LOCKUP AGREEMENT
This
AGREEMENT (the “Agreement”)
is
effective as of (the
“Effective
Date”),
by
_____________ (the “Holder”),
maintaining an address at _____________,
in
connection with his or its ownership of shares of ForgeHouse, Inc., a Nevada
corporation (the “Company”).
WHEREAS,
Holder is the beneficial owner of the amount of securities designated on the
signature page hereto (the “Securities”).
WHEREAS,
Holder acknowledges that the Company has entered into an Agreement and Plan
of
Exchange (the “Exchange
Agreement”)
with
certain of the then members of ForgeHouse LLC, a Georgia limited liability
company (each a “Member”
and
collectively, the “Members”),
effective as of the date hereof (the “Exchange”).
WHEREAS,
Holder understands that, as a condition concurrent to the closing of the
Exchange, the Company has required the Holder’s agreement to refrain from
selling any securities of the Company, however acquired, as detailed in this
Agreement.
WHEREAS,
the Holder has entered into this Agreement in connection with obtaining such
Securities.
NOW,
THEREFORE, BE IT RESOLVED, for good and valuable consideration, the sufficiency
and receipt of which consideration are hereby acknowledged, Holder agrees as
follows:
1. Sale
Restriction.
a. The
period of time during which the securities shall be subject to the restrictions
described herein shall commence on the Effective Date and shall terminate two
years thereafter (the “Restriction
Period”).
b. The
following legend shall be contained on the certificate representing the Holder’s
Securities:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON RESALE
AND MAY NOT BE HYPOTHECATED, PLEDGED, TRANSFERRED, OR OTHERWISE DISPOSED OF
PURSUANT TO THE TERMS AND CONDITIONS OF A LOCKUP AGREEMENT THAT MAY BE EXAMINED
AT THE PRINCIPAL PLACE OF BUSINESS OF THE COMPANY OR MAY BE FURNISHED WITHOUT
CHARGE TO THE HOLDER OF THIS CERTIFICATE UPON RECEIPT BY THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE OF A WRITTEN REQUEST FROM
THE
STOCKHOLDER.
c. The
Holder hereby agrees that during the Restriction Period and without the prior
written consent of the Company, which may be withheld, delayed, or denied for
any reason or for no reason, the Holder will not sell, transfer or otherwise
dispose of any Securities during the Restriction Period, other than in
connection with an offer made to all stockholders of the Company in connection
with merger, consolidation, or similar transaction involving the Company and
except in accordance with Sections 1(e) and 2 of this Agreement. Further, except
in connection with a transaction described in the immediately preceding
sentence, during the Restriction Period, the Holder may not hypothecate, pledge,
transfer, or otherwise dispose of or derive economic value from (whether
in the form of a sale, hypothecation, lending arrangement, or any other method
by which any transfer of partial or full record or beneficial ownership or
value
thereof) any
of the
Securities. The 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
Securities in violation of this Agreement. In connection with this Agreement,
the Company hereby agrees to use commercially reasonable efforts not to allow
any transaction inconsistent with this Section 1.
Upon
the expiration of the Restriction Period, the Holder will no longer be subject
to any potential contractual restrictions on the disposition of any of the
Securities.
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d. The
Holder may, at any time and from time to time during the Restriction Period,
transfer all or a portion of the Securities (i) as bona fide gifts or transfers
by will or intestacy and (ii) to any trust for the direct or indirect
benefit of the Holder or the immediate family of the Holder, provided,
however,
that
any such transfer shall not involve a disposition for value; provided,
further,
that,
in the case of any gift or transfer described in clauses (i) and (ii), each
donee or transferee, or its legal representative, 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 Holder.
2. Right
of First Refusal; Trickle.
a. Each
of
the Holder and certain of the individual Members (each, an “Individual,”
and
collectively, the “Individuals”)
is
currently providing services to the Company. If, during the Restriction Period,
an Individual is dismissed for “Cause”
(as
defined in the Exchange Agreement) or
shall
terminate employment for any reason other than for “Good
Reason”
(as
defined in the Exchange Agreement), and notwithstanding the prohibitions and
provisions of Section 1, above, all of the Securities then-owned by such
Individual shall be subject to a right of first refusal in favor of all other
Individuals as a group (on a pro-rata basis) and, in respect of any such
Securities then remaining unpurchased, thereafter in favor of holders of the
Company’s Series A preferred stock as a group (on a pro-rata basis). The right
of first refusal conferred in this Section 2(a) upon said holders of the
Company’s Series A preferred stock shall not be adversely affected by the
conversion of some or all of the holders’ shares of the Company’s Series A
preferred stock into shares of the Company’s common stock, provided that said
holders retain ownership of such shares. The per-share right of first refusal
price shall be equal to the lesser of (i) ninety percent (90%) of the 10-day
volume-weighted average trading prices for the ten trading days prior to such
termination of employment or (ii) $0.75.
b. If
the
Holder is dismissed by the Company as an employee for any reason other than
for
Cause or terminates employment for Good Reason (the “Terminated
Individual”),
such
Terminated Individual may, at any time and from time to time during the
Restriction Period, sell, transfer, or otherwise dispose of shares of common
stock (owned of record or beneficially or underlying such Terminated
Individual’s options to purchase shares of common stock), subject to the
limitations and in the manner set forth hereinafter in this Section 2(b). Such
dispositions shall be (i) to any other stockholder of the Company at a price
per
share no less than the average of the high and low closing price, if the common
stock is then-listed on a national securities exchange, or, if not so listed,
the average of the high and low bid price, in either case, as of the immediately
preceding business day; (ii) in “brokers’ transactions” within the meaning of
Section 4(4) of the Securities Act of 1933, as amended, and as further defined
in Rule 144(g) promulgated by the Securities and Exchange Commission thereunder;
or (iii) in transactions directly with a “market maker,” as that term is defined
in Section 3(a)(38) of the Securities Exchange Act of 1934, as amended. Such
dispositions, in aggregate, shall not exceed the Trickle Amount (as defined
below) in each calendar quarter from and after such dismissal. Aggregate
dispositions during partial calendar quarters shall be on a pro-rata basis.
Any
unused allocation of the aggregate dispositions shall not carry-over to any
subsequent quarter. For the purposes of this Section 2(b), “Trickle
Amount”
shall
mean $25,000 in Value (as defined below) per beneficial owner, that is a
Terminated Individual; and “Value”
shall
mean, in the case of (i), above, the product of the number of shares sold
multiplied by the relevant average price, and in the case of (ii) and (iii),
above, the net value received from sales in ordinary brokerage transactions
or
to a market maker. For clarity, if such “Terminated Individual” is Xxxx
Xxxxxxxxxx-Steel or Xxxx Xxxxxx and any relevant shares are held of record
by
TWE International, LLC and/or any successor trust or entity, then such Trickle
Amount shall relate to such person’s beneficial interest in such shares,
aggregated with the shares underlying such person’s options to purchase common
stock; and if such “Terminated Individual” is Xxxxxxx Xxxxxx or Xxxx Xxxxxx and
any relevant shares are held of record by Xxxxxx Trust and/or any successor
trust or entity, then such Trickle Amount shall relate to such person’s
beneficial interest in such shares, aggregated with the shares underlying such
person’s options to purchase common stock.
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c. Notwithstanding
anything contained in this Section 2, this Section 2 does not provide to any
Individual any rights, privileges, or guarantees with regard to employment
at or
with the Company or any of its affiliates as of the date hereof or any time
subsequent to the date hereof.
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 Company 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 Nevada 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 and federal
courts seated in Xxxxx County, Nevada. 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.
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c. Notice
to the Company:
All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Company, to: ForgeHouse,
Inc.,
0000
Xxxxxxxxx Xxxxx Xxxxxxxx 000, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attn:
President, facsimile:
(000)
000-0000, with a copy by facsimile only to: Xxxxx Xxxx LLP, 0000 Xxxx xxxxxx,
Xxxxx 000, Xxxxxx, XX 00000, Attn: Xxxxxxx X. Xxxx, Esq., facsimile: (000)
000-0000 (or to such other address or facsimile numbers as the Company by notice
to the Holder may designate in writing or via electronic mail from time to
time), (ii) if to the Holder, to: the address and facsimile number indicated
on
first page of this Agreement.
d. Notice
to the Holder.
Holder
hereby irrevocably waives personal service of process and consents to process
being served in any suit, action or proceeding in connection with this Agreement
or any other transaction document by mailing a copy thereof via registered
or
certified mail or overnight delivery (with evidence of delivery) to Holder
at
the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any other manner permitted by law. Holder irrevocably
appoints the
Company
its true
and lawful agent for service of process upon whom all processes of law and
notices may be served and given in the manner described above; and such service
and notice shall be deemed valid personal service and notice upon Holder with
the same force and validity as if served upon Holder.
e. 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.
f. This
Agreement shall be binding upon Holder, its legal representatives, successors
and assigns.
g. This
Agreement may be signed and delivered by facsimile and such facsimile signed
and
delivered shall be enforceable.
h. The
Company agrees not to take any action or allow any act to be taken which would
be inconsistent with this Agreement.
i. The
Holder acknowledges that this Agreement is being entered into for the benefit
of
the Company, may be enforced by the Company and may not be amended without
the
consent of the Company, which may be withheld for any reason.
[Signatures
continued on following page.]
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IN
WITNESS WHEREOF, and intending to be legally bound hereby, Holder has executed
this Agreement as of the day and year first above written.
| HOLDER: | ||
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Number
of Shares of Common Stock
Actually
Owned: _____________
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| Number of Options Actually Owned: _____________ | ||
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Number
of Shares of Common Stock
Underlying
Options: _____________
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| COMPANY: | ||
| FORGEHOUSE, INC., a Nevada corporation | ||
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| By: | ||
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