AMENDED AND RESTATED LOCKUP AGREEMENT
Exhibit
10.16
AMENDED
AND RESTATED LOCKUP AGREEMENT
This
AMENDED AND RESTATED LOCKUP AGREEMENT (the "Agreement") is made as of the ____
day of May, 2010, by ______________ ("Holder"), maintaining an address at
x/x Xxxxx Yongxin Pharmaceuticals Inc., 000 Xxxxxx Xxxxx, Xxxx xx
Xxxxxxxx, XX 00000, Attn: Xxxxxxx Xxx, CEO, facsimile: (000)
000-0000, in connection with his ownership of shares of China Yongxin
Pharmaceuticals Inc., a Delaware corporation (the "Company").
NOW,
THEREFORE, for good and valuable consideration, the sufficiency and receipt of
which consideration are hereby acknowledged, Holder agrees as
follows:
1. Background.
a. Holder
is the beneficial owner of the amount of shares of the Common Stock, $0.001 par
value, of the Company (“Common Stock”) designated on the signature page
hereto.
x. Xxxxxx
acknowledges that the Company has entered into on January 22, 2010 (“First
Closing”), March 4, 2010 (“Second Closing”) or will enter into at or about the
date hereof (“Third Closing”) subscription agreements (each a
“Subscription Agreement”) with subscribers for the Company’s Notes and Warrants
(the “Subscribers”). Holder understands that, as a condition to
proceeding with the Offering, the Subscribers have required, and the Company has
agreed to obtain on behalf of the Subscribers an agreement from the Holder to
refrain from selling any securities of the Company from the date of the
Subscription Agreement and for so long as any amount is outstanding on the Notes
(“Restriction Period”) except as described below.
c. This
Amended and Restated Lockup Agreement amends and restates that Lockup Agreement
dated January 22, 2010, and is being entered into pursuant to a certain
Modification and Consent Agreement dated May __, 2010 by and among the
Company and the Subscribers, in connection with the Third Closing.
2. Sale
Restriction.
a. Holder
hereby agrees that during the Restriction Period, the Holder will not sell,
transfer or otherwise dispose of any shares of Common Stock or any options,
warrants or other rights to purchase shares of Common Stock or any other
security of the Company which Holder owns or has a right to acquire as of
the date hereof, other than in connection with an offer made to all stockholders
of the Company in connection with merger, consolidation or similar transaction
involving the Company. Holder further agrees that the Company is
authorized to and the Company agrees to place "stop orders" on its books to
prevent any transfer of shares of Common Stock or other securities of the
Company held by Holder in violation of this Agreement. The Company
agrees not to allow to occur any transaction inconsistent with this
Agreement.
b. Any
subsequent issuance to and/or acquisition by Holder of Common Stock or options
or instruments convertible into Common Stock will be subject to the provisions
of this Agreement.
3. Miscellaneous.
a. At
any time, and from time to time, after the signing of this Agreement Holder will
execute such additional instruments and take such action as may be reasonably
requested by the Subscribers to carry out the intent and purposes of this
Agreement.
b. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of laws. Any
action brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the state courts of New
York or in the federal courts located in the state of New York. The
parties to this Agreement hereby irrevocably waive any objection to jurisdiction
and venue of any action instituted hereunder and shall not assert any defense
based on lack of jurisdiction or venue or based upon forum non
conveniens. The
parties executing this Agreement and other agreements referred to herein or
delivered in connection
herewith agree to submit to the in personam jurisdiction of such courts and
hereby irrevocably waive trial by jury. The prevailing party shall
be entitled to recover from the other party its reasonable attorney's fees and
costs. In the event that any provision of this Agreement or any other
agreement delivered in connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement. Notices hereunder shall be given in the same manner as set
forth in the Subscription Agreement. Each party hereby irrevocably waives
personal service of process and consents to process being served in any suit,
action or proceeding in connection with this Agreement or any other Transaction
Document by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to such party at the address in effect for
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. Holder irrevocably appoints the
Company its true and lawful agent for service of process upon whom all processes
of law and notices may be served and given in the manner described above; and
such service and notice shall be deemed valid personal service and notice upon
Holder with the same force and validity as if served upon Holder.
c. The
restrictions on transfer described in this Agreement are in addition to and
cumulative with any other restrictions on transfer otherwise agreed to by the
Holder or to which the Holder is subject to by applicable law.
d. This
Agreement shall be binding upon Holder, its legal representatives, successors
and assigns.
e. This
Agreement may be signed and delivered by facsimile, electronically and such
facsimile or electronically signed and delivered Agreement shall be
enforceable.
f. The
Company agrees not to take any action or allow any act to be taken which would
be inconsistent with this Agreement.
g. The
Holder acknowledges that this Lockup Agreement is being entered into for the
benefit of the Subscribers identified in the Subscription Agreement may be
enforced by the Subscribers and may not be amended without the consent of the
Subscribers (in the manner described in the Subscription Agreement), which may
be withheld for any reason.
[THE
BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, and intending to be legally bound hereby, Holder has executed
this Agreement as of the day and year first above written.
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HOLDER:
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(Signature
of Holder)
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(Print
Name of Holder)
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Number
of Shares of Common Stock Beneficially Owned Represented
by ______________ shares of Common Stock and options, warrants
and rights to acquire ______________ additional shares of
Common Stock
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COMPANY:
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By:
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Xxxxxxx
Xxx
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Chief
Executive Officer
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Schedule
Schedule
prepared in accordance with Instruction 2 to Item 601 of Regulation
S-K
The
Amended and Restated Lock Up Agreement dated May 3, 2010 are substantially
identical in all material respects except as to the holder and the number of
locked up shares.
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Holder
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Number of
Locked Up
Shares
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Perfect
Sum Investment Ltd. BVI
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1,200,000 | |||
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Boom
Day Investment Ltd. BVI
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13,399,998 | |||
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Misala
Holdings Inc. BVI
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12,000,000 | |||
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Full
Spring Group Ltd. BVI
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1,800,000 | |||
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Accord
Success Ltd. BVI
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5,400,000 | |||
