EXHIBIT 10.16
AMENDMENT
TO
LOCK-UP AGREEMENT
(Employee)
This Amendment to Lock-Up Agreement (the "Amendment") is made and
entered as of February 28, 2000, by and among XXXXXXXXXXXX.XXX, INC., a
California corporation (the "Company"), and _____________ (the "Stockholder")
with reference to the following facts.
A. Stockholder is employed as an officer of the Company.
B. The Company has filed a Registration Statement on Form SB-2
(Registration No. 333-78443) (the "Registration Statement") covering the offer
and sale of up to 1,000,000 shares of its Common Stock (the "Offering).
C. Previously the parties have entered into a Lock-Up Agreement (the
Original Agreement") pursuant to which Stockholder agreed to certain
restrictions on his ability to transfer shares of common stock of the Company
during the periods specified in the Original Agreement.
D. The Company proposes to amend the Original Agreement to permit
certain transfer to charity that otherwise might have been precluded by the
Original Agreement.
E. The parties agree that it is important to the success of the
Offering that Stockholder agree to the restrictions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, Stockholder hereby agrees for the benefit of the Company as
follows:
1. Amendment of Section 3. Section 3 of the original Agreement is hereby amended
by adding the following as new Subsection 3.4, which Subsection 3.4 shall read
in its entirety as follows.
3.4 Transfers to Charity. Notwithstanding anything in this
Agreement to the contrary, during the first two (2) years of the term
of this Agreement, Stockholder may transfer to one or more Charities
during any calendar quarter an aggregate number of shares equal to a
number of shares up to 2.5% of the Shares beneficially owned by
Stockholder as of the effective date of the Registration Statement. No
transfer to a charity shall be effective unless the Stockholder
provides the Company both (a), not less than 30 nor more than 60 days
prior to the date of the proposed donative transfer, written notice of
the proposed donative transfer and (b), promptly after the effective of
the donative transfer, written notice of the effective date of the
donative transfer. For purposes of this Section:
3.4.1 the term "Charities" means and includes a
tax-exempt educational, religious or charitable organization, as those
terms are defined in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended; and
3.4.2 the term "donative transfer" means any transfer
made for donative purposes or without the payment to or receipt by or
on behalf of Stockholder of any cash, property
or other consideration. For purposes of this Section, Stockholder's
receipt of or eligibility for a deduction, credit or similar allowance
for federal or state income tax or estate tax purposes as a result of
the transfer shall not be deemed to be the receipt of consideration. In
addition, a transfer of Shares to a charitable remainder trust or
similar entity through which the Charity receives a remainder
beneficial interest in the Shares shall be deemed to be a "donative
transfer" even through the Stockholder has the right to receive an
annual distribution from the trust or other entity.
2. Continuation. Except as specifically amended by the terms and provisions of
this Amendment, all of the terms and provisions of the Original Agreement shall
continue in full force and effect.
IN WITNESS WHEREOF the parties have entered into this Amendment to
Lock-Up Agreement as of the day and year first above written.
"COMPANY" "STOCKHOLDER"
XXXXXXXXXXXX.XXX, INC.,
a California Corporation
By:_______________________________ ___________________________
Xxx X. Xxxxx, Chief Executive Officer
