LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”)
is dated as of [ ], 2009, by and
between the shareholder set forth on the signature page to this Agreement (the
“Holder”) and China Holdings
Acquisition Corp., a Delaware corporation, or its successor company (“China
Holdings”). Capitalized terms used and not otherwise defined
herein that are defined in the Stock Purchase Agreement (as defined below) will
have the meanings given such terms in the Stock Purchase Agreement.
BACKGROUND
A. China
Holdings has entered into that certain Stock Purchase Agreement dated August 19,
2009 (the “Stock Purchase
Agreement”), by and among China Holdings, Jinjiang Hengda Ceramics Co.,
Ltd., a Chinese enterprise (“Hengda”),
Success Winner Limited (“Success”), the owner of 100% of the
equity interests of Stand Best Creation Limited, which owns 100% of the equity
interests of Hengda, and Xx. Xxxx Kung Tok (the “Seller”),
the owner of 100% of the equity interests of Success. The Seller owns all of the
issued and outstanding securities of Success. Pursuant to the Stock
Purchase Agreement, a wholly-owned subsidiary of China Holdings, China Ceramics
Co., Ltd., a British Virgin Islands company (“Purchaser”)
will acquire all of the outstanding securities of Success, and following such
acquisition, China Holdings will merge with and into the Purchaser.
B. The
Holder owns [ ]
shares of the China Holdings’ common stock (“Common Stock”) which the Company
and the Holder have agreed will lock-up for one year.
AGREEMENT
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Representations and
Warranties. Each of the parties hereto, by their respective
execution and delivery of this Agreement, hereby represents and warrants to the
others and to all third party beneficiaries of this Agreement that (a) such
party has the full right, capacity and authority to enter into, deliver and
perform its respective obligations under this Agreement, (b) this Agreement has
been duly executed and delivered by such party and is the binding and
enforceable obligation of such party, enforceable against such party in
accordance with the terms of this Agreement, and (c) the execution, delivery and
performance of such party’s obligations under this Agreement will not conflict
with or breach the terms of any other agreement, contract, commitment or
understanding to which such party is a party or to which the assets or
securities of such party are bound.
The
Holder has independently evaluated the merits of its decision to enter into and
deliver this Agreement, and such Holder confirms that it has not relied on the
advice of China Holdings, China Holdings’s legal counsel, Hengda, Hengda’s legal
counsel, or any other person.
Founders
Lock-Up
2. Beneficial
Ownership. The Holder hereby represents and warrants that it
does not beneficially own, directly or through its nominees (as determined in
accordance with Section 13(d) of the Exchange Act of 1934, as amended (the
“Exchange
Act”), and the rules and regulations promulgated thereunder) any shares
of Common Stock, or any economic interest therein or derivative therefrom, other
than those shares of Common Stock specified on the signature page
hereto. For purposes of this Agreement, the number of shares of
Common Stock beneficially owned by such Holder as specified on the signature
hereto, plus any number of shares of Common Stock acquired during the Lock-Up
Period (as defined below), are collectively referred to as the “Lock-up
Shares.”
3. Lock-Up.
(a)
During the Lock-up Period (as defined below), the Holder irrevocably agrees that
it will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any of the Lock-up Shares (including any securities
convertible into, or exchangeable for, or representing the rights to receive,
Lock-up Shares), enter into a transaction that would have the same effect, or
enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of such Lock-up Shares,
whether any of these transactions are to be settled by delivery of any such
Lock-up Shares, in cash or otherwise, publicly disclose the intention to make
any offer, sale, pledge or disposition, or to enter into any transaction, swap,
hedge or other arrangement, or engage in any Short Sales (as defined below) with
respect to any security of China Holdings.
(b)
In furtherance of the foregoing, China Holdings will (i) place an irrevocable
stop order on all Lock-up Shares, including those which are covered by a
registration statement, and (ii) notify China Holdings’ transfer agent in
writing of the stop order and the restrictions on such Lock-up Shares under this
Agreement and direct China Holdings’ transfer agent not to process any attempts
by the Holder to resell or transfer any Lock-up Shares, except in compliance
with this Agreement.
(c)
For purposes hereof, “Short
Sales” include, without limitation, all “short sales” as defined in Rule
200 promulgated under Regulation SHO under the Exchange Act and all types of
direct and indirect stock pledges, forward sale contracts, options, puts, calls,
swaps and similar arrangements (including on a total return basis), and sales
and other transactions through non-US broker dealers or foreign regulated
brokers.
(d)
For purpose of this agreement, “Lock-up
Period” means a period of 12 months from the Closing Date (as defined in
the Stock Purchase Agreement).
4.
Registration
Rights. China Holdings hereby acknowledges that the Holder entered into a
Registration Rights Agreement in connection with China Holdings’ initial public
offering and will abide the terms of such Registration Rights
Agreement.
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5. No Additional
Fees/Payment. Other than the consideration specifically
referenced herein, the parties hereto agree that no fee, payment or additional
consideration in any form has been or will be paid to the Holder in connection
with this Agreement.
6. Notices. Any
notices required or permitted to be sent hereunder shall be delivered personally
or by courier service to the following addresses, or such other address as any
party hereto designates by written notice to the other
party. Provided, however, a transmission per telefax or email shall
be sufficient and shall be deemed to be properly served when the telefax or
email is received if the signed original notice is received by the recipient
within three (3) calendar days thereafter.
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(a)
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If
to China Holdings:
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0000 X.
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxx
With a
copy (which shall not constitute notice) to:
Loeb
& Loeb LLP
000 Xxxx
Xxx.
Xxx Xxxx,
XX 00000
XXX
Attn:
Xxxxxxxx Xxxxxxxx
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(b)
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If
to Holder:
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[Name]
[Adddress]
Attn:
[ ]
or to
such other address as any party may have furnished to the others in writing in
accordance herewith.
7. Enumeration and
Headings. The enumeration and headings contained in this
Agreement are for convenience of reference only and shall not control or affect
the meaning or construction of any of the provisions of this
Agreement.
8. Counterparts. This
Agreement may be executed in facsimile and in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which shall together constitute one and the same agreement.
9. Successors and
Assigns. This Agreement and the terms, covenants, provisions
and conditions hereof shall be binding upon, and shall inure to the benefit of,
the respective heirs, successors and assigns of the parties
hereto. Without limiting the generality of the foregoing, it is being
specifically understood that China Holdings will acquire all of the outstanding
securities of Hengda and following such acquisition, China Holdings will merge
with and into the Purchaser. The Holder hereby acknowledges and agrees that this
Agreement is entered into for the benefit of and is enforceable by China
Holdings and its successors and assigns.
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10. Severability. If
any provision of this Agreement is held to be invalid or unenforceable for any
reason, such provision will be conformed to prevailing law rather than voided,
if possible, in order to achieve the intent of the parties and, in any event,
the remaining provisions of this Agreement shall remain in full force and effect
and shall be binding upon the parties hereto.
11. Amendment. This
Agreement may be amended or modified by written agreement executed by each of
the parties hereto.
12. Further
Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
any other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
13. No Strict
Construction. The language used in this 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.
14. Dispute
Resolution. Section 12.1 of the Stock Purchase Agreement,
regarding arbitration of disputes, is incorporated by reference herein to apply
with full force to any disputes arising under this Agreement.
15. Governing
Law. The terms and provisions of this Agreement shall be
construed in accordance with the laws of the State of New York.
16. Controlling
Agreement. To the extent the terms of this Agreement (as
amended, supplemented, restated or otherwise modified from time to time)
directly conflicts with a provision in the Stock Purchase Agreement, the terms
of this Agreement shall control.
[Signature Page
Follows]
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IN WITNESS WHEREOF, the parties hereto
have caused this Lock-Up Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
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CHINA
HOLDINGS ACQUISITION CORP.
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By:
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Name:
Xxxx X. Xxxxx
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Title:
Chairman and Chief Executive Officer
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Name:
[
]
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LOCK-UP
SHARES:
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shares
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Founders
Lock-Up
