Exhibit 4
LOCK-UP AGREEMENT
July , 2003
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THIS LOCK-UP AGREEMENT ("Agreement") is made as of the day of July,
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2003, by and between Xxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxxx, Xxxx Xxxxxxxx,
Xxxxxxxx Xxxxxxx and Xxxx Xxxxxxxxx ("Shareholders") and All American Companies,
Inc., a Delaware Corporation ("Purchaser").
WHEREAS, the Shareholders are directors, executive officers and/or
shareholders of First Chesapeake Financial Corporation (the "Company"); and
WHEREAS, the Shareholders understand that Purchaser has entered into those
certain agreements with the Company and certain stockholders of the Company,
dated July , 2003 (the "Stock Purchase Agreement" and "Securities Purchase
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Agreement"), pursuant to which Purchaser has agreed to purchase shares of the
Company's common stock, no par value (the "Common Stock"), from the Company and
certain shareholders; and
WHEREAS, it is a condition of the closing of the Stock Purchase Agreement
and Securities Purchase Agreement that the Shareholders agree not to make any
Transfer (defined herein below) of shares of Common Stock or any derivative
security thereof (the "Company Stock"), except in accordance with this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein contained, the parties hereto hereby agree as follows:
1. In order to induce Purchaser to enter into the Stock Purchase Agreement
and Securities Purchase Agreement, the undersigned Shareholders agree, for the
benefit of Purchaser, that should the Closing under the aforesaid agreements
occur, the undersigned will not, directly or indirectly, without the prior
written consent of Purchaser, offer, sell, offer to sell, contract to sell,
exercise, convert, pledge, grant any option or right to purchase or otherwise
sell or dispose of (a "Transfer") any of the Company's Stock beneficially or
otherwise owned (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) by the Shareholders and set forth on Schedule 1.2 of
the Stock Purchase Agreement during the period set forth with respect to such
securities on such Schedule 1.2 of the Stock Purchase Agreement. The Stock
Purchase Agreement and its schedules and exhibits is incorporated herein by
reference as if fully set forth.
2. The Shareholders further agree to grant the Purchaser the right of first
offer to purchase any shares of Common Stock made available for sale by the
Shareholders that are not otherwise subject to the terms of Section 1 above. If
any Shareholder desires to sell any Common Stock (a "Selling Shareholder"), the
Selling Shareholder shall provide the Purchaser with written notice of intent to
sell Common Stock. The Purchaser or its successor or assigns shall have the
right to purchase the Shareholder's Common Stock at a purchase price equal to
the trailing five day average of closing prices for the Common Stock for the
five days immediately prior to the date (the "Notice Date") of the Purchaser's
receipt of the written notice from the
Selling Shareholder. Should the Purchaser or its successor or assigns fails to
deliver a written notice of its intent to exercise the right of first refusal
granted herein and payment in full of the purchase price on or before the fifth
day following the Notice Date (the "Exercise Date"), the Selling Shareholder may
subsequently sell said shares in the open market or to third party at any time
during the thirty (30) days following the expiration of the Exercise Date. If
the Shareholder fails or refuses to sell the Shareholder's Common Stock within
thirty (30) days of the Exercise Date, then said shares of Common stock shall
once again be subject to the provisions of this paragraph 2.
3. This agreement shall remain in effect until the earlier of (i) the
expiration of the periods relating to the undersigned set forth on Schedule 1.2
of the Stock Purchase Agreement; or (ii) the date on which Purchaser ceases to
own at least 25% of the outstanding shares of Common Stock, calculated on a
fully-diluted basis. This Agreement shall be binding on the undersigned
Shareholders and his or her respective successors, heirs, personal
representatives and assigns.
4. Miscellaneous
(a) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but except as
otherwise specifically provided, neither this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by any of the
parties hereto without the prior written consent of the other.
(c) Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
(d) Specific Performance. The parties hereto acknowledge that
Purchaser will be irreparably harmed and that there will be no adequate remedy
at law for a violation of any of the covenants or agreements of Shareholder set
forth herein. Therefore, it is agreed that, in addition to any other remedies
which may be available to Purchaser upon such violation, Purchaser shall have
the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Purchaser at law or in
equity.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be acceptable if (a) delivered personally or by telecopy,
or (b) if sent by registered or certified mail (return receipt requested) and
postage prepaid, or (c) if sent by reputable overnight courier, so long as the
parties to this Agreement receive such notices at the following addresses or at
such other address for a party as shall be specified by like notice.
If to Shareholder: As set forth next to each Shareholder's signature
If to Purchaser: All American Companies, Inc.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxx
With a copy to: Xxx X. Xxxxx, Esq.
Hatch & Xxxx, P.A.
0000 Xxxxxxx X0X., Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been received on the
date of delivery if delivered personally or by telecopy, or on the date of
receipt, if mailed or if by overnight courier. Any party giving notice under
this Agreement to another party to this Agreement shall be required to give such
notice to all parties to this Agreement in order for such notice to be
effective.
(f) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written and oral.
(g) Governing Law; Jurisdiction; Venue. This Agreement shall be
governed by the laws of the State of Delaware without regard to its conflicts of
laws principles, and any and all actions shall be brought in the State of
Delaware. To the extent permitted by law, each party hereby expressly submits
and consents in advance to such exclusive jurisdiction in any such action or
proceeding and agrees that service of such summons and complaint or other
process or papers may be made by registered or certified mail addressed to such
party at the address to which notices are to be sent pursuant to this Agreement.
The exclusive choice of forum set forth in this Section shall not be deemed to
preclude the enforcement of any judgment obtained in such forum or the taking of
any action to enforce the same in any other appropriate jurisdiction.
(h) Section Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be a single agreement.
IN WITNESS WHEREOF, the undersigned have signed their names as of the date
first written above.
SECURITYHOLDERS:
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Xxxx Xxxxxxxxx Xxxx Xxxxx
Address: Address:
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Tel: Fax: Tel: Fax:
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Xxxx Xxxxxxxxx Xxxx Xxxxxxxx
Address: Address:
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Tel: Fax: Tel: Fax:
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Xxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx
Address: Address:
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Tel: Fax: Tel: Fax:
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AMERICAN COMPANIES, INC.:
By:
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Name:
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Title:
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