LOCK-UP AGREEMENT
Exhibit
10.16
THIS
AGREEMENT (this "Agreement") is dated
as of December 28, 2007, by and among Xxxxxxxxxx.xxx, a Nevada corporation (the
"Company"), and
shareholders of the Company listed on Schedule A attached
hereto (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 Investors, the Shareholders have agreed not to
sell any shares of the Company’s common stock, $0.01 par value per share (the
"Common
Stock"), that such Shareholders presently own or may have acquired after
the date hereof, except in accordance with the terms and conditions set forth
therein. 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. The Shareholder hereby agrees with the Company that the
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 due to cash settlement or otherwise by the Company or any
affiliate of the Company or any person in privity with the Company or any
affiliate of the Company), directly or indirectly, any of the shares of Common
Stock from the period commencing on the Closing Date and expiring on the date
that is six (6) months following the effective date of the registration
statement filed by the Company with the Securities and Exchange Commission
providing for the resale of the shares of Common Stock issuable upon conversion
of the Preferred Shares and exercise of the Warrants issued pursuant to the
Purchase Agreement (the “Period”). Notwithstanding
the foregoing, subject to applicable securities laws and the restrictions
contained in the Company’s certificate of incorporation, the undersigned may
transfer any securities of the Company (including, without limitation, common
stock) as follows: (i) pursuant to the exercise and issuance of options; (ii) as
a bona fide gift or gifts, provided that the donee or donees thereof agree to be
bound in writing by the restrictions set forth herein; (iii) to any trust for
the direct or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein; (iv) as a distribution to
stockholders, partners or members of the undersigned, provided that such
stockholders, partners or members agree to be bound in writing by the
restrictions set forth herein; (v) any transfer required under any benefit plans
or the Company’s amended and restated bylaws; (vi) as collateral for any loan,
provided that the lender agrees in writing to be bound by the restrictions set
forth herein; (vii) with respect to sales of securities acquired after the
Closing Time in the open market; or (viii) to any of the Company’s current
stockholders, or members or stockholders of the Company’s current stockholders,
so long as the purchaser of those shares has agreed, or agrees, to be bound by a
lock-up agreement in substantially the same form of this Lock-Up
Agreement. For purposes of this agreement, “immediate family” shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin.
2. Ownership. During
the 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 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.
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If
to the Company:
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000
Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Tel
No.: (000) 000-0000
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If
to Shareholder:
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_______________________
_______________________
_______________________
Tel
No.: ________________
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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.
6. Clarification. For
the avoidance of doubt, nothing shall prevent the undersigned from, or restrict
the ability of the undersigned to, (i) purchase common stock on the open market
or (ii) exercise any options or other convertible securities granted under any
benefit plan of the Company.
7. Entire
Agreement. This Agreement contain 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.
8. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in that state, without regard to any of its principles of
conflicts of laws or other laws which would result in the application of the
laws of another jurisdiction. This Agreement shall be construed and
interpreted without regard to any presumption against the party causing this
Agreement to be drafted.
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9. Waiver of Jury
Trial. EACH OF THE PARTIES HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH OF THE PARTIES UNCONDITIONALLY AND
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK LOCATED IN NEW YORK COUNTY AND THE FEDERAL DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, AND EACH OF THE PARTIES HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES
ANY OBJECTION TO VENUE IN NEW YORK COUNTY OR SUCH DISTRICT, AND AGREES THAT
SERVICE OF ANY SUMMONS, COMPLAINT, NOTICE OR OTHER PROCESS RELATING TO SUCH
SUIT, ACTION OR OTHER PROCEEDING MAY BE EFFECTED IN THE MANNER PROVIDED IN
SECTION 4.
10. Severability. The
parties agree that if any provision of this Agreement be held to be invalid,
illegal or unenforceable in any jurisdiction, that holding shall be effective
only to the extent of such invalidity, illegally or unenforceability without
invalidating or rendering illegal or unenforceable the remaining provisions
hereof, and any such invalidity, illegally or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. It is the intent of the parties that this
Agreement be fully enforced to the fullest extent permitted by applicable
law.
11. Binding Effect;
Assignment. This Agreement and the rights and obligations
hereunder may not be assigned by any party hereto without the prior written
consent of the other parties hereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12. Headings. The
section headings contained in this Agreement (including, without limitation,
section headings and headings in the exhibits and schedules) are inserted for
reference purposes only and shall not affect in any way the meaning,
construction or interpretation of this Agreement. Any reference to
the masculine, feminine, or neuter gender shall be a reference to such other
gender as is appropriate. References to the singular shall include
the plural and vice versa.
13. Counterparts. This
Agreement may be executed in two or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original, and all of which, when taken together, shall
constitute one and the same document. This Agreement shall become
effective when one or more counterparts, taken together, shall have been
executed and delivered by all of the parties.
[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.
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XXXXXXXXXX.XXX
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By:
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Name:
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Title:
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SHAREHOLDER:
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By:
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Name:
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Title:
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S-1
Schedule
A
Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
Xxxxxx
Xxxxxx
Xxxx
Xxxxxxxx
Xxxxxx
Xxxxxxx
Xxxx
Xxx
Xxx
Xxxx
Xxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxx
Xxxxxxxxxx
SC
Capital Partners, LLC
