EXHIBIT 10.62
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this "Agreement") is entered into as of October 5, 2001
by and among Surgical Safety Products, mc, a New York corporation ("SSP"), C5
Health, Inc., a Delaware corporation ("C5"), and the undersigned (the
"Stockholder").
WHEREAS, SSP and CS have entered into an Agreement and Plan of Merger (the
"Merger Agreement"), dated September 15, 2001, which provides, among other
things, for the merger (the "Merger") of CS with and into a wholly owned
subsidiary of SSP pursuant to the terms and conditions thereof;
WHEREAS, the Merger Agreement provides, among other things, for certain
limitations on the trading and sale of the shares of 55? Common Stock;
WHEREAS, the Stockholder is currently an officer or director of SSP;
WHEREAS, the Merger Agreement provides that the closing is contingent upon the
Stockholder's execution of this Agreement; and
WHEREAS, the Stockholder desires that the Merger Agreement limitations on the
trading and sale of SSP stock shall apply to him.
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,
refers to or derives any significant part of its value from SSP Common Stock)
with respect to the direct or indirect sale, assignment, transfer or other
disposition of shares of SSP Common Stock.
SECTION 2. TRADING LIMITATIONS.
In the event that the Merger is consummated, the Stockholder agrees that: (i) he
will conduct any Sales of SSP Common Stock in compliance with all relevant
securities laws and regulations and will not create any daily low trading prices
in the SSP Common Stock, (ii) until three hundred and sixty-five (365) days
front the closing of the Merger, he will not engage in any Sale of SSP 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 bylaw.
(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.
(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 SSP and CS and to preserve for SSP and C5 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 SSP and C5 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, SSP and C5 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
role (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 SSP and C5 relating to the subject matter hereof and supersedes
all prior agreements and understandings between the Stockholder and SSP and C5
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.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the date first above written.
Surgical Safety Products, Inc.
By: /s/ X. X. Xxxx
Name X. X. Xxxx
Title: CEO
C5 Health, Inc.
By: /s/ Xxx Xxxxx
Name Xxx Xxxxx
Title President
STOCKHOLDER
Signature: /s/ X. X. Xxxx
Print Name X. X. Xxxx
