EXHIBIT 10.3
LOCK-UP AGREEMENT
This LOCK-UP AGREEMENT (this "Agreement"), dated as of January 20,
2005. is entered into by and between Xxxxxx Coffee, Inc., a Nevada corporation
(the "Company"), and Xxxxxxxxx Xx, in his individual capacity ("Li").
WHEREAS, on even date the Company's wholly-owned subsidiary, BAK
International, Ltd. ("BAK"), completed a private offering ("Offering") of its
securities in which investors agreed to participate, subject to Li entering into
this Agreement with the Company; and
WHEREAS, Li has agreed to enter into this Agreement as a condition to
closing of the Offering.
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby agree as follows:
AGREEMENT:
1. Except for distributions required under that certain Escrow
Agreement, dated as of even date (the "Escrow Agreement"), a copy of which is
attached hereto as Exhibit "A" and incorporated herein by this reference, by and
among the Company, each of the subscribers to the Offering "), Li, and
Securities Transfer Corporation, for a period of 12 months from the date the
Company's common capital stock is listed on a national stock exchange or
quotation medium (the "Lock-up Period"), the undersigned will not, without the
prior written consent of the Company, directly or indirectly, (i) offer, sell,
assign, transfer, pledge, contract to sell (if such sale would or could be
consummated within the Lock-Up Period), hypothecate or otherwise dispose of
(collectively, "Transfer") any of the 21,233,437 shares (the "Shares") of the
Company's common capital stock held by him as of even date, (ii) enter into any
swap, hedge or similar agreement or arrangement that transfers in whole or in
part, the economic risk of ownership of the Shares or (iii) engage in any short
selling of the Shares; provided, however, that nothing in this Agreement shall
prevent the undersigned from entering into any legally permissible hedge or
collar transaction (or similar transaction) that does not permit or require the
Shares to be Transferred into the open market or that would or could result in a
change of beneficial ownership of the Shares prior to the expiration of the
Lock-Up Period. In addition, the undersigned agrees that, without the prior
written consent of the Company, the undersigned will not, during the Lock-up
Period, make any demand for or exercise any rights with respect to the
registration of any Shares.
2. Notwithstanding the foregoing, the undersigned may (a) transfer any
or all of the Shares, as the case may be, by gift, will or intestacy, or (b)
pledge or hypothecate such Shares in connection with a bona fide loan
transaction; provided, however, that in any such case it shall be a condition to
the transfer or pledge that the transferee or pledgee execute an agreement
stating that the transferee or pledgee is receiving and holding the Shares
subject to the provisions of this Agreement, and there shall be no further
transfer of such Shares except in accordance with this Agreement.
3. The undersigned agrees that the Company may, and in the case of
clause (ii) that the undersigned will, cause the transfer agent for the Company
to note stop transfer instructions with respect to such Shares on the transfer
books and records of the transfer agent or the Company, as applicable.
4. The undersigned understands that the parties to Offering will
proceed with the Offering in reliance on this Agreement.
5. The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Agreement. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned and any obligations of the undersigned shall be binding upon the
heirs, personal representatives, successors and assigns of the undersigned.
6. This Agreement may not be changed except in a writing signed by the
person(s) against whose interest such change shall operate. This Agreement shall
be governed by and construed under the laws of the State of Nevada without
regard to principles of conflicts of law.
7. This Agreement shall be deemed to be jointly prepared by the parties
hereto, and no ambiguity herein shall be construed for or against either party
based upon the identity of the author of this Agreement or any provision hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed as of the date first above written.
Xxxxxx Coffee, Inc.,
a Nevada corporation
By: /s/
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Name:
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Title:
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LI:
/s/ Xxxxxxxxx Xx
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Name: Xxxxxxxxx Xx
