EXHIBIT 10.13
LOCK-UP/LEAK-OUT AGREEMENT
THIS LOCK-UP/LEAK-OUT AGREEMENT (the "Agreement") is made and entered into
as of the 14th day of December 1999, by and among Safeguard Scientifics
(Delaware), Inc., a Delaware corporation with an address at 800 The Safeguard
Building, 000 Xxxxx Xxxx Xxxxx, Xxxxx, XX 00000-0000 ("SSI"), Safeguard 97
Capital L.P., a Delaware limited partnership with an address at 800 The
Safeguard Building, 000 Xxxxx Xxxx Xxxxx, Xxxxx, XX 00000-0000 ("S97"),
Safeguard 98 Capital L.P., a Delaware limited partnership with an address at 800
The Safeguard Building, 000 Xxxxx Xxxx Xxxxx, Xxxxx, XX 00000-0000 ("S98"),
Safeguard 99 Capital L.P., a Delaware limited partnership with an address at 800
The Safeguard Building, 000 Xxxxx Xxxx Xxxxx, Xxxxx, XX 00000-0000 ("S99" and
collectively with SSI, S97 and S98, "Safeguard"), Mirage Technologies Limited
Partnership, a Massachusetts limited partnership with an address at 000 Xxxxxx
Xxxx, Xxxxxx, XX 00000 ("MTLP"), Xxxxxx Xxxxxxxx, an individual with an address
at 000 Xxxx'x Xxxx, Xxxx 000, Xxxxxxxxx, XX 00000 ("RV"), Xxxxx X. Xxxxxx, an
individual with an address at 0000 Xxxxx 0xx Xxxx, #000, Xxxx Xxxx Xxxx, XX
00000 ("DJ"), Xxxxxx Services, a Utah corporation with an address at 0000 Xxxxx
0xx Xxxx, #000, Xxxx Xxxx Xxxx, XX 00000 ("Services" and, collectively with DJ,
"Xxxxxx"), Xxxxxxx X. Xxxxxxxxxx, an individual with an address at Suite 205
Hermes Building, 000 Xxxx Xxxxx Xxxxx, Xxxx Xxxx Xxxx, XX 00000 ("LWB"), Briar
Creek Investment LLC, a ________ limited liability company, with an address at
000 Xxxxxxxx Xxxx, Xxxx Xxxx, XX 00000 ("Briar Creek"), MG Securities Group,
Inc., a Texas corporation with an address at 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, XX 00000 ("MG") and Lifef/x, Inc., formerly known as Fin Sports U.S.A.,
Inc. (the "Company"). XXX, X00, X00, X00, XXXX, XX, XX, Services, LWB, Briar
Creek and MG are sometimes collectively referred to herein as the "Shareholders"
and each, a "Shareholder"), as the Shareholders of record of certain shares of
common stock, $.001 par value per share (the "Common Stock"), of the Company.
R E C I T A L S :
WHEREAS, the Company, PTM Acquisition Corp., and Pacific Title/Mirage, Inc.
are parties to that certain merger agreement dated December 14, 1999 (the
"Merger Agreement"), a copy of which is annexed hereto and incorporated herein
by this reference; and
WHEREAS, LWB is the record owner of 117,100 shares of the Common Stock; and
WHEREAS, RV is the record owner of 349,998 shares of the Common Stock; and
WHEREAS, Safeguard is the record owner of 4,452,440 shares of the Common
Stock; and
WHEREAS, MTLP is the record owner of 6,824,979 shares of the Common Stock;
and
WHEREAS, Xxxxxx is the record owner of 1,301,734 shares of the Common
Stock; and
WHEREAS, Briar Creek is the record owner of 195,166 shares of the Common
Stock; and
WHEREAS, MG is entitled to purchase 100,000 shares of Common Stock
underlying the warrants issued to it pursuant to the Merger Agreement ; and
WHEREAS, in order to facilitate the consummation of the transactions
contemplated by the Merger Agreement and an orderly market for the Common Stock
of the Company subsequent to the reorganization contemplated by the merger, the
undersigned desire to enter into this Agreement and restrict the sale,
assignment, transfer, conveyance, hypothecation or alienation of the Common
Stock, all on the terms set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants, contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Notwithstanding anything to the contrary contained in this Agreement,
(a) any Shareholder may transfer all or any part of its shares of Common Stock,
(i) to its affiliates, its partners if such Shareholder is a partnership, its
shareholders if such Shareholder is a corporation, its members if such
Shareholder is a limited liability company, its spouse, lineal ancestors or
descendants or extended family members or to any trust for estate planning
purposes or (ii) with the written consent of the holders of the majority of
shares of Common Stock subject to this Agreement; provided that, in each case,
the transferee (or the legal representative of the transferee) executes an
agreement to be bound by all of the terms of this Agreement, and (b) DJ and
Services shall have the right to transfer shares of Common Stock to Savage
Holdings, Inc. ("SHI") provided that SHI acknowledges its agreement to be bound
by the restrictions contained herein.
2. Except as otherwise expressly provided herein and except as each
Shareholder may be otherwise restricted from selling shares of Common Stock
("Shares"), each Shareholder may only sell Shares subject to the following
conditions in relation to the sale of said Shares prior to the effective date of
a registration statement (other than in connection with a merger or employee
benefit plans pursuant to Forms S-4 or S-8) pertaining to the Company's Common
Stock (the "Registration Statement").
2.1 No Shareholder other than DJ, Services, Briar Creek and LWB may
sell any Shares. For purposes of the restrictions contained in this Section 2,
DJ, Services, Briar Creek and LWB shall collectively be considered one
Shareholder.
2.2 Each Shareholder shall be allowed to sell Shares in blocks of
5,000 Shares or less per transaction.
2.3 The Shares may only be sold at the "offer" or "ask" price stated
by the relevant market maker. Each Shareholder agrees that it will not sell
Shares at the "bid" price.
2.4 After a Shareholder sells 5,000 Shares, such Shareholder may not
sell any other Shares unless the "offer" or "ask" price of the Common Stock
increases by 25 basis points above such Shareholder's last sale price. However,
if the foregoing condition has been satisfied, the sale of the next 5,000 Shares
may take place at a price less than such Shareholder's last sale price plus 25
basis points. (For example, a Shareholder sells 5,000 Shares at a price of 10
1/2. If
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the "ask" price then increases to 10 3/4, the Shareholder may sell an additional
5,000 Shares and such sale may occur at a price less than 10 3/4).
2.5 Notwithstanding the foregoing, if, after a Shareholder sells
5,000 Shares, a market maker in the Common Stock (other than the market maker
involved in the first transaction) continues to show an "offer" or "ask" price
at the same price as the first 5,000 Share transaction, the Shareholder may, on
one occasion only, sell an additional 5,000 Shares at that price.
2.6 The Shares may not be sold at a price below $7.50 per share.
2.7 Each Shareholder shall be allowed to sell up to fifteen (15%)
percent of its Shares held as of the date hereof during each three month period;
provided, however, that in the event any Shareholder does not sell its full 15%
during any three-month period, such Shareholder may sell the Pre-Effective Date
Carry Forward Shares (as defined below) during the following three-month periods
prior to the Effective Date. Pre-Effective Date Carry Forward Shares shall be
defined, for any three month period, as the difference between 15% of the Shares
held as of the date hereof and the Shares actually sold during such three-month
period.
2.8 The Shareholders agree that they will not engage in any short
selling of the Shares.
3. Upon the effective date of the Registration Statement (the "Effective
Date"), the provisions contained in Section 2 hereof shall cease to be binding.
Upon the Effective Date, each Shareholder shall be allowed to sell up to ten
(10%) percent of its Shares as of the Effective Date during each three-month
period; provided, however, that in the event any Shareholder does not sell its
full 10% during any three-month period, such Shareholder may sell the Post-
Effective Date Carry Forward Shares (as defined below) during the following
three-month periods. Post-Effective Date Carry Forward Shares shall be defined,
for any three month period, as the difference between 10% of the Shares held as
of the Effective Date and the Shares actually sold during such three-month
period.
4. Each Shareholder agrees that all of its Shares are covered by all of
the restrictions hereunder, whether such Shares are owned on the date hereof or
are hereafter acquired (whether by issuance, transfer, upon exercise of any
warrants or options currently held by such Shareholder or otherwise).
5. This Agreement shall terminate eighteen months from the Effective Time
of the Merger (as defined in the Merger Agreement), and thereafter all
provisions contained herein shall cease and be of no further force or effect.
6. Notwithstanding anything to the contrary set forth herein, the Company
may, at any time and from time to time, waive any of the conditions or
restrictions contained herein to increase the liquidity of the Common Stock or
if such waiver would otherwise be in the best interests of the development of
the trading market for the Common Stock.
7. In the event of a tender offer to purchase all or substantially all of
the Company's issued and outstanding securities, or a merger, consolidation or
other reorganization with or into
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an unaffiliated entity, this Agreement shall terminate and the Shares restricted
pursuant hereto shall be released from such restrictions if the requisite number
of the record and beneficial owners of the Company's securities then outstanding
are voted in favor of such tender offer, merger, consolidation or
reorganization.
8. Except as otherwise provided in this Agreement, the Shareholders shall
be entitled to their respective beneficial rights of ownership of the Shares,
including the right to vote the Shares for any and all purposes.
9. The Shares and per share price restrictions covered by this Agreement
shall be appropriately adjusted should the Company make a dividend or
distribution, undergo a split or a reverse split or otherwise reclassify, its
shares of Common Stock.
10. This Agreement may be executed in any number of counterparts with the
same force and effect as if all parties had executed the same document.
11. All notices, instructions or other communications required or
permitted to be given pursuant to this Agreement shall be given in writing and
delivered by certified mail, return receipt requested, overnight delivery or
hand-delivered to all parties to this Agreement at the addresses set forth
above. All notices shall be deemed to be given on the same day if delivered by
hand or on the following business day if sent by overnight delivery or the
second business day following the date of mailing.
12. This Agreement sets forth the entire understanding of the parties
hereto with respect to the subject matter hereof, and may not be amended except
by a written instrument executed by the parties hereto.
13. This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts entered into and to be
performed wholly within said State.
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IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement as of the day and year first above written.
SAFEGUARD SCIENTIFICS (DELAWARE), INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
SAFEGUARD 97 CAPITAL L.P.
By: Safeguard Scientifics (Delaware), Inc.
----------------------------------------
General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Its: Vice President
-----------------------------------
SAFEGUARD 98 CAPITAL L.P.
By: Safeguard (Delaware), Inc.
----------------------------------------
General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Its: Vice President
-----------------------------------
SAFEGUARD 99 CAPITAL L.P.
By: Safeguard (Delaware), Inc.
----------------------------------------
General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Its: Vice President
-----------------------------------
MIRAGE TECHNOLOGIES LIMITED PARTNERSHIP
By: Mirage Technologies, Inc.
General Partner
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Its: Co-President
-----------------------------------
/s/ Xxxxxx Xxxxxxxx
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XXXXXX XXXXXXXX
[LOCK-UP/LEAK-OUT AGREEMENT]
/s/ Xxxxx X. Xxxxxx
______________________________________
Xxxxx X. Xxxxxx
XXXXXX SERVICES
By: /s/ Xxxxx X. Xxxxxx
___________________________________
Name: Xxxxx X. Xxxxxx
_____________________________
Title: President
_____________________________
/s/ Xxxxxxx X. Xxxxxxxxxx
______________________________________
Xxxxxxx X. Xxxxxxxxxx
BRIAR CREEK INVESTMENT LLC
By: /s/ Illegible
___________________________________
Name:
_____________________________
Title: Manager Member
_____________________________
MG SECURITIES GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxxx
___________________________________
Name: Xxxxxxx Xxxxxxxx
_____________________________
Title: President
_____________________________
FIN SPORTS U.S.A., INC.
By: /s/ Xxxxx Xxxxxxx
___________________________________
Name: Xxxxx Xxxxxxx
_____________________________
Title: President
_____________________________
[LOCK-UP/LEAK-OUT AGREEMENT]
