LOCKUP AGREEMENT
EXHIBIT
10.4
This
AGREEMENT (the “Agreement”) is
made as of the 5th day of December, 2007, by ______ (“Holder”), maintaining an
address at c/o Rim Semiconductor Company, 000 XX 000xx Xxxxxx,
Xxxxx 000,
Xxxxxxxx, Xxxxxx 00000, telecopier: (000) 000-0000, in connection with his
ownership of shares of Rim Semiconductor Company, a Utah corporation (the
“Company”).
NOW,
THEREFORE, for good and valuable
consideration, the sufficiency and receipt of which consideration are hereby
acknowledged, Holder agrees 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, convertible
into Common Stock and Warrants (the “Subscribers”). Holder
understands that, as a condition to proceeding with the Offering, the
Subscribers have required, and the Company has agreed to obtain on behalf of
the
Subscribers an agreement from the Holder to refrain from selling any securities
of the Company from the date of the Subscription Agreement until one year after
the Actual Effective Date (as defined in the Subscription Agreement) (the
“Restriction Period”).
2. Sale
Restriction.
a. Holder
hereby agrees that during the Restriction Period, the Holder will not sell,
transfer 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 occur 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, exercise options, warrants or other
rights to purchase securities of the Company, and may 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.
1
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 of New York or in the federal courts located in the state 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. Notices hereunder shall be given in the same manner as set
forth in the Subscription Agreement. Each party 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 such party 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 Rim Semiconductor 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.
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 Subscribers identified in the Subscription Agreement dated
December 5, 2007 among the Company and the Subscribers, may be enforced by
the
Subscribers and may not be amended without the consent of the Subscribers (as
the term “consent of the Subscribers” is defined in the Subscription Agreement),
which may be withheld for any reason.
2
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:
______________________________________________ (Signature
of Holder)
______________________________________________ (Print
Name of Holder)
______________________________________________ Number
of Shares of Common Stock
Beneficially
Owned
COMPANY:
RIM
SEMICONDUCTOR COMPANY
By: ___________________________________________
Name:
_________________________________________
Title: __________________________________________
|
3
