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EXHIBIT 1.2
FORM OF LOCK-UP AGREEMENT
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_____, 1999
Xxxxxx Xxxxxx Partners LLC
Xxxxxxx Xxxxx Barney Inc.
*Xxxxxxx Xxxxx & Company
As Representatives of the several Underwriters
c/o Thomas Xxxxxx Partners LLC
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
RE: LOCK-UP AGREEMENT ("AGREEMENT")
Ladies and Gentlemen:
The undersigned is an owner of record or beneficially of
certain shares of Class A Common Stock, par value $0.01 per share (the "CLASS A
COMMON STOCK"), and/or shares of Class B Common Stock, par value $0.01 per share
(the "CLASS B COMMON STOCK, together with Class A Common Stock, the "CAPITAL
STOCK"), of XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation (the "COMPANY"), or
securities convertible into or exchangeable for or issuable upon the exercise of
stock options and warrants to purchase shares of Capital Stock. The undersigned
understands that you, as representatives (the "REPRESENTATIVES"), propose to
enter into an underwriting agreement (the "UNDERWRITING AGREEMENT") on behalf of
the several Underwriters named therein (collectively, the "UNDERWRITERS"), with
the Company providing for a public offering of shares of the Class A Common
Stock of the Company pursuant to a Registration Statement on Form S-1 to be
filed with the Securities and Exchange Commission (the "PUBLIC OFFERING"). The
undersigned recognizes that the Public Offering will benefit the undersigned and
the Company by, among other things, raising additional capital for the
operations of the Company. The undersigned acknowledges that you and the other
Underwriters are relying on the representations and agreements of the
undersigned contained in this Agreement in carrying out the Public Offering and
in entering into underwriting arrangements with the Company with respect to the
Public Offering.
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxx Partners LLC ("XXXXXX XXXXXX PARTNERS") (which consent may be withheld in
its sole discretion), it will not, and will not publicly announce its intention
to, during the period commencing on the date hereof and ending 180 days after
the date of the final prospectus relating to the Public Offering (the
"PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of, directly
or indirectly, any shares of Capital Stock or any securities convertible into or
exercisable or exchangeable for Capital Stock or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Capital Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Capital Stock or such other securities, in cash or otherwise. In addition, the
undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxx
Partners (which consent may be withheld in its sole discretion), it will not,
during the period commencing on the date hereof and ending 180 days after the
date of the Prospectus, make any demand for or exercise any right with respect
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to, the registration, offering or sale of any shares of Capital Stock or any
security convertible into or exchangeable for or issuable upon the exercise of
stock options and warrants to purchase shares of Capital Stock. With respect to
the Public Offering, the undersigned waives any registration rights relating to
registration under the Securities Act of 1933, as amended, of any offering or
sale of any Capital Stock owned either of record or beneficially by the
undersigned, including any rights to receive notice of the Public Offering.
The foregoing restrictions are 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
Capital Stock even if such Capital Stock 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 option or put equivalent position or
call option or call equivalent position) with respect to any of the Capital
Stock or with respect to any security that includes, relates to, or derives any
significant part of its value from such Capital Stock.
Notwithstanding the foregoing, the undersigned may transfer
shares of Capital Stock or securities convertible into or exchangeable or
exercisable for Capital Stock (i) as a bona fide gift or gifts, provided that
the donee or donees thereof agree to be bound by the restrictions set forth
herein, (ii) 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, (iii)
to any corporation, partnership, limited liability company or other business
entity that is wholly owned by the undersigned and/or its donees or assignees,
provided that any such transfer shall not involve a disposition for value and
any such transferee agrees to be bound by the restrictions set forth herein, or
(iv) to the Underwriters pursuant to the Underwriting Agreement. For purposes of
this Agreement, "immediate family" shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin.
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The undersigned understands that whether the Public Offering
actually occurs will depend on a number of factors, including stock market
conditions. The Public Offering will only be made pursuant to an Underwriting
Agreement, the terms of which are subject to negotiation among the Company and
the Underwriters.
The undersigned agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent and registrar against
the transfer of shares of Capital Stock or securities convertible into or
exchangeable or exercisable for Capital Stock held by the undersigned except in
compliance with the foregoing restrictions.
This Agreement is irrevocable and shall be binding on the
undersigned and the respective successors, heirs, personal representatives and
assigns of the undersigned.
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This Agreement shall terminate if the Underwriting Agreement
(other than provisions that survive termination) shall terminate or be
terminated prior to the payment for the delivery of the shares of the Class A
Common Stock thereunder or if such agreement is not executed by each party
thereto on or prior to December 31, 1999.
Very truly yours,
*
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Address:
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This Agreement shall terminate if the Underwriting Agreement
(other than provisions that survive termination) shall terminate or be
terminated prior to the payment for the delivery of the shares of the Class A
Common Stock thereunder or if such agreement is not executed by each party
thereto on or prior to December 31, 1999.
Very truly yours,
*
By:
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Name:
Title:
