EXHIBIT 10.6
LOCK-UP AGREEMENT dated January 2, 2005 entered into
BY AND AMONG: 0000-0000 XXXXXX INC., a corporation duly incorporated under
the Quebec Companies Act, having its head office at 443 Des
Pins Street, Saint-Bruno de Montarville, Province of Quebec,
J3V 5G5, herein represented by Xxxx Xxxxxxxx, its President,
duly authorized in virtue of a resolution of the Board of
directors dated January 2, 2005;
("XXXXXXXX HOLDCO")
AND: 0000-0000 XXXXXX INC., a corporation duly incorporated under
the Quebec Companies Act, having its head office at 000 Xxxx
xx Xxxxxxxxx Xxxxxx, Xxxxxx-Xxxxx, Xxxxxxxx xx Xxxxxx, X0X
0X0, herein represented by Xxxxx Xxxxxxxxx, its President,
duly authorized in virtue of a resolution of the Board of
directors dated January 2, 2005;
("LACHAMBRE HOLDCO")
(individually referred herein to as the "VENDOR" and
collectively referred to herein as the "VENDORS").
AND: 3091503 NOVA SCOTIA COMPANY, a Nova Scotia unlimited liability
company with its principal executive offices at 00 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0 , herein
represented by Xxxxxxx Xxxxx, its President, duly authorized
in virtue of a resolution of the Board of directors dated
January 1, 2005;
("ACQUIROR")
AND: ADSERO CORP., a Delaware corporation with its principal
executive offices at 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx X0X 0X0 herein represented by Xxxxxxx Xxxxx, its Chief
Financial Officer , duly authorized in virtue of a resolution
of the Board of directors dated January 1, 2005;
("ADSERO")
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AND: YAC CORP., a Delaware corporation, which is a wholly owned
subsidiary of Adsero, with its principal executive offices at
00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0, herein
represented by Xxxxxxx Xxxxx, its Chief Financial Officer,
duly authorized in virtue of a resolution of the Board of
directors dated January 1, 2005;
("YAC")
AND: 3091732 NOVA SCOTIA COMPANY, a Nova Scotia unlimited liability
company, which is a wholly owned subsidiary of YAC, with its
principal executive offices at 00 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx X0X 0X0 , herein represented by Xxxxxxx
Xxxxx, its President, duly authorized in virtue of a
resolution of the Board of directors dated January 1, 2005;
("CALLCO")
(Acquiror, Callco, YAC, Adsero and the Vendors are referred to
individually herein as a "Party" and collectively as the
"Parties").
PREAMBLE
WHEREAS, the parties hereto have entered into a share purchase agreement dated
of even date herewith (the "Share Purchase Agreement");
WHEREAS, pursuant to the Share Purchase Agreement, the Vendors will receive
collectively 6,500,000 Acquiror Series I Exchangeable Shares in the share
capital of Acquiror (the "Exchangeable Shares");
WHEREAS pursuant to the provisions of the Series I Exchangeable Shares Voting,
Support and Exchange Agreement, the Exchangeable Shares are exchangeable on a
one for one basis with Adsero Common Shares as such term is defined in the Share
Purchase Agreement;
AND WHEREAS, the parties hereto have agreed that 6,000,000 of the Adsero Common
Shares issuable under the Series I Exchangeable Shares Voting, Support and
Exchange Agreement be subject to resale and transfer restrictions in order to
restrict their sale, assignment, transfer, encumbrance or other disposition
which for the purposes of this Agreement shall be referred to as the "Shares".
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NOW THEREFORE, in consideration of the premises and of the terms and conditions
contained herein, the parties hereto agree as follows:
Unless otherwise indicated herein, all capitalized terms used but not defined
herein have the meanings given to them in the Share Purchase Agreement.
SECTION 1. PROHIBITION ON TRANSFERS
(a) PROHIBITION ON TRANSFERS. Except as set forth in Section 3 and subject
to Section 2, no Vendor shall directly or indirectly:
(i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend or
otherwise transfer or dispose of, directly or indirectly, any
of the Shares or
(ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences
of ownership of any of the Shares, whether any such
transaction described in clause (i) or (ii) above is to be
settled by delivery of Shares, in cash or otherwise (any such
transaction, whether or not for consideration, being referred
to herein as a "Transfer" and each Person to whom a Transfer
is made, regardless of the method of Transfer, is referred as
a "Transferee").
(b) OBLIGATIONS OF TRANSFEREES. No Transfer by a Vendor (including a
permitted Transfer pursuant to Section 3) shall be effective unless the
Transferee shall have executed and delivered to the Acquiror and
Adsero, an appropriate document in form and substance reasonably
satisfactory to the Acquiror and Adsero confirming that the Transferee
takes such Shares subject to all the terms and conditions of this
Agreement to the same extent as such Vendor was bound by such
provisions (including without limitation that the transferred Shares
bear legends substantially in the forms required by this Agreement).
Furthermore, any such Transfer will require approval from the board of
directors of Adsero and the Acquiror. Vendors acknowledge and
irrevocably agree that any Transfers by such Transferees shall be
subject to the terms of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, the Vendors
recognize that applicable Securities Laws may impose additional
restrictions on the transferability or tradeability of the Shares.
SECTION 2. TRANSFERS DURING THE RESTRICTED PERIOD
During the period commencing on the date hereof and ending on January
1, 2008, subject to the applicable Securities Laws, the Vendors shall
be entitled to transfer freely a number of Shares in accordance with
the following terms and conditions:
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1. From the period commencing on January 2, 2006:
Xxxxxxxx Holdco: up to 1,412,777 Shares
Lachambre Holdco: up to 587,222 Shares
2. From the period commencing on January 2, 2007:
Xxxxxxxx Holdco: up to an additional 1,412,777 Shares
Lachambre Holdco: up to an additional 587,222 Shares
plus any unused portion of the Shares freely transferable
under subparagraph 1;
3. From the period commencing on January 2, 2008:
Xxxxxxxx Holdco: The remainder of the Shares subject to this
Agreement.
Lachambre Holdco: The remainder of the Shares subject to this
Agreement.
For the purpose of this Agreement, "Restricted Period" means the period
commencing on January 2, 2005 and ending on January 1, 2008.
SECTION 3. PERMITTED TRANSFERS
Subject to applicable Securities Laws, the restrictions on Transfers set forth
in Section 1(a) of this Agreement shall not apply to a Transfer:
(a) by a Vendor to a legal representative of such Vendor in the event such
Vendor becomes incapable if such Vendor is a physical person or to such
Vendor's personal representative following the death of such Vendor in
which event such Transferred Shares shall be deemed to be beneficially
owned by such Vendor following such Transfer for the purposes hereof;
or
(b) in connection with any merger, consolidation or other business
combination of Adsero or in the event of a takeover bid on the shares
of Adsero;
(c) if Adsero proceeds with the sale of all or substantially all of the
assets (held directly or indirectly) of Teckn-O-Laser Global Company or
any of its subsidiaries.
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SECTION 4. OTHER RESTRICTIONS AND CONDITIONS
(a) SECURITIES LAWS COMPLIANCE. Any transfer of Shares pursuant to the
terms of this Agreement shall be in full compliance with applicable
Securities Laws.
(b) LEGENDS. Each of the Vendors hereby agrees that each outstanding
certificate representing Shares and issued during the Restricted Period
shall bear legends in addition to any legends required by applicable
Securities Laws reading substantially as follows:
"The securities represented by this certificate are subject to the
terms and conditions set forth in a Lock-up Agreement, dated as of
________________, copies of which may be obtained from the ___________
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."
(c) TERMINATION OF RESTRICTIVE LEGENDS. The restrictions save and except
such restrictions as may be required under applicable Securities Laws,
shall cease and terminate as to any particular Shares when such
restriction is no longer required in order to assure compliance with
the Agreement or shall cease and terminate at the end of the Restricted
Period. Whenever such restrictions shall cease and terminate as to any
Shares, the Vendor holding such shares shall be entitled to receive
from the issuer thereof, in exchange for such legended certificates,
without expense (other than applicable transfer taxes, if any, if such
unlegended Shares are being delivered and transferred to any Person
other than the registered holder thereof), new certificates for the
same number of Shares.
(d) COPY OF AGREEMENT. A copy of this Agreement shall be filed with the
corporate secretaries of the Acquiror and of Adsero as well as with
Adsero's transfer agent and registrar and shall be kept with the
records and shall be made available for inspection by any shareholder
of Adsero.
(e) RECORDS. Neither the Acquiror, Adsero nor Adsero's transfer agent and
registrar shall record upon its books any Transfer to any Person except
Transfers in accordance with this Agreement.
SECTION 5. 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 Acquiror and Adsero at their
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respective principal offices and to the Vendors at their respective addresses
furnished by said Vendors as indicated in the Share Purchase Agreement.
SECTION 6. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns.
SECTION 7. RECAPITALIZATIONS AND EXCHANGES AFFECTING SHARES
The provisions of this Agreement shall apply, to the full extent set forth
herein with respect to the Shares and to any and all shares of the share capital
or equity securities of the Acquiror or Adsero, as the case may be, which may be
issued by reason of any share dividend, share split, consolidation, combination,
recapitalization, reclassification or otherwise.
SECTION 8. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Quebec and the laws of Canada applicable thereto. However, any
matters in connection with the Adsero Common Shares shall be governed by the
Securities Laws and regulations of the United States regulatory authorities.
SECTION 9. SEVERABILITY
If any term or provision of this Agreement shall to any extent be invalid or
unenforceable, the remainder of this Agreement shall not be affected thereby,
and each term and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
SECTION 10. COMPLETE AGREEMENT; COUNTERPARTS
This Agreement constitutes the entire agreement and supersedes all other
agreements and understandings, both written and oral, among the parties or any
of them, with respect to the subject matter hereof. This Agreement may be
executed by any one or more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
SECTION 11. LANGUAGE
The Parties hereto have requested that the present Agreement be drawn in the
English language. Les parties aux presentes ont requis que la presente
convention soit redigee en langue anglaise.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date first written above.
9144-6773 QEBEC INC. 0000-0000 XXXXXX INC.
/s/ Xxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxxx
----------------- -------------------
Per: Xxxx Xxxxxxxx Per: Xxxxx Xxxxxxxxx
President President
3091503 NOVA SCOTIA COMPANY ADSERO CORP.
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
----------------- -----------------
Per: Xxxxxxx Xxxxx Per: Xxxxxxx Xxxxx
President Chief Financial Officer
YAC CORP. 3091732 NOVA SCOTIA COMPANY
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
----------------- -----------------
Per: Xxxxxxx Xxxxx Per: Xxxxxxx Xxxxx
Chief Financial Officer President
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