LOCK-UP AGREEMENT
Exhibit
10.4
This
LOCK-UP AGREEMENT (this “Agreement”) is dated
as of April 22, 2010 by and among Silver Pearl Enterprises, Inc., a Nevada
corporation, (the “Company”), and
Delight Reward Limited, a British Virgin Islands corporation (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) nine shares of the Company’s 6% Series A Convertible Preferred
Stock, par value $0.001 per share (the “Preferred Shares”),
convertible into nine shares of the Company’s common stock, par value $0.001 per
share (the “Common
Stock”), (ii) one share of Common Stock and (iii) a Series A Warrant (the
“Series A
Warrant”) and Series B Warrant (the “Series B Warrant”
and, together with the Series A Warrant, the “Warrants”), with each
of the Warrants exercisable to purchase the number of shares of Common Stock
equal to ten percent (10%) of the aggregate number of shares of Common Stock
underlying the Units and underlying the Preferred Shares 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 Affiliates have agreed not to sell any shares of the Company’s
Common Stock that the Affiliates presently own 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.
(a) The
Affiliates hereby agree 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 Affiliates further agree that, during the twelve
(12) months immediately following the Lock-Up Period, any 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, an 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.
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(b) Notwithstanding
the foregoing, the restrictions set forth in Section 1(a) above shall not apply
to (A) transfers (i) as a bona fide gift or gifts, provided that the donee or
donees thereof agree to be bound in writing by the restrictions set forth
herein, (ii) to any trust for the direct or indirect benefit of the undersigned
or the immediate family of the undersigned, provided that the trustee of the
trust agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for
value, (iii) with the prior written consent of the Purchasers holding a majority
of the Preferred Shares outstanding at such time, (iv) effected pursuant to any
exchange of “underwater” options with the Company or (v) to an affiliate or to
any wholly owned subsidiary of the Affiliate provided that such affiliate or
subsidiary agrees to be bound in writing by the restrictions set forth herein,
and provided further that any such transfer shall not involve a disposition for
value, or (B) the acquisition or exercise of any stock option issued pursuant to
the Company’s stock option plans, including any exercise effected by the
delivery of Common Stock of the Company held by the undersigned. For
purposes of this Agreement, “immediate family” shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin. None of the
restrictions set forth in this Agreement shall apply to Common Stock acquired in
open market transactions.
2. Ownership. During
the Lock-Up Period, the Affiliates 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 (as defined in the Securities Escrow Agreement) 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.
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If to the
Company:
c/o
Keyuan Plastics Co., Ltd.
Qingshi
Industrial Park
Ninbo
Economic & Technological Development Zone
Ningbo,
Zhejiang Province, P.R. China 315803
Attention:
Chief Executive Officer
Telephone
No.: (00) 000-0000-0000
Facsimile
No.: (00) 000-0000-0000
with
copies (which copies shall not constitute notice to the Company)
to:
Xxxxxx
& Xxxxxx, LLP
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attn.:
Xxxx X. Xxxxx, Esq.
Tel. No.:
(000) 000-0000
Fax No.:
(000) 000-0000
If to
Affiliate,
Delight
Reward Limited
c/o
Keyuan Plastics Co., Ltd.
Qingshi
Industrial Park
Ninbo
Economic & Technological Development Zone
Ningbo,
Zhejiang Province, P.R. China 315803
Attention:
Chief Executive Officer
Telephone
No.: (00) 000-0000-0000
Facsimile
No.: (00) 000-0000-0000
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
each of the parties hereto and the holders of a majority of the Preferred Shares
outstanding at such time.
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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.
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.
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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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE
PAGE TO LOCK-UP AGREEMENT]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above herein.
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By: /s/
Xxxxxxxx
Xxx
Name:
Xxxxxxxx Xxx
Title: Chief
Executive Officer
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AFFILIATE:
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Delight
Reward Limited
By: /s/ Xxxxxxxx
Xxx
Name:
Xxxxxxxx Xxx
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