LOCKUP AGREEMENT
This
AGREEMENT (the “Agreement”) is made as of the 12 day of December, 2007, by
_______________________ (“Holder”), maintaining an address at
_______________________,
facsimile:
(___) ___-____,
in
connection with his or its ownership of shares of Purple Beverage Company,
Inc.,
a
Nevada corporation
(the “Company”).
NOW,
THEREFORE, for good and valuable consideration, the sufficiency and receipt
of
which consideration are hereby acknowledged, Holder agrees as
follows:
1. Background.
a.
Holder
is
the beneficial owner of the amount of shares of the Common Stock, $.001 par
value, of the Company (“Common Stock”) designated on the signature page
hereto.
x. Xxxxxx
acknowledges that the Company has entered into or will enter into at or about
the date hereof agreements including Subscription Agreements with subscribers
(“Subscribers”), effective as of the date hereof for the Company’s Common Stock
and Warrants exercisable for Common Stock (the “Offering”). Holder understands
that, as a condition to closing the Offering, the Subscribers have required,
and
the Company has agreed to obtain on behalf of the Subscribers an agreement
from
the Holder to refrain from selling any securities of the Company from the date
hereof until two years after the date hereof (“Restriction Period”). The Holder
has entered into this Agreement in order to induce the Subscribers to close
the
transactions contemplated by such agreements.
2. Sale
Restriction.
a. Holder
hereby agrees that during the Restriction Period without the consent of the
Required Holders (as defined in the Subscription Agreement), the Holder will
not
sell, transfer or otherwise dispose of any shares of Common Stock or any
options, warrants or other rights to purchase shares of Common Stock or any
other security of the Company which Holder owns or has a right to acquire as
of
the date hereof or during the Restriction Period, other than in connection
with
an offer made to all stockholders of the Company in connection with merger,
consolidation or similar transaction involving the Company. Holder further
agrees that the Company is authorized to and the Company agrees to place “stop
orders” on its books to prevent any transfer of shares of Common Stock or other
securities of the Company held by Holder in violation of this Agreement. The
Company agrees to use commercially reasonable efforts not to allow any
transaction inconsistent with this Agreement.
b. Any
subsequent issuance to and/or acquisition by Holder of Common Stock or options
or instruments convertible into Common Stock (“Convertible Securities”) during
the Restriction Period will be subject to the provisions of this
Agreement.
c. Notwithstanding
the foregoing restrictions on transfer, the Holder may, at any time and from
time to time during the Restriction Period, transfer all or a portion of the
shares of Common Stock or Convertible Securities (i) as bona fide gifts or
transfers by will or intestacy and (ii) to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the Holder,
provided that any such transfer shall not involve a disposition for value;
provided, that, in the case of any gift or transfer described in clauses (i)
and
(ii), each donee or transferee agrees in writing to be bound by the terms and
conditions contained herein in the same manner as such terms and conditions
apply to the undersigned.
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3. Miscellaneous.
a. At
any
time, and from time to time, after the signing of this Agreement, Holder will
execute such additional instruments and take such action as may be reasonably
requested by the Subscribers to carry out the intent and purposes of this
Agreement.
b. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts of laws. Any action
brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the state courts of
New
York or in the federal courts located in the state of New York. The parties
to
this Agreement hereby irrevocably waive any objection to jurisdiction and venue
of any action instituted hereunder and shall not assert any defense based on
lack of jurisdiction or venue or based upon forum
non conveniens.
The
parties executing this Agreement and other agreements referred to herein or
delivered in connection herewith agree to submit to the in personam jurisdiction
of such courts and hereby irrevocably waive trial by jury.
The
prevailing party shall be entitled to recover from the other party its
reasonable attorney’s fees and costs. In the event that any provision of this
Agreement or any other agreement delivered in connection herewith is invalid
or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement.
c. Notice
to the Company:
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Company, to: Purple
Beverage Company,
Inc.,
000
Xxxx Xxx Xxxx Xxxx., Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attn: Xxx
Xxxxxxxxxx, President, facsimile:
(000)
000-0000, with a copy by facsimile only to: Xxxxx Xxxx LLP, 0000 Xxxx xxxxxx,
Xxxxx 000, Xxxxxx, XX 00000, Attn: Xxxxxxx X. Xxxx, Esq., facsimile: (000)
000-0000, (ii) if to the Holder, to: the address and facsimile number indicated
on first page of this Lockup Agreement.
d. Notice
to the Holder.
Holder
hereby irrevocably waives personal service of process and consents to process
being served in any suit, action or proceeding in connection with this Agreement
or any other Transaction Document by mailing a copy thereof via registered
or
certified mail or overnight delivery (with evidence of delivery) to Holder
at
the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any other manner permitted by law. Holder irrevocably
appoints Purple
Beverage Company,
Inc.
its true and lawful agent for service of process upon whom all processes of
law
and notices may be served and given in the manner described above; and such
service and notice shall be deemed valid personal service and notice upon Holder
with the same force and validity as if served upon Holder.
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e. The
restrictions on transfer described in this Agreement are in addition to and
cumulative with any other restrictions on transfer otherwise agreed to by the
Holder or to which the Holder is subject to by applicable law.
f. This
Agreement shall be binding upon Holder, its legal representatives, successors
and assigns.
g. This
Agreement may be signed and delivered by facsimile and such facsimile signed
and
delivered shall be enforceable.
h. The
Company agrees not to take any action or allow any act to be taken which would
be inconsistent with this Agreement.
i. The
Holder acknowledges that this Lockup Agreement is being entered into for the
benefit of the Subscribers identified in the Subscription Agreement dated on
or
about November ___, 2007 among the Company and the Subscribers, may be enforced
by the Subscribers and may not be amended without the consent of the Subscriber,
which may be withheld for any reason.
[Signatures
continued on following page.]
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IN
WITNESS WHEREOF, and intending to be legally bound hereby, Holder has executed
this Agreement as of the day and year first above written.
| HOLDER: | ||
| Name of Holder | ||
| Number of Shares of Common Stock Actually Owned | ||
|
Number
of Shares of Common Stock Beneficially
Owned,
if different than Number of Shares Actually
Owned (Describe such
shares and related instruments on
next page)
|
| COMPANY: | ||
| PURPLE BEVERAGE COMPANY, INC., a Nevada corporation | ||
| |
|
|
| By: | ||
|
Xxxxxxxx Xxxxxxxxxx, its Chief Executive Officer |
||
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