LOCK-UP AGREEMENT
EXHIBIT
10.2
April
17,
2008
XXXX
Capital Partners, LLC
00
Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Attention:
Xxxxx X. Xxxxxxxx
Ladies
and Gentlemen:
The
undersigned understands that XXXX Capital Partners, LLC (the “Placement Agent”)
has agreed to act as placement agent in connection with the proposed offering
(the “Offering”) by Yongye Biotechnology International, Inc., a Nevada
corporation (the “Company”), of 6,495,619 shares (the “Shares”) of its common
stock, par value $0.001 per share (the “Common Stock”), and warrants to purchase
1,623,905 shares of Common Stock (the “Warrants” and, together with the Shares,
the “Securities”).
The
undersigned understands that the Placement Agent proposes to enter into a
Placement Agency Agreement (the “Placement Agency Agreement”) with the Company
providing for the Offering of the Securities.
In
consideration of the foregoing, and in order to induce you to act as the
Placement Agent in the offering, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of the Placement Agent, the undersigned will
not, during the period (the “Lock-Up Period”) beginning on the date hereof (the
“Closing Date, and ending on first anniversary of the date that is the effective
date of the registration statement covering the resale of all the securities
(including the Common Stock to be issued in connection with the warrant
delivered to the Placement Agent in connection with the Offering) required
to be
registered under the terms of the Registration Rights Agreement within 195
days
of the Closing Date, (1) offer, pledge, announce the intention to sell, sell,
contract to sell, sell a stock short, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to
purchase, lend or otherwise transfer or dispose of, directly or indirectly,
any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (including without limitation, Common Stock which
may be deemed to be beneficially owned by the undersigned in accordance with
the
rules and regulations of the Securities and Exchange Commission and securities
which may be issued upon exercise of a stock option or warrant), or (2) enter
into any swap or other agreement that transfers, in whole or in part, any of
the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery
of
Common Stock or such other securities, in cash or otherwise. In addition, the
undersigned agrees that, without the prior written consent of the Placement
Agent, it will not, during the Lock-Up Period, make any demand for or exercise
any right with respect to, the registration
of any shares of Common Stock or any security convertible into or exercisable
or
exchangeable for Common Stock.
1
Notwithstanding
the foregoing, the restrictions set forth in clause (1) and (2) above shall
not
apply to (a) transfers (i) as a bona
fide
gift or
gifts, provided that the donee or donees thereof agree to be bound in writing
by
the restrictions set forth herein, (ii) to any trust for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned, provided
that the trustee of the trust agrees to be bound in writing by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for value, (iii) with the prior written consent of the Placement
Agent, or (iv) effected pursuant to any exchange of “underwater” options with
the Company, (b) the acquisition or exercise of any stock option issued pursuant
to the Company’s existing stock option plan, including any exercise effected by
the delivery of Securities of the Company held by the undersigned, (or (d)
the
establishment of any 10b5-1 selling plan provided the initial sale date under
such plan occurs after the end of the Lock-Up Period described above. For
purposes of this Letter Agreement, “immediate family” shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
None of the restrictions set forth in this Letter Agreement shall apply to
Common Stock acquired in open market transactions.
In
furtherance of the foregoing, the Company, and any duly appointed transfer
agent
for the registration or transfer of the securities described herein, are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Lock-Up Agreement.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Agreement. All authority herein
conferred or agreed to be conferred and any obligations of the undersigned
shall
be binding upon the successors, assigns, heirs or personal representatives
of
the undersigned.
The
Placement Agent and the undersigned agree that this Lock-Up Agreement cannot
be
modified or amended in any way, and no waiver of any provision of this Lock-Up
Agreement may be waived by the Placement Agent, except by a written amendment,
signed by both of the parties hereto, that shall have been approved by the
purchasers of not less than 51% of the Shares sold in the
Offering.
(signatures
follow)
2
This
Lock-Up Agreement shall be governed by and construed in accordance
with the laws
of the State of New York, without regard to the conflict of laws principles
thereof.
|
Very
truly yours,
|
|
|
|
|
|
/s/
Zishen Wu
|
|
|
Name:
Zishen
Wu
|
|
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Title:
Chairman,
President and CEO
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Accepted
as of the date first
set
forth above:
|
XXXX
Capital Partners, LLC
|
|
|
By
|
/s/
Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Managing
Director, Equity Capital
Markets
|
|
3
This
Lock-Up Agreement shall be governed by and construed in accordance with the
laws
of the State of New York, without regard to the conflict of laws principles
thereof.
|
Very
truly yours,
|
|
|
|
|
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/s/
Sun
Taoran
|
|
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Name:
Sun
Taoran
|
|
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Title:
Vice
Chairman
|
Accepted
as of the date first
set
forth above:
|
XXXX
Capital Partners, LLC
|
|
|
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Managing
Director, Equity Capital
Markets
|
|
4
This
Lock-Up Agreement shall be governed by and construed in accordance with
the laws
of the State of New York, without regard to the conflict of laws principles
thereof.
|
Very
truly yours,
|
|
|
|
|
|
/s/
Guo
Xiaochuan
|
|
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Name:
Guo
Xiaochuan
|
|
|
Title:
Director
|
Accepted
as of the date first
set
forth above:
|
XXXX
Capital Partners, LLC
|
|
|
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Managing
Director, Equity Capital
Markets
|
|
5
This
Lock-Up Agreement shall be governed by and construed in accordance with
the laws
of the State of New York, without regard to the conflict of laws principles
thereof.
|
Very
truly yours,
|
|
|
|
|
|
/s/
Xxxxx
Xxxxxxx
|
|
|
Name:
Xxxxx
Xxxxxxx
|
|
|
Title:
Director
|
Accepted
as of the date first
set
forth above:
|
XXXX
Capital Partners, LLC
|
|
|
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Managing
Director, Equity Capital
Markets
|
|
6
This
Lock-Up Agreement shall be governed by and construed in accordance with
the laws
of the State of New York, without regard to the conflict of laws principles
thereof.
|
Very
truly yours,
|
|
|
|
|
|
/s/
Xxxx
Xxxxxxxxx
|
|
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Name:
Xxxx
Xxxxxxxxx
|
|
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Title:
CFO,
Secretary and
Treasurer
|
Accepted
as of the date first
set
forth above:
|
XXXX
Capital Partners, LLC
|
|
|
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Managing
Director, Equity Capital
Markets
|
|
7
This
Lock-Up Agreement shall be governed by and construed in accordance with
the laws
of the State of New York, without regard to the conflict of laws principles
thereof.
|
Very
truly yours,
|
|
|
|
|
|
/s/
Xxx
Xxxx
|
|
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Name:
Xxx
Xxxx
|
|
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Title:
Chief
Scientist
|
Accepted
as of the date first
set
forth above:
|
XXXX
Capital Partners, LLC
|
|
|
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Managing
Director, Equity Capital
Markets
|
|
8
This
Lock-Up Agreement shall be governed by and construed in accordance with
the laws
of the State of New York, without regard to the conflict of laws principles
thereof.
|
Very
truly yours,
|
|
|
|
|
|
/s/
Xxxxx
Xxxxxxx
|
|
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Name:
Xxxxx
Xxxxxxx
|
|
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Title:
VP
Corporate Strategy
|
Accepted
as of the date first
set
forth above:
|
XXXX
Capital Partners, LLC
|
|
|
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Managing
Director, Equity Capital
Markets
|
|
9
This
Lock-Up Agreement shall be governed by and construed in accordance with
the laws
of the State of New York, without regard to the conflict of laws principles
thereof.
|
Very
truly yours,
|
|
|
|
|
|
/s/
Xxxx
Xxxxx
|
|
|
Name:
Xxxx
Xxxxx
|
|
|
Title:
Director
|
Accepted
as of the date first
set
forth above:
|
XXXX
Capital Partners, LLC
|
|
|
By
|
/s/
Xxxxx X. Xxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Managing
Director, Equity Capital
Markets
|
|
10
