FORM OF LOCK-UP LETTER AGREEMENT ]
Exhibit
(k)(4)
[ FORM OF LOCK-UP LETTER
AGREEMENT ]
|
,
2009
|
Xxxxxxx
Capital, Inc.
0000 XXX
Xxxxxxx, Xxxxx 0000
Xxxxxxxxx
Xxxxxxx, XX 00000
Re: Xxxxxxx
Capital, Inc. – Public Offering
Dear
Ladies and Gentlemen:
This
letter agreement (this “Agreement”)
is being delivered to Xxxxxxx Capital, Inc. (the “Company”)
in connection with the proposed public offering (the “Offering”)
of up to 10,000,000 shares of the Company’s common stock, par value $0.001 per
share (the “Common
Stock”). Reference is made to the registration statement on
Form N-2 (File No. 333-157217) initially filed by the Company with the
Securities and Exchange Commission on February 10, 2009 (as amended from time to
time, the “Registration
Statement”) relating to the Offering, and the prospectus included therein
(as amended or supplemented from time to time, including pursuant to a separate
filing under Rule 497 of the Securities Act of 1933, as amended, the “Prospectus”). The
Offering is expected to be conducted in accordance with the terms and subject to
the conditions set forth in the Registration Statement and the Prospectus, in
each case as amended or supplemented from time to time.
In order
to induce the Company to proceed with the Offering, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees with the Company that the
undersigned will not, directly or indirectly, (i) offer, pledge, or sell, by
contract, option, right or otherwise, any Insider Shares (as defined below)
beneficially owned by the undersigned (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) or lend, grant or otherwise
transfer or dispose of any such Insider Shares, or (ii) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic
characteristics of ownership of such Insider Shares (whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of such Insider Shares, in cash or otherwise), with respect to the Insider
Shares, during the Lock-Up Period (as defined below).
As used
herein, the term (i) “Insider
Shares” shall mean any shares of
the Company’s Common Stock beneficially owned by the undersigned from the date
of effectiveness of the Registration Statement through the date the Offering
concludes, and (ii) “Lock-Up
Period” shall mean the period from the date of effectiveness of the
Registration Statement through the earlier of (A) one year after the date the
Offering concludes, and (B) the date the Common Stock is listed on the Nasdaq
Capital Market or similar national securities exchange. For purposes
of the foregoing sentence, the Offering shall be deemed to conclude upon the
date of the final closing, including issuance of shares of Common Stock by the
Company in exchange for payment therefor, relating thereto.
Notwithstanding
the foregoing, the undersigned may (i) transfer Insider Shares either during
such person’s lifetime or, on death, by bona fide gifts, will or intestacy to
members of the undersigned’s spouse, lineal descendents, father, mother,
brothers or sisters (including any such relatives by adoption or
marriage)(collectively, the undersigned’s “Immediate
Family”) or to trusts exclusively for the benefit of members of the
undersigned’s Immediate Family, (ii) transfer Insider Shares pursuant to a
qualified domestic relations order, or (iii) transfer record ownership of the
Insider Shares whereby there is no change in beneficial ownership; provided, however, that, prior to any such
transfer, such transferee executes an agreement pursuant to which such
transferee agrees to receive and hold such Insider Shares subject to the
provisions hereof.
The
undersigned acknowledges and understands that the Company will rely upon the
agreements set forth herein in proceeding with the Offering.
This
Agreement shall be binding on the undersigned and such person’s successors,
heirs, personal representatives and assigns. This Agreement shall
terminate upon expiration of the Lock-Up Period.
This
Agreement shall be governed by and interpreted and construed in accordance with
the laws of the State of New York applicable to contracts formed and to be
performed entirely within the State of New York, without regard to the conflicts
of law provisions thereof to the extent such principles or rules would require
or permit the application of the laws of another jurisdiction.
No term or
provision of this Agreement may be amended, changed, waived, altered or modified
except by written instrument executed and delivered by the party against whom
such amendment, change, waiver, alteration or modification is to be
enforced.
[The
Remainder of this Page is Intentionally Left Blank]
2
* * *
|
Sincerely,
|
|||
|
(print
name)
|
|||
|
Accepted
and agreed:
|
|||
|
XXXXXXX
CAPITAL, INC
|
|||
|
By:
|
|||
|
Name:
Xxxxxxx X. Xxxxxxx
|
|||
|
Title:
President and Chief Executive Officer
|
|||
3
