Exhibit 2
XXXX XXXXXXX CORPORATION
LOCK-UP AGREEMENT
December 6, 2004
Xxxxxxx, Sachs & Co.
X.X. Xxxxxx Securities
Xxxxxx Brothers Inc.
Credit Suisse First Boston LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Xxxxxxx & Co., Inc.
First Albany Capital Inc.
Xxxxxx Xxxx Incorporated
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Xxxx Xxxxxxx Corporation - Lock-Up Agreement
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Ladies and Gentlemen:
The undersigned understands that you, as representatives (the
"Representatives"), propose to enter into an Underwriting Agreement on
behalf of the several Underwriters named in Schedule I to such agreement
(collectively, the "Underwriters"), with Xxxx Xxxxxxx Corporation, a
Delaware corporation (the "Company"), providing for a public offering of
the Common Stock, par value $0.001 per share, of the Company (the "Shares")
pursuant to a Registration Statement on Form S-1 filed with the Securities
and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and
sell 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 specified in the following paragraph (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 of the Company, or any options or warrants to
purchase any shares of Common Stock of the Company, or any securities
convertible into, exchangeable for or that represent the right to receive
shares of Common Stock of the Company, 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 initial Lock-Up Period will commence on the date of this Lock-Up
Agreement and continue for 180 days after the public offering date set
forth on the final prospectus used to sell the Shares (the "Public Offering
Date") pursuant to the Underwriting Agreement; provided, however, that if
(1) during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or announces material news or a material event or
(2) prior to the expiration of the initial Lock-Up Period, the Company
announces that it will release earnings results during the 15-day period
following the last day of the initial Lock-Up Period, then in each case the
Lock-Up Period will be automatically extended until the expiration of the
18-day period beginning on the date of release of the earnings results or
the announcement of the material news or material event, as applicable,
unless Xxxxxxx, Xxxxx & Co. waives, in writing, such extension.
The undersigned hereby acknowledges that the Company has agreed in the
Underwriting Agreement to provide written notice of any event that would
result in an extension of the Lock-Up Period pursuant to the previous
paragraph to the undersigned (in accordance with Section 14 of the
Underwriting Agreement) and agrees that any such notice properly delivered
will be deemed to have given to, and received by, the undersigned. The
undersigned hereby further agrees that, prior to engaging in any
transaction or taking any other action that is subject to the terms of this
Lock-Up Agreement during the period from the date of this Lock-Up Agreement
to and including the 34th day following the expiration of the initial
Lock-Up Period, it will give notice thereof to the Company and will not
consummate such transaction or take any such action unless it has received
written confirmation from the Company that the Lock-Up Period (as such may
have been extended pursuant to the previous paragraph) has expired.
The foregoing restriction is expressly agreed to preclude 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 Undersigned's Shares even if such Undersigned's
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
Undersigned's Shares or with respect to any security that includes, relates
to, or derives any significant part of its value from such Undersigned's
Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, (ii) by will or
intestacy, (iii) to any trust, partnership or limited liability company for
the direct or indirect benefit of the undersigned or the immediate family
of the undersigned, (iv) to a spouse, former spouse, child or other
dependent pursuant to a domestic relations order or an order of a court of
competent jurisdiction, (v) to a nominee or custodian of a person or entity
to whom a disposition or transfer would be permissible under clauses (i)
through (iv) above, (vi) if the undersigned is an executive officer of the
Company and his or her terms of employment so provide, to the Company upon
his or her death or disability or termination of his or her employment, and
(vii) with the prior written consent of Xxxxxxx, Xxxxx & Co. 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 the case of any disposition,
distribution, transfer or sale pursuant to clauses (i) through (vi), each
donee, trustee, distributee or transferee shall agree to be bound in
writing by the restrictions set forth herein and in the case of any
disposition, distribution, transfer or sale pursuant to clause (i) through
(v), any such transfer shall not involve a disposition for value. In
addition, notwithstanding the foregoing, if the undersigned is a
corporation, partnership or limited liability company, the corporation,
partnership or limited liability company may transfer the Undersigned's
Shares to any affiliated entity of such corporation, partnership or limited
liability company; provided, however, that in any such case, it shall be a
condition to the transfer that the transferee execute an agreement stating
that the transferee is receiving and holding such securities subject to the
provisions of this Lock-Up Agreement and there shall be no further transfer
of such securities except in accordance with this Lock-Up Agreement, and
provided further that any such transfer shall not involve a disposition for
value. The undersigned now has, and, except as contemplated by clause (i)
through (vii) above or in the immediately preceding sentence, for the
duration of this Lock-Up Agreement 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 entry of
stop transfer instructions with the Company's transfer agent and registrar
against the transfer of the Undersigned's Shares except in compliance with
the foregoing restrictions.
It is understood that, if the Company notifies the Underwriters that
it does not intend to proceed with the offering, if the Underwriting
Agreement does not become effective, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Shares,
the undersigned will be released from the undersigned's obligations under
this Lock-Up Agreement.
Notwithstanding anything herein to the contrary, Xxxxxxx, Sachs & Co.,
Spear, Leeds & Xxxxxxx LLC and their respective affiliates may engage in
brokerage, investment advisory, investment company, financial advisory,
anti-raid advisory, merger advisory, financing, asset management, trading,
market making, arbitrage and other similar activities conducted in the
ordinary course of its and its affiliates' business.
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,
GS Capital Partners 2000, L.P.
By: GS Advisors 2000, L.L.C.,
its General Partner
--------------------------------
Exact Name of Shareholder
/s/ Xxxx X. Xxxxxx
--------------------------------
Authorized Signature
Vice President
--------------------------------
Title
transfer of such securities except in accordance with this Lock-Up
Agreement, and provided further that any such transfer shall not involve a
disposition for value. The undersigned now has, and, except as contemplated
by clause (i) through (vii) above or in the immediately preceding sentence,
for the duration of this Lock-Up Agreement 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 entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of the Undersigned's
Shares except in compliance with the foregoing restrictions.
It is understood that, if the Company notifies the Underwriters that
it does not intend to proceed with the offering, if the Underwriting
Agreement does not become effective, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Shares,
the undersigned will be released from the undersigned's obligations under
this Lock-Up Agreement.
Notwithstanding anything herein to the contrary, Xxxxxxx, Xxxxx & Co.,
Spear, Leeds & Xxxxxxx LLC and their respective affiliates may engage in
brokerage, investment advisory, investment company, financial advisory,
anti-raid advisory, merger advisory, financing, asset management, trading,
market making, arbitrage and other similar activities conducted in the
ordinary course of its and its affiliates' business.
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,
GSCP 2000 Offshore BBOG Holding, L.P.
By: GS Capital Partners 2000 Offshore,
L.P.,
its General Partner
By: GS Advisors 2000, L.L.C.,
its General Partner
--------------------------------
Exact Name of Shareholder
/s/ Xxxx X. Xxxxxx
--------------------------------
Authorized Signature
Vice President
--------------------------------
Title
transfer of such securities except in accordance with this Lock-Up
Agreement, and provided further that any such transfer shall not involve a
disposition for value. The undersigned now has, and, except as contemplated
by clause (i) through (vii) above or in the immediately preceding sentence,
for the duration of this Lock-Up Agreement 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 entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of the Undersigned's
Shares except in compliance with the foregoing restrictions.
It is understood that, if the Company notifies the Underwriters that
it does not intend to proceed with the offering, if the Underwriting
Agreement does not become effective, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Shares,
the undersigned will be released from the undersigned's obligations under
this Lock-Up Agreement.
Notwithstanding anything herein to the contrary, Xxxxxxx, Xxxxx & Co.,
Spear, Leeds & Xxxxxxx LLC and their respective affiliates may engage in
brokerage, investment advisory, investment company, financial advisory,
anti-raid advisory, merger advisory, financing, asset management, trading,
market making, arbitrage and other similar activities conducted in the
ordinary course of its and its affiliates' business.
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,
GSCP 2000 GmbH BBOG Holding, L.P.
By: GSCP 2000 GmbH BBOG Holding I,
its General Partner
--------------------------------
Exact Name of Shareholder
/s/ Xxxx X. Xxxxxx
--------------------------------
Authorized Signature
Vice President
--------------------------------
Title
transfer of such securities except in accordance with this Lock-Up
Agreement, and provided further that any such transfer shall not involve a
disposition for value. The undersigned now has, and, except as contemplated
by clause (i) through (vii) above or in the immediately preceding sentence,
for the duration of this Lock-Up Agreement 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 entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of the Undersigned's
Shares except in compliance with the foregoing restrictions.
It is understood that, if the Company notifies the Underwriters that
it does not intend to proceed with the offering, if the Underwriting
Agreement does not become effective, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Shares,
the undersigned will be released from the undersigned's obligations under
this Lock-Up Agreement.
Notwithstanding anything herein to the contrary, Xxxxxxx, Xxxxx & Co.,
Spear, Leeds & Xxxxxxx LLC and their respective affiliates may engage in
brokerage, investment advisory, investment company, financial advisory,
anti-raid advisory, merger advisory, financing, asset management, trading,
market making, arbitrage and other similar activities conducted in the
ordinary course of its and its affiliates' business.
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,
GS Capital Partners 2000 Employee Fund,
L.P.
By: GS Employee Funds 2000 GP, L.L.C.,
its General Partner
--------------------------------
Exact Name of Shareholder
/s/ Xxxx X. Xxxxxx
--------------------------------
Authorized Signature
Vice President
--------------------------------
Title
transfer of such securities except in accordance with this Lock-Up
Agreement, and provided further that any such transfer shall not involve a
disposition for value. The undersigned now has, and, except as contemplated
by clause (i) through (vii) above or in the immediately preceding sentence,
for the duration of this Lock-Up Agreement 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 entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of the Undersigned's
Shares except in compliance with the foregoing restrictions.
It is understood that, if the Company notifies the Underwriters that
it does not intend to proceed with the offering, if the Underwriting
Agreement does not become effective, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Shares,
the undersigned will be released from the undersigned's obligations under
this Lock-Up Agreement.
Notwithstanding anything herein to the contrary, Xxxxxxx, Xxxxx & Co.,
Spear, Leeds & Xxxxxxx LLC and their respective affiliates may engage in
brokerage, investment advisory, investment company, financial advisory,
anti-raid advisory, merger advisory, financing, asset management, trading,
market making, arbitrage and other similar activities conducted in the
ordinary course of its and its affiliates' business.
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,
Xxxxxxx Sachs Direct Investment Fund
2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C.,
its General Partner
-----------------------------------
Exact Name of Shareholder
/s/ Xxxx X. Xxxxxx
-----------------------------------
Authorized Signature
Vice President
-----------------------------------
Title
transfer of such securities except in accordance with this Lock-Up
Agreement, and provided further that any such transfer shall not involve a
disposition for value. The undersigned now has, and, except as contemplated
by clause (i) through (vii) above or in the immediately preceding sentence,
for the duration of this Lock-Up Agreement 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 entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of the Undersigned's
Shares except in compliance with the foregoing restrictions.
It is understood that, if the Company notifies the Underwriters that
it does not intend to proceed with the offering, if the Underwriting
Agreement does not become effective, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Shares,
the undersigned will be released from the undersigned's obligations under
this Lock-Up Agreement.
Notwithstanding anything herein to the contrary, Xxxxxxx, Sachs & Co.,
Spear, Leeds & Xxxxxxx LLC and their respective affiliates may engage in
brokerage, investment advisory, investment company, financial advisory,
anti-raid advisory, merger advisory, financing, asset management, trading,
market making, arbitrage and other similar activities conducted in the
ordinary course of its and its affiliates' business.
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,
Stone Street BBOG Holding
-------------------------------
Exact Name of Shareholder
/s/ Xxxx X. Xxxxxx
-------------------------------
Authorized Signature
Vice President
-------------------------------
Title
transfer of such securities except in accordance with this Lock-Up
Agreement, and provided further that any such transfer shall not involve a
disposition for value. The undersigned now has, and, except as contemplated
by clause (i) through (vii) above or in the immediately preceding sentence,
for the duration of this Lock-Up Agreement 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 entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of the Undersigned's
Shares except in compliance with the foregoing restrictions.
It is understood that, if the Company notifies the Underwriters that
it does not intend to proceed with the offering, if the Underwriting
Agreement does not become effective, or if the Underwriting Agreement
(other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Shares,
the undersigned will be released from the undersigned's obligations under
this Lock-Up Agreement.
Notwithstanding anything herein to the contrary, Xxxxxxx, Sachs & Co.,
Spear, Leeds & Xxxxxxx LLC and their respective affiliates may engage in
brokerage, investment advisory, investment company, financial advisory,
anti-raid advisory, merger advisory, financing, asset management, trading,
market making, arbitrage and other similar activities conducted in the
ordinary course of its and its affiliates' business.
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,
Stone Xxxxxx Xxxx 0000, X.X.
By: Stone Street 2000, L.L.C.,
its General Partner
-------------------------------
Exact Name of Shareholder
/s/ Xxxx X. Xxxxxx
-------------------------------
Authorized Signature
Vice President
-------------------------------
Title
