LOCK UP AGREEMENT
THIS
LOCK UP AGREEMENT is
made
as of the 15th
day of
January, 2008
AMONG:
XXXXXXXXXXXXXXXXXXXXX.XXX,
INC.,
a
corporation formed pursuant to the laws of the State of Nevada and having an
office for business located at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“Company”)
AND:
XXXXX
ENTERPRISES, INC.,
a
corporation formed pursuant to the laws of the State of Utah and having an
address at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxx 00000 (“Xxxxx”);
AND:
TYVAN
ENTERPRISES, INC.,
a
corporation formed pursuant to the laws of the State of Utah and having an
address at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxx 00000
(“Tyvan”);
AND:
BADACO,
INC.,
a
corporation formed pursuant to the laws of the State of Utah and having an
address at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxx 00000
(“Badaco”);
AND:
LUCASA,
LLC,
a
limited liability company formed pursuant to the laws of the State of Utah
and
having an address at 000 Xxxxx 00 Xxxx, Xxxxxxxx Xxxxx, Xxxx 00000 (“Lucasa”);
AND:
XXXX
CREEK CAPITAL MANAGEMENT, LLC,
a
limited liability company formed pursuant to the laws of the State of Utah
and
having an address at 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 (“Xxxx”);
AND:
XXXX
X. XXXXXXXX,
an
individual having an address at 0000 X. 000 X., Xxxxxxxxxxx, Xxxx 00000
(“Xxxxxxxx” and together with Romel, Tyvan, Badaco, Lucasa and Xxxx, the
“Principals”).
WHEREAS:
A. Company
is a reporting company whose common stock is traded on the Over the Counter
Bulletin Board;
B. Pursuant
to the terms of a Membership Interest Purchase Agreement, dated as of the date
hereof (the “Purchase Agreement”) among Company, Boya Systems, LLC, Lucasa, Xxxx
and Investment
Tools and Training, LLC,
the
Principals were issued shares of Company common stock (the “Purchase Shares”)
and debentures convertible into shares of Company common stock (the “Debenture
Shares”);
C. The
Purchase Shares, together with any securities received in replacement of such
shares or as stock dividends or splits on the Purchase Shares, all securities
received in replacement of the Purchase Shares in a recapitalization, merger,
reorganization, exchange or the like, and all new, substituted or additional
securities or other properties to which the Principal is entitled by reason
of
Purchaser’s ownership of the Purchase Shares, but specifically excluding any
shares of Company common stock acquired by Principals on the open market or
any
Debenture Shares, are referred to collectively herein as the “Company
Shares;”
D. As
an
inducement to enter into the Purchase Agreement, the Principals have agreed
to
limit the sales of Company Shares in accordance with the terms
hereof.
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
1
SHARE
RESTRICTION
1.1 The
Principals hereby agree that they will not, directly or indirectly, without
the
prior written consent of Company,
issue,
offer, agree or offer to sell, sell, grant an option for the purchase or sale
of, transfer, pledge, assign, hypothecate, distribute or otherwise encumber
or
dispose of any Company
Shares; provided, however, notwithstanding the foregoing restrictions on
transfer:
(a)
for
the period commencing on the six month anniversary of the date hereof until
the
one year anniversary of the date hereof, the Principals
may
transfer up to an aggregate of 12.5% of their respective Company
Shares;
(b)
for
the period commencing on the one year anniversary of the date hereof until
the
two anniversary of the date hereof, the Principals
may
transfer up to an aggregate of 25% of their respective Company
Shares;
(c)
for
the period commencing on the two year anniversary of the date hereof until
the
three year anniversary of the date hereof, the Principals
may
transfer up to an aggregate of 50% of their respective Company
Shares;
(d)
for
the period commencing on the three year anniversary of the date hereof until
the
four year anniversary of the date hereof, the Principals
may
transfer up to an aggregate of 75% of their respective Company Shares;
and
(e)
upon
the four year anniversary of the date hereof, the restrictions set forth in
this
Section 1.1 shall automatically terminate.
1.2 In
order
to ensure the Principals compliance with the provisions of Section 1.1, the
Principals agree to only sell their Company Shares through American Capital
Partners, LLC, as agent for the respective Principals, shall execute the
agreements with American Capital Partners, LLC, as annexed hereto as Exhibit
A,
for such and shall deliver the Purchase Shares to American Capital Partners,
LLC
upon the closing of the Purchase Agreement. In the event that American Capital
Partners, LLC is unavailable to act as agent for the Principals in accordance
with this Section 1.2, the Principals agree to use such other investment banking
firm as may be approved by the Company.
1.3 Any
subsequent issuance to and/or acquisition of shares or the right to acquire
shares by the Principals, with
the
exception of shares acquired by Principals on the open market or any Debenture
Shares,
will be
subject to the provisions of this Agreement.
1.4 Notwithstanding
the foregoing restrictions on transfer, the Principals may, at any time and
from
time to time during the term hereof, transfer all or part of the Company Shares
(i) as bona fide gifts or transfers by will or intestacy, (ii) to any trust
for
the direct or indirect benefit of the undersigned or the immediate family of
the
Principals, provided that any such transfer shall not involve a disposition
for
value, (iii) to a partnership which is the general partner of a partnership
of
which such Principal is a general partner, provided, that, in the case of any
gift or transfer described in clauses (i), (ii) or (iii), 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.
For purposes hereof, "immediate family" means any relationship by blood,
marriage or adoption, not more remote than first cousin.
ARTICLE
2
GENERAL
PROVISIONS
Notice
2.1 Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
facsimile. Any notice delivered by mail shall be deemed to have been received
on
the fourth business day after and excluding the date of mailing, except in
the
event of a disruption in regular postal service in which event such notice
shall
be deemed to be delivered on the actual date of receipt. Any notice delivered
personally or by facsimile shall be deemed to have been received on the actual
date of delivery.
Further
Assurances
2.2 Each
of
the parties will execute and deliver such further and other documents and do
and
perform such further and other acts as any other party may reasonably require
to
carry out and give effect to the terms and intention of this
Agreement.
Entire
Agreement
2.3 The
provisions contained herein constitute the entire agreement among Company and
the Principals respecting the subject matter hereof and supersede all previous
communications, representations and agreements, whether verbal or written,
among
Company and the Principals with respect to the subject matter
hereof.
Inurement
2.4 This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
2.5 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Counterparts
2.6 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by facsimile will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable
Law
2.7
This
Agreement is subject to the laws of the State of New
York.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF the
parties have executed this Agreement effective as of the day and year first
above written.
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By:
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/s/
Xxxxxxxx X. Xxxxxx
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Name:
Xxxxxxxx X. Xxxxxx
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Title:
Chief Executive Officer
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XXXXX
ENTERPRISES, INC.
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
President
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TYVAN
ENTERPRISES, INC.
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By:
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/s/
Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title:
President
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BADACO,
INC.
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By:
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/s/
Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title:
President
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XXXX
CREEK CAPITAL MANAGMENT, LLC
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By:
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/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Manager
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LUCASA,
LLC
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By:
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/s/
Xxxxx Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
Manager
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/s/
Xxxx X. Xxxxxxxx
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