LOCK-UP AGREEMENT October 2, 2020

EXHIBIT 10.1

October 2, 2020

0000 Xxxxxx Xxxxx

Xxxxxx, Xxxxxxxxxx 00000

Ladies and Gentlemen:

This Lock-Up Agreement (this “Agreement”) is executed in connection with the Agreement and Plan of Merger and Reorganization (the “Merger Agreement”) by and among CURE Pharmaceutical Holding Corp. (the “Acquiror”), CURE Labs, Inc. (“Merger Sub”), and The Sera Labs, Inc. (the “Company”), dated as of September 23, 2020. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Merger Agreement.

(a) In connection with, and as an inducement to, the parties entering into the Merger Agreement and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned, _____________________________________________, by executing this Agreement, agrees that, without the prior written consent of the Acquiror and the Company, during the period commencing at the Effective Time and continuing until the end of the applicable Lock-Up Period (as hereinafter defined), the undersigned will not: (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, make any short sale or otherwise transfer or dispose of or lend, directly or indirectly, any shares of Common Stock of Acquiror (the “Acquiror Common Stock”) or any securities convertible into, exercisable or exchangeable for or that represent the right to receive Acquiror Common Stock (including without limitation, Acquiror Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) whether now owned or hereafter acquired (the “Securities”); (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Acquiror Common Stock or such other securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to, the registration of any Acquiror Common Stock or any security convertible into or exercisable or exchangeable for Acquiror Common Stock; (4) grant any proxies or powers of attorney with respect to any Securities, deposit any Securities into a voting trust or enter into a voting agreement or similar arrangement or commitment with respect to any Securities; or (5) publicly disclose the intention to do any of the foregoing (each of the foregoing restrictions, the “Lock-Up Restrictions”).

(b) In addition, the undersigned hereby authorizes and instructs that ________ shares issued to the undersigned as his, her or its Pro Rata Portion of the Clawback Shares (the "Escrow Shares") be placed in escrow with the Escrow Agent, and agrees that (1) the release of such shares to the undersigned is subject to the determination of the Board of Directors of Acquiror in good faith that the applicable Clawback Milestone has been satisfied on or before the applicable Milestone Deadline and (2) the Escrow Shares not released as described in clause (1) shall be returned to the Acquiror, all as described in Section 2.4 of the Merger Agreement. The undersigned authorizes and appoints the Securityholders’ Representative to act upon behalf of the undersigned in connection with the Escrow Shares with the same authority as the Securityholders’ Representative has under the Merger Agreement to act on behalf of the Company Securityholders.

(1) The Lock-Up Restrictions shall automatically terminate and cease to be effective (i) with respect to one-quarter (1/4) of the Securities (other than the Escrow Shares), on the date that is six (6) months after the Effective Time, (ii) with respect to an additional one-quarter (1/4) of the Securities (other than the Escrow Shares), on the date that is twelve (12) months after the Effective Time, (iii) with respect to an additional one-quarter (1/4) of the Securities (other than the Escrow Shares), on the date that is eighteen (18) months after the Effective Time, and (iv) with respect to an additional one-quarter (1/4) of the Securities (other than the Escrow Shares), on the date that is twenty-four (24) months after the Effective Time.

(2) The Lock-Up Restrictions shall automatically terminate and cease to be effective (i) with respect to one-half (1/2) of the Escrow Shares released to the undersigned, on the date that is six (6) months after the release of such shares from escrow, (ii) with respect to an additional one-half (1/2) of the Escrow Shares released to the undersigned, on the date that is twelve (12) months after the release of such shares from escrow.

Each period during which the Lock-Up Restrictions apply to the Securities, as applicable, shall be deemed the “Lock-Up Period” with respect thereto.

(d) The undersigned agrees that the Lock-Up Restrictions preclude the undersigned from engaging in any hedging or other transaction with respect to any then-subject Securities which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of such Securities even if such Securities would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to such Securities or with respect to any security that includes, relates to, or derives any significant part of its value from such Securities.

(e) Notwithstanding the foregoing, the undersigned may transfer any of the Securities (i) as a bona fide gift or charitable contribution, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, (iii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (1) to another corporation, partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned or (2) as distributions or dividends of shares of Acquiror Common Stock or any security convertible into or exercisable for Acquiror Common Stock to limited partners, limited liability company members or stockholders of the undersigned or holders of similar equity interests in the undersigned, (iv) if the undersigned is a trust, to the beneficiary of such trust, (v) by testate succession or intestate succession, (vi) to any immediate family member, any investment fund, family partnership, family limited liability company or other entity controlled or managed by the undersigned, (vii) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (vi), (viii) to Acquiror in a transaction exempt from Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), upon a vesting event of the Securities or upon the exercise of options or warrants to purchase Acquiror Common Stock on a “cashless” or “net exercise” basis or to cover tax withholding obligations of the undersigned in connection with such vesting or exercise (but for the avoidance of doubt, excluding all manners of exercise that would involve a sale in the open market of any securities relating to such options or warrants, whether to cover the applicable aggregate exercise price, withholding tax obligations or otherwise), (ix) to Acquiror in connection with the termination of employment or other termination of a service provider and pursuant to agreements in effect as of the Effective Time whereby Acquiror has the option to repurchase such shares or securities, (x) acquired by the undersigned in open market transactions after the Effective Time, (xi) pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of the Acquiror’s capital stock involving a change of control of the Acquiror, provided that in the event that such tender offer, merger, consolidation or other such transaction is not completed, the Securities shall remain subject to the restrictions contained in this Agreement, (xii) pursuant to an order of a court or regulatory agency, or (xiii) to Acquiror related to a claim for indemnification pursuant to Article IX of the Merger Agreement; provided, in the case of clauses (i)-(vii), that (A) such transfer shall not involve a disposition for value and (B) the transferee agrees in writing with Acquiror to be bound by the terms of this Agreement; and provided, further, in the case of clauses (i)-(vii), no filing by any party under Section 16(a) of the Exchange Act shall be required or shall be made voluntarily in connection with such transfer; and provided, further, that with respect to each of clauses (viii) and (ix) reasonable notice shall be provided to Acquiror prior to any required filing and any required filing under the Exchange Act shall include footnote disclosure explaining that such exercise and sale was to cover the tax withholding of the undersigned or in connection with such individual’s termination of service relationship with Acquiror and that the option would otherwise have expired. For purposes of this Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.

(f) In addition, the Lock-Up Restrictions shall not apply to (i) the exercise of stock options granted pursuant to equity incentive plans existing immediately following the Effective Time, including the “net” exercise of such options in accordance with their terms and the surrender of Acquiror Common Stock in lieu of payment in cash of the exercise price and any tax withholding obligations due as a result of such exercise (but for the avoidance of doubt, excluding all manners of exercise that would involve a sale in the open market of any securities relating to such options, whether to cover the applicable aggregate exercise price, withholding tax obligations or otherwise); provided that it shall apply to any of the Securities issued upon such exercise, (ii) conversion or exercise of any security convertible into or exercisable for Acquiror Common Stock that are outstanding as of the Effective Time (but for the avoidance of doubt, excluding all manners of conversion or exercise that would involve a sale in the open market of any securities relating to such securities, whether to cover the applicable aggregate exercise price, withholding tax obligations or otherwise); provided that it shall apply to any of the Securities issued upon such conversion or exercise; and provided, further that the recipient of Acquiror Common Stock agrees in writing with Acquiror to be bound by the terms of this Agreement, or (iii) the establishment of any contract, instruction or plan (a “Plan”) that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act; provided that no sales of the Securities shall be made pursuant to such a Plan prior to the expiration of the applicable Lock-Up Period, and such a Plan may only be established if no public announcement of the establishment or existence thereof and no filing with the Securities and Exchange Commission or other regulatory authority in respect thereof or transactions thereunder or contemplated thereby, by the undersigned, Acquiror or any other person, shall be required, and no such announcement or filing is made voluntarily, by the undersigned, Acquiror or any other person, prior to the expiration of the applicable Lock-Up Period. Any attempted transfer in violation of this Agreement will be of no effect and null and void, regardless of whether the purported transferee has any actual or constructive knowledge of the transfer restrictions set forth in this Agreement, and will not be recorded on the share register of Acquiror. In furtherance of the foregoing, Acquiror and its transfer agent and registrar are hereby authorized to decline to make any transfer of shares of Acquiror Common Stock if such transfer would constitute a violation or breach of this Agreement. Acquiror may cause the legend set forth below, or a legend substantially equivalent thereto, to be placed upon any certificate(s) or other documents, ledgers or instruments evidencing the undersigned’s ownership of Acquiror Common Stock:

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND MAY ONLY BE TRANSFERRED IN COMPLIANCE WITH A LOCK-UP AGREEMENT, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.

(g) The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Agreement and that upon request, the undersigned will execute any additional documents reasonably necessary to ensure the validity or enforcement of this Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.

(h) The undersigned understands that the undersigned shall be released from all obligations under this Agreement if the Merger Agreement is terminated prior to the Effective Time pursuant to its terms, upon the date of such termination.

(i) The undersigned understands that Acquiror, the Merger Sub and the Company are entering into the Merger Agreement in reliance upon this Agreement.

(j) This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws principles thereof.

(k) This Agreement, and any certificates, documents, instruments and writings that are delivered pursuant hereto, constitutes the entire agreement and understanding of the Acquiror, the Company and the undersigned in respect of the subject matter hereof and supersedes all prior understandings, agreements or representations by or among the Acquiror, the Company and the undersigned, written or oral, to the extent they relate in any way to the subject matter hereof.

[Signature page follows.]

This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by Acquiror and the undersigned by facsimile or electronic transmission in .pdf format or other electronic transmission shall be sufficient to bind such parties to the terms and conditions of this Agreement.

	Very truly yours,


	Signature


	Print name

ACCEPTED AND AGREED:

CURE PHARMACEUTICAL HOLDING CORP., a Delaware corporation

By:
	Xxxxxx Xxxxxxxx, Chief Executive Officer


THE SERA LABS, INC.,
a Delaware corporation

By:
	Xxxxx Xxxxxx,
	Chief Executive Officer

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LOCK-UP AGREEMENT October 2, 2020

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