LOCK-UP AGREEMENT
EXHIBIT
4.22
THIS
AGREEMENT (this “Agreement”) is dated as of February 22, 2009 by and among Fushi
Copperweld, Inc., a Delaware corporation (the “Company”), and the undersigned
(individually, the “Investor”, and collectively, the “Investors”).
WHEREAS,
the Company intends to enter into a private placement financing transaction with
the Investor whereby the Company will issue shares of common stock, par value
$0.006 per share (the “Common Stock”) and related warrants (the “Warrants”, and
together with the Common Stock, the “Securities”) to purchase shares of Common
Stock of the Company (the “Financing Transaction”).
WHEREAS,
in order to induce the Company to enter into the Financing Transaction pursuant
to that certain Securities Purchase Agreement (the “Purchase Agreement”) dated
as of February 22, 2009 by and among the Company and the Investor
(the “Purchase Agreement”), the Investor has agreed not to sell any Securities
acquired pursuant to the Purchase Agreement, except in accordance with the terms
and conditions set forth herein (the “Lock-Up
Securities”). 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 Investor hereby agrees with the Company that such
Investor 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 Lock-Up Securities and shall not transfer such
securities until a date that is twelve (12) months following the closing date of
the Financing Transaction (the “Closing Date”); provided; that there
shall be no restrictions as described in this Section 1 on transfer of the
Lock-Up Securities by the Investor to Permitted
Transferees. "Permitted Transferee" means (i) any affiliate
or employee of the Investor, (ii) Xx. Xxxxxxx Xxxxxx, and (iii) any consultant
retained by the Investor as of the date hereof.
2. Ownership. During
the Period, Investor shall retain all rights of ownership in the Lock-Up
Securities, including, without limitation, voting rights and the right to
receive any dividends that may be declared in respect thereof.
3. Company and Transfer
Agent. The Company is hereby authorized to disclose the
existence of this Agreement to its transfer agent. The Securities
shall be legended with language indicating that they are subject to the
restrictions set forth in this Agreement. 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.
If to the
Company:
1 Shuang
Qiang Road
Jinzhou,
Dalian
People’s
Republic of China 116100
Attention:
Xxxxx Xxxx
Tel. No.:
00-000-0000-000
Fax No.:
00-00-0000-0000
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. 102
Fax
No.: (000) 000-0000
If to
Investor,
At the
address appearing on the signature page to this Agreement.
or to
such other address as any party may specify by notice given to the other party
in accordance with this Section 4.
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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.
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.
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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
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above herein.
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By:
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/s/ Wenbing Xxxxx Xxxx | |
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Name:
Wenbing Xxxxx Xxxx
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Title: President
and Chief Financial Officer
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GUERRILLA
PARTNERS, LLC
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By:
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/s/ Xxxxx Xxxxx | |
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Name:
Xxxxx Xxxxx
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Title:
Member
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(Address)
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