SHAREHOLDER LOCK-UP AGREEMENT
Exhibit 10.4
THIS
AGREEMENT (this “Agreement”) is dated
as of April 27, 2010 by and between Eco Building International, a Nevada
corporation (the “Company”), and the
persons set forth on Schedule A, attached
hereto (each a “Shareholder” and
collectively, the “Shareholders”).
WHEREAS,
the Company entered into (i) a share exchange transaction in which the holder of
all of the equity interests in City Zone Holdings Limited, a British Virgin
Islands company, delivered all of such equity interests to the Company and
received from the Company, as consideration, certain shares of the common stock
of the Company, par value $0.001 per share (such stock, the “Common Stock”; such
transaction, the “Share Exchange
Transaction”) and (ii) intends to enter into a private placement
financing transaction with certain accredited investors (the “Purchasers”) whereby
the Company will issue units composed of shares of a newly-designated Series A
Convertible Preferred Stock, par value $0.001 per share and related warrants to
purchase shares of Common Stock of the Company (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 “Securities Purchase
Agreement”), by and among the Company and the Purchasers, and certain
other papers, agreements, documents, instruments and certificates necessary to
carry out the purposes thereof (collectively, the “Transaction
Documents”).
WHEREAS,
in order to induce the Company and the Purchasers to enter into the Financing
Transaction, the Shareholder agreed not to sell any shares of the Company’s
Common Stock that the Shareholder 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 Securities Purchase Agreement.
NOW,
THEREFORE, in consideration of the covenants and conditions hereinafter
contained, the parties hereto agree as follows:
1. Restriction on Transfer;
Term. Each Shareholder hereby agrees with the Company that such
Shareholders will not 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 and shall not Transfer such shares until a date that is six
(6) months following the date that the Initial Registration Statement (as
defined in the Registration Rights Agreement) is declared effective by the
Securities and Exchange Commission, as the case may be (the “Lock-Up
Period”).
2. Ownership. During the
Lock-Up Period, the Shareholders 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 Transaction Documents whereby any benefits, rights,
title or otherwise shall inure to 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 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:
Eco
Building International
c/o City
Zone Holdings Limited
Xxxx 000,
Xxxx Xxxxxx, Xxxxx XX
000
Xxxxx’s Road
Central
Hong Kong
Attention:
Xxxxxxxx Xxx
Telephone
No.: 00-00000000000
Fax No.:
00-000-000-0000
with
copies (which copies shall not constitute notice to the Company)
to:
Xxxxxx
& Jaclin LLP
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxx, Esq.
Xxxx
X. Xxxxx, Esq.
Tel. No.:
(000) 000-0000
Fax No.:
(000) 000-0000
If to a
Shareholder, to the address set forth on Schedule A attached
hereto.
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, amended, altered or supplemented, except by a
written agreement executed by each of the parties hereto and the Maxim Group,
LLC.
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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 laws of the
State of New York applicable to agreements made and to be performed in that
state, without regard to any of its principles of conflicts of laws or other
laws which would result in the application of the laws of another jurisdiction.
This Agreement shall be construed and interpreted without regard to 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
parties agree that if any provision of this Agreement be held to be invalid,
illegal or unenforceable in any jurisdiction, that holding shall be effective
only to the extent of such invalidity, illegally or unenforceability without
invalidating or rendering illegal or unenforceable the remaining provisions
hereof, and any such invalidity, illegally or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. It is the intent of the parties that this Agreement be fully
enforced to the fullest extent permitted by applicable law.
10. Binding Effect;
Assignment. This Agreement and the rights and obligations hereunder may
not be assigned by any Shareholder 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 (including, without limitation, section
headings and headings in the exhibits and schedules) 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 two or more counterparts, and by the different
parties hereto in separate counterparts, by facsimile or other electronic
transmission, each of which when executed shall be deemed to be an original, and
all of which, when taken together, shall constitute one and the same document.
This Agreement shall become effective when one or more counterparts, taken
together, shall have been executed and delivered by all of the parties
hereto.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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[COMPANY
SIGNATURE PAGE TO LOCK-UP AGREEMENT]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above herein.
| ECO BUILDING INTERNATIONAL | |||
|
|
By:
|
/s/ | |
| Name: Xxxxxxxx Xxx | |||
| Title: Chief Executive Officer | |||
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[SHAREHOLDER
SIGNATURE PAGE TO LOCK UP AGREEMENT]
| SHAREHOLDERS | |||
| Expert Venture Limited | |||
|
|
By:
|
||
| Name: | |||
| Sure Glory Holdings Limited | |||
| By: | |||
| Name: | |||
| Brighton Investments Limited | |||
| By: | |||
| Name: | |||
| Mapleland International Investments Limited | |||
| By: | |||
| Name: | |||
| Charming Action Management Limited | |||
| By: | |||
| Name: | |||
| Shallow Glory Limited | |||
| By: | |||
| Name: | |||
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SCHEDULE
A
Expert
Venture Limited - 6,238,205 shares
Sure
Glory Holdings Limited - 748,636 shares
Brighton
Investments Limited - 73,636 shares
Mapleland
International Limited - 368,182 shares
Charming
Action Management Limited - 736,364 shares
Shallow
Glory Limited - 571,909 shares
