Exhibit 10.89
GALAXY ENTERPRISES, INC.
AFFILIATE LOCK-UP AGREEMENT
This AFFILIATE LOCK-UP AGREEMENT ("Agreement") dated as of March 10,
2000, is entered into between Netgateway, Inc., a Delaware corporation
("Netgateway") and the undersigned officer, director or affiliate ("Affiliate")
of Galaxy Enterprises, Inc., a Nevada corporation ("Company").
WHEREAS, Netgateway and Company have entered into an Agreement and Plan
of Reorganization dated March 8, 2000 ("Merger Agreement") pursuant to which a
subsidiary of Netgateway will merge with and into Company ("Merger"), and
Company will become a subsidiary of Netgateway (capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Merger
Agreement);
WHEREAS, pursuant to the Merger, at the Effective Time outstanding
shares of Common Stock of the Company ("Company Common Stock"), including all
shares owned by Affiliate, will be converted into the right to receive shares of
Netgateway Common Stock;
WHEREAS, it is intended that the Merger will constitute a
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986 as amended (the "Code");
WHEREAS, it is further intended that the Merger will qualify for
"pooling-of-interests" accounting treatment;
WHEREAS, the execution and delivery of this Agreement by Affiliate is a
material inducement to Netgateway to enter into the Merger Agreement; and
WHEREAS, Affiliate has been advised that Affiliate may be deemed to be
an "affiliate" of Company, as the term "affiliate" is used (i) for purposes of
paragraphs (c) and (d) of Rule 145 of the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission") and
(ii) in the Commission's Accounting Series Release ("ASR") Nos. 130 and 135, as
amended.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree
as follows:
1. ACKNOWLEDGMENTS BY AFFILIATE. Affiliate acknowledges and understands
that the representations, warranties and covenants by Affiliate set forth herein
will be relied upon by Netgateway, the Company, and their respective
"affiliates", counsel and accountants, and that substantial losses and damages
may be incurred by these persons if Affiliate's representations, warranties or
covenants are not true when given or are breached by Affiliate. Affiliate has
carefully read this Agreement and the Merger Agreement and has had the
opportunity to discuss the
requirements of this Agreement with his professional advisors who are qualified
to advise him with regard to such matters.
2. COVENANTS RELATED TO POOLING OF INTERESTS. Notwithstanding any other
provision hereof to the contrary and in accordance with XXX Xx. 000, during the
period commencing on the date hereof and continuing until such date after the
Effective Time as shall be the first market trading day following the date
Netgateway publishes financial results covering at least thirty (30) days of
combined operations of Netgateway and the Company, Affiliate will not sell,
exchange, transfer, pledge, distribute, make any gift or otherwise dispose of or
grant any option, establish any "short" or put-equivalent position with respect
to or enter into any similar transaction (through derivatives or otherwise)
intended to reduce or having the effect, directly or indirectly, of reducing his
risk relative to any shares of Company Common Stock, or any rights, options or
warrants to purchase Company Common Stock, or any Netgateway Common Stock
received by Affiliate in connection with the Merger. For the purposes of this
Agreement, (i) "Company Common Stock" shall mean all shares of Company Common
Stock and any other securities of the Company held by Affiliate, including all
securities as to which Affiliate has sole or shared voting or investment power,
and all rights, options and warrants to acquire shares of capital stock or other
securities of Company granted to or held by Affiliate, and (ii) "Netgateway
Common Stock" shall mean all Netgateway Common Stock that are issued by
Netgateway to Affiliate in connection with the Merger. Netgateway may, at its
discretion, cause a restrictive legend to the foregoing effect to be placed on
certificates representing Netgateway Common Stock issued to Affiliate in the
Merger and place a stop transfer notice consistent with the foregoing with its
transfer agent with respect to the certificates.
Notwithstanding the foregoing, Affiliate shall be entitled to sell or
dispose of shares so long as such sale or disposition is in accordance with XXX
Xx. 000 and the "de minimis" test set forth in the Commission's Staff Accounting
Bulletin No. 76; PROVIDED that Affiliate has first obtained Netgateway's prior
written approval of any such proposed sale or disposition.
3. REPRESENTATIONS AND WARRANTIES OF AFFILIATE.
(a) Affiliate has full power and authority to execute this
Agreement, to make the representations and warranties herein contained and to
perform Affiliate's obligations hereunder.
(b) Affiliate is the beneficial owner of the Company Common
Stock (including any shares issuable upon exercise of granted options) set forth
on the signature page below and did not acquire any of such Company Common Stock
in contemplation of the Merger.
(c) Affiliate has not engaged in any sale or other transfer of
any Company Common Stock (including shares issuable upon exercise of granted
options) in contemplation of the Merger.
4. MISCELLANEOUS.
(a) For the convenience of the parties hereto, this Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same document.
-2-
(b) This Agreement shall be enforceable by, and shall inure to
the benefit of and be binding upon, the parties hereto and their respective
successors and assigns. As used herein, the term "successors and assigns" shall
mean, where the context so permits, heirs, executors, administrators, trustees
and successor trustees, and personal and other representatives.
(c) This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the internal laws of the State of
California.
(d) If a court of competent jurisdiction determines that any
provision of this Agreement is not enforceable or enforceable only if limited in
time or scope, this Agreement shall continue in full force and effect with such
provision stricken or so limited.
(e) Counsel to the parties and the independent accountants of
Netgateway and the Company shall be entitled to rely upon this Agreement as
appropriate.
(f) This Agreement shall not be modified or amended, or any
right hereunder waived or any obligation excused, except by a written agreement
signed by both parties.
(g) This Affiliate Agreement shall be terminated and of no
further force and effect upon termination of the Merger Agreement pursuant to
its terms.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
-3-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth on the first page of this Agreement.
NETGATEWAY, INC.
/s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
By: Xxxxxx X. Xxxxxxx, Xx.
----------------------------------------
Title: President
-------------------------------------
AFFILIATE
/s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Title: President
--------------------------------------
Name of Signatory (if different from name
of Affiliate):
-----------------------------
Title of Signatory:
If applicable:
---------------------------
Company shares beneficially owned:
shares of Common Stock
------------------
-4-
