PROCERA NETWORKS, INC. LOCK UP AGREEMENT
EXHIBIT
2.3
PROCERA
NETWORKS, INC.
This
LOCK
UP AGREEMENT
(the
"Agreement
”)
dated
as of September 29, 2006, is by and among the shareholders set forth on the
signature page hereto who hold forty nine percent (49%) of the securities of
Netintact
PTY
LTD,
Australian Company Number 103 004 744AB,
(each
a
“Seller”
and
collectively referred to as “Sellers”);
and
Procera Networks, Inc., a Nevada corporation, (“Procera”).
RECITAL
WHEREAS,
as of
the date hereof, Procera and Sellers of Netintact PTY
LTD,
Australian Company Number 103 004 744AB
(“Netintact”)
have
entered into that certain Exchange Agreement by and among Procera and Sellers
(the Exchange
Agreement”);
WHEREAS,
the
obligations in the Exchange Agreement are conditioned upon the execution and
delivery of this Agreement; and
WHEREAS,
in
connection with the consummation of the Exchange Agreement, Procera, and Sellers
have agreed to restrict the transfer of Sellers shares of capital stock issued
as set forth below.
AGREEMENT
|
1.
|
Lock
Up.
In connection with the execution and delivery of the Exchange Agreement
each Seller hereby agrees that he shall not sell, offer, pledge,
contract
to sell, make any short sale of, grant any option for the purchase
of, or
enter into any hedging or similar transaction with the same economic
effect as a sale, or otherwise transfer or dispose of, directly or
indirectly (collectively, “Transfer”),
any common stock (or other securities) of Procera owned by Seller,
as of
the Closing Date of the Exchange Agreement (“Sellers’
Securities”).
|
2.
Exceptions
to Lock Up.
Notwithstanding the foregoing, each Seller may Transfer up to 33.33% of Seller’s
Securities on each of the first three anniversaries of the Closing Date of
the
Exchange Agreement year (i.e. after two (2) years 66.66% of the Sellers’
Securities, and after three (3) years all Sellers’ Securities, subject to
securities compliance, shall be released from the obligations of this
Agreement). Furthermore, upon a Change of Control (as defined below) of the
Company, this Agreement shall terminate and be of no further force and effect.
“Change
of Control”
shall
be defined as (i) a
sale of
equity securities of the Company (other than in a public offering) in one
transaction or series of related transactions representing more than fifty
percent (50%) of the issued and outstanding shares of the Company; or (ii)
a
sale of substantially all of the Company’s assets.
3.
Stock
Transfer Instructions.
Each
Seller also agrees and consents to the entry of stop transfer instructions
with
Procera’s transfer agent and registrar against the transfer of the Sellers’
Securities except in compliance with the foregoing restrictions. It is
understood that this Agreement shall become effective only upon execution and
delivery of the Exchange Agreement and shall be void and of no further force
or
effect if the Exchange Agreement is terminated.
4.
Legend.
Concurrently
with the execution of this Agreement, there shall be imprinted or otherwise
placed, on certificates representing the Sellers’ Securities, the following
restrictive legend (the “Legend”):
“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS
OF A LOCK UP AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS ON THE TRANSFER OF
THE
SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY INTEREST IN SUCH SHARES
SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF
SUCH
AGREEMENT. A COPY OF SUCH TRANSFER AGREEMENT WILL BE FURNISHED TO THE RECORD
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY
AT
ITS PRINCIPAL PLACE OF BUSINESS.”
Each
Seller agrees that, during the term of this Agreement, Seller will not remove,
and will not permit to be removed (upon registration of transfer, reissuance
of
otherwise), the Legend from any such certificate and will place or cause to
be
placed the Legend on any new certificate issued to represent Sellers’ Securities
theretofore represented by a certificate carrying the Legend.
5.
Successors.
The
provisions of this Agreement shall be binding upon the successors in interest
to
any of the Seller’s Securities. Seller shall not permit the transfer of any of
the Seller’s Securities on its books or issue a new certificate representing any
of the Seller’s Securities unless and until the person to whom such security is
to be transferred shall have executed a written agreement, substantially in
the
form of this Agreement, pursuant to which such person becomes a party to this
Agreement and agrees to be bound by all the provisions hereof.
6.
MISCELLANEOUS.
(a) Further
Action.
If and
whenever the Seller’s Securities are sold, each Seller or the personal
representative of Seller shall do all things and execute and deliver all
documents and make all transfers, and cause any transferee of the Seller’s
Securities to do all things and execute and deliver all documents, as may be
necessary to consummate such sale consistent with this Agreement.
(b) Specific
Performance.
The
parties hereto hereby declare that it is impossible to measure in money the
damages which will accrue to a party hereto or to their heirs, personal
representatives, or assigns by reason of a failure to perform any of the
obligations under this Agreement and agree that the terms of this Agreement
shall be specifically enforceable. If any party hereto or his heirs, personal
representatives, or assigns institutes any action or proceeding to specifically
enforce the provisions hereof, any person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party or such
personal representative has an adequate remedy at law, and such person shall
not
offer in any such action or proceeding the claim or defense that such remedy
at
law exists.
(c) Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
California as such laws are applied to agreements among California residents
entered into and performed entirely within the State of California.
(d) Amendment
or Waiver.
This
Agreement may be amended or modified (or provisions of this Agreement waived)
only upon the written consent of Procera and the Sellers.
(e) Severability.
In the
event one or more of the provisions of this Agreement should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained herein.
(f) Successors
and Assigns.
The
provisions hereof shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors, assigns, heirs, executors and
administrators and other legal representatives.
(g) Counterparts.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original, but all of which together shall constitute one
instrument.
(h) Waiver.
No
waivers of any breach of this Agreement extended by any party hereto to any
other party shall be construed as a waiver of any rights or remedies of any
other party hereto or with respect to any subsequent breach.
(i) Delays
or Omissions.
It is
agreed that no delay or omission to exercise any right, power or remedy accruing
to any party, upon any breach, default or noncompliance by another party under
this Agreement shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance, or any
acquiescence therein, or of or in any similar breach, default or noncompliance
thereafter occurring. It is further agreed that any waiver, permit, consent
or
approval of any kind or character on any party’s part of any breach, default or
noncompliance under this Agreement or any waiver on such party’s part of any
provisions or conditions of the Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement by law, or otherwise afforded to any
party, shall be cumulative and not alternative.
(j) Attorney’s
Fees.
In the
event that any suit or action is instituted under or in relation to this
Agreement, including without limitation to enforce any provision in this
Agreement, the prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing any right of
such prevailing party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and expenses of
appeals.
(k) Notices.
All
notices required in connection with this Agreement shall be as set forth in
the
Exchange Agreement.
(l) Entire
Agreement.
This
Agreement, along with the Exchange Agreement and the other documents delivered
pursuant thereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof and no party
shall be liable or bound to any other in any manner by any oral or written
representations, warranties, covenants and agreements except as specifically
set
forth herein and therein. Each party expressly represents and warrants that
it
is not relying on any oral or written representations, warranties, covenants
or
agreements outside of this Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement the day and year first above
written.
|
Procera
Networks,Inc.
|
Procera
Networks, Inc.
|
|
/s/
Xxxxxxx Xxxxxx
|
|
|
Xxxxxxx
Xxxxxx, President
|
|
|
Sellers:
|
/s/Xxxxxx
Xxxxxxx
|
|
Xxxxxx
Xxxxxxx
|
|
|
/s/
Johan Wikenstedt
|
|
|
Johan
Wikenstedt
|
