LOCKUP AGREEMENT
Exhibit
10.5
This
AGREEMENT (the “Agreement”) is made as of the 12th day of September, 2007, by
VoIP,
Inc.,
a Texas
corporation (the “Company”), with regard to Xxxxxxx Xxxxxxx and Xxxxx Xxxxx
(each a “Holder”), in connection with their ownership of common shares of the
Company.
NOW,
THEREFORE, for good and valuable consideration, the sufficiency and receipt
of
which consideration are hereby acknowledged, the Company agrees to use its
best
efforts to obtain agreements with the Holders as soon as reasonably possible,
as
follows:
1. Background.
a.
Holder
is
the beneficial owner of the amount of shares of the Common Stock, $.001 par
value, of the Company (“Common Stock”) designated on the signature page
hereto.
x. Xxxxxx
acknowledges that the Company has entered into or will enter into at or about
the date hereof agreements with subscribers to the Company’s Notes, some of
which are convertible into Common Stock (“Notes”) and Warrants (the
“Assignees”). Holder understands that, as a condition to proceeding with
the
Intercreditor, Subordination, Default Waiver and Assignment
Agreement
(the
“Agreement”), the Assignees have required, and the Company has agreed to obtain
on behalf of the Assignees an agreement from the Holder, so long as said Holder
is an executive officer of the Company, to refrain from selling any securities
of the Company from the date hereof until the later of: (a) two (2) years from
the date of this Agreement; or seventy five percent (75%) of the Super Senior
Secured Debt (as defined in the Agreement) is indefeasibly paid (the
“Restriction Period”).
2. Share
Restriction.
a. Holder
hereby agrees that during the Restriction Period, so long as said Holder is
an
executive officer of the Company, the Holder will not sell or otherwise dispose
of any shares of Common Stock or any options, warrants or other rights to
purchase shares of Common Stock or any other security of the Company which
Holder owns or has a right to acquire as of the date hereof, other than in
connection with an offer made to all shareholders of the Company in connection
with merger, consolidation or similar transaction involving the Company. Holder
further agrees that the Company is authorized to and the Company agrees to
place
“stop orders” on its books to prevent any transfer of shares of Common Stock or
other securities of the Company held by Holder in violation of this Agreement.
The Company agrees not to allow to incur any transaction inconsistent with
this
Agreement.
b. Any
subsequent issuance to and/or acquisition by Holder of Common Stock or options
or instruments convertible into Common Stock will be subject to the provisions
of this Agreement.
c. Notwithstanding
the foregoing restrictions on transfer, the Holder may, at any time and from
time to time during the Restriction Period, transfer the Common Stock (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
Holder, 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 the Holder 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.
3. Miscellaneous.
a. At
any
time, and from time to time, after the signing of this Agreement Holder will
execute such additional instruments and take such action as may be reasonably
requested by the Subscribers to carry out the intent and purposes of this
Agreement.
b. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts of laws. Any action
brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the state courts and
federal courts located in the state and county of New York. The parties to
this
Agreement hereby irrevocably waive any objection to jurisdiction and venue
of
any action instituted hereunder and shall not assert any defense based on lack
of jurisdiction or venue or based upon forum
non conveniens.
The
parties executing this Agreement and other agreements referred to herein or
delivered in connection herewith agree to submit to the in personam jurisdiction
of such courts and hereby irrevocably waive trial by jury.
The
prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs. In the event that any provision of this
Agreement or any other agreement delivered in connection herewith is invalid
or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement.
c. The
restrictions on transfer described in this Agreement are in addition to and
cumulative with any other restrictions on transfer otherwise agreed to by the
Holder or to which the Holder is subject to by applicable law.
d. This
Agreement shall be binding upon Holder, its legal representatives, successors
and assigns.
e. This
Agreement may be signed and delivered by facsimile and such facsimile signed
and
delivered shall be enforceable.
f. The
Company agrees not to take any action or allow any act to be taken which would
be inconsistent with this Agreement.
g. The
Holder acknowledges that this Lockup Agreement is being entered into for the
benefit of the Assignees identified in the Agreement dated September 12, 2007
between the Company and the Assignees, may be enforced by the Assignees and
may
not be amended without the consent of the Assignees, which may be withheld
for
any reason.
IN
WITNESS WHEREOF, and intending to be legally bound hereby, Holder has executed
this Lockup Agreement as of the day and year first above written.
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VoIP,
INC.
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/s/
Xxxxxxx Xxxxxxx
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Its:
Chief Executive Officer
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