2017 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.1 of Registrant’s Current Report on Form 8-K, filed with the SEC on December 7, 2017)

 

99.2

 

 

 

Form of Stock Option Agreement for 2017 Omnibus Incentive Plan

 

99.3

 

 

 

Form of Restricted Stock Agreement for 2017 Omnibus Incentive Plan

  

 

 

 

 

Exhibit 5.1

 

Manatt, Phelps & Phillips, LLP

 

 

December 28, 2017

 

Highpower International, Inc.

Building A1, Luoshan Industrial Zone,

Shanxia, Pinghu, Longgang,

Shenzhen, Guangdong, 518111

People’s Republic of China

 

  Re: Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have examined the Registration Statement on Form S-8 (the “ Registration Statement ”) of Highpower International, Inc., a Delaware corporation (the “ Company ”), as filed with the Securities and Exchange Commission (the “ Commission ”) on the date hereof in connection with the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), of 2,250,000 shares (the “ Shares ”) of the Company’s common stock, par value $0.0001 per share per share (“ Common Stock ”), issuable under the Highpower International, Inc. 2017 Omnibus Incentive Plan (the “ 2017 Plan ”).

 

This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.

 

We have examined or considered originals or copies, certified or otherwise identified to our satisfaction, of the certificate of incorporation of the Company, as amended and as in effect on and as of the date hereof, the bylaws of the Company, as amended and as in effect on and as of the date hereof, records of relevant corporate proceedings with respect to the authorization and issuance of the Shares, and such other documents, instruments and corporate records as we have deemed necessary or appropriate for the expression of the opinions contained herein. We also have obtained from the officers of the Company certificates as to certain factual matters necessary for the purpose of this opinion and, insofar as this opinion is based on such matters of fact, we have relied solely on such certificates without independent investigation.

 

11355 West Olympic Boulevard, Los Angeles, California 90064-1614 Telephone: 310.312.4000 Fax: 310.312.4224

Albany | Chicago | Los Angeles | New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington, D.C.

 

 

 

 

Highpower International, Inc.

December 28, 2017

Page 2

 

In connection with our representation of the Company, and as a basis for the opinion expressed herein, we have assumed the legal capacity of all natural persons, the authenticity and completeness of all records, certificates and other instruments submitted to us as originals, the conformity to original documents of all records, certificates and other instruments submitted to us as copies, and the correctness of all statements of fact contained in all records, certificates and other instruments that we have examined. We have further assumed that the Company does not in the future issue or otherwise make unavailable so many shares of Common Stock that there are insufficient remaining authorized but unissued shares of Common Stock for issuance pursuant to the 2017 Plan. We have also assumed that all of the Shares issuable or eligible for issuance under the 2017 Plan following the date hereof will be issued for not less than par value. We have not independently verified any of those assumptions.

 

Based upon the foregoing and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that the Shares will be legally issued, fully paid and non-assessable when issued and paid for in the manner referred to in the 2017 Plan and pursuant to the agreements that accompany the 2017 Plan.

 

We express no opinion as to the applicability or effect of any laws, orders or judgments of any state or other jurisdiction other than the General Corporation Law of the State of Delaware (including the statutory provisions and all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting those laws). This opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company or the Shares.

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission adopted under the Securities Act.

 

  Sincerely,
   
  /s/ Manatt, Phelps & Phillips, LLP
   
  Manatt, Phelps & Phillips, LLP

 

 

 

Exhibit 23.1

 

 

 

Independent Registered Public Accounting Firm’s Consent

 

We consent to the incorporation by reference in this Registration Statement of Highpower International, Inc. on Form S-8 of our report dated March 28, 2017, with respect to our audits of the consolidated financial statements of Highpower International, Inc. and Subsidiaries as of December 31, 2016 and 2015 and for the years ended December 31, 2016 and 2015 appearing in the Annual Report on Form 10-K of Highpower International, Inc. for the year ended December 31, 2016.

 

 

/s/ Marcum Bernstein & Pinchuk llp

New York, New York

December 28, 2017

 

 

 

 

Exhibit 99.2

 

NOTICE OF GRANT OF [NON-QUALIFIED/INCENTIVE] STOCK OPTION AWARD

 

HIGHPOWER INTERNATIONAL, INC.

 

2017 OMNIBUS INCENTIVE PLAN

 

FOR GOOD AND VALUABLE CONSIDERATION, Highpower International, Inc. (the " Company ") hereby grants, pursuant to the provisions of the Company’s 2017 Omnibus Incentive Plan (the " Plan "), to the Optionee/Participant designated in this Notice of Grant of [Non-Qualified] Stock Option Award (the " Notice ") an option to purchase the number of shares of the common stock of the Company set forth in the Notice (the " Shares "), subject to certain restrictions as outlined below in this Notice and the additional provisions set forth in the attached Terms and Conditions of Stock Option Award (collectively, the " Agreement ").  Also enclosed is a copy of the information statement describing important provisions of the Plan.

 

Optionee :__________________

 

Date of Grant : Type of Option :
Exercise Price per Share : $____________ Expiration Date :  _________________

Total Number of

Shares Granted : _________________

Total Exercise Price : $_________________

 

 

Vesting Schedule: Subject to the provisions contained in Paragraphs 4, 6 and 7 of the Terms and Conditions, this Stock Option Award shall vest in accordance with the following schedule, in the event the Participant does not have a Termination of Service prior to the applicable vesting date:

 

Date of Vesting   Cumulative Amount Vested
     
     
     
     
     

 

Exercise After Termination of Service :

 

Termination of Service for Any Reaso n: Any non-vested portion of the Option expires immediately;

 

Termination of Service Due to Death or Disability: Vested portion of the Option is exercisable by the Optionee (or, in the event of the Optionee’s death, the Optionee’s Beneficiary) for one year after the Optionee’s Termination;

 

Termination of Service for Any Reason Other Than Death or Disability : Vested portion of the Option is exercisable for a period of ninety (90) days following the Optionee’s Termination.

 

In no event may this Option be exercised after the Expiration Date as provided above .

 

[ Signature page follows ]

 

 

   

NOTICE OF GRANT OF STOCK OPTION AWARD

 

 

By signing below, the Optionee/Participant agrees that this [Non-Qualified] Stock Option Award is granted under and governed by the terms and conditions of the Company’s 2017 Omnibus Incentive Plan and the attached Terms and Conditions.

 

OPTIONEE/PARTICIPANT   HIGHPOWER INTERNATIONAL, INC.
     
    By:  
    Name:  
Date:     Date:  
         

 

 

   

NOTICE OF GRANT OF STOCK OPTION AWARD

 

TERMS AND CONDITIONS OF STOCK OPTION AWARD

 

1.              Grant of Option .  The Option granted to the Optionee and described in the Notice of Grant is subject to the terms and conditions of the Plan, which is incorporated by reference in its entirety into these Terms and Conditions of Stock Option Award.

 

The Board of Directors of the Company has authorized and approved the 2017 Omnibus Incentive Plan (the " Plan "), which has been approved by the stockholders of the Company. The Committee has approved an award to the Optionee of a number of shares of the Company’s common stock, conditioned upon the Participant’s acceptance of the provisions set forth in the Notice and these Terms and Conditions within 60 days after the Notice and these Terms and Conditions are presented to the Optionee for review. For purposes of the Notice and these Terms and Conditions, any reference to the Company shall include a reference to any Affiliate.

 

If designated in the Notice of Grant as an Incentive Stock Option (" ISO" ), this Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code.  Nevertheless, to the extent that the Option fails to meet the requirements of an ISO under Section 422 of the Code, this Option shall be treated as a Non-Qualified Stock Option (" NSO ").

 

The Company intends that this Option not be considered to provide for the deferral of compensation under Section 409A of the Code and that this Agreement shall be so administered and construed.  Further, the Company may modify the Plan and this Award to the extent necessary to fulfill this intent.

 

2.              Exercise of Option .

 

(a)        Right to Exercise .  This Option shall be exercisable, in whole or in part, during its term in accordance with the Vesting Schedule set out in the Notice of Grant and with the applicable provisions of the Plan and this Option Agreement.  No Shares shall be issued pursuant to the exercise of an Option unless the issuance and exercise comply with applicable laws.  Assuming such compliance, for income tax purposes the Shares shall be considered transferred to the Optionee on the date on which the Option is exercised with respect to such Shares.  The Committee may, in its discretion, (i) accelerate vesting of the Option, or (ii) extend the applicable exercise period to the extent permitted under Section 6.03 of the Plan.

 

(b)        Method of Exercise .  The Optionee may exercise the Option by delivering an exercise notice in a form approved by the Company (the " Exercise Notice ") which shall state the election to exercise the Option, the number of Shares with respect to which the Option is being exercised, and such other representations and agreements as may be required by the Company.  The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Shares exercised.  This Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by the aggregate Exercise Price.

 

(c)        Acceleration of Vesting on Change in Control .  Unless otherwise specified in the Notice of Grant, in the event of a Change in Control, no accelerated vesting of any Options outstanding on the date of such Change in Control shall occur.

 

3.              Method of Payment .  If the Optionee elects to exercise the Option by submitting an Exercise Notice under Section 2(b) of this Agreement, the aggregate Exercise Price (as well as any applicable withholding or other taxes) shall be paid by cash or check; provided, however , that the Committee may consent, in its discretion, to payment in any of the following forms, or a combination of them:

 

(a)       cash or check;

 

(b)       a "net exercise" (as described in the Plan or such other consideration received by the Company under a cashless exercise program approved by the Company in connection with the Plan;

 

(c)       surrender of other Shares owned by the Optionee which have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares and any applicable withholding; or

 

(d)       any other consideration that the Committee deems appropriate and in compliance with applicable law.

 

  - 1 -
   

NOTICE OF GRANT OF STOCK OPTION AWARD

 

4.              Restrictions on Exercise .  This Option may not be exercised until such time as the Plan has been approved by the stockholders of the Company, or if the Issuance of the Shares upon exercise or the method of payment of consideration for those shares would constitute a violation of any applicable law or regulation.

 

5.              Non-Transferability of Option .  This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of the Optionee only by the Optionee; provided, however, that the Optionee may transfer the Options (i) pursuant to a qualified domestic relations order (as defined by the Code or the rules thereunder) or (ii) to any member of the Optionee’s Immediate Family or to a trust, limited liability company, family limited partnership or other equivalent vehicle, established for the exclusive benefit of one or more members of his Immediate Family by delivering to the Company a Notice of Assignment in a form acceptable to the Company.  No transfer or assignment of the Option to or on behalf of an Immediate Family member under this Section 5 shall be effective until the Company has acknowledged such transfer or assignment in writing.  "Immediate Family" means the Optionee’s parents, spouse, children, siblings, and grandchildren.  Following transfer, the Options shall continue to be subject to the same terms and conditions as were applicable immediately prior to transfer.  In the event an Option is transferred as contemplated in this Section 5, such Option may not be subsequently transferred by the transferee except by will or the laws of descent and distribution.  The terms of the Plan and this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.

 

6.              Term of Option .  This Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Option Agreement.

 

7.              Withholding .

 

(a)       The Committee shall determine the amount of any withholding or other tax required by law to be withheld or paid by the Company with respect to any income recognized by the Optionee with respect to the Option Award.

 

(b)       The Optionee shall be required to meet any applicable tax withholding obligation in accordance with the provisions of Section 10.05 of the Plan.

 

(c)       Subject to any rules prescribed by the Committee, the Optionee shall have the right to elect to meet any withholding requirement (i) by having withheld from this Award at the appropriate time that number of whole shares of common stock whose fair market value is equal to the amount of any taxes required to be withheld with respect to such Award, (ii) by direct payment to the Company in cash of the amount of any taxes required to be withheld with respect to such Award or (iii) by a combination of shares and cash.

 

8.              Defined Terms .  Capitalized terms used but not defined in the Notice and these Terms and Conditions shall have the meanings set forth in the Plan, unless such term is defined in any Employment Agreement between the Optionee and the Company or an Affiliate.  Any terms used in the Notice and these Terms and Conditions, but defined in the Optionee’s Employment Agreement are incorporated herein by reference and shall be effective for purposes of the Notice and these Terms and Conditions without regard to the continued effectiveness of the Employment Agreement.

 

9.              Optionee Representations .  The Optionee hereby represents to the Company that the Optionee has read and fully understands the provisions of the Notice, these Terms and Conditions and the Plan and the Optionee’s decision to participate in the Plan is completely voluntary.  Further, the Optionee acknowledges that the Optionee is relying solely on his or her own advisors with respect to the tax consequences of this stock option award.

 

10.            Regulatory Limitations on Exercises .  Notwithstanding the other provisions of this Option Agreement, no option exercise or issuance of shares of Common Stock pursuant to this Option Agreement shall be effective if (i) the shares reserved under the Plan are not subject to an effective registration statement at the time of such exercise or issuance, or otherwise eligible for an exemption from registration, or (ii) the Company determines in good faith that such exercise or issuance would violate any applicable securities or other law or regulation.

 

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NOTICE OF GRANT OF STOCK OPTION AWARD

 

11.            Miscellaneous .

 

(a)        Notices .  All notices, requests, deliveries, payments, demands and other communications which are required or permitted to be given under these Terms and Conditions shall be in writing and shall be either delivered personally or sent by registered or certified mail, or by private courier, return receipt requested, postage prepaid to the parties at their respective addresses set forth herein, or to such other address as either shall have specified by notice in writing to the other.  Notice shall be deemed duly given hereunder when delivered or mailed as provided herein.

 

(b)        Waiver .  The waiver by any party hereto of a breach of any provision of the Notice or these Terms and Conditions shall not operate or be construed as a waiver of any other or subsequent breach.

 

(c)        Entire Agreement .  These Terms and Conditions, the Notice and the Plan constitute the entire agreement between the parties with respect to the subject matter hereof.

 

(d)        Binding Effect; Successors .  These Terms and Conditions shall inure to the benefit of and be binding upon the parties hereto and to the extent not prohibited herein, their respective heirs, successors, assigns and representatives.  Nothing in these Terms and Conditions, express or implied, is intended to confer on any person other than the parties hereto and as provided above, their respective heirs, successors, assigns and representatives any rights, remedies, obligations or liabilities.

 

(e)        Governing Law .  The Notice and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Delaware.

 

(f)         Headings .  The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of these Terms and Conditions.

 

(g)        Conflicts; Amendment .  The provisions of the Plan are incorporated in these Terms and Conditions in their entirety.  In the event of any conflict between the provisions of these Terms and Conditions and the Plan, the provisions of the Plan shall control.  The Agreement may be amended at any time by written agreement of the parties hereto.

 

(h)        No Right to Continued Employment .  Nothing in the Notice or these Terms and Conditions shall confer upon the Optionee any right to continue in the employ or service of the Company or affect the right of the Company to terminate the Optionee’s employment or service at any time.

 

(i)         Further Assurances .  The Optionee agrees, upon demand of the Company or the Committee, to do all acts and execute, deliver and perform all additional documents, instruments and agreements which may be reasonably required by the Company or the Committee, as the case may be, to implement the provisions and purposes of the Notice and these Terms and Conditions and the Plan.

 

  - 3 -

 

 

Exhibit 99.3

 

NOTICE OF GRANT OF RESTRICTED STOCK AWARD

 

HIGHPOWER INTERNATIONAL, INC.

 

2017 OMNIBUS INCENTIVE PLAN

 

FOR GOOD AND VALUABLE CONSIDERATION, Highpower International, Inc. (the “ Company ”) hereby grants, pursuant to the provisions of the Company’s 2017 Omnibus Incentive Plan (the “ Plan ”), to the Participant designated in this Notice of Grant of Restricted Stock Award (the “ Notice ”) the number of shares of the common stock of the Company set forth in the Notice, subject to certain restrictions as outlined below in this Notice and the additional provisions set forth in the attached Terms and Conditions of Restricted Stock Award (the “ Agreement ”). Also enclosed is a copy of the information statement describing important provisions of the Plan.

 

Participant: __________________________
   
Grant Date: ________________________

 

# of Shares of Restricted Stock: ______________

 

Purchase Price: Subject to the withholding provisions of Paragraph 5 of the Terms and Conditions, this Restricted Stock Award does not require the Participant to pay any purchase price or other cash consideration in connection with the issuance or delivery of the Restricted Stock.

 

Vesting Schedule: Subject to the provisions contained in Paragraphs 4, 5 and 6 of the Terms and Conditions, this Restricted Stock Award shall vest, and the applicable Restrictions set forth in the Terms and Conditions shall lapse in accordance with the following schedule, in the event the Participant does not have a Termination of Service prior to the applicable vesting date:

 

Date of Vesting   Cumulative Amount Vested
     
     
     
     
     

 

Change in Control: Unless otherwise specified in this Notice of Grant, no accelerated vesting of any Restricted Shares shall occur in the event of a Change in Control.

 

Forfeiture: The Participant’s rights in the Restricted Stock Award on which the Restrictions have not lapsed pursuant to the vesting schedule provisions above shall be forfeited in full in the event of the Participant’s Termination of Service for any reason.

 

By signing below, the Participant agrees that this Restricted Stock Award is granted under and governed by the terms and conditions of the Company’s 2017 Omnibus Incentive Plan and the attached Terms and Conditions.

 

PARTICIPANT   HIGHPOWER INTERNATIONAL, INC.
     
    By:  
    Name:  
Date:     Date:  
         

 

 
 

 

TERMS AND CONDITIONS OF RESTRICTED STOCK AWARD

 

These Terms and Conditions of Restricted Stock Award relates to the Notice of Grant of Restricted Stock Award (the “ Notice ”) attached hereto, by and between Highpower International, Inc. (the “ Company ”), and the person identified in the Notice (the “ Participant ”).

 

The Board of Directors of the Company has authorized and approved the 2017 Omnibus Incentive Plan (the “ Plan ”), which has been approved by the stockholders of the Company. The Committee has approved an award to the Participant of a number of shares of the Company’s common stock, conditioned upon the Participant’s acceptance of the provisions set forth in the Notice and these Terms and Conditions within 60 days after the Notice and these Terms and Conditions are presented to the Participant for review. For purposes of the Notice and these Terms and Conditions, any reference to the Company shall include a reference to any Affiliate.

 

1. Grant of Restricted Stock .

 

(a) Subject to the terms and conditions of the Plan, as of the Grant Date, the Company grants to the Participant the number of shares of Common Stock set forth in the Notice (the “ Restricted Shares ”), subject to the restrictions set forth in Paragraph 2 of these Terms and Conditions, the provisions of the Plan and the other provisions contained in these Terms and Conditions. If and when the restrictions set forth in Paragraph 2 expire in accordance with these Terms and Conditions without forfeiture of the Restricted Shares, and upon the satisfaction of all other applicable conditions as to the Restricted Shares, such shares shall no longer be considered Restricted Shares for purposes of these Terms and Conditions.

 

(b) As soon as practicable after the Grant Date, the Company shall direct that a stock certificate or certificates representing the applicable Restricted Shares be registered in the name of and issued to the Participant. Such certificate or certificates shall be held in the custody of the Company or its designee until the expiration of the applicable Restricted Period (as defined in Paragraph 3). On or before the date of execution of the Notice, the Participant has delivered to the Company one or more stock powers endorsed in blank relating to the Restricted Shares.

 

(c) Except as provided in Paragraph 1(d), in the event that a certificate for the Restricted Shares is delivered to the Participant, such certificate shall bear the following legend (the “ Legend ”):

 

The ownership and transferability of this certificate and the shares of stock represented hereby are subject to the terms and conditions (including forfeiture) of the Highpower International, Inc. 2017 Omnibus Incentive Plan and a Restricted Stock Award Notice entered into between the registered owner and Highpower International, Inc. Copies of such Plan and Notice are on file in the executive offices of Highpower International, Inc.

 

In addition, the stock certificate or certificates for the Restricted Shares shall be subject to such stop-transfer orders and other restrictions as the Company may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed, and any applicable federal or state securities law, and the Company may cause a legend or legends to be placed on such certificate or certificates to make appropriate reference to such restrictions.

 

(d) As soon as administratively practicable following the expiration of the Restricted Period without a forfeiture of the Restricted Shares, and upon the satisfaction of all other applicable conditions as to the Restricted Shares, including, but not limited to, the payment by the Participant of all applicable withholding taxes, the Company shall deliver or cause to be delivered to the Participant a certificate or certificates for the applicable Restricted Shares which shall not bear the Legend.

 

 
 

 

2. Restrictions .

 

(a) The Participant shall have all rights and privileges of a stockholder as to the Restricted Shares, including the right to vote and receive dividends or other distributions with respect to the Restricted Shares, except that the following restrictions shall apply:

 

(i) the Participant shall not be entitled to delivery of the certificate or certificates for the Restricted Shares until the expiration of the Restricted Period without a forfeiture of the Restricted Shares and upon the satisfaction of all other applicable conditions;

 

(ii) none of the Restricted Shares may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of during the Restricted Period applicable to such shares, except as provided in Section 7.02(c) of the Plan or as otherwise permitted by the Committee in its sole discretion or pursuant to rules adopted by the Committee in accordance with the Plan; and

 

(iii) all of the Restricted Shares shall be forfeited and returned to the Company and all rights of the Participant with respect to the Restricted Shares shall terminate in their entirety on the terms and conditions set forth in Paragraph 4 below.

 

(b) Any attempt to dispose of Restricted Shares or any interest in the Restricted Shares in a manner contrary to the restrictions set forth in these Terms and Conditions shall be void and of no effect.

 

3. Restricted Period and Vesting . The “Restricted Period” is the period beginning on the Grant Date and ending on the date the Restricted Shares, or such applicable portion of the Restricted Shares, are deemed vested under the schedule set forth in the Notice. The Restricted Shares shall be deemed vested and no longer subject to forfeiture under Paragraph 4 in accordance with the vesting schedule set forth in the Notice or earlier, if specified in the Notice, in the event of a Change in Control.

 

4. Forfeiture .

 

(a) Subject to Paragraph 6 below,   if during the Restricted Period (i) the Participant incurs a Termination of Service, (ii) there occurs a material breach of the Notice or these Terms and Conditions by the Participant or (iii) the Participant fails to meet the tax withholding obligations described in Paragraph 5(b), all rights of the Participant to the Restricted Shares that have not vested in accordance with Paragraph 3 as of the date of such termination shall terminate immediately and be forfeited in their entirety.

 

(b) In the event of any forfeiture under this Paragraph 4, the certificate or certificates representing the forfeited Restricted Shares shall be canceled to the extent of any Restricted Shares that were forfeited.

 

5. Withholding .

 

(a) The Committee shall determine the amount of any withholding or other tax required by law to be withheld or paid by the Company with respect to any income recognized by the Participant with respect to the Restricted Shares.

 

(b) The Participant shall be required to meet any applicable tax withholding obligation in accordance with the provisions of Section 10.05 of the Plan.

 

(c) Subject to any rules prescribed by the Committee, the Participant shall have the right to elect to meet any withholding requirement (i) by having withheld from this Award at the appropriate time that number of whole shares of common stock whose fair market value is equal to the amount of any taxes required to be withheld with respect to such Award, (ii) by direct payment to the Company in cash of the amount of any taxes required to be withheld with respect to such Award or (iii) by a combination of shares and cash.

 

  2  
 

 

6. Committee Discretion . Notwithstanding any provision of the Notice or these Terms and Conditions to the contrary, the Committee shall have discretion under the Plan to waive any forfeiture of the Restricted Shares as set forth in Paragraph 4, the Restricted Period and any other conditions set forth in the Notice or these Terms and Conditions.

 

7. Defined Terms . Capitalized terms used but not defined in the Notice and Agreement shall have the meanings set forth in the Plan, unless such term is defined in any Employment Agreement between the Participant and the Company or an Affiliate. Any terms used in the Notice and Agreement, but defined in the Participant’s Employment Agreement are incorporated herein by reference and shall be effective for purposes of the Notice and these Terms and Conditions without regard to the continued effectiveness of the Employment Agreement.

 

8. Nonassignability . The Restricted Shares may not be sold, assigned, transferred (other than by will or the laws of descent and distribution, or to an inter vivos trust with respect to which the Participant is treated as the owner under Sections 671 through 677 of the Code), pledged, hypothecated, or otherwise encumbered or disposed of until the restrictions on such Shares, as set forth in the Notice and Agreement, have lapsed or been removed.

 

9. Participant Representations . The Participant hereby represents to the Company that the Participant has read and fully understands the provisions of the Notice, these Terms and Conditions and the Plan and the Participant’s decision to participate in the Plan is completely voluntary. Further, the Participant acknowledges that the Participant is relying solely on his or her own advisors with respect to the tax consequences of this restricted stock award.

 

10. Regulatory Restrictions on the Restricted Shares . Notwithstanding any other provision of the Plan, the obligation of the Company to issue Restricted Shares under the Plan shall be subject to all applicable laws, rules and regulations and such approval by any regulatory body as may be required. The Company reserves the right to restrict, in whole or in part, the delivery of the Restricted Shares pursuant to these Terms and Conditions prior to the satisfaction of all legal requirements relating to the issuance of such shares, to their registration, qualification or listing or to an exemption from registration, qualification or listing.

 

11. Miscellaneous .

 

  11.1 Notices . All notices, requests, deliveries, payments, demands and other communications which are required or permitted to be given under these Terms and Conditions shall be in writing and shall be either delivered personally or sent by registered or certified mail, or by private courier, return receipt requested, postage prepaid to the parties at their respective addresses set forth herein, or to such other address as either shall have specified by notice in writing to the other. Notice shall be deemed duly given hereunder when delivered or mailed as provided herein.

 

  11.2 Waiver . The waiver by any party hereto of a breach of any provision of the Notice or these Terms and Conditions shall not operate or be construed as a waiver of any other or subsequent breach.

 

  11.3 Entire Agreement . These Terms and Conditions, the Notice and the Plan constitute the entire agreement between the parties with respect to the subject matter hereof.

 

  3  
 

 

  11.4 Binding Effect; Successors . These Terms and Conditions shall inure to the benefit of and be binding upon the parties hereto and to the extent not prohibited herein, their respective heirs, successors, assigns and representatives. Nothing in these Terms and Conditions, express or implied, is intended to confer on any person other than the parties hereto and as provided above, their respective heirs, successors, assigns and representatives any rights, remedies, obligations or liabilities.

 

  11.5 Governing Law . The Notice and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Delaware.

 

  11.6 Headings . The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of these Terms and Conditions.

 

  11.7 Conflicts; Amendment . The provisions of the Plan are incorporated in these Terms and Conditions in their entirety. In the event of any conflict between the provisions of these Terms and Conditions and the Plan, the provisions of the Plan shall control. The Agreement may be amended at any time by written agreement of the parties hereto.

 

  11.8 No Right to Continued Employment . Nothing in the Notice or these Terms and Conditions shall confer upon the Participant any right to continue in the employ or service of the Company or affect the right of the Company to terminate the Participant’s employment or service at any time.

 

  11.9 Further Assurances . The Participant agrees, upon demand of the Company or the Committee, to do all acts and execute, deliver and perform all additional documents, instruments and agreements which may be reasonably required by the Company or the Committee, as the case may be, to implement the provisions and purposes of the Notice and these Terms and Conditions and the Plan.

 

  4