LOCK UP AGREEMENT
This Lock Up Agreement (the "Agreement") is entered into as of February
16, 2004, by and between the individual (the "Shareholder") whose name and
address appears at the end of this Agreement and Vivid Learning Systems, Inc., a
Delaware corporation (the "Company").
WHEREAS, the Company has agreed to issue to the Shareholder the number of
shares of its common stock that appears at the end of this Agreement (the
"Shares") pursuant to a Subscription Agreement (the "Subscription Agreement")
between the Company and the Shareholder.
WHEREAS, the Shareholder has agreed to certain restrictions on the
transfer of the Shares.
NOW, THEREFORE, the parties hereto agree as follows:
1. LOCK UP. For the period commencing on the date of this Agreement and
ending on the date occurring one (1) year after the date that the Company's
initial registration statement for the offering of the Company's common stock is
declared effective by the Securities & Exchange Commission, Shareholder shall
not (a) sell, transfer, assign, hypothecate, or pledge any of the Shares or (b)
enter into any agreement, hedging transaction, or short sale that transfers the
economic consequences of ownership of the Shares (collectively, the "Lock Up
Restriction"). The Lock Up Restriction is in addition to any restriction on
transfer imposed under the Securities Act of 1933, as amended. The certificate
for the Shares will bear a legend referring to the Lock Up Restriction. The
Company will make a notation on its transfer books and advise its transfer agent
of the Lock Up Restriction.
2. GENERAL.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties and supersedes any prior understandings, agreements,
or representations by or among the parties.
(b) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns.
(c) COUNTERPARTS AND FACSIMILE SIGNATURE. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. This
Agreement may be executed by facsimile signature.
(d) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(e) NOTICES. All notices, instructions, and other communications
hereunder shall be in writing. Any notice, instruction, or other communication
hereunder shall be deemed duly delivered four business days after it is sent by
registered or certified mail, return receipt requested, postage prepaid, or one
business day after it is sent for next business day delivery via a reputable
nationwide overnight courier service, in each case to the intended recipient as
set forth below:
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If to Shareholder:
To the address set forth at the end of this Agreement
If to the Company:
VIVID LEARNING SYSTEMS, INC.
000 Xxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
With a required copy (which shall not constitute notice) to:
Gottbetter & Partners, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
Facsimile number: 212-400-6900
Any party may give any notice, instruction, or other communication hereunder
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, instruction, or other communication shall be deemed to have been duly
given unless and until it actually is received by the party to whom it is
intended. Any party may change the address to which notices, instructions, or
other communications hereunder are to be delivered by giving the other parties
notice in the manner set forth in this Section.
(f) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York without giving
effect to any choice or conflict of law provision or rule (whether of the State
of New York or any other jurisdiction) that would cause the application of laws
of any jurisdiction other than those of the State of New York.
(g) AMENDMENTS AND WAIVERS. This Agreement may be amended only with
the written consent of the parties. No waiver of any right or remedy hereunder
shall be valid unless the same shall be in writing and signed by the party
giving such waiver. No waiver by any party with respect to any condition,
default, or breach of covenant hereunder shall be deemed to extend to any prior
or subsequent condition, default, or breach of covenant hereunder or affect in
any way any rights arising by virtue of any prior or subsequent such occurrence.
(h) SUBMISSION TO JURISDICTION. Each of the parties hereto (i)
submits to the jurisdiction of any state or federal court sitting in the State
of New York in any action or proceeding arising out of or relating to this
Agreement, (ii) agrees that all claims in respect of such action or proceeding
may be heard and determined in any such court, (iii) waives any claim of
inconvenient forum or other challenge to venue in such court, and (iv) agrees
not to bring any action or proceeding arising out of or relating to this
Agreement in any other court. Each party agrees to accept service of any
summons, complaint, or other initial pleading made in the manner provided for
the giving of notices in Section 2(e), provided that nothing in this Section
2(h) shall affect the right of any party to serve such summons, complaint, or
other initial pleading in any other manner permitted by law. The prevailing
party shall be entitled to recover its costs and expenses in any action brought
under or in connection with this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
VIVID LEARNING SYSTEMS, INC.
/S/ XXXXXX X. XXXXXX
---------------------------
By: Xxxxxx X. Xxxxxx
Its: General Counsel
SHAREHOLDERS:
Name of Shareholder: /S/ XXXXXX X. XXXXXXXX
----------------------------
Number of Shares: 2,000
Name of Shareholder: /S/ XXXXXXX XXXXXX
----------------------------
Number of Shares: 4,000
Name of Shareholder: /S/ XXXXXX X. XXXX
----------------------------
Number of Shares: 2,000
Name of Shareholder: /S/ XXXXX XXXXX
----------------------------
Number of Shares: 80,000
Name of Shareholder: /S/ XXXXXX XXXXXXXX
----------------------------
Number of Shares: 2,000
Name of Shareholder: /S/ XXXX XXXXXXXXX
----------------------------
Number of Shares: 77,000
Name of Shareholder: /S/ XXXXXX X. XXXXXX
----------------------------
Number of Shares: 2,000
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Name of Shareholder: /S/ XXXXXXXX XXXXX
----------------------------
Number of Shares: 16,000
Name of Shareholder: /S/ XXXX X. XXXXXXX
----------------------------
Number of Shares: 2,000
Name of Shareholder: /S/ XXXXX X. XXXXX
----------------------------
Number of Shares: 8,000
Name of Shareholder: /S/ XXXXX X. XXXXX
----------------------------
Number of Shares: 100,000
Name of Shareholder: /S/ XXXXXX XXXXXXXX
----------------------------
Number of Shares: 4,000
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