LOCKUP AND VESTING AGREEMENT
THIS LOCKUP AND VESTING AGREEMENT is made and entered into effective as
of the 5th day of January, 2000, by and between XML - GLOBAL TECHNOLOGIES, a
Colorado corporation (the "Company"), formerly known as International Capital
Funding, Inc., and XXXXX XXXXXXX, an employee of the Company (the "Employee").
WITNESSETH
WHEREAS, pursuant to a certain Agreement and Plan of Reorganization
between the Company and XML Technologies, Inc., a Nevada corporation, Employee
received certain shares of common stock of the Company, $.0001 par value (the
"Shares" or the "Common Stock") in exchange for shares of
common stock of XML Technologies, Inc. owned by Employee; and
WHEREAS, it was the understanding that Employee received the Shares
subject to Employee's agreement to continue in the employ of the Company in
accordance with the terms hereinbelow set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinbelow set forth, and in consideration of the sum of $10.00 paid by the
Company to Employee, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto agree as follows:
1. Employee covenants and agrees for himself, his successors and
assigns, that for so long as the Shares are subject to the provisions of this
Agreement, he will not offer to sell, sell, contract to sell or otherwise
dispose of, pledge, encumber, hypothecate or enter into any contract or
agreement providing for or contemplating the foregoing without the prior
written consent of the Company, which consent may be withheld at the Company's
sole discretion.
2. The Shares shall be subject to the restrictions contained in
paragraph 1 hereof until such time as the Shares, or any portion of them, have
become fully vested in Employee in accordance with the provisions hereof.
Subject to Employee continuing to be in the active and full time employ of the
Company on each of the vesting dates set forth below, the Shares shall be
deemed vested and released from the provisions of this Agreement, in the
numbers and on the dates set forth below:
Number of Shares Vested Vesting Date
----------------------- ------------
500,000 shares November 29, 2000
500,000 shares February 29, 2001
500,000 shares May 29, 2001
500,000 shares August 28, 2001
3. If Employee's employment by the Company terminates for any reason,
including, but not limited to resignation by Employee or termination by the
Company with or without cause, then all or any part of the Shares subject to
this Agreement which have not yet vested in Employee pursuant to the
provisions of paragraph two (2) of this Agreement shall be forfeited by the
Employee and thereafter conditionally and irrevocable void.
4. Not withstanding the provisions of number 3 above the following
provisions shall apply:
a. In the event the employee's employment is terminated by the
Company with or without cause before November 29, 2000 then 500,000 shares
shall vest with the employee.
b. If the Company was to sell more than fifty percent of the
issued and outstanding common stock of the Company either through a merger,
acquisition or secondary financing prior to August 28, 2001 then this
agreement does not apply and all restricted shares owned by the employee shall
be treated the same as all other shareholders
5. Until such time as all of the Shares have become fully vested in the
Employee, Employee shall deliver the certificates evidencing the Shares to the
Company's then acting secretary who shall hold the Shares for the benefit of
Employee subject to the terms of this Agreement. It is understood that the
Company shall not accept or acknowledge any proposed transfer, assignment,
declaration of trust, pledge, hypothecation or other document evidencing a
change of legal or beneficial ownership or interest in the Shares so held
unless pursuant to a transaction consented to in writing by the Company.
6. For so long as the Shares are held by the Company subject to being
vested in Employee, Employee shall nevertheless be deemed the record and
beneficial owner of the Shares and shall be entitled to exercise all rights of
beneficial ownership with respect to the Shares, including, without
limitation, the right to vote such Shares at any regular or special meeting of
the Company's shareholders, as well as the right to participate and receive
any and all dividends declared and paid on the Shares as and when determined
by the Company's Board of Directors.
7. As each portion of the Shares become vested, the Company will
deliver certificates evidencing the fully vested shares to Employee, whereupon
such shares shall be deemed fully released and discharged from the covenants
and provisions of this Agreement.
8. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors in interest and assigns.
9. This Agreement may be executed by telex, telecopy or other facsimile
transmission, and such facsimile transmission shall be valid and binding to
the same extent as if it were an original. Further, this Agreement may be
signed in one or more counterparts, all of which when taken together shall
constitute the same documents. For all evidentiary purposes, any one complete
counter set of this Agreement shall be considered an original.
XML - GLOBAL TECHNOLOGIES, INC.
By:
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Xxxxx Xxxxxxx, CEO
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XXXXX XXXXXXX
