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EXHIBIT 10.34
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this "Agreement") is entered into as of June
__, 2001 by and among E-Stamp Corporation, a Delaware corporation ("E-Stamp"),
Xxxxx0.xxx, Inc., a Delaware corporation ("Learn2"), and the undersigned (the
"Stockholder").
WHEREAS, E-Stamp and Learn2 have entered into an Agreement and Plan of
Merger (the "Merger Agreement"), dated April 19, 2001, which provides, among
other things, for the merger (the "Merger") of Learn2 with and into E-Stamp
pursuant to the terms and conditions thereof;
WHEREAS, E-Stamp, Learn2 and RGC International Investors, LDC ("RGC")
have entered into a Redemption and Termination Agreement (the "Redemption
Agreement"), dated April 19, 2001 which provides, among other things, for
certain trading limitations on the shares of E-Stamp Common Stock to be received
by RGC in the Merger (the "RGC Trading Limitations");
WHEREAS, the Stockholder is currently an officer or director of Learn2
or E-Stamp;
WHEREAS, the Redemption Agreement provides that the applicability of
the RGC Trading Limitations to RGC is contingent upon the Stockholder's
execution of this Agreement; and
WHEREAS, the Stockholder desires that the RGC Trading Limitations
shall apply to RGC.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, and intending to be legally bound hereby, agree as follows:
SECTION 1. DEFINITIONS.
For purposes of this Agreement, "SALE" shall mean the sale,
assignment, transfer, or other disposition of, or the entering into of any
contract, option or other agreement or understanding (including, 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 security (other than a broad-based market basket or
index) that includes, relates to or derives any significant part of its value
from E-Stamp Common Stock) with respect to the direct or indirect sale,
assignment, transfer or other disposition of shares of E-Stamp Common Stock.
SECTION 2. TRADING LIMITATIONS.
(a) In the event that the Merger is consummated, the Stockholder
agrees that:
(i) he will conduct any Sales of E-Stamp Common Stock in
compliance with all relevant securities laws and regulations and will not create
any daily low trading prices in the E-Stamp Common Stock,
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(ii) until one hundred eighty (180) days from the closing of
the Merger, he will not engage in any Sales of E-Stamp Common Stock, and
(iii) during the period beginning one hundred and eighty
(180) days from the closing of the Merger and ending on the one (1) year
anniversary of the closing of the Merger, his Sales of E-Stamp Common Stock in
any calendar month will not exceed 5% of the lesser of (A) the total trading
volume of the E-Stamp Common Stock for the previous calendar month and (B) the
aggregate number of shares of E-Stamp Common Stock beneficially owned by the
Stockholder immediately following the consummation of the Merger.
(b) Notwithstanding the limitation referred to in subpart (B) of
Section 2(a)(iii) above (but subject to the limitation referred to in subpart
(A) of Section 2(a)(iii) above), the Stockholder shall be permitted to sell up
to 5,000 shares of E-Stamp Common Stock (as adjusted for stock splits, stock
dividends and similar events) in any calendar month during the period specified
in Section 2(a)(iii) above.
(c) [except for Xxxxxxx Xxxx and Xxxxxx Xxxxxxx, include the
following:] Notwithstanding the foregoing, the restrictions set forth in this
Section 2 shall expire if the Stockholder's employment with or service to Learn2
or E-Stamp is subsequently terminated, so long as the Stockholder is not (or
would not be following consummation of the Merger), at the time of such
termination, a holder of five percent (5%) or more of the outstanding shares of
E-Stamp Common Stock.
SECTION 3. MISCELLANEOUS.
(a) Termination. In the event that the Merger Agreement is
terminated in accordance with its terms, this Agreement will terminate and be of
no further force and effect.
(b) Waiver; Severability. No waiver by any party hereto of any
condition or of any breach of any provision of this Agreement shall be effective
unless in writing and signed by each party hereto. In the event that any
provision of this Agreement, or the application of any such provision to any
person, entity or set of circumstances, shall be determined to be invalid,
unlawful, void or unenforceable to any extent, the remainder of this Agreement,
and the application of such provision to persons, entities or circumstances
other than those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be impaired or otherwise affected and shall continue to
be valid and enforceable to the fullest extent permitted by law.
(c) Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other party hereto.
(d) Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
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(e) Injunctive Relief. Each of the parties acknowledge that (i)
the covenants and the restrictions contained in this Agreement are necessary,
fundamental, and required for the protection of E-Stamp and Learn2 and to
preserve for E-Stamp and Learn2 the benefits of the Merger; (ii) such covenants
relate to matters which are of a special, unique, and extraordinary character
that gives each of such covenants a special, unique, and extraordinary value;
and (iii) a breach of any such covenants or any other provision of this
Agreement shall result in irreparable harm and damages to E-Stamp and Learn2
which cannot be adequately compensated by a monetary award. Accordingly, it is
expressly agreed that in addition to all other remedies available at law or in
equity, E-Stamp and Learn2 shall be entitled to the immediate remedy of a
temporary restraining order, preliminary injunction, or such other form of
injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from breaching any
such covenant or provision or to specifically enforce the provisions hereof.
(f) Governing Law. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of the
State of Delaware without giving effect to any choice or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
(g) Entire Agreement. This Agreement sets forth the entire
understanding of the Stockholder and E-Stamp and Learn2 relating to the subject
matter hereof and supersedes all prior agreements and understandings between the
Stockholder and E-Stamp and Learn2 relating to the subject matter hereof.
(h) Attorneys' Fees. In the event of any legal actions or
proceeding to enforce or interpret the provisions hereof, the prevailing party
shall be entitled to reasonable attorneys' fees, whether or not the proceeding
results in a final judgment.
(i) Counterparts. This Agreement shall be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first above written.
E-STAMP CORPORATION
By:
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Name:
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Title:
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XXXXX0.XXX, INC.
By:
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Name:
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Title:
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STOCKHOLDER
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Print Name:
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[Signature Page to Lock-Up Agreement]
