LOCK-UP AGREEMENT
EXHIBIT
4.10
THIS
AGREEMENT (this “Agreement”)
is
dated as of October 3, 2007 by and between Victory Divide Mining Company,
a
Nevada corporation (the “Company”),
and
Winner State Investments Limited (“Shareholder”).
WHEREAS,
the Company intends to enter into a share exchange transaction with Shareholder
whereby Shareholder will exchange all its equity interest in Faith Winner
International Limited, a British Virgin Islands company and a wholly-owned
subsidiary of Shareholder, for the issuance of shares of Common Stock of
the
Company, par value $0.001 per share (the “Common
Stock”)
and a
private placement financing transaction with certain accredited investors
(the
“Investors”)
whereby the Company will issue shares of a newly-designated Series A Convertible
Preferred Stock, par value $0.001 per share (the “Series
A Stock”)
and
related warrants (the “Warrants”)
to
purchase shares of Common Stock of the Company (the “Financing
Transaction”).
WHEREAS,
to induce the Company and the Investors to enter into the Financing Transaction
pursuant to the Series A Convertible Preferred Stock Purchase Agreement dated
October 3, 2007 by and among the Company and the Investors (the “Purchase
Agreement”),
Shareholder has agreed not to sell any shares of the Company’s Common Stock that
Shareholder presently owns or may acquire after the date hereof, except in
accordance with the terms and conditions set forth herein (collectively,
the
“Lock-Up
Shares”).
Capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Purchase Agreement.
NOW,
THEREFORE, in consideration of the covenants and conditions hereinafter
contained, the parties hereto agree as follows:
1. Restriction
on Transfer; Term.
The
Shareholder hereby agrees with the Company that such Shareholder will not
offer,
sell, contract to sell, assign, transfer, hypothecate, pledge or grant a
security interest in, or otherwise dispose of, or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition of (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise, directly or indirectly (each, a
“transfer”), any of the shares of Common Stock owned by such Shareholder at any
time from the period commencing on the Closing Date and expiring on the date
that is twelve (12) months following the effective date of the registration
statement (the “Effective
Date”)
filed
by the Company with the Securities and Exchange Commission providing for
the
resale of the shares of Common Stock issuable upon conversion of the Preferred
Shares issued pursuant to the Purchase Agreement (the “Period”),
the
Shareholder agrees that, during the twenty four (24) months immediately
following the Period that such Shareholder shall not transfer more than one
twelfth (1/12) of such Shareholder’s total holdings of Common Stock during any
one (1) month.
2. Ownership.
During
the Period, Shareholder shall retain all rights of ownership in the Lock-Up
Shares, including, without limitation, voting rights and the right to receive
any dividends, if any, that may be declared in respect thereof.
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3. Company
and Transfer Agent.
The
Company is hereby authorized to disclose the existence of this Agreement
to its
transfer agent. The Company and its transfer agent are hereby authorized
to
decline to make any transfer of the Common Stock if such transfer would
constitute a violation or breach of this Agreement and/or the Purchase
Agreement.
4. Notices.
All
notices, demands, consents, requests, instructions and other communications
to
be given or delivered or permitted under or by reason of the provisions of
this
Agreement or in connection with the transactions contemplated hereby shall
be in
writing and shall be deemed to be delivered and received by the intended
recipient as follows: (i) if personally delivered, on the business day of
such
delivery (as evidenced by the receipt of the personal delivery service),
(ii) if
mailed certified or registered mail return receipt requested, two (2) business
days after being mailed, (iii) if delivered by overnight courier (with all
charges having been prepaid), on the business day of such delivery (as evidenced
by the receipt of the overnight courier service of recognized standing),
or (iv)
if delivered by facsimile transmission, on the business day of such delivery
if
sent by 6:00 p.m. in the time zone of the recipient, or if sent after that
time,
on the next succeeding business day (as evidenced by the printed confirmation
of
delivery generated by the sending party’s telecopier machine). If any notice,
demand, consent, request, instruction or other communication cannot be delivered
because of a changed address of which no notice was given (in accordance
with
this Section 4), or the refusal to accept same, the notice, demand, consent,
request, instruction or other communication shall be deemed received on the
second business day the notice is sent (as evidenced by a sworn affidavit
of the
sender). All such notices, demands, consents, requests, instructions and
other
communications will be sent to the following addresses or facsimile numbers
as
applicable.
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If
to the Company:
x/x
Xxxxxxxxxxxx Xxxxxxx Soybean Group Co., Ltd
No.
99 Fanrong Street,
Jixian
Town, Heilongjiang, PRC
Attention:
Xx. Xxxxxx Xxx
Tel:
000-00-000-0000000
Fax:
000-00-000-0000000
with
copies (which copies shall not constitute notice to the Issuer)
to:
Guzov
Ofsink, LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxx
Tel.
No.: (000) 000-0000, ext. 127
Fax
No.: (000) 000-0000
and
to:
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2
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Loeb
& Loeb LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxxx Xxxxxxxx
Facsimile:
212-407-4000
If
to Shareholder,
Winner
State Investments Limited
PO
Box 957, Offshore Incorporations Center,
Road
Town, Tortola, British Virgin Islands
Attention:
Xx. Xxxxxx Xxx
Tel:
000-00-000-0000000
Fax:
000-00-000-0000000
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or
to
such other address as any party may specify by notice given to the other
party
in accordance with this Section 4.
5. Amendment.
This
Agreement may not be modified, amended, altered or supplemented, except by
a
written agreement executed by each of the parties hereto.
6. Entire
Agreement.
This
Agreement contains the entire understanding and agreement of the parties
relating to the subject matter hereof and supersedes all prior and/or
contemporaneous understandings and agreements of any kind and nature (whether
written or oral) among the parties with respect to such subject matter, all
of
which are merged herein.
7. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York applicable to agreements made and to be performed in that
state, without regard to any of its principles of conflicts of laws or other
laws which would result in the application of the laws of another jurisdiction.
This Agreement shall be construed and interpreted without regard to any
presumption against the party causing this Agreement to be drafted.
8. Waiver
of Jury Trial.
EACH OF
THE PARTIES HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A
TRIAL
BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES
UNCONDITIONALLY AND IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF
THE
COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE FEDERAL
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WITH RESPECT TO ANY
SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND EACH OF THE PARTIES HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY OBJECTION TO VENUE IN NEW YORK COUNTY OR SUCH
DISTRICT, AND AGREES THAT SERVICE OF ANY SUMMONS, COMPLAINT, NOTICE OR OTHER
PROCESS RELATING TO SUCH SUIT, ACTION OR OTHER PROCEEDING MAY BE EFFECTED
IN THE
MANNER PROVIDED IN SECTION 4.
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9. Severability.
The
parties agree that if any provision of this Agreement be held to be invalid,
illegal or unenforceable in any jurisdiction, that holding shall be effective
only to the extent of such invalidity, illegally or unenforceability without
invalidating or rendering illegal or unenforceable the remaining provisions
hereof, and any such invalidity, illegally or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction. It is the intent of the parties that this Agreement be
fully
enforced to the fullest extent permitted by applicable law.
10. Binding
Effect; Assignment.
This
Agreement and the rights and obligations hereunder may not be assigned by
any
party hereto without the prior written consent of the other parties hereby.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
11. Headings.
The
section headings contained in this Agreement (including, without limitation,
section headings and headings in the exhibits and schedules) are inserted
for
reference purposes only and shall not affect in any way the meaning,
construction or interpretation of this Agreement. Any reference to the
masculine, feminine, or neuter gender shall be a reference to such other
gender
as is appropriate. References to the singular shall include the plural and
vice
versa.
12. Counterparts.
This
Agreement may be executed in two or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original, and all of which, when taken together, shall
constitute one and the same document. This Agreement shall become effective
when
one or more counterparts, taken together, shall have been executed and delivered
by all of the parties.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above herein.
By:
/s/
Xxxxxx Xxx
Name:
Xxxxxx Xxx
Title:
Chief Executive Officer
[SHAREHOLDER]
WINNER
STATE INVESTMENTS LIMITED
By:
/s/
Xxxxxx Xxx
Name:
Xxxxxx Xxx
Title:
Chief Executive Officer
NUMBER
OF
SHARES SUBJECT TO
LOCK
UP:
18,200,000__
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