Exhibit 99.4
LOCK-UP AGREEMENT
LOCK-UP AGREEMENT (the "Lock-Up Agreement") dated May 18, 1998
(the "Closing Date"), by and among the persons named on Schedule A
hereto, such persons being the principal shareholder of Pivot
Technologies, Inc. (individually the "Shareholder" and collectively
the "Shareholders") and Micros-to-Mainframes, Inc., a New York
Corporation ("MTM").
W I T N E S S E T H:
WHEREAS, MTM , Pivot Technologies, Inc. ("Pivot") and the
Shareholders have entered into a Stock Purchase and Option
Agreement ("Option Agreement") dated May 15, 1998 pursuant to
which, among other things, MTM purchased a 19.9% interest in Pivot
and an option to cause Pivot to merge into a wholly-owned
subsidiary of MTM (the "Merger") and the conversion and exchange of
Pivot capital shares into shares of MTM Common Stock, warrants and
cash;
WHEREAS, pursuant to Section 5.16 of the Option Agreement, the
Shareholders have agreed to enter into a Lock-up Agreement
pursuant to which the Shareholders, on behalf of themselves and
their Permitted Transferees, as defined below, assuming the Merger
is consummated, will not sell, transfer or otherwise dispose of
the MTM Common Stock except as set forth in this Lock-Up Agreement;
and
WHEREAS, all capitalized terms used herein and not otherwise
defined herein shall have the meanings given such terms in the
Option Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
terms, conditions and mutual covenants appearing in this Lock-Up
Agreement, the parties hereto hereby agree as follows:
Section 1. (A) (i) Subject to Section 5 below, each
Shareholder hereby agrees that, during the period (the "No-Sale
Period") commencing on the Effective Date of the Merger and ending
three (3) years thereafter, he will not offer, sell, transfer or
otherwise dispose of the MTM Common Stock received in the Merger
(the "Shares") without the prior written consent of MTM, provided,
however, that 25% of such Shares shall, subject to Sections
1(A)(iii) and (iv) below, be released from this Lock-up Agreement
on the first anniversary of the Merger, an additional 50% of the
Shares initially locked-up pursuant to this Lock-up Agreement shall
be released on the second anniversary of the Merger and the
balance shall be received on the third anniversary of the Merger.
(ii) Notwithstanding anything contained in subsection (A)(i) of
this Section 1, a Shareholder may transfer shares of MTM during the
period such shares are subject to this Lock-up Agreement (a) to any
member of his Family, as defined below; (b) from a member of the
Family of a Shareholder to another member of the Family of that
Shareholder or to that Shareholder (including but not limited to
transfers among trusts complying herewith); (c) to the personal
representative of a Shareholder or Permitted Transferee hereunder
who is deceased or adjudicated incompetent; and (d) by the personal
representative of a Shareholder or Permitted Transferee who is deceased
or adjudicated incompetent to any member of said Shareholder's or
permitted transferee's Family (any such transferee is hereinafter referred
to as a "Permitted Transferee"). Any Shares transferred pursuant to
this subparagraph (ii) shall continue to be subject thereafter to
this Lock-up Agreement. Family shall mean a spouse or descendant,
ancestor or sibling (in all cases lineal or adopted) of a
Shareholder, or a spouse of a descendant, ancestor or sibling of a
Shareholder, or a trustee of a trust or custodian of a
custodianship primarily for the benefit of one or more of the
foregoing and/or such Shareholder.
(iii) Each Shareholder and his Permitted
Transferee, if any, agrees that in the event he wishes to sell,
transfer or otherwise dispose of his Shares released from the
provisions of (i) above to a person who is not a Permitted
Transferee, the Shareholder shall first offer MTM in writing the
right to redeem such shares at the greater of the closing price on
the exchange it is then traded for the MTM Common Stock as at the
date of the notice or the acceptance by MTM. MTM shall have five
(5) business days to accept such offer ("Acceptance Period").
Acceptance of such offer must be delivered to the offering
Shareholder or Permitted Transferee within such time period if such
person is easily accessible or if not, by mailing notice thereof to
such person . If MTM elects to accept such offer, the closing
thereon shall be within (5) business days of such acceptance. If
MTM does not exercise its right of first offer, the Shareholder or
Permitted Transferee making such offer shall have sixty (60) days
after the end of the Acceptance Period to sell same. To the extent
the Shares offered for sale pursuant to the right of first offer
are not sold by the end of the aforementioned sixty (60) day
period, the Shareholder or Permitted Transferee must start the
process again with respect to such unsold Shares.
(iv) In no event will any Shareholder or
Permitted Transferee sell any Shares in violation of Rule 144 or
145 of the securities Act of 1933, as amended.
(B) The Shareholder acknowledges that the breach
or impending violation of any of the provisions of this Lock-Up
Agreement may cause irreparable damage to MTM for which remedies at
law would be inadequate. The Shareholder further acknowledges that
the provisions set forth herein are essential terms and conditions
of the Option Agreement, the Merger Agreement, and this Lock-Up
Agreement. Each Shareholder therefore agrees that MTM shall be
entitled to a decree or order by any court of competent
jurisdiction enjoining such impending or actual violation of any of
such provisions. Such decree or order, to the extent appropriate,
shall specifically enforce the full performance of any such
provision by the Shareholder, and the Shareholder and MTM hereby
consent to the jurisdiction of any such court of competent
jurisdiction, state or federal, sitting in the State of New York,
and the Shareholder authorizes the entry on its behalf of any
required appearance for such purpose. If any portion of this
Section 1 is adjudicated to be invalid or unenforceable, this
Section 1 shall be deemed amended to delete therefrom the portion
so adjudicated, such deletion to apply only with respect to the
operation of this Section 1 in the jurisdiction in which such
adjudication is made.
Section 2. Subject to Section 5 hereunder, this Lock-Up
Agreement shall inure to the benefit of and be binding upon MTM,
its successors and assigns, and upon the Shareholder, the
Shareholders, the Shareholders' respective heirs, executors,
administrators, legatees and legal representatives and other
Permitted Transferees.
Section 3. Should any part of this Lock-Up Agreement, for
any reason whatsoever, be declared invalid, illegal, or incapable
of being enforced in whole or in part, such decision shall not
affect the validity of any remaining portion, which remaining
portion shall remain in full force and effect as if this Lock-Up
Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties
hereto that they would have executed the remaining portion of this
Lock-Up Agreement without including therein any portion which may
for any reason be declared invalid.
Section 4. This Lock-Up Agreement shall be construed and
enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State
without application of the principles of conflicts of laws of such
State.
Section 5. This Lock-Up Agreement and all rights hereunder
are personal to the parties and shall not be assignable by MTM
without the Shareholder's written consent or by the Shareholder,
except as provided in Section 1(A)(ii) with respect to Permitted
Transferees, without MTM's written consent, and any purported
assignment in violation hereof shall be null and void.
Notwithstanding anything contained herein which may be to the
contrary, a transfer to a Permitted Transferee shall only be
permitted if the Permitted Transferee executes a Lock-Up Agreement
in substantially the form of this Lock-Up Agreement.
Section 6. (A) All notices, requests, consents, and
demands by the parties hereunder shall be delivered by fax, by
hand, by recognized national overnight courier or by deposit in the
United States Mail, postage prepaid, by registered or certified
mail, return receipt requested, addressed to the party to be
notified at the address set forth below:
(i) If to Shareholder:
Fax:
with a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
(ii) If to MTM:
Xxxxxx Xxxxxxx, President
Micros-To-Mainframes, Inc.
000 Xxxxxxxxx Xxx
Xxxxxx Xxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxx Xxxxxx, Esq.
Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
(B) Notices given by mail shall be deemed
effective on the earlier of the date shown on the proof of receipt
of such mail or, unless the recipient proves that the notice was
received later or not received, three (3) days after the date of
mailing thereof. Other notices shall be deemed given on the date
of receipt. Any party hereto may change the address specified
herein by written notice to the other parties hereto.
Section 7. The failure of either party to insist upon the
strict performance of any of the terms, conditions and provisions
of this Agreement shall not be construed as a waiver or
relinquishment of future compliance therewith, and said terms,
conditions and provisions shall remain in full force and effect.
No waiver of any term or any condition of this Lock-Up Agreement
on the part of either party shall be effective for any purpose
whatsoever unless such waiver is in writing and signed by such
party.
IN WITNESS WHEREOF, the parties hereto have executed this
Lock-Up Agreement as of the day and year first written above.
MICROS-TO-MAINFRAMES, INC.
By: \s\ Xxxxxx Xxxxxxx
SHAREHOLDER:
\s\ Xxxxxxx Xxxxxxxxxx
Name
\s\ Xxxx XxXxxx
Name
\s\ Xxxxxx Xxxx
Name
SCHEDULE A
Xxxxxxx Xxxxxxxxxx
000 Xxxxxxxxx Xxx
Xxxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxx
000 Xxxxxxxxx Xxx
Xxxxxx Xxxxxxx, XX 00000
Xxxx XxXxxx
000 Xxxxxxxxx Xxx
Xxxxxx Xxxxxxx, XX 00000
