EXHIBIT 10.2
LOCK-UP AGREEMENT
September 9, 2004
Xxxxxx Interactive Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Ladies and Gentlemen:
1. The undersigned acknowledges that this lock-up agreement (the
"Lock-Up Agreement") is being entered into pursuant to Section 3.3.2(c) of the
Agreement and Plan of Merger dated as of even date herewith (the "Merger
Agreement") by and among Xxxxxx Interactive Inc., a Delaware corporation
("Xxxxxx"), Capitol Merger Sub, LLC, a Delaware limited liability company of
which Xxxxxx is the sole member ("Merger Sub"), Xxxxxxxx Worldwide, Inc., a
California corporation ("Xxxxxxxx"), and all of the stockholders of Xxxxxxxx
shown on the signature page to the Merger Agreement (the "Stockholders").
Pursuant to the Merger Agreement, the undersigned will receive the number of
shares of Xxxxxx common stock, par value $.001 (the "Common Stock"), and will
have the right to acquire (subject to applicable vesting requirements) upon
exercise of stock options to be issued by Xxxxxx pursuant to the Merger
Agreement the number of shares of Common Stock, as are set forth opposite the
undersigned's name on Annex 1 hereto (collectively, the "Lock-Up Shares"). The
undersigned further acknowledges that as a condition to Xxxxxx' entering into
the Merger Agreement, Xxxxxx has required the undersigned to enter into this
Lock-Up Agreement, and in order to induce Xxxxxx to enter into the Merger
Agreement, the undersigned is willing to enter into this Lock-Up Agreement.
Capitalized terms used herein without definition shall have the meanings given
to them in the Merger Agreement.
2. In consideration of the agreement by Xxxxxx to enter into the Merger
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby agrees
that, during the period commencing on the Closing Date and continuing through
and including the date that is 120 days after the Closing Date (the "Lock-Up
Period"), the undersigned will not, without Xxxxxx' prior written consent,
offer, sell, contract to sell, pledge, hypothecate or otherwise transfer or
dispose of any of the Lock-Up Shares or any interest therein, or any options,
warrants or other rights to purchase or otherwise acquire any of the Lock-Up
Shares, or any securities convertible into, exchangeable for or that represent
the right to receive Lock-Up Shares.
3. The undersigned acknowledges and agrees that the foregoing
restrictions expressly prohibit the undersigned from engaging in any hedging or
other transaction which is designed to or which reasonably could be expected to
lead to or result in a sale or disposition of the Lock-Up Shares even if such
Lock-Up Shares would be disposed of by someone other than the undersigned. Such
prohibited hedging or other transactions would include, without limitation, any
short sale or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any of the Lock-Up Shares or
with respect to any security
1
that includes, relates to, derives any significant part of its value from, or
otherwise transfers to any other person any or all of the economic consequences
of ownership of the Lock-Up Shares.
4. Notwithstanding the foregoing, the foregoing restrictions shall not
be deemed to prohibit a transfer of the Lock-Up Shares (a) by bona fide gift
(including, without limitation, charitable giving), provided that the donee
thereof agrees in writing to be bound by the restrictions set forth herein; (b)
to any trust for the direct or indirect benefit of the undersigned or of any one
or more members of the immediate family of the undersigned, provided that the
trustee of such trust agrees to be bound by the restrictions set forth in this
Lock-Up Agreement; (c) by the estate of any Stockholder by virtue of the death
of such Stockholder by application of any will, operation of law, or otherwise,
provided that the transferee shall be bound by the restrictions set forth in
this Lock-Up Agreement, or (d) pursuant to a merger, consolidation or sale of
all or substantially all of the capital stock of Xxxxxx in accordance with terms
and conditions approved by Xxxxxx' board of directors. For purposes of this
paragraph 4, "immediate family" includes the undersigned's spouse, parents,
siblings and lineal descendants.
5. The undersigned hereby represents and warrants to Xxxxxx that the
undersigned has full power and authority to enter into this Lock-Up Agreement,
and that upon the execution and delivery of this Lock-Up Agreement to Xxxxxx
this Lock-Up Agreement will constitute the legal, valid and binding obligation
of the undersigned, enforceable against the undersigned in accordance with its
terms. The undersigned further represents and warrants to Xxxxxx that the
undersigned has carefully read this Lock-Up Agreement and the Merger Agreement
and has had an opportunity to discuss the requirements hereof and thereof with
the undersigned's advisors, whom the undersigned believes are qualified to
advise him, her or it with respect to such matters. The undersigned also agrees
and consents to the entry of stop transfer instructions with Xxxxxx' transfer
agent and registrar against the transfer of the Lock-Up Shares that is
prohibited pursuant to the terms of this Lock-Up Agreement. The undersigned
understands that the restrictions imposed by this Agreement are in addition to
any other restrictions imposed on the transfer of the Lock-Up Shares pursuant to
the Merger Agreement or applicable law.
6. Notwithstanding anything to the contrary set forth herein, the
undersigned acknowledges and agrees that (a) at all times that the undersigned
is a Xxxxxx employee, officer or director, the undersigned shall be subject to
Xxxxxx' policy regarding "Securities Trades by Company Personnel"; and (b) at
all times that the undersigned remains a Xxxxxx officer, director or designated
employee with access to material nonpublic information about Xxxxxx, the
undersigned shall be subject to Xxxxxx' policy regarding "Transactions in
Company Securities by Directors and Designated Officers/Employees -
Pre-Clearance and Blackout Periods Procedures", as both such policies are
required of and consistently applied to other Xxxxxx employees, as applicable.
7. The undersigned understands that Xxxxxx is relying upon this Lock-Up
Agreement in proceeding toward consummation of the transactions contemplated by
the Merger Agreement. 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. The representations and
warranties of the undersigned set forth in this Lock-Up Agreement shall survive
the First Closing and the Second Closing under the Merger Agreement.
2
8. No amendment or modification of any of the terms of this Lock-Up
Agreement, nor any purported waiver of any condition or breach of any provision
hereof, shall be effective unless in writing and signed by the party purported
to be bound thereby.
9. If any provision of this Lock-Up Agreement is held to be invalid or
unenforceable by any court of competent jurisdiction, the remaining provisions
shall continue in full force and effect, and the parties agree to replace any
such invalid or unenforceable provision with a valid provision that most closely
reflects the intent and economic effect of the invalid or unenforceable
provision.
10. This Lock-Up Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to conflicts
of law principles that would require the application of the law of any other
jurisdiction.
11. This Lock-Up Agreement sets forth the entire agreement and
understanding of the parties hereto relating to the subject matter hereof, and
supersedes and replaces all prior agreements and understandings between the
parties with respect to such subject matter.
12. The undersigned shall execute and/or cause to be delivered to Xxxxxx
such additional instruments and documents and shall take such other actions as
Xxxxxx may reasonably request in order to effectuate the intent and purposes of
this Lock-Up Agreement.
13. This Lock-Up Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument. The exchange of copies of this Lock-Up
Agreement and of signature pages by electronic transmission, including facsimile
shall constitute effective execution and delivery of this Lock-Up Agreement as
to the parties and may be used in lieu of the original Lock-Up Agreement for all
purposes. Signatures of the parties transmitted by electronic transmission shall
be deemed to be their original signatures for all purposes.
[Signature Page Follows]
3
This Lock-Up Agreement was signed by the following stockholders of
Xxxxxxxx Worldwide, Inc. (individual signature pages have been omitted):
Xxxxxxxx Family Trust
White Family Living Trust
Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxx
Hakan Atak
Xxx Xxxxxx
4
Accepted and agreed:
XXXXXX INTERACTIVE INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Title: Vice Chairman and CEO
------------------------------------
5
