LOCK-UP AGREEMENT
Exhibit
10.17
THIS
AGREEMENT (this “Agreement”) is dated as of March 13, 2009, by and among MedPro
Safety Products, Inc., a Nevada corporation (the “Company”), and Xx.
Xxxxxx Xxxxxxx (the “Shareholder”), a
holder of those Company securities listed on Schedule A attached hereto (the
“Securities”).
WHEREAS,
the Company and the Shareholder previously entered into that certain Lock-Up
Agreement dated as of December 5, 2008, (the “Old
Lock-Up”);
WHEREAS,
the Old Lock-Up was joined in by Vision Opportunity Master Fund, Ltd. (“VOMF”), for whose
benefit the Old Lock-Up was entered into pursuant to its rights under that
certain Series A Convertible Preferred Stock Purchase Agreement dated as of
September 5, 2007 (the “Purchase Agreement”).
Capitalized terms used herein without definition shall have the same meanings
assigned to such terms in the Purchase Agreement;
WHEREAS,
the parties now desire to cancel and terminate the Old Lock-Up and replace it
with the new terms contained herein;
NOW,
THEREFORE, in consideration of the covenants and conditions hereinafter
contained, the parties hereto agree as follows:
1. Cancellation of Old
Lock-Up. The Old Lock-Up shall be immediately terminated and will be of
no further force or effect upon the full execution by all parties
hereto.
2. 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), directly or indirectly, any of
the Securities (or any Common Stock of the Company issuable upon the exercise or
conversion of any of the Securities) from the period commencing on the date
hereof 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.
3. Ownership. During the
Period, the Shareholders shall retain all rights of ownership in the Securities,
including, without limitation, voting rights and the right to receive any
dividends, if any, that may be declared in respect thereof.
4. Legend. Each
certificate or other document representing a Security held by the Shareholder
shall be stamped or imprinted with a legend referring to the existence of the
transfer restrictions contained herein.
5. 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 Securities if such transfer
would constitute a violation or breach of this Agreement and the Purchase
Agreement.
6. 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 after 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: MedPro
Safety Products, Inc.
000 Xxxxxxxxxx Xxxx, Xxxxx
000
Xxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
If to the
Shareholder: ___________________________
___________________________
___________________________
Fax:
_______________________
If to
VOMF:
Vision Opportunity Master Fund, Ltd.
c/o Vision Capital Advisors,
LLC
Attn: Xxx Xxxxxxx OR General
Counsel
00 Xxxx 00xx Xxxxxx,
0xx
Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
or to
such other address as any party may specify by notice given to the other party
in accordance with this Section 5.
7. Amendment. This
Agreement may not be modified, amended, altered or supplemented, except by a
written agreement executed by each of the parties hereto, including
VOMF.
8. 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.
9. 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.
10. 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.
11. 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
Y 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 5.
12. 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, illegality 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.
13. 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.
14. 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.
15. Counterparts. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any such signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof. All such
counterparts shall together constitute one and the same instrument.
[REMAINDER
OF PAGE INTENTIONALLY Y LEFT BLANK]
IN WITNESS WHEREOF, the parties have
executed this Lock-Up Agreement as of the date first written
above.
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By:
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Xxxxxx X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
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Title:
President and Chief Operating Officer
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XX.
XXXXXX XXXXXXX (Shareholder)
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Xxxxxx
Xxxxxxx
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ACCEPTED
and AGREED:
VISION
OPPORTUNITY MASTER FUND, LTD.
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By:
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Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx
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Director
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SCHEDULE
A
The
Securities:
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A.
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112,635
shares of Common Stock
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B.
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Warrants
to purchase up to 131,023 shares of Common
Stock
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