Exhibit 10.13
LOCK-UP AGREEMENT
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THIS LOCK-UP AGREEMENT (this "Agreement") is made as of September 11,
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1999, between E2Enet, Inc. a Delaware corporation (the "Company"), and Xxxxxxxx
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X. Xxxxxxx ("Holder").
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Recitals
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A. Holder purchased 1,300,000 shares of the Company's common stock
(the "Common Stock") (the "Holder Stock") effective May 7, 1999. Holder's
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purchase of the Holder Stock was memorialized by a subscription agreement
between the Company and Holder dated May 14, 1999 (the "Subscription
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Agreement").
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B. Without disturbing the integrity of the Subscription Agreement,
the parties now desire to modify their understanding with respect to the
issuance of the Holder Stock.
C. Certain definitions are set forth in Section 3 of this Agreement.
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1. Restrictions on Transfer.
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(a) Holder agrees that from the date of this agreement until the IPO
Date, Holder shall have no right to Transfer (as that term is defined in the
Stockholders Agreement by and among the Company and certain stockholders of the
Company dated May 14, 1999 and effective May 7, 1999 (the "Stockholders
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Agreement") the Holder Stock, except for a Permitted Transfer (as that term is
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defined in the Stockholders Agreement). Holder further agrees that without the
prior written consent of the Company, Holder will not during the period
commencing on the IPO Date and ending twelve (12) months after such date
("Initial Lock-Up Period") offer, sell, contract to sell, or otherwise transfer
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or dispose of, directly or indirectly, any Holder Stock; provided, however, that
notwithstanding the foregoing, Holder is expressly permitted to pledge the
Restricted Securities, buy and sell puts and calls or derivatives affecting the
Restricted Securities, and Margin the Restricted Securities. Pursuant to
Section 1.(c) below and after the Initial Lock-Up Period has expired (the
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"Expiration Date"), Holder may transfer up to fifty percent (50%) of the Holder
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Stock. Six (6) months after the Expiration Date, Holder may transfer up to
seventy-five percent (75%) of the Holder Stock. Holder may transfer all of its
Holder Stock (12) months after the Expiration Date. The Company may assign its
rights under this Section 1.(a) during the Initial Lock-up Period to any
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underwriter retained by the Company in connection with the Company's initial
public offering (the "IPO")
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and such underwriter may enforce this provision directly against the Holder upon
the Company's assignment.
(b) The Holder Stock constitutes Restricted Securities (as defined
below) and is transferable, subject to Section 1.(a) above, only pursuant to (i)
public offerings registered under the Securities Act, (ii) Rule 144 of the
Securities and Exchange Commission (or any similar rule then in force) if such
rule is available and (iii) subject to the conditions specified in Section 1.(c)
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below, any other legally available means of transfer.
(c) In connection with the transfer of any Restricted Securities
(other than a transfer described in Section 1.(b)(i) or (ii) above), the Holder
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thereof will deliver written notice to the Company describing the transfer or
proposed transfer, together with an opinion of counsel which (to the Company's
reasonable satisfaction) is knowledgeable in securities law matters, to the
effect that such transfer of Restricted Securities may be effected without
registration of such Restricted Securities under the Securities Act. In
addition, if the Holder holding the Restricted Securities delivers to the
Company an opinion of counsel that no subsequent transfer of such Restricted
Securities will require registration under the Securities Act, the Company will
promptly upon such contemplated transfer deliver new certificates for such
Restricted Securities which do not bear a restrictive Securities Act legend. If
the Company is not required to deliver such new certificates for such Restricted
Securities, the Holder will not transfer the same until the prospective
transferee has confirmed to the Company in writing its agreement to be bound by
the conditions contained in this paragraph.
(d) For the purposes of this Agreement, "Restricted Securities" means
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the Holder Stock and any securities issued with respect thereto by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, stock exchange, consolidation or other reorganization. As to
any particular Restricted Securities, such securities will cease to be
Restricted Securities when they have (i) been effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them, (ii) become eligible for sale and have actually been sold to the
public pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act or (iii) been otherwise transferred and new certificates for them
not bearing the Securities Act legend set forth in the Subscription Agreement
have been delivered by the Company in accordance with Section 1.(c) hereof.
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Whenever any particular securities cease to be Restricted Securities, the Holder
will be entitled to receive from the Company, without expense, new securities of
like tenor not bearing a restrictive Securities Act legend.
2. Certificates. Concurrent with the execution of this Agreement, Holder shall
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forfeit his stock certificate representing the Holder Stock to the Company. The
Company will xxxx this certificate "Cancelled," and file the cancelled
certificate in
the Company's minute book. The Company will then issue a new stock certificate
to Holder, which certificate shall contain the following restrictive legend (in
addition to any other required legends in respect of (i) the underlying shares
having not been registered under federal or state securities laws or (ii) the
underlying shares being subject to existing subscription, shareholder or other
agreements to which Holder and the Company are a party):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE TRANSFER RESTRICTIONS AND OTHER TERMS OF A LOCK-UP
AGREEMENT DATED EFFECTIVE AS OF SEPTEMBER __, 1999, AMONG THE
COMPANY AND THE HOLDER HEREOF AND MAY NOT BE TRANSFERRED EXCEPT
IN ACCORDANCE WITH SUCH AGREEMENT. A COPY OF SUCH AGREEMENT IS
ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE
FURNISHED UPON REQUEST TO THE HOLDER OF RECORD OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE.
3. Definitions.
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(a) "IPO Date" means the effective date of the Company's initial
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public offering pursuant to an underwritten registration statement on Form S-1
as declared effective by the Securities and Exchange Commission.
(b) "Person" means an individual, a partnership, a limited liability
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company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
(c) "Subsidiary" means any corporation, limited liability company or
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partnership of which any percentage of the securities (or other equity or
ownership interest) having ordinary voting power in electing the board of
directors (or board of managers or similar governing body) are, at the time as
of which any determination is being made, owned by the Company either directly
or through one or more Subsidiaries. The term Subsidiary shall also include any
joint venture-type business entity between the Company and any other entity.
4. Complete Agreement. This Agreement, those documents expressly referred to
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herein embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
5. Counterparts; Facsimile Transmission. This Agreement may be executed in
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separate counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement, and transmitted to
the other party by facsimile transmission as evidence of such party's intention
to be bound hereby, with originals to be exchanged in due course.
6. Successors and Assigns. Except as otherwise provided herein, this Agreement
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shall bind and inure to the benefit of and be enforceable by Holder and the
Company and their respective successors and assigns.
7. Choice of Law. All questions concerning the construction, validity and
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interpretation of this Agreement and the exhibits hereto will be governed by and
construed in accordance with the internal laws of the State of Delaware, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
8. Amendment and Waiver. The provisions of this Agreement may be amended and
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waived only with the prior written consent of the Company and the Holder.
9. Business Days. If any time period for giving notice or taking action
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hereunder expires on a day which is a Saturday, Sunday or holiday in the state
in which the Company's principal place of business is located, the time period
shall be automatically extended to the business day immediately following such
Saturday, Sunday or holiday.
10. Third-Party Beneficiaries. Each party hereto intends that this Agreement
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shall not benefit nor confer any rights or remedies on any Person other than the
parties hereto and their respective heirs, successors and legal representatives,
provided, however, that each of the Company's Subsidiaries are intended
beneficiaries of Holder's applicable covenants and undertakings made hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Lock-Up
Agreement on the date first written above.
E2Enet, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Its: Chief Financial Officer, Senior
Vice President and Secretary
Holder
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
