LOCK-UP AGREEMENT
THIS AGREEMENT (this "AGREEMENT") is dated as of April 23, 2007 by and
among Marketing Worldwide Corporation, a Delaware corporation (the "COMPANY"),
and the shareholders of the Company listed on SCHEDULE A attached hereto
(collectively, the "SHAREHOLDERS").
WHEREAS, to induce the Company and the investors (the "INVESTORS") to
enter into the Series A Convertible Preferred Stock Purchase Agreement dated as
of the date hereof (the "PURCHASE AGREEMENT") by and among the Company and the
Purchasers, the Shareholders have agreed not to sell any shares of the Company's
common stock, $0.001 par value per share (the "COMMON STOCK"), that such
Shareholders presently own or may acquire after the date hereof, except in
accordance with the terms and conditions set forth herein. Capitalized terms
used herein without definition shall have the meanings assigned to such terms in
the Purchase Agreement.
NOW, THEREFORE, in consideration of the covenants and conditions
hereinafter contained, the parties hereto agree as follows:
1. RESTRICTION ON TRANSFER; TERM.
(a) Each of the Shareholders hereby agrees with the Company that
such Shareholder will not offer, sell, contract to sell, assign, transfer,
hypothecate, pledge or grant a security interest in, or otherwise dispose
of, or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition of (whether by actual
disposition or effective economic disposition), directly or indirectly
(collectively, "TRANSFER"), any of the shares of Common Stock from the
period commencing on the Closing Date and expiring on the date that is
twelve (12) months following the effective date of the registration
statement required to be filed by the Company with the Securities and
Exchange Commission pursuant to SECTION 2(A) of the Registration Rights
Agreement (the "LOCK UP PERIOD").
(b) During the twelve (12) months following the expiration of the
Lock Up Period (the "LEAKOUT PERIOD"), each of the Shareholders hereby
agrees with the Company that such Shareholder will not Transfer in any
individual calendar month an amount of such shares of Common Stock in
excess of one-twelfth (1/12th) of the aggregate shares of Common Stock
held by such Shareholder as of the beginning of such Leakout Period.
Notwithstanding anything in the foregoing to the contrary, Xxxxxx Xxxxxxxx
shall be permitted to Transfer up to 30,000 shares of Common Stock free of
the restrictions otherwise applicable under not be subject to any
provision of this SECTION 1 hereof.
2. OWNERSHIP. During the Lock Up Period and the Leakout Period, the
Shareholders shall retain all rights of ownership in the Common Stock,
including, without limitation, voting rights and the right to receive any
dividends, if any, that may be declared in respect thereof.
3. COMPANY AND TRANSFER AGENT. The Company is hereby authorized to
disclose the existence of this Agreement to its transfer agent. The Company and
its transfer agent are hereby authorized to decline to make any transfer of the
Common Stock if such transfer would constitute a violation or breach of this
Agreement and the Purchase Agreement.
4. NOTICES. All notices, demands, consents, requests, instructions and
other communications to be given or delivered or permitted under or by reason of
the provisions of this Agreement or in connection with the transactions
contemplated hereby shall be in writing and shall be deemed to be delivered and
received by the intended recipient as follows: (i) if personally delivered, on
the business day of such delivery (as evidenced by the receipt of the personal
delivery service), (ii) if mailed certified or registered mail return receipt
requested, four (4) business days after being mailed, (iii) if delivered by
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overnight courier (with all charges having been prepaid), on the business day of
such delivery (as evidenced by the receipt of the overnight courier service of
recognized standing), or (iv) if delivered by facsimile transmission, on the
business day of such delivery if sent by 6:00 p.m. in the time zone of the
recipient, or if sent after that time, on the next succeeding business day (as
evidenced by the printed confirmation of delivery generated by the sending
party's telecopier machine). If any notice, demand, consent, request,
instruction or other communication cannot be delivered because of a changed
address of which no notice was given (in accordance with this SECTION 4), or the
refusal to accept same, the notice, demand, consent, request, instruction or
other communication shall be deemed received on the second business day the
notice is sent (as evidenced by a sworn affidavit of the sender). All such
notices, demands, consents, requests, instructions and other communications will
be sent to the following addresses or facsimile numbers, as applicable:
If to the Company: Marketing Worldwide Corporation
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
with copies to: Weed & Co. LLP
Attention: Xxxxxxx X. Xxxx
0000 Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
with copies to: Sadis & Xxxxxxxx LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
If to any of the c/o Marketing Worldwide Corporation
Shareholders, addressed 0000 Xxxxx Xxxxxxxx Xxxxx
to such Shareholder at:: Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
with copies to: The address of such Shareholder set
forth on SCHEDULE A to this Agreement,
with copies to Shareholder's counsel
(which copies shall not constitute
notice to such purchaser) as set forth
on SCHEDULE A or as specified in writing
by such Shareholder.
or to such other address as any party may specify by notice given to the other
party in accordance with this SECTION 4.
5. AMENDMENT. This Agreement may not be modified, amended, altered or
supplemented, except by a written agreement executed by each of the parties
hereto.
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6. ENTIRE AGREEMENT. This Agreement contains the entire understanding
and agreement of the parties relating to the subject matter hereof and
supersedes all prior and/or contemporaneous understandings and agreements of any
kind and nature (whether written or oral) among the parties with respect to such
subject matter, all of which are merged herein.
7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to any of the conflicts of law principles which would result in the
application of the substantive law of another jurisdiction. This Agreement shall
not be interpreted or construed with any presumption against the party causing
this Agreement to be drafted. The Company and the Shareholders agree that venue
for any dispute arising under this Agreement will lie exclusively in the state
or federal courts located in New York County, New York, and the parties
irrevocably waive any right to raise FORUM NON CONVENIENS or any other argument
that New York is not the proper venue. The Company and the Shareholders
irrevocably consent to personal jurisdiction in the state and federal courts of
the state of New York. The Company and the Shareholders consent to process being
served in any such suit, action or proceeding by mailing a copy thereof 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 in this Section 7 shall affect or limit any right to
serve process in any other manner permitted by law. The Company and the
Shareholders hereby agree that the prevailing party in any suit, action or
proceeding arising out of or relating to this Agreement or the Purchase
Agreement, shall be entitled to reimbursement for reasonable legal fees from the
non-prevailing party. The parties hereby waive all rights to a trial by jury.
8. SEVERABILITY. The provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement and such provision
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of such provision, had never been contained herein, so that
such provisions would be valid, legal and enforceable to the maximum extent
possible.
9. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns.
10. HEADINGS. The article, section and subsection headings in this
Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement, and
shall become effective when counterparts have been signed by each party and
delivered to the other parties hereto, it being understood that all parties need
not sign the same counterpart. In the event that any signature is delivered by
facsimile or electronic mail transmission, such signature shall create a valid
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above herein.
MARKETING WORLDWIDE CORPORATION
By: /s/ Xxxxxxx Winzkowski
----------------------
Name: Xxxxxxx Winzkowski
Title: Chief Executive Officer
[SHAREHOLDERS' SIGNATURE PAGE ATTACHED]
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LOCK-UP AGREEMENT
MARKETING WORLDWIDE CORPORATION
SHAREHOLDERS' SIGNATURE PAGE
XXXXXXX WINZKOWSKI
/s/ Xxxxxxx Winzkowski
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
XXXXXX XXXXXXXX
/S/ XXXXXX XXXXXXXX
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SCHEDULE A
------------ ----------------------------------------- ------------------------ -----------
TITLE OF NAME AND ADDRESS OF BENEFICIAL OWNER AMOUNT AND NATURE OF PERCENT
--------- ------------------------------------ --------------------- -------
CLASS OWNERSHIP
------------ ----------------------------------------- ------------------------ -----------
$.001 par Xxxxxxx Winzkowski 4,564,800 shares 41%
value Director, President, CEO & Secretary
common Marketing Worldwide Corporation
stock X.X. Xxx 0000
Xxxx Xxxxxx, Xxxxxxx 00000-0000
------------ ----------------------------------------- ------------------------ -----------
$.001 par Xxxxx X. Xxxxxx 4,564,800 shares 41%
value Director and Chief Financial Officer
common Marketing Worldwide Corporation
stock 0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
------------ ----------------------------------------- ------------------------ -----------
$.001 par Xxxxxx Xxxxxxxx 735,809 shares 7%
value 000 Xxxxxx Xxxxxx 200,000 options
common Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
stock
------------ ----------------------------------------- ------------------------ -----------
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