EXHIBIT 10.3
FORM OF LOCK-UP AGREEMENT
THIS LOCK -UP AGREEMENT made as of the 12th day of October, 2001.
AMONG:
INPRIMIS, INC., a Florida corporation whose address
is 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000
(hereinafter referred to as "Inprimis")
OF THE FIRST PART
AND:
[ ], of
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(address)
(herein referred to as the "Shareholder")
OF THE SECOND PART
WHEREAS:
A. The Shareholder is the registered and beneficial owner of the
Shareholder's Shares (as hereinafter defined);
B. Inprimis proposes to enter into the Plan of Arrangement (as
hereinafter defined) pursuant to which the Shareholder, together with other
owners of Datawave Shares (as hereinafter defined) will exchange the
Shareholder's Shares for Inprimis Shares (as hereinafter defined) but Inprimis
is only willing to do so if the Shareholder commits to vote the Shareholder's
Shares as set forth in this Agreement; and
C. The Shareholder is willing to commit to vote all of the
Shareholder's Shares in and pursuant to the Plan of Arrangement on the terms and
conditions hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the above
premises and of the covenants, agreements, representations and warranties
hereinafter set forth, it is hereby agreed as follows:
DEFINITIONS
In this Agreement, unless there is something in the subject or context
inconsistent therewith, words importing the singular number shall include the
plural and vice versa, words importing the masculine gender shall include the
feminine and neuter genders and the expressions following shall have the
following meanings, respectively:
"Circular" means the proxy information circular and/or other disclosure circular
to be jointly delivered by Inprimis and Datawave to the Shareholder and other
holders of Datawave Shares pursuant to the Plan of Arrangement;
"C4" means Cash Card Communications Corp., a Bermuda company;
"C4 Share Exchange Agreement" means the Share Exchange Agreement, dated of even
date with this Agreement, among C4, Inprimis and certain other parties thereto;
"Closing" and "Closing Date" have the meanings ascribed thereto in Section 0
hereof;
"Datawave" means Datawave Systems Inc., a public company incorporated under the
laws of the Yukon Territory, Canada, whose common shares are listed and posted
for trading on the Canadian Venture Exchange;
"Datawave Shares" means some or all, as the context may require, of the issued
and outstanding common shares in the capital of Datawave;
"Inprimis Shares" means some or all, as the context may require, of the issued
and outstanding common shares in the capital of Inprimis;
"Interim Plan of Arrangement Agreement" means the non-binding Agreement among
Datawave, Inprimis and C4 dated of even date with this Agreement whereby the
parties agreed in principle to the Transaction;
"Person" means a natural person, firm, corporation, trust, partnership, joint
venture, governmental body, agency or association;
"Plan of Arrangement" means the Plan of Arrangement, as contemplated by Section
195 of the YUKON BUSINESS CORPORATION ACT, pursuant to which the Yukon Supreme
Court will be asked to approve the Transaction;
"Public Record" means the publicly available information filed by Inprimis
with the U.S. Securities and Exchange Commission;
"Shareholder's Shares" means the common shares of Datawave currently owned by
the Shareholder, together with any other Datawave Shares that the Shareholder
may acquire prior to the Closing Date; and
"Transaction" means the transaction to be approved pursuant to the Plan of
Arrangement in which the holders of all of the issued and outstanding Datawave
Shares will tender their Datawave Shares to a wholly owned subsidiary of
Inprimis in exchange for newly issued Inprimis Shares, on an exchange ratio of
one (1) Datawave Share for each one and one-half (1-1/2) Inprimis Shares.
LOCK-UP ARRANGEMENTS AND SHAREHOLDER COVENANTS
Subject to the terms and conditions hereof and of the Interim Plan of
Arrangement Agreement, the Shareholder hereby irrevocably agrees to vote the
Shareholder's Shares in favour of the Plan
of Arrangement and the Transaction at a Shareholders Meeting called for the
purpose of approving the Transaction and Plan of Arrangement.
Until the earlier of the Closing or the termination of this Agreement pursuant
to Section 0 herein, and except as is expressly required of the Shareholder by
the Plan of Arrangement, the Shareholder will not, and will use its best efforts
to cause its representatives and advisors not to, directly or indirectly:
solicit, initiate or encourage (including, without limitation, by way of
furnishing information) any inquiry or the making of any proposal to Datawave or
Inprimis or their respective shareholders from any Person which constitutes, or
may reasonably be expected to lead to (in either case whether in one transaction
or a series of transactions): (A) an acquisition from Datawave or its
shareholders of any securities of Datawave or its subsidiaries; (B) an
acquisition from Inprimis or its shareholders of any securities of Inprimis or
its subsidiaries; (C) any acquisition of a substantial amount of assets of any
of Datawave or Inprimis or their subsidiaries; (D) an amalgamation, arrangement,
merger, or consolidation of any of Datawave or Inprimis or their subsidiaries;
or (E) any take-over bid, issuer bid, exchange offer, recapitalization,
liquidation, dissolution, reorganization into a royalty trust or income fund or
similar transaction involving any of Datawave, Inprimis or their subsidiaries or
any other transaction, the consummation of which would or could reasonably be
expected to impede, interfere with, prevent or delay the Transaction or the Plan
of Arrangement or which would or could reasonably be expected to materially
reduce the benefits to Inprimis under this Agreement or the Plan of Arrangement
(any such inquiry or proposal in respect of any of the foregoing being a
"Proposed Transaction"); or
enter into or participate in any discussions or negotiations regarding a
Proposed Transaction or furnish to any other Person any information with respect
to the business, properties, operations, prospects or conditions (financial or
otherwise) of Datawave or Inprimis or their subsidiaries or a Proposed
Transaction or otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt of any other person to do or seek
to do any of the foregoing.
The Shareholder covenants and agrees with Inprimis that until the earlier of the
Closing Date or the termination of this Agreement pursuant to Section 0 hereof:
it will not, without the prior consent of Inprimis, sell, assign, transfer or
otherwise convey or mortgage, pledge or hypothecate any of the Shareholders'
Shares, or the Shareholder's interest therein, except pursuant to the Plan of
Arrangement;
it will not exercise any shareholder rights or remedies available at common law
or pursuant to applicable securities or corporate laws to delay, hinder, upset
or challenge the Plan of Arrangement;
it will exercise all voting rights attached to the Shareholder's Shares to vote
against any resolution to be considered by the shareholders of Datawave that, if
approved, could reasonably be considered to reduce the likelihood of success of
the Plan of Arrangement; and
it will not, directly or indirectly, take any action whatsoever which may
prohibit, impede or otherwise negatively impact on the Transaction.
SHARE EXCHANGE IF NO PLAN OF ARRANGEMENT
If the Transaction and Plan of Arrangement are not approved by the requisite
vote of Datawave Shares, or if for any other reason the Transaction does not
close as contemplated in the Interim Plan of Arrangement Agreement, the
Shareholder agrees to exchange his/her Datawave Shares for Inprimis Shares on
the same terms and conditions as C4 is doing so, as set out in the C4 Share
Exchange Agreement. The share exchange will take place five (5) business days
after Inprimis has provided to the Shareholder written notice that the Plan of
Arrangement will not complete.
The Shareholder acknowledges that the Inprimis Shares to be issued in a share
exchange not subject to the Plan of Arrangement will be issued pursuant to
exemptions from registration and prospectus requirements of applicable
securities legislation, and that the Shareholder may not be able to resell the
Inprimis Shares, except in accordance with limited exemptions under applicable
securities legislation.
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
In order to induce Inprimis to enter into and consummate the Transaction, the
Plan of Arrangement and this Agreement, the Shareholder does hereby represent
and warrant to Inprimis as follows:
the Shareholder is the legal and beneficial owner of all of the Shareholder's
Shares and such Shareholder's Shares are fully paid and non-assessable, and are
free of any liens, claims, charges, security interests or encumbrances of any
kind whatsoever;
the Shareholder has the requisite power, capacity and authority to enter into
this Agreement on the terms and conditions herein set forth and, to transfer the
legal and beneficial title and ownership of the Shareholder's Shares to Inprimis
pursuant to the Plan of Arrangement;
this Agreement, when duly and properly executed and delivered by the Shareholder
and the other parties thereto, will be valid, binding and enforceable against
the Shareholder in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws relating to or
affecting creditor' rights generally and subject to general principles of
equity;
All representations and warranties made by the Shareholder in this Agreement
shall be true as at the date hereof and as at the Closing Date. Notwithstanding
any investigations or inquiries made by Inprimis prior to making the completing
the Plan of Arrangement or the waiver of any condition by Inprimis, the
representations and warranties of the Shareholder shall not survive the Closing
Date, nor shall the Shareholder have any liability for any breach thereof.
REPRESENTATIONS AND WARRANTIES OF INPRIMIS
In order to induce the Shareholder to enter into this Agreement and to close the
Transaction, Inprimis represents and warrants to the Shareholder as follows:
Inprimis is duly incorporated and in good standing under the laws of the State
of Florida;
Inprimis has the requisite power, capacity and authority to enter into this
Agreement; and
this Agreement, when executed by the parties hereto, will constitute a valid and
binding obligation of Inprimis, enforceable against Inprimis in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and to general principles of equity;
except as expressly set forth to the contrary in the Interim Plan of Arrangement
Agreement or the C-4 Share Exchange Agreement, the documents filed by or on
behalf of Inprimis in the Public Record were true and correct in all material
respects at the time they were filed and, at such time, none of these documents
contained any untrue statement of any material fact nor did they omit to state a
material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading;
the information concerning Inprimis to be contained in the Circular will contain
no untrue statement of a material fact and will not omit to state a material
fact that is required to be stated or that is necessary to make a statement
therein not misleading in the light of the circumstances in which it will be
made, and such information in the Circular will constitute full, true and plain
disclosure of all material facts relating to Inprimis; and
from June 30, 2001, through the date of this Agreement, there has not been any
material adverse change in the condition or operation of Inprimis or in its
assets, liabilities or financial condition except as has been disclosed in the
Public Record, the Interim Plan of Arrangement Agreement or the C-4 Share
Exchange Agreement.
Except as otherwise stated, all representations and warranties by Inprimis
contained in this Agreement shall be true as at the date hereof and the Closing
Date. Notwithstanding any investigation or inquires made by the Shareholder
prior to the Closing Date or the waiver of any conditions by the Shareholder,
the representations and warranties of Inprimis shall not survive the Closing
Date, nor shall Inprimis have any liability therefor.
CONDITIONS PRECEDENT FOR INPRIMIS
All obligations of Inprimis under this Agreement are subject to the fulfilment,
prior to the Closing Date, of each of the following conditions:
the representations and warranties of the Shareholder set forth in this
Agreement shall be true and correct as at the date of this Agreement and as at
the Closing Date as if made by the Shareholder again at that time, and the
tender by the Shareholder of the Shareholder's Shares in the Transaction shall
constitute the Shareholder's confirmation in that regard as at the Closing Date;
the Shareholder shall have performed and satisfied all covenants required by
this Agreement to be performed and satisfied prior to the Closing Date;
on the Closing Date, no action or proceeding shall have been instituted or
threatened by any Person before any court or governmental agency to obtain
damages in respect of this Agreement or to restrain or prohibit the consummation
of the Transaction;
all necessary regulatory and stock exchange approvals shall have been obtained.
The conditions set out in Section 0 hereof are inserted for the exclusive
benefit of Inprimis and may be waived by it in whole or in part. Such waiver
will only be effective if in writing.
CONDITIONS PRECEDENT FOR THE SHAREHOLDER
All obligations of the Shareholder under this Agreement are subject to the
fulfilment, prior to the Closing Date, of each of the following conditions:
the representations and warranties of Inprimis set forth in this Agreement shall
be true and correct as at the date of this Agreement and as at the Closing Date
as if made by Inprimis again at that time;
Inprimis shall have performed and satisfied all covenants required by this
Agreement to be performed and satisfied prior to the Closing Date;
on the Closing Date, no action or proceeding shall have been instituted or
threatened by any Person before any court or governmental agency to obtain
damages in respect of this Agreement or to restrain or prohibit the consummation
of the Transaction;
all necessary regulatory and stock exchange approvals shall have been obtained;
the Inprimis Shares shall be validly issued and outstanding as fully paid and
non-assessable shares in the capital of Inprimis;
that Inprimis shall not have filed for bankruptcy, become the subject of an
involuntary bankruptcy proceeding or other insolvency proceeding or had a
receiver appointed for its assets.
The foregoing conditions set out in Section 0 are inserted for the exclusive
benefit of the Shareholder and may be waived by it in whole or in part. Such
waiver will only be effective if in writing.
CLOSING DATE
The Closing Date is anticipated to be January 2, 2002, subject to postponement
to not later than February 28, 2002. Provided all conditions of closing are
satisfied or waived by the parties hereto by the Closing Date, closing of the
Transaction (the "Closing") shall occur on the Closing Date at the offices of
Clark, Wilson, 800 - 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx.
TERMINATION
This Agreement may be terminated by written notice given to the other party
hereto, at any time prior to completion of the Transaction:
by mutual written consent of the parties hereto;
by either Inprimis or the Shareholder if the Circular is not mailed to Datawave
Shareholders prior to December 22, 2001, or such later date as the parties shall
have agreed in writing;
by either Inprimis or the Shareholder if the Transaction is not closed within
two (2) months of the Closing Date unless the failure to so close shall be due
to the failure of the party seeking to terminate this Agreement to perform the
obligations under this Agreement required to be performed by it; and
by either Inprimis or the Shareholder if a court of competent jurisdiction or
governmental, regulatory or administrative agency or commission shall have
issued an order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the Transaction, and such order,
decree, ruling or other action shall have become final and non-appealable,
provided that the party seeking to terminate this Agreement shall have used all
commercially reasonable commercial efforts to remove such order, decree, ruling
or injunction.
In the event of termination of this Agreement, each of the parties shall
forthwith return to the other all confidential and other information relating to
such other party.
FURTHER ASSURANCES
At Closing and thereafter as may be necessary or desirable, and without further
consideration, the parties hereto agree to execute, acknowledge and deliver such
other instruments and take such other action as may be necessary to carry out
their respective obligations under this Agreement.
CONSTRUCTION
This Agreement shall be, in all respects, subject to and interpreted, construed
and enforced in accordance with the laws in effect in the Province of British
Columbia. Each party hereto accepts the jurisdiction of the Courts of the
Province of British Columbia and attorns exclusively to their jurisdiction.
NOTICES
All notices, requests, and demands hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand or by telecommunication as
follows:
to Inprimis:
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Fax: 0
ATTENTION: EDUARD WILL
with a copy to:
Pillsbury Winthrop LLP
Barristers & Solicitors
0
New York, New York
Fax: (000) 000-0000
ATTENTION: XX. XXXXXXX X. XXXXXXXXX
to the Shareholder at the address first above written (Fax No.: _______________)
with a copy to:
Datawave Systems Inc.
000 Xxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
ATTENTION: XXXX XXXXXXXX
or to such other address or telecopier number as may be given in writing by
Inprimis or the Shareholder, and all notices, requests, and demands hereunder
shall be deemed to have been received, if delivered, on the date of delivery and
if transmitted, on the date of the transmission if received during normal
business hours, or if otherwise, on the next Business Day.
ASSIGNMENT
This Agreement shall not be assigned without the written consent of the other
party hereto, and such consent may be arbitrarily and unreasonably withheld.
This Agreement shall enure to the benefit of and shall be binding upon the
parties and their respective successors, heirs, executors, administrators and
permitted assigns.
COSTS
Each party will pay for their respective costs incurred pursuant to this
Agreement and the Transaction, whether or not the Transaction is completed.
GENERAL
Time shall be of the essence of this Agreement.
This Agreement and the schedules attached hereto together with any and all
agreements, documents and instruments to be entered and delivered herewith
constitute the entire agreement between the parties and shall supersede all
previous oral or written communications.
This Agreement may be executed in separate counterparts, and all such executed
counterparts when taken together shall constitute one (1) Agreement. The parties
shall be entitled to rely on delivery of a facsimile copy of the executed
Agreement and such facsimile copy shall be legally effective to create a valid
and binding Agreement.
In the event that any provisions contained in this Agreement shall be declared
invalid, illegal or unenforceable by a court or other lawful authority of
competent jurisdiction, this Agreement shall continue in force with respect to
the enforceable provisions and all rights and remedies accrued under the
enforceable provisions shall survive any such declaration, and any
non-enforceable provision shall to the extent permitted by law be replaced by a
provision which, being valid, comes closest to the intention underlying the
invalid, illegal and unenforceable provision.
The parties will advise each other, in advance, of any public statement which
they propose to make in respect of the transaction contemplated herein, provided
that no party shall be prevented from making any disclosure statement which is
required to be made by law or any rule of a stock exchange or similar
organization to which it is bound. Neither party will make any public statement
if any of the applicable securities laws, rules or regulations prohibit
publication.
The Shareholder has had adequate opportunity to consider the terms of this
Agreement and to seek such advice with respect to this Agreement as the
Shareholder, in his discretion, deemed necessary or appropriate to the
transaction. The Shareholder acknowledges that neither Inprimis nor anybody
acting on Inprimis' behalf has made any effort to persuade the Shareholder to
enter into this Agreement and that the Shareholder is not signing this Agreement
under duress or in any way against his will.
IN WITNESS WHEREOF the parties hereto have executed this Agreement to be
effective as of the date first above written.
INPRIMIS, INC.
Per:
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Authorized Signatory
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Witness [Shareholder]
