LOCK-UP AGREEMENT
By and among
ENSURAPET, INC.
And
SAMIR FINANCIAL LLC
Dated as of April 9, 2008
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LOCK-UP AGREEMENT
BETWEEN
ENSURAPET, INC,
AND
SAMIR FINANCIAL, LLC
THIS AGREEMENT, dated as of April 9, 2008 (the "Agreement"),
is by and among ENSURAPET, INC.,(the "Company"), a Nevada corporation and Samir
Financial, an Illinois LLC ("SAMIR"), pursuant to the Third Amended and Restated
Promissory Note, dated April 15, 2008, attached hereto, and incorporated herein
by reference.
RECITALS
WHEREAS, the Company, has entered into a Third Amended and
Restated Promissory Note (NOTE), effective April 9, 2008
WHEREAS, pursuant to the Third Amended and Restated Promissory
Note, dated April 9 2008, the Company will deliver 3 million restricted shares
of ENSURAPET, INC. (EPTI), par value $.01 per share, of the Company (the
"Shares"), pursuant to the terms and conditions contained herein.
WHEREAS, the parties hereto desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of the Shares and
obligations in respect thereof as hereinafter provided by having SAMIR execute a
lock up agreement with new certificates issued bearing the restricted legend.
NOW THEREFORE, in consideration of the premises and of the
terms and conditions contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. Prohibition on Transfers.
(a) Prohibition on Transfers during Restricted Period. Except
as set forth in Section 2, neither SAMIR, or any shareholder of the 3 million
shares referenced herein shall, at any time from April 9, 2008 until April 15,
2009 (the "Restricted Period"), directly or indirectly, sell, pledge,
hypothecate, or otherwise dispose of the shares which are the subject of this
agreement.
(b) Obligations of Transferees. Except for Transfers described
in the last sentence of this paragraph, no Transfer by a Stockholder (including
a permitted Transfer pursuant to clause (a), or (b) of Section 2), shall be
effective unless the Transferee shall have executed and delivered to the Company
an appropriate document in form and substance reasonably satisfactory to the
Company confirming that the Transferee takes such Shares subject to all the
terms and conditions of this Agreement to the same extent as its transferor was
bound by such provisions (including without limitation that the Transferred
Shares bear legends substantially in the forms required by Section 4(a) of this
Agreement).
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Section 2. Permitted Transfers. A) The restrictions on
Transfers set forth in Section 1(a) of this Agreement shall not apply to a
Transfer by SAMIR to a legal representative of SAMIR, in the event SAMIR becomes
mentally incompetent or following the death of SAMIR in which event such
Transferred Shares shall be deemed to be Beneficially Owned by SAMIR following
such Transfer for purposes of clause (a) above; or in connection with any
merger, consolidation or other business combination of the Company; and B) SAMIR
may transfer or sell shares at will to private parties so long as the shares are
not offered for sale or are recorded in any public securities market. In the
event shares are sold subject to this provision, SAMIR will pass the terms of
the Lock Up to the purchasing party.
Section 3. In order to induce Ensurapet to enter into a Third
Amended and Restated Promissory Note the undersigned agrees during the
restricted period not to (a)offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly (including short sales, sales against the box
and/or other hedging or derivative transactions (b) deposit any stock in
DTC/CEDCO.
Section 4. Other Restrictions.
(a) Legends. SAMIR hereby agrees that each outstanding
certificate representing Shares presently held and issued during the Restricted
Period shall bear legends reading substantially as follows:
(i) The securities represented by this certificate are
subject to the terms and conditions set forth in a Lock-up
Agreement, dated as of April 9, 2008, copies of which may be
obtained from the issuer or from the holder of this
security. No transfer of such securities will be made on the
books of the issuer unless accompanied by evidence of
compliance with the terms of such agreement.
(b) The restrictions referred to in Section 4(a)(i) shall
cease and terminate at the end of the Restricted Period. Whenever such
restrictions shall cease and terminate as to any Shares, the Stockholder holding
such shares shall be entitled to receive from the Company, in exchange for such
legend certificates, without expense (other than applicable transfer taxes, if
any, if such unlegend Shares are being delivered and transferred to any Person
other than the registered holder thereof), new certificates for a like number of
Shares not bearing the relevant legend(s) set forth in Section 4(a). The Company
may request from any Stockholder a certificate or an opinion of such
Stockholder's counsel with respect to any relevant matters in connection with
the removal of the legend set forth in Section 4(a)(i) from such Stockholder's
stock certificates, any such certificate or opinion of counsel to be reasonably
satisfactory to the Company.
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(c) Copy of Agreement. A copy of this Agreement shall be filed
with the corporate secretary of the Company and shall be kept with the records
of the Company and shall be made available for inspection by any stockholder of
the Company.
(d) Recordation. The Company shall not record upon its books
any Transfer to any Person except Transfers in accordance with this Agreement.
Section 5. No Other Rights. SAMIR understand and agree that
the Company is under no obligation to register the sale, transfer or other
disposition of the Shares by such Stockholder or on such Stockholder's behalf
under the Securities Act or to take any other action necessary in order to make
compliance with an exemption from such registration available, other than
pursuant to the Investment Banking Agreement.
Section 6. Effectiveness; Term. This Agreement shall become
effective simultaneously with the consummation of the Third Amended and Restated
Promissory Note
Section 7. Notices. All notices, statements, instructions or
other documents required to be given hereunder shall be in writing and shall be
given either personally or by mailing the same in a sealed envelope, first-class
mail, postage prepaid and either certified or registered, return receipt
requested, or by telecopy, and shall be addressed to the Company at its
principal offices and to one or more SAMIR at the respective addresses furnished
to the Company by such SAMIR.
Section 8. Recapitalizations and Exchanges Affecting Shares.
The provisions of this Agreement shall apply, to the full extent set forth
herein with respect to the Shares, to any and all shares of capital stock or
equity securities of the Company which may be issued by reason of any stock
dividend, stock split, reverse stock split, combination, recapitalization,
reclassification or otherwise.
Section 9. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the California as applied to
contracts to be performed in California.
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Section 10. Jurisdiction; The parties hereby consent to the
jurisdiction of the United States District Court for the Central District of
California and any of the courts of the state of California in any dispute
arising under this Agreement and agree further that service of process or notice
in any such action, suit or proceeding shall be effective if in writing and
delivered in person or sent as provided in Section 8 hereof.
ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR ACTION ARISING OUT OF
THIS AGREEMENT OR IN CONNECTION HEREWITH IS HEREBY WAIVED.
Section 14. Amendment. This Agreement may not be amended or
supplemented except by an instrument in writing signed by Ensurapet and the
Investment Banking fir
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed on the date first written above.
Samir Financial LLC
By: __________________________________ Date: April 9 2008
Name: Xxxxxxxx Xxxxx, President
Ensurapet, Inc
By: ___________________________________ Date: April 9 2008
Xxxxxxx Xxxxx, President
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