LOCK-UP AGREEMENT August __, 2009
Exhibit
10.35
August
__, 2009
Broadband
Capital Management LLC
000 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Ladies
and Gentlemen:
This
letter agreement (this “Agreement”) relates to the
initial public offering (the “Offering”) by Lihua
International, Inc., a Delaware corporation (the “Company”) of shares of the
Company’s common stock, $0.0001 par value (the “Common Stock”). The
Offering shall be governed by that certain Underwriting Agreement to be dated as
of the effective date of the Offering (the “Underwriting Agreement”), by
and among the Company, the Selling Stockholder, Broadband Capital Management LLC
(“Broadband”) and Xxxxxx
& Xxxxxxx, LLC (collectively with Broadband, the “Representatives”), as
representative of the several underwriters named therein. Any capitalized terms
not defined herein shall have the same meaning as set forth in the Underwriting
Agreement.
1. (a) In
order to induce the Representatives to underwrite the Offering, the undersigned
hereby agrees that, without the prior written consent of Broadband during the
period commencing from the effective date of the Offering (“Effective Date”) until the
conclusion of the 180th day following the Effective Date (the “Lock-Up Period”), the
undersigned: (a) will not, directly or indirectly, offer, sell, agree to offer
or sell, solicit offers to purchase, grant any call option or purchase any put
option with respect to, pledge, borrow or otherwise dispose (each a “Transfer”) of any Relevant
Security (as defined below), and (b) will not establish or increase any “put
equivalent position” or liquidate or decrease any “call equivalent position”
with respect to any Relevant Security (in each case within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder), or otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another, in
whole or in part, any economic consequence of ownership of a Relevant Security,
whether or not such transaction is to be settled by delivery of Relevant
Securities, other securities, cash or other consideration; provided that the foregoing
shall not apply to Relevant Securities acquired by the undersigned in the
Offering or Relevant Securities acquired by the undersigned in the after market
after the Effective Date. As used
herein, the term “Relevant
Security” means any shares of Common Stock, Warrant to purchase Common
Stock or other security of the Company or any subsidiary of the Company thereof
that is convertible into, or exercisable or exchangeable for Common Stock or
equity securities of the Company, that are owned by the undersigned on the
Effective Date.
2. If
(i) the Company issues an earnings release or material news or a material
event relating to the Company occurs during the last seventeen (17) days of
the Lock-Up Period, or (ii) prior to the expiration of the Lock-Up Period,
the Company announces that it will release earnings results during the sixteen
(16)-day period beginning on the last day of the Lock-Up Period, the
restrictions imposed by this Agreement shall continue to apply until the
expiration of the eighteen (18)-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material
event.
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3. The
undersigned hereby authorizes the Company during the Lock-Up Period to cause any
transfer agent for the Relevant Securities to decline to transfer, and to note
stop transfer restrictions on the stock register and other records relating to,
Relevant Securities for which the undersigned is the record holder and, in the
case of Relevant Securities for which the undersigned is the beneficial but not
the record holder, agrees during the Lock-Up Period to cause the record holder
to cause the relevant transfer agent to decline to transfer, and to note stop
transfer restrictions on the stock register and other records relating to, such
Relevant Securities, if
such transfer would constitute a violation or breach of this
Agreement.
4. The
undersigned hereby further agrees that, without the prior written consent of
Broadband, which consent shall not be unreasonably withheld, during the Lock-Up
Period the undersigned will not: (x) file or participate in the filing with the
Securities and Exchange Commission of any registration statement, or circulate
or participate in the circulation of any preliminary or final prospectus or
other disclosure document with respect to any proposed offering or sale of a
Relevant Security and (y) exercise any rights the undersigned may have to
require registration with the Securities and Exchange Commission of any proposed
offering or sale of a Relevant Security.
5. The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Agreement and that this Agreement constitutes
the legal, valid and binding obligation of the undersigned, enforceable in
accordance with its terms. Upon request, the undersigned will execute
any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the
successors and assigns of the undersigned from the date first above written.
6. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflicts of laws principles
thereof. Delivery of a signed copy of this letter by facsimile
transmission shall be effective as delivery of the original hereof.
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