Exhibit 4.9
January 28, 2005
The Shemano Group, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
The undersigned is a holder of shares of common stock, and/or options,
warrants, or other rights to acquire common stock, of National Lampoon, Inc., a
Delaware corporation (the "Company"). The undersigned understands that The
Shemano Group, Inc. (the "Underwriter") proposes to enter into an Underwriting
Agreement (the "Underwriting Agreement") providing for the public offering (the
"Public Offering") of the Company's common stock (the "Offered Common Stock") by
the Underwriter and any other underwriters that may participate in the Public
Offering pursuant to a registration statement to be filed with the Securities
and Exchange Commission (the "SEC") (such registration statement, as may be
amended, is referred to herein as the "Registration Statement"). To induce the
Underwriter and any other underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees as follows:
(i) Except as set forth in subsections (v) and (vi) below, during the
period commencing on the date hereof and ending on the date which is 12 months
from the date the Registration Statement is first declared effective (such
period herein referred to as the "Lock-Up Period"), the undersigned will not,
directly or indirectly, through an "affiliate" or "associate" (as such terms are
defined in the General Rules and Regulations under the Securities Act of 1933,
as amended (the "Securities Act")), a family member or otherwise, offer, sell,
pledge, hypothecate, grant an option for sale, or otherwise dispose of, or
transfer or grant any rights with respect thereto in any manner (either
privately or publicly pursuant to Rule 144 of the General Rules and Regulations
under the Securities Act, or otherwise) any shares of common stock of the
Company or any other securities of the Company, including but not limited to any
securities convertible or exchangeable into shares of common stock of the
Company or options, warrants or other rights to acquire common stock of the
Company directly or indirectly owned or controlled by the undersigned on the
date hereof or hereafter acquired by the undersigned pursuant to a stock split,
stock dividend, recapitalization or similar transaction or otherwise acquired by
the undersigned in a private transaction (the "Securities"), or enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Securities, whether any such swap or transaction is to be settled by delivery of
common stock or other securities, in cash or otherwise, during the Lock-Up
Period, without the Underwriter's prior written consent; provided, however, that
(a) such Securities may be sold or otherwise transferred in a private
transaction during the Lock-Up Period so long as the acquirer of the Securities,
by written agreement with the Underwriter entered into at the time of
acquisition and delivered to the Underwriter prior to the consummation of such
acquisition, agrees to be bound by the restrictions set forth in this letter
agreement and (b) the undersigned may transfer any or all of the Securities
either during his lifetime or upon death, by gift, will or intestacy, to his
immediate family or to a trust or limited partnership, the beneficiaries or
members of which are exclusively the undersigned and/or a member or members of
his immediate family; provided, however, that it shall be a condition to such
The Shemano Group, Inc.
January 28, 2005
Page 2
transfer that the transferee execute a written agreement that the transferee is
receiving and holding the Securities subject to the provision of this letter
agreement, and there shall be no further transfer of such Securities except in
accordance with this letter agreement. For purposes hereof, "immediate family"
shall mean a spouse, lineal descendant, father, mother, brother or sister of the
undersigned.
(ii) Except with respect to the undersigned's participation in the
public offering as set forth in subsection (vi) below, if at any time during the
one-year period commencing on the date that the Registration Statement is first
declared effective, the undersigned proposes to sell any Securities, including
pursuant to subsection (v) below, including publicly under Rule 144 or
otherwise, the undersigned shall sell such Securities through the Underwriter,
so long as the price and terms of execution offered by such Underwriter are at
least as favorable as may be obtained from other brokerage firms, provided
further that the Underwriter notify the undersigned within three (3) business
days of the proposed transaction of the price and terms of execution for such
proposed transaction.
(iii) During the Lock-up Period, the undersigned agrees not to make any
demand for, exercise any right, or file (or participate in the filing of) a
registration statement with respect to the registration of any Securities
without the prior written consent of the Underwriter.
(iv) The undersigned agrees to furnish such information as may be
required (whether orally or in writing) and otherwise to cooperate under the
securities or blue sky laws of such states as the Underwriter may designate or
any regulatory or other authority (including the American Stock Exchange) as a
condition to registration of the Public Offering in such state, if requested by
the Underwriter.
(v) During each 90 day period of the one-year period following the date
that the Registration Statement is first declared effective, the undersigned
shall be entitled to sell up to 39,334 shares of the Company's common stock. In
the event that the number of outstanding shares of the Company's common stock is
changed by a stock dividend, recapitalization, stock split, reverse stock split,
subdivision, combination, reclassification or similar change in the capital
structure of the Company without consideration, then the number of shares of
common stock that the undersigned may sell during any 90 day period shall be
proportionately adjusted, subject to any required action by the Company's Board
of Directors or its stockholders and compliance with applicable securities laws.
If not exercised during a 90 day period, the right to sell as to that 90 day
period shall expire and the undersigned shall not be entitled to include such
shares in sales made during subsequent 90 day periods.
(vi) The undersigned shall be entitled to include up to a total of
400,000 shares of common stock in the Public Offering and to sell such shares
through the Underwriter (the "Selling Security Holder's Shares"). The
undersigned shall notify the Underwriter no later than 5:00 p.m. Pacific time on
February 4, 2005 of the number of Selling Security Holder's Shares, if any, he
will include in the Public Offering. The undersigned shall enter into such
customary agreements (including the Underwriting Agreement) and deliver such
other documents (including a legal opinion, if necessary) as may be reasonably
The Shemano Group, Inc.
January 28, 2005
Page 3
required by the Underwriter and/or the Company in connection with such offering
of the Selling Security Holder's Shares.
This letter agreement shall terminate in the event (a) the Public
Offering does not close on or before May 31, 2005 or (b) the gross proceeds
received by the Company upon the closing of the Public Offering do not equal at
least $8 million.
Subject to the foregoing, the undersigned hereby agrees to the
placement of a legend on the certificates representing the Securities to
indicate the restrictions on resale of the Securities imposed by this agreement
and/or the entry of stop transfer orders with the transfer agent and the
registrar of the Company's securities against the transfer of the Securities
except in compliance with this letter agreement. In the case of any Securities
for which the undersigned is the beneficial but not the record holder, the
undersigned agrees to cause the record holder to authorize the Company to cause
the transfer agent to decline to transfer and/or to note stop transfer
restrictions on its books and records with respect to such Securities.
To the extent that the undersigned has any rights with respect to the
registration of any Securities pursuant to any agreement with the Company, and
to the extent that such agreement and the rights conferred thereunder may be
inconsistent with the terms of this letter agreement, the undersigned agrees
that the terms herein shall govern.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this letter agreement. To the best of the
undersigned's knowledge, all of the Securities held by him are listed on the
attached Annex 1. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the undersigned and any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors, and assigns of the undersigned.
Any right of the undersigned to sell any portion of the Securities, as
discussed in subsection (v) above, is subject at all times to compliance with
all applicable state and federal securities laws, rules and regulations.
This letter agreement represents the entire understanding between the
parties with respect to the subject matter hereof, and supersedes all prior
agreements, negotiations, understandings, letters of intent, representations,
statements and writings between the parties relating thereto. No modification,
alteration, waiver or change in any of the terms of this letter agreement shall
be valid or binding upon the parties hereto unless made in writing and duly
executed on behalf of the party to be charged therewith.
The undersigned understands that the Underwriter and any other
underwriters that may participate in the Public Offering are relying upon this
letter agreement in proceeding toward consummation of the Public Offering.
Any Public Offering will only be made pursuant to an Underwriting
Agreement, the terms of which are subject to negotiation between the Company and
the Underwriter. If this letter agreement is acceptable to the Underwriter,
please sign the form of acceptance below and deliver one of the counterparts
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January 28, 2005
Page 4
hereof to me, such counterparts to constitute one and the same agreement. This
will become a binding agreement between us upon execution by each of the parties
hereto.
Very truly yours,
-----------------------------------
(Signature)
Xxxxx X. Xxxxxxx
-----------------------------------
(Print Name)
AGREED to and ACCEPTED this _____ day of
January 2005
THE SHEMANO GROUP, INC.
By:
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The Shemano Group, Inc.
January 28, 2005
Page 5
ANNEX 1
LIST OF SECURITIES HELD
