EXHIBIT 4.3
LOCK-UP AGREEMENT AND NASD QUESTIONNAIRE
April 25, 2003
X.X. Xxxxxx & Company, L.L.C.
0000 Xxxxxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
The undersigned understands that X.X. Xxxxxx & Company, LLC (the
"Representative") proposes to enter into an Underwriting Agreement with
Centennial Specialty Foods Corporation (the "Company"), providing for the public
offering of shares of Common Stock of the Company (the "Securities") pursuant to
a Registration Statement on Form SB-2 (the "Registration Statement") filed with
the Securities and Exchange Commission.
RESTRICTIONS ON TRANSFER (LOCK-UP). In consideration of the agreement by
the Representative to offer and sell the Securities pursuant to the public
offering, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees that he,
she or it will not, directly or indirectly, for a period of 12 months following
the date of the Prospectus relating to the public offering of the Securities,
sell, offer to sell, contract to sell, grant any option for the sale of, grant
any security interest in, pledge, hypothecate, or otherwise sell or dispose of
any of the Common Stock of the Company ("Common Stock"), or any options or
warrants to purchase any Common Stock, or any securities convertible into or
exchangeable for Common Stock, or any interest in such securities or rights,
owned directly by the undersigned or with respect to which the undersigned has
the power of disposition, in any such case whether now owned or hereafter
acquired at any time prior to the Effective Date of the Registration Statement
(the "Restricted Securities"), other than as a bona fide gift or gifts, provided
that the undersigned provides prior written notice of such gift or gifts to the
Representative and the donee or donees thereof agree to be bound by the
restrictions set forth herein. As a reasonable means of ensuring compliance with
the terms of this Agreement, the undersigned further agrees that (i) the
undersigned shall deliver the certificates evidencing the Restricted Securities
for deposit to an account established at the Representative for the undersigned;
(ii) the certificates representing the Restricted Securities shall have noted
conspicuously thereon a legend that the Restricted Securities are subject to the
restrictions on transfer imposed by the terms of this Agreement; and (iii) the
Company shall instruct the transfer agent for the Restricted Securities to place
a transfer restriction as to the Restricted Securities on such transfer agent's
records.
In the event that the undersigned owns no Common Stock at the date hereof
or prior to the Effective Date, but has the right to acquire Common Stock
pursuant to options or warrants, and if the undersigned exercises such options
or warrants prior to the expiration of the 12 month period commencing on the
Effective Date, he, she or it agrees that the Common Stock purchased on such
exercise of options or warrants will be subject to the terms of this Agreement
on restrictions on transfer for the remaining portion of such 12 month period
which commenced on the Effective Date. In addition, the undersigned agrees that
he, she or it will not sell, pledge, hypothecate or otherwise dispose of such
Common Stock pursuant to the exemption afforded by Rule 701 under the Securities
Act of 1933, as amended, during such 12 month period without the prior written
consent of the Representative.
X.X. Xxxxxx & Company, LLC
April 25, 2003
Page 2
The undersigned further agrees that he, she or it shall not enter into any
swap or other arrangement that transfers all or a portion of the economic
consequences associated with the ownership of any Common Stock owned by the
undersigned at the date hereof, or that the undersigned obtains ownership of
during the 12 month period commencing on the Effective Date (regardless of
whether any of the transactions are to be settled by the delivery of Common
Stock, other securities, cash or otherwise), for a period of 12 months from the
Effective Date.
The undersigned further agrees that all of the rights, authority and
preemptive provisions granted to the Representative pursuant to the foregoing
provisions may be transferred by the Representative to any other NASD member
firm that participates in the proposed public offering of the Company's
Securities.
NASD QUESTIONNAIRE. In connection with the proposed public offering of
Securities of the Company and the requirements of the National Association of
Securities Dealers, Inc. ("NASD") as they relate to the underwriting terms of
such offering, the undersigned, a shareholder, an officer, or a director of the
Company, hereby represents to you as follows:
1. (a) Is the undersigned or any person in the immediate family 1
of the undersigned a member of the NASD 2 ("Member"), a person
associated with a Member 3, or the beneficial owner of any securities of
a Member or an affiliate 4 of a Member?
Yes _____ No _____
If "Yes," please provide details.
(b) Has the undersigned provided any consulting or other services
to the Company? "Other services" does not include services
rendered as an officer and director of the Company.
Yes _____ No _____
If "Yes," please attach a detailed description of the consulting or
other services you provided, a statement as to all cash and non-cash
compensation received in return for such services and copies of all
written agreements or correspondence governing or describing such
services.
(c) Is the undersigned an "underwriter or related persons"5 as
to the Company?
Yes _____ No _____
If "Yes," please provide details.
X.X. Xxxxxx & Company, LLC
April 25, 2003
Page 3
(d) Does the undersigned have any oral or written agreements with
any Member or any associated persons of such Member concerning the
disposition of securities of the Company?
Yes _____ No _____
If "Yes," please provide details.
(e) If this section is being completed on behalf of an entity, are
any of such entity's officers, directors, or 5% or greater shareholders
(if a corporation); partners (if a general or limited partnership); or
members (if a limited liability company), a Member; or the beneficial
owner of any securities of a Member or an affiliate of a Member; or does
any such person have an "immediate family" relationship with any Member,
or any person associated with a Member?
Yes _____ No _____
If "Yes," please provide details.
(f) Has the undersigned participated in any bridge financing 6
within the past two years?
Yes No
If the answer was "Yes," please provide the following information
about that bridge financing:
a. The name of the company whose securities were purchased.
b. Identify any relationship to the Company.
c. The name of the broker-dealer through whom the undersigned
purchased the securities.
d. Identify any relationship to such broker-dealer.
e. The name of the broker-dealer who managed the subsequent
public offering.
f. The terms of the bridge financing.
X.X. Xxxxxx & Company, LLC
April 25, 2003
Page 4
g. The amount and terms of the securities purchased in the
bridge financing.
h. The date of the bridge financing and the subsequent public
offering.
2. To the knowledge of the undersigned, the Company does not intend
to register as broker/dealer, merge with or acquire a registered
broker/dealer, or otherwise become a member of the NASD;
3. To the knowledge of the undersigned, the Company has not and does not
intend to engage any NASD Member to provide any services to the Company
following the offering, except as will be disclosed in the Company's
Registration Statement to be filed in connection with a public offering of
securities by your firm as managing underwriter; and
4. The undersigned will notify you if the responses in any of the
preceding items change subsequent to the date hereof.
------------------
1 "Immediate family" includes parents, mother-in-law, father-in-law, husband or
wife, brother or sister, brother-in-law or sister-in-law, son-in-law or
daughter-in-law, and any other person who is supported, directly or
indirectly, to a material extent..
2 A "member" is an individual, partnership, corporation, or other legal entity,
admitted to membership in the NASD.
3 The NASD defines a "person associated with a member" to mean every sole
proprietor, partner, officer, director or branch manager of such member, or
any natural person occupying a similar status or performing similar
functions, or any natural person engaged in the investment banking or
securities business who is directly or indirectly controlling or controlled
by such member (for example, any employee), whether or not any such person is
registered or exempt from registration with the NASD. Thus, "person
associated with a member" includes a sole proprietor, general or limited
partner, officer, director or branch manager or an organization of any kind
(whether a corporation, partnership or other business entity) which itself is
a "member" or a "person associated with a member." In addition, an
organization of any kind is a "person associated with a member" if its sole
proprietor or anyone of its general or limited partners, officers, director
or branch managers is a "member" or "person associated with a member."
4 The term "affiliate" means a company which controls, is controlled by, or is
under common control with a member, and is presumed to include:
X.X. Xxxxxx & Company, LLC
April 25, 2003
Page 5
a. A company will be presumed to control a member if the company
beneficially owns 10% or more of the outstanding voting securities of a
member which is a corporation, or beneficially owns a partnership interest in
10% or more of the outstanding voting securities or a member or company which
is a corporation, or by beneficially owning a partnership interest in 10% or
more of the distributable profits or losses of a member which is a
partnership;
b. A member will be presumed to control a company if the member and
persons associated with the member beneficially own 10% or more of the
outstanding voting securities of a member which is a corporation, or
beneficially owns a partnership interest in 10% or more of the distributable
profits or losses of a company which is a partnership;
c. A company will be presumed to be under common control with a member if
(i) the same natural person or company controls both the member and company
by beneficially owning 10% or more of the distributable profits or losses of
a member or company which is a partnership; or (ii) a person having the power
to direct or cause the direction of the management or policies of the member
or company also has the power to direct or cause the direction of the
management or policies of the other entity in question.
5 "Underwriter or related persons" includes underwriters, underwriter's
counsel, financial consultants and advisors, finders, members of the selling
or distribution group, any member participating in the public offering, and
all other persons associated with or related to and members of the immediate
family of any of the aforementioned persons.
6 A bridge financing is a transaction in which a person acquires securities
and/or loans money to an entity in a private offering and those securities
are subsequently registered in a public offering and/or those loans were
repaid, in whole or in part, from the proceeds of the public offering.
--------
If the undersigned is a corporation, trust or partnership, the foregoing
representations are true for the officers, directors or principals of such
entity.
In witness whereof, the undersigned has executed and delivered this
Lock-Up Agreement and NASD Questionnaire intending to be bound thereby in
accordance with the above terms and conditions. Execution and return of this
Lock-Up Agreement and NASD Questionnaire by facsimile transmission will be
considered execution and return of an original for all purposes and the
undersigned authorizes the Representative to rely upon a facsimile copy as if it
was an original for all purposes.
X.X. Xxxxxx & Company, LLC
April 25, 2003
Page 6
Very truly yours,
--------------------------------------------
--------------------------------------------
(Signature(s))
--------------------------------------------
--------------------------------------------
(Print Name(s) as they appear on the
Company's registration books)
--------------------------------------------
(Position with Company, i.e., officer,
director and/or shareholder)
--------------------------------------------
(Print Social Security number or EIN number)
--------------------------------------------
--------------------------------------------
(Address of record for all shareholder
communications)
--------------------------------------------
--------------------------------------------
(Day Phone Number, Fax Number and E-mail
Address)
--------------------------------------------
(Date)
