LOCKUP AGREEMENT
This AGREEMENT (the “Agreement”) is
made as of the ___th day
of October, 2009, by _____________ (“Holder”), maintaining an address at
_______________________, in connection with his ownership of shares of China
Infrastructure Construction Corporation, a Colorado corporation (the
“Company”).
NOW, THEREFORE, for good and valuable
consideration, the sufficiency and receipt of which consideration are hereby
acknowledged, Holder agrees as follows:
1. Background.
a. The
Company is offering to certain subscribers (the “Subscribers”) on a
“best efforts” basis, up to $10,000,000 of its common stock, no par value (the
“Purchased Shares”) at a per share purchase price of $3.90 (the “Offering”), in
reliance upon an exemption from securities registration afforded by the
provisions of Section 4(2), Section 4(6), Regulation D and/or Regulation S as
promulgated by the United States Securities and Exchange
Commission under the Securities Act of 1933, as amended;
x. Xxxxxx
is the beneficial owner of the amount of shares of the common stock, no par
value, of the Company designated on the signature page hereto.
c. As
a condition to the Offering and as an inducement to the Subscribers to enter
into a subscription agreement (the “Subscription Agreement”), Holder understands
that the Subscribers have required, and the Company has agreed to obtain on
behalf of the Subscriber an agreement from the Holder to refrain from selling
any of the Lockup Shares, as defined below, for a period of twenty four (24)
months from the date hereof (“Restricted Period”).
2. Sale
Restriction.
a. Holder
hereby agrees that during the Restriction Period, the Holder will not offer,
pledge, sell, contract to sell, sell any option or contract to purchase, lend,
transfer or otherwise dispose of any shares of common stock or any options,
warrants or other rights to purchase shares of Common Stock or any other
security of the Company which Holder owns or has a right to acquire as of the
date hereof (collectively, the “Lockup Shares”), other than in connection with
an offer made to all shareholders of the Company in connection with merger,
consolidation or similar transaction involving the Company. Holder
further agrees that the Company is authorized to and the Company agrees to place
“stop orders” on its books to prevent any transfer of the Lockup Shares held by
Holder in violation of this Agreement.
b. Any
subsequent issuance to and/or acquisition by Holder of common stock or options
or instruments convertible into common stock will be subject to the provisions
of this Agreement.
c. Notwithstanding
the foregoing restrictions on transfer, the Holder may, at any time and from
time to time during the Restriction Period, transfer the common stock (i) as
bona fide gifts or transfers by will or intestacy, (ii) to any trust for the
direct or indirect benefit of the undersigned or the immediate family of the
Holder, provided that any such transfer shall not involve a disposition for
value, (iii) to a partnership which is the general partner of a partnership of
which the Holder is a general partner, provided, that, in the case of any gift
or transfer described in clauses (i), (ii) or (iii), each donee or transferee
agrees in writing to be bound by the terms and conditions contained herein in
the same manner as such terms and conditions apply to the undersigned. For
purposes hereof, “immediate family” means any relationship by blood, marriage or
adoption, not more remote than first cousin.
3. Miscellaneous.
a. At
any time, and from time to time, after the signing of this Agreement Holder will
execute such additional instruments and take such action as may be reasonably
requested by the Subscriber to carry out the intent and purposes of this
Agreement.
b. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of
laws. Any action brought by either party against the other concerning
the transactions contemplated by this Agreement shall be brought only in the
state courts of New York or in the federal courts located in the state of New
York. The parties to this Agreement hereby irrevocably waive any
objection to jurisdiction and venue of any action instituted hereunder and shall
not assert any defense based on lack of jurisdiction or venue or based upon
forum non
conveniens. The parties executing this Agreement
and other agreements referred to herein or delivered in connection herewith
agree to submit to the in personam jurisdiction of such courts and hereby
irrevocably waive trial by jury. The prevailing party shall be
entitled to recover from the other party its reasonable attorney’s fees and
costs. In the event that any provision of this Agreement or any other
agreement delivered in connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement. Notices hereunder shall be given in the same manner as set
forth in the Subscription Agreement. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
suit, action or proceeding in connection with this Agreement or any other
Transaction Document by mailing a copy thereof via registered or certified mail
or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by
law. Holder irrevocably appoints the Company its true and lawful
agent for service of process upon whom all processes of law and notices may be
served and given in the manner described above; and such service and notice
shall be deemed valid personal service and notice upon Holder with the same
force and validity as if served upon Holder.
c. The
restrictions on transfer described in this Agreement are in addition to and
cumulative with any other restrictions on transfer otherwise agreed to by the
Holder or to which the Holder is subject to by applicable law.
d. This
Agreement shall be binding upon Holder, its legal representatives, successors
and assigns.
e. This
Agreement may be signed and delivered by facsimile signature and delivered
electronically.
f. The
Company agrees not to take any action or allow any act to be taken which would
be inconsistent with this Agreement.
g. The
Holder acknowledges that this Lockup Agreement is being entered into for the
benefit of the Subscribers identified in the Subscription Agreement dated
October __, 2009 among the Company and the Subscribers, may be enforced by the
Subscribers and may not be amended without the consent of the Subscribers, which
may be withheld for any reason.
[Signature
Page Follows]
IN
WITNESS WHEREOF, and intending to be legally bound hereby, Holder has executed
this Agreement as of the day and year first above written.
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HOLDER:
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(Signature
of Holder)
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(Print
Name of Holder)
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Number
of Shares of Common Stock
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Beneficially
Owned
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COMPANY:
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CHINA
INFRASTRUCTURE
CONSTRUCTION
CORPORATION
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By:
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Name:
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Title:
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