FORM OF LOCK-UP AGREEMENT
EXHIBIT
10.3
FORM
OF LOCK-UP AGREEMENT
This
LOCK-UP AGREEMENT (this “Agreement”) is dated
as of August 21, 2009 by and among ChinaNet Online Holdings, Inc. (f/k/a
E-mazing Interactive, Inc.), a Nevada corporation, (the “Company”), and
_______________(the “Affiliate”).
WHEREAS,
the Company intends to consummate a private placement transaction with certain
accredited investors and/or qualified institutional buyers (the “Purchasers”), whereby
the Company will issue units (the “Units”), each
consisting of (i) one share of the Company’s Series A Convertible Preferred
Stock, par value $0.001 per share (the “Preferred Shares”),
convertible into one share of the Company’s common stock, par value $0.001 per
share (the “Common
Stock”), and (ii) a Series A Warrant (the “Series A Warrant”)
and Series B Warrant (the “Series B Warrant”,
collectively the “Warrants”), with each
Warrant exercisable to purchase the number of shares of Common Stock equal to
fifty percent (50%) of the number of Units purchased by each Purchaser (the
“Financing
Transaction”);
WHEREAS,
in connection with the Financing Transaction, the Company entered into a
Securities Purchase Agreement, dated as of the date hereof (the “Purchase Agreement”),
by and among the Company and the Purchasers, and certain other agreements,
documents, instruments and certificates necessary to carry out the purposes
thereof (collectively, the “Transaction
Documents”); and
WHEREAS,
in order to induce the Company and the Purchasers to enter into the Financing
Transaction, the Affiliate has agreed not to sell any shares of the Company’s
Common Stock that the Affiliate presently owns on the date hereof, or may
acquire on or after the date hereof, except in accordance with the terms and
conditions set forth herein (collectively, the “Lock-Up Shares”).
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 Affiliate hereby agrees not to offer, sell, contract
to sell, assign, transfer, hypothecate, gift, 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 Shares until a date that is six (6) months following the date that
the Registration Statement (as defined in the Registration Rights Agreement) is
declared effective by the Commission (the “Lock-Up
Period”). The Affiliate further agrees that, during the twelve
(12) months immediately following the Lock-Up Period, such Affiliate shall not
transfer more than one-twelfth (1/12) of such Affiliate’s total holdings of
Common Stock as of the date hereof during any one (1) calendar
month. Notwithstanding the foregoing, the Affiliate shall be
permitted to engage in a Transfer in a private sale of the Lock-Up Shares,
provided that such transferee agrees in writing to be bound by and subject to
the terms of this Agreement.
2.
Ownership.
During the Lock-Up Period, the Affiliate shall retain all rights of ownership in
the Lock-Up Shares, including, without limitation, voting rights and the right
to receive any dividends that may be declared in respect thereof, except as
otherwise provided in the Securities Escrow Agreement with respect to the Escrow
Shares whereby any benefits, rights, title or otherwise may be transferred to
and inure to the benefit of the Purchasers.
3.
Company and Transfer
Agent. The Company is hereby authorized and required to disclose the
existence of this Agreement to its transfer agent. The Company and its transfer
agent are hereby authorized and required to decline to make any transfer of the
Common Stock if such transfer would constitute a violation or breach of this
Agreement, the Securities Escrow Agreement and/or the Securities 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:
China Net
Online Holdings, Inc.
x/x Xxxxx
Net Online Media Group Limited
Xx. 0 Xxx
Xxxxxx Xxxx, Xxxxxxxx 0, Xx Xxxx Xxx Xx
Tuspark,
Haidian District, Beijing, 100195 China
Attention: Xx.
Xxxxx Handong
Tel.
No.:
Fax
No.:
with
copies (which copies shall not constitute notice to the Company)
to:
2
Loeb
& Loeb LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn.:
Xxxxxxxx Xxxxxxxx
Tel. No.:
(000) 000-0000
Fax No.:
(000) 000-0000
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If
to Affiliate,
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Attention:
Tel.
No.:
Fax
No.:
or to
such other address as any party may specify by notice given to the other party
in accordance with this Section 4.
5.
Amendment. This
Agreement may not be modified, changed, supplemented, amended or terminated, nor
may any obligations hereunder be waived, except by written instrument signed by
the parties to be charged or by its agent duly authorized in writing or as
otherwise expressly permitted herein..
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.
7.
Governing Law.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to any of the
conflicts of law principles which would result in the application of the
substantive law of another jurisdiction. This Agreement shall not be interpreted
or construed with any presumption against the party causing this Agreement to be
drafted.
8.
Waiver of Jury
Trial. EACH OF THE PARTIES HERETO 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.
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9. Severability. The
provisions of this Agreement are severable and, in the event that any court of
competent jurisdiction shall determine that any one or more of the provisions or
part of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement and such provision shall be reformed and construed
as if such invalid or illegal or unenforceable provision, or part of such
provision, had never been contained herein, so that such provisions would be
valid, legal and enforceable to the maximum extent possible.
10. Binding Effect;
Assignment. This Agreement and the rights and obligations hereunder may
not be assigned by the Affiliate hereto without the prior written consent of the
Company. 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 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.
12. Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement and shall become effective when
counterparts have been signed by each party and delivered to the other parties
hereto, it being understood that all parties need not sign the same counterpart.
In the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
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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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Name:
Xxxxx Xxxxxxx
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Title: Chief
Executive Officer
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AFFILIATE:
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By:
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Name:
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Title:
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