Lock-Up Agreement
EXHIBIT
10.1
THIS LOCK-UP AGREEMENT (this
“Agreement”) is entered
into as of March 15, 2010 among Xxxxx Xxxxx (the “Gawad”), CARDIOGENICS HOLDINGS INC. a
Nevada corporation (the “Company”), CardioGenics
ExchangeCo Inc., an Ontario corporation (“ExchangeCo”) and WeirFoulds
LLP, as “trustee“, under the “Trust Agreement described below.
WHEREAS, Gawad holds common
stock of CardioGenics ExchangeCo Inc., an Ontario corporation (“ExchangeCo”), which is
indirectly wholly-owned by the Company, which shares of common stock are
exchangeable at any time into shares of the Company’s common stock, par value
$0.00001 (the “Company Common Stock”) on a
one-for-one basis in accordance with the terms of that certain Voting and
Exchange Trust Agreement (the “Trust Agreement”) dated July
6, 2009 among JAG Media Holdings, Inc., ExchangeCo and Weirfoulds LPP and that
certain Support Agreement (the “Support Agreement”) dated July 6, 2009
between JAG Media Holdings, Inc. and ExchangeCo (the “Exchangeable
Shares”);
WHEREAS, the Company believes
it is in the best interests of its stockholders to establish an orderly trading
market for shares of the Company Common Stock; and
WHEREAS, the Company and Gawad
desire that Gawad refrain from (a) exchanging such number of Exchangeable Shares
held by Gawad as are exchangeable into 150,000,000 shares of Company Common
Stock (the “Restricted Exchangeable
Shares”) (the Restricted Exchangeable Shares and the 150,000,000 shares
of Company Common Stock into which they are exchangeable are referred to
collectively as the “Restricted Securities”) and
(b) selling the Restricted Securities in order to encourage orderly trading in
shares of the Company Common Stock;
NOW THEREFORE, in
consideration of the premises and the mutual covenants contained in this
Agreement, the parties agree as follows:
1. Lock-Up of
Securities.
(a) Gawad
agrees that he will not (i) exchange any of the Restricted Exchangeable Shares
(an “Exchange”) prior to March 15,
2014 or (ii) offer to sell, contract to sell, or otherwise sell, dispose of,
loan, pledge or grant any rights with respect to (collectively, a “Disposition”) the Restricted
Securities prior to March 15, 2014; provided, however,
that nothing herein shall prevent Gawad from (x) pledging the Restricted
Securities as collateral to secure any loan taken by Gawad in an arms length
loan transaction or (y) transferring all or any portion of the Restricted
Securities to an immediate family member so long as such family member agrees,
in a writing acceptable to the Company, to be bound by the terms and
conditions of this Agreement.
(b) The
foregoing restriction is expressly intended to preclude Gawad from engaging in
any hedging or other transaction which is designed to or reasonably expected to
lead to or result in an Exchange or Disposition of Restricted Securities during
the lock-up period, even if the Restricted Securities would be disposed of by
someone other than Gawad. Such prohibited hedging or other
transactions include any short sale or any purchase, sale or grant of any right
with respect to any Restricted Securities or with respect to any security that
includes, relates to or derives any significant part or its value from the
Restricted Securities.
(c) Notwithstanding
anything to the contrary in the Trust Agreement or the Support Agreement, Gawad
hereby authorizes ExchangeCo and Weirfoulds to take all action deemed by them,
in their sole discretion, to be necessary or appropriate to enforce the lock-up
provisions of this Agreement and agree and consent to (i) the entry of stop
transfer instructions with the Company’s transfer agent and registrar against
the exchange or transfer of the Restricted Securities except in compliance with
this Section 1
(Lock-Up of Securities) and (b) instructions being given to the appropriate
officer or agent of ExchangeCo and the “trustee” under the Trust Agreement
prohibiting them from effectuating any Exchange except in compliance with this
Section
1 (Lock-Up of Securities).
(d) In
the event of a “Change-in-Control” of the Company during the lock-up period,
this Agreement and the lock-up restrictions hereunder shall terminate and become
of no further force and effect immediately upon the effectiveness of such
“Change-in-Control.” For purposes of this Agreement, “Change-in-Control” shall
mean (i) any acquisition of more than 50% of the outstanding capital stock of
the Company by any unrelated third party (“Third Party“); (ii) any merger
of the Company into any Third Party; or (iii) any acquisition of substantially
all of the assets of the Company by any Third Party.
2. Actions
by ExchangeCo and Weirfoulds.
(a) Notwithstanding anything to the
contrary in the Trust Agreement, WeirFoulds agrees that it will not take any
actions, as trustee under the Trust Agreement, to effectuate an Exchange or
Disposition of the Restricted Securities except in compliance with this Section
1 (Lock-Up of Securities).
(a) Notwithstanding anything to the
contrary in the Trust Agreement or the Support Agreement, ExchangeCo agrees that
it will not take any actions to effectuate an Exchange or Disposition of the
Restricted Securities except in compliance with this Section
1 (Lock-Up of Securities).
3. Attorney’s Fees.
If any
action at law or in equity (including arbitration) is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys’ fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled as determined by such court,
equity or arbitration proceeding.
4. General.
4.1 Governing
Law. This Agreement will be construed in accordance with and
governed by the laws of the Province of Ontario,
Canada, without giving effect to the conflict of law principles of such
province.
2
4.2 Successors and
Assigns. Except as otherwise expressly provided in this
Agreement, this Agreement will be binding on, and will inure to the benefit of,
the successors and permitted assigns of the parties to this
Agreement. Nothing in this Agreement is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights or obligations under or by reason of this Agreement, except as
expressly provided in this Agreement.
4.3 Notices. All
notices and other communications required or permitted hereunder will be in
writing and will be delivered by hand or sent by overnight courier, fax or
e-mail to:
if
to the Company:
0000
Xxxxxxx Xxxxx
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
Fax:
0.000.000.0000
E-Mail:
xxxxxx@xxxxxxxxxxxx.xxx
Attention:
Xx. Xxxxx Xxxxx, CE
if
to ExchangeCo:
CardioGenics
ExchangeCo Inc.
0000
Xxxxxxx Xxxxx
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
Fax:
0.000.000.0000
E-Mail:
xxxxxxxxx@xxxxxxxxxxxx.xxx
Attention:
Xxxxx X. Xxxxxxxx, Corporate Secretary
if
to WeirFoulds:
WeirFoulds
LLP
0000-000
Xxxx Xxxxxx Xxxx
The
Exchange Tower
Toronto,
Ontario M5X 1J5
Fax:
0.000.000.0000
E-Mail:
xxx@xxxxxxxxxx.xxx
Attention:
Xxxx Xx, Partner
if
to Gawad:
c/o
CardioGenics Inc.
0000
Xxxxxxx Xxxxx
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
Fax:
0.000.000.0000
E-Mail:
xxxxxx@xxxxxxxxxxxx.xxx
Attention:
Xx. Xxxxx Xxxxx
3
Each
party may furnish an address substituting for the address given above by giving
notice to the other parties in the manner prescribed by this Section
3.3. All notices and other communications will be deemed to
have been given upon actual receipt by (or tender to and rejection by) the
intended recipient or any other person at the specified address of the intended
recipient.
4.4 Severability. In
the event that any provision of this Agreement is held to be unenforceable under
applicable law, this Agreement will continue in full force and effect without
such provision and will be enforceable in accordance with its
terms.
4.5 Construction. The
titles of the sections of this Agreement are for convenience of reference only
and are not to be considered in construing this Agreement. Unless the context of
this Agreement clearly requires otherwise: (a) references to the plural include
the singular, the singular the plural, and the part the whole, (b) references to
one gender include all genders, (c) “or” has the inclusive meaning frequently
identified with the phrase “and/or,” (d) “including” has the inclusive meaning
frequently identified with the phrase “including but not limited to” or
“including without limitation,” and (e) references to “hereunder,” “herein” or
“hereof” relate to this Agreement as a whole. Any reference in this
Agreement to any statute, rule, regulation or agreement, including this
Agreement, shall be deemed to include such statute, rule, regulation or
agreement as it may be modified, varied, amended or supplemented from time to
time.
4.6 Entire
Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter of
this Agreement and supersedes all prior or contemporaneous agreements and
understandings other than this Agreement relating to the subject matter
hereof.
4.7 Amendment and
Waiver. This Agreement may be amended only by a written
agreement executed by the parties hereto. No provision of this
Agreement may be waived except by a written document executed by the party
entitled to the benefits of the provision. No waiver of a provision
will be deemed to be or will constitute a waiver of any other provision of this
Agreement. A waiver will be effective only in the specific instance
and for the purpose for which it was given, and will not constitute a continuing
waiver.
4.8 Counterparts. This
Agreement may be in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one
instrument.
4
IN WITNESS WHEREOF, the
parties have executed this Lock-Up Agreement as of the date first written
above.
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COMPANY
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By:
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/s/
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Name:
Xxxxx Xxxxx
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Title:
Chief Executive Officer
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CARDIOGENICS
EXCHANGECO INC.
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By:
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/s/
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Corporate Secretary
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WEIRFOULDS
LLP
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By:
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/s/
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Name:
Xxxx Xx
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Title:
Partner
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/s/
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Xxxxx
Xxxxx
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