LOCKUP AGREEMENT
This AGREEMENT (the “Agreement”) is
made as of the date set forth on the signature page of this Agreement by Proud
Glory Limited (“Holder”), maintaining an address at P.O. Box 957 Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands, in connection
with its ownership of shares of Emerald Acquisition Corporation, a Cayman
Islands corporation (the “Company”). Capital terms used and not otherwise
defined herein shall have the respective meanings set for in the Private
Placement Memorandum of the Company, dated as of October 1, 2009, and its
attachments thereto (the “Memorandum”).
NOW THEREFORE, for good and valuable
consideration, the sufficiency and receipt of which consideration are hereby
acknowledged, Holder agrees as follows:
1. Background.
a. The
Company is offering to certain investors (the “Investors”), on a “best
efforts” basis, investment units (“Units”), each Unit consisting of (i) Fifty
Thousand (50,000) of the Company’s ordinary shares, par value $0.001 per share
(the “Ordinary Shares”) and (ii) warrants to purchase Twenty Five Thousand
(25,000) of the Company’s Ordinary Shares, at an exercise price of $6.00 per
share (the “Warrants” and collectively with the Ordinary Shares, the
“Securities”), for aggregate gross proceeds of a minimum of $15,000,000 and up
to a maximum of $20,000,000 (the “Offering”), in reliance upon an exemption
from securities registration afforded by the provisions of Section 4(2), Section
4(6), Regulation D and/or Regulation S as promulgated by the United States
Securities and Exchange Commission under the Securities Act of 1933,
as amended;
x. Xxxxxx
is the beneficial owner of the amount of Ordinary Shares of the Company
designated on the signature page hereto.
c. As
a condition to the Offering and as an inducement to the Investors to enter into
a subscription agreement dated October 22, 2009 (the “Subscription Agreement”),
Holder understands that the Investors have required, and the Company has agreed
to obtain on behalf of the Investor an agreement from the Holder to refrain from
selling any of the Lockup Shares, as defined below, for a period of eighteen
(18) months from the Closing of the Offering (“Restricted Period”).
2. Sale
Restriction.
a. Holder
hereby agrees that during the Restriction Period, the Holder will not offer,
pledge, sell, contract to sell, sell any option or contract to purchase, lend,
transfer or otherwise dispose of any Ordinary Shares or any options, warrants or
other rights to purchase Ordinary Shares or any other security of the Company
which Holder owns or has a right to acquire as of the date hereof (collectively,
the “Lockup Shares”), other than in connection with an offer made to all
shareholders 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 the Lockup Shares held by Holder in violation
of this Agreement. The Company agrees not to allow to occur any
transaction inconsistent with this Agreement. Notwithstanding the foregoing, the
Lockup Shares transferred under the Make Good Escrow Agreement, by and among the
Company, Make Good Shareholders, Access America Fund, LP and Xxxxxx &
Xxxxxx, LLP as escrow agent, dated October 22, 2009, shall not be subject to
this section.
b. Any
subsequent issuance to and/or acquisition by Holder of Ordinary Shares or
options or instruments convertible into Ordinary Shares will be subject to the
provisions of this Agreement.
c. Notwithstanding
the foregoing restrictions on transfer, the Holder may, at any time and from
time to time during the Restriction Period, transfer the Ordinary Shares (i) as
bona fide gifts or transfers by will or intestacy, (ii) to any trust for the
direct or indirect benefit of the undersigned or the immediate family of the
Holder, provided that any such transfer shall not involve a disposition for
value, (iii) to a partnership which is the general partner of a partnership of
which the Holder is a general partner, provided, that, in the case of any gift
or transfer described in clauses (i), (ii) or (iii), each donee or transferee
agrees in writing to be bound by the terms and conditions contained herein in
the same manner as such terms and conditions apply to the undersigned. For
purposes hereof, “immediate family” means any relationship by blood, marriage or
adoption, not more remote than first cousin.
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 Investor 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 Delaware 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
Offering Documents 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 signature and delivered
electronically.
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 Investors identified in the Subscription Agreement and may be
enforced by the Investors and may not be amended without the consent of the
Investors, which may be withheld for any reason.
[Signature
Page Follows]
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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/s/ Zhide Jiang
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(Signature of Holder)
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Zhide Jiang
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(Print Name of Holder)
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Number
of Ordinary Shares Beneficially Owned
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COMPANY:
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EMERALD
ACQUISITION CORPORATION
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By:
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/s/ Zhide Jiang
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Name: Zhide
Jiang
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Title: President
&
CEO
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