EXHIBIT 3
---------
XXXX X. XXXXXXXXXX & SON, INC.
------------------------------
Lock-Up Agreement
Xxxx X. Xxxxxxxxxx & Son, Inc.
0000 Xxxxx Xxxx
Xxx Xxxxx Xxxxxxx, XX 00000
Xxxxx, Xxxxxxxx & Xxxx, Inc.
As representative of the several Underwriters
x/x Xxxxx, Xxxxxxxx & Xxxx, Xxx.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: Xxxx X. Xxxxxxxxxx & Son, Inc. - Lock-Up Agreement
--------------------------------------------------
Ladies and Gentlemen:
The undersigned understands that Xxxxx, Xxxxxxxx & Xxxx, Inc., as
representative (the "Representative"), proposes to enter into an
Underwriting Agreement (the "Underwriting Agreement") on behalf of the
several Underwriters named in such agreement (collectively, the
"Underwriters"), with Xxxx X. Xxxxxxxxxx & Son, Inc., a Delaware
corporation (the "Company"), providing for a public offering of shares
(the "Shares") of the common stock, par value $.01 per share, of the
Company (the "Common Stock"), pursuant to a Registration Statement on
Form S-3 filed with the Securities and Exchange Commission (the "SEC")
on January 27, 2004, as amended (the "Registration Statement").
In consideration of the agreement by the Underwriters to continue
their efforts in connection with the offering of the Shares, and of
other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the undersigned agrees that, during the
period beginning on the date hereof and continuing to and including
the date ninety (90) days after the date of the final prospectus
covering the offering of the Shares (the "Lock-Up Period"), the
undersigned will not offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose of any
shares of Common Stock, or any options or warrants to purchase any
shares of Common Stock, or any securities convertible into,
exchangeable for or that represent the right to receive shares of
Common Stock, whether now owned or hereinafter acquired, owned
directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the
rules and regulations of the SEC (collectively, the "Undersigned's
Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is
designed to or reasonably expected to lead to, or result in, a sale or
disposition of the Undersigned's Shares even if such shares would be
disposed of by someone other than the undersigned. Such prohibited
hedging or other transactions would include without limitation any
short sale (whether or not against the box) or any purchase, sale or
grant of any right (including without limitation any put or call
option) with respect to any of the Undersigned's Shares or with
respect to any security that includes, relates to, or derives any
significant part of its value from such shares. Notwithstanding the
foregoing, nothing in this Lock-Up Agreement shall prohibit (i) any
grant or exercise of options to purchase Common Stock pursuant to the
Company's option plans or (ii) the conversion of any equity security
held by the undersigned into Common Stock.
The undersigned further represents and agrees that the
undersigned has not taken and will not take, directly or indirectly,
any action which is designed to or which has constituted or which
would reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares, or which has otherwise constituted
or will constitute any prohibited bid for or purchase of the Shares or
any related securities.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) to the Underwriters pursuant to the
Underwriting Agreement, (ii) as a bona fide gift or gifts, or by will
or intestacy, provided that the transferee or transferees thereof
agree to be bound by the restrictions set forth herein, (iii) 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 by the restrictions set forth herein, and
provided further that any such transfer shall not involve a
disposition for value, or (iv) with the prior written consent of the
Representative on behalf of the Underwriters. For purposes of this
Lock-Up Agreement, "immediate family" shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin. In
addition, notwithstanding the foregoing, if the undersigned is (x) a
corporation, the corporation may transfer the capital stock of the
Company to any wholly-owned subsidiary of such corporation or (y) a
limited partnership, the limited partnership may transfer the capital
stock of the Company to its limited partners, provided that in either
such case, it shall be a condition to the transfer that each transferee
execute an agreement stating that such transferee is receiving and
holding such capital stock subject to the provisions of this Lock-Up
Agreement and there shall be no further transfer of such capital stock
except in accordance with this Lock-Up Agreement, and provided further
that any such transfer shall not involve a disposition for value.
Except as set forth on the signature page hereto, the undersigned now
has, and except as contemplated by clauses (i) through (iv) of this
paragraph, for the duration of this Lock-Up will have, good and
marketable title to the Undersigned's Shares, free and clear of all
liens, encumbrances and claims whatsoever. The undersigned also agrees
and consents to the Company entering stop transfer instructions with
its transfer agent and registrar against the transfer of the
Undersigned's Shares except in compliance with the foregoing
restrictions.
Notwithstanding anything contained herein to the contrary, this
Lock-Up Agreement shall terminate and be of no further force or effect
upon the earlier of (i) expiration of the Lock-Up Period and (ii)
written notice either by the Company to the Underwriters or by the
Underwriters to the Company that the offering of the Shares has been
terminated or suspended.
-2-
The undersigned understands that the Company and the Underwriters
are relying upon this Lock-Up Agreement in proceeding toward
consummation of the offering. The undersigned further understands
that this Lock-Up Agreement is irrevocable and shall be binding upon
the undersigned's heirs, legal representatives, successors and
assigns.
Very truly yours,
Date: March 10, 2004
--------------
/s/ XXXXXXX X. XXXXXXXXX
-----------------------------
Signature
Xxxxxxx X. Xxxxxxxxx
-----------------------------
Print Name
Not Individually But As
Trustee Of Trust For
Xxxxx X. Xxxxxxxxx
-----------------------------
Title
The following liens, encumbrances and claims relate to the
Undersigned's Shares:
-----------------------------------------------------------------
-----------------------------------------------------------------
-3-
