AMBICOM HOLDINGS, INC. LOCK-UP LEAK OUT AGREEMENT
Exhibit
4.3
AMBICOM
HOLDINGS, INC.
LOCK-UP
LEAK OUT AGREEMENT
This
LOCK-UP LEAK-OUT AGREEMENT (the “Agreement”) is made
as of January 15, 2010 (the “Effective Date”) by
and between AMBICOM HOLDINGS, INC., f/k/a Med Control, Inc., a Nevada
corporation (the “Company”) and the
undersigned Shareholder (as defined below).
WHEREAS,
the Company, the Shareholder and together with all of the holders of the
outstanding capital stock of AmbiCom Acquisition Corp., a Nevada corporation
(“Ambicom”)
receiving a number of shares of the Company’s common stock equal to or in excess
of five percent (5%) of the Company’s issued and outstanding shares of Common
Stock (each a “Shareholder” and
collectively, the “Shareholders”)
anticipate the consummation of a Share Exchange Agreement (“Share Exchange
Agreement”) on the Effective Date, pursuant to which Ambicom will become
a wholly-owned subsidiary of the Company (the “Share
Exchange”);
WHEREAS,
as a condition to the consummation of the Share Exchange, the Shareholders have
agreed to enter into this Agreement to ensure the establishment of an orderly
trading market for the Company’s common stock following the closing of the Share
Exchange;
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and the undersigned Shareholder agree as
follows:
1.
One-Year
Prohibition on Sales or Transfers. The Shareholder, including the
Shareholder’s Affiliated Entities (as defined below), hereby agrees that for a
period of one (1) year from the Effective Date (the “Lock-Up Period”), the
Shareholder will not offer, sell, contract to sell, pledge, give, donate,
transfer or otherwise dispose of, directly or indirectly, any shares of the
Company’s common stock $0.01 par value per share (the “Common Stock”) or
securities convertible into or exercisable for Common Stock issued to the
Shareholder pursuant to the Share Exchange (the “Lock-Up Shares”) or
securities or rights convertible into or exchangeable or exercisable for any
Lock-Up Shares, enter into a transaction which would have the same effect, or
enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic or voting consequences of ownership of such
securities, whether any such aforementioned transaction is to be settled by
delivery of the Lock-Up Shares or such other securities, in cash or otherwise,
or publicly disclose the intention to make any such offer, sale, pledge or
disposition, or to enter into any such transaction, swap, hedge or other
arrangement (the “Lock-Up Agreement”).
As used in this Agreement “Affiliated Entities”
shall mean any legal entity, including any corporation, limited liability
company, partnership, not-for-profit corporation, estate planning vehicle or
trust, which is directly or indirectly owned or controlled by the Shareholder or
his or her descendants or spouse, of which such Shareholder or his or her
descendants or spouse are beneficial owners, or which is under joint control or
ownership with any other person or entity subject to a lock-up agreement
regarding the Company’s stock with terms substantially identical to this
Agreement.
2.
Post-Lock-Up Restrictions on
Sales—Volume Limitations – Leak-Out. After the expiration of the Lock-Up
Period and for the one (1) year period thereafter, the aggregate number of
Lock-Up Shares that may be sold or otherwise Transferred (as defined below) by
the Shareholder (taking into account sales and other Transfers (a) directly from
the Shareholder, (b) by the Shareholder’s Affiliated Entities and (c) by any
holder of Lock-Up Shares previously sold or otherwise Transferred to such holder
by the Shareholder after the Effective Date (but taking into account only
Lock-Up Shares transferred to the holder by the Shareholder)) shall not exceed
(i) 10% of the average monthly trading volume for the Common Stock on the
relevant trading market as reported by Bloomberg L.P. for any Shareholder who is
not an “affiliate” of the Company as such term is defined under the Securities
Act of 1933, as amended (the “Act”), and (ii) the
greater of (x) 5% or (y) the maximum amount permitted under applicable law or
regulation for any Shareholder who is an “affiliate” (as adjusted for any stock
split, combination or the like) in any 30-day period (the “Volume
Limitations”).
3.
Allowable
Sales During Lock-Up Period and Thereafter. Notwithstanding the terms of
Section 1
above, during the Lock-Up Period the Shareholder may:
(a) Transfer
Lock-Up Shares to the Company or its designee.
(b) Make
a bona fide charitable donation to a non-profit, religious organization or
institution that is independent of the Shareholder (a “Charitable
Donee”).
(c) Grant
and maintain a bona fide lien or security interest in, pledge, hypothecate or
encumber (collectively, a “Pledge”) any Lock-Up
Shares beneficially owned by him, her or it to a nationally or internationally
recognized financial institution with assets of not less than $10 billion (an
“Institution”)
in connection with a loan to the Shareholder; provided, however, that (i) the
Shareholder (treating the Shareholder and all Shareholder’s Affiliated Entities
in the aggregate as one entity) shall not Pledge Lock-Up Shares to secure loans
in the aggregate in excess of One Million Dollars ($1,000,000); (ii) the
Shareholder gives the Company’s Secretary 5 days’ prior written notice that he,
she or it intends to Pledge Lock-Up Shares to an Institution pursuant to this
Section 3(c); and (iii) the Institution agrees in writing at or prior to the
time of such Pledge that the Company shall receive timely notice of any margin
call or event of default and shall have the right to satisfy any margin call or
cure any event of default by the Shareholder in connection with any loan to
which the Pledge relates by purchasing any or all Lock-Up Shares Pledged at a
price equal to 50% of the then-current market value (as calculated using the
average closing sales price of the Company’s Common Stock for the 15 immediately
previous trading days) on the date of the margin call or event of default, such
election by the Company to be shown by written notice to the Institution and
payment within 5 business days of notice being received by the Company, with
transfer of the Lock-Up Shares to the Company to be completed immediately upon
receipt of such payment. In the event that the Company’s payment for the Lock-Up
Shares exceeds the amount owed to the Institution by the Shareholder, any excess
amount shall be paid promptly by the Institution to the Shareholder. In the
event that both the Company and the Shareholder attempt to make payment to
satisfy any margin call or event of default, the first to make full payment
shall be deemed to have completed such purchase or cure (as the case may be),
and any payments received by the Institution from the other party shall be
promptly returned. This paragraph may not be relied upon for any non-bona fide
loan or other form of indirect or disguised sale. The Shareholder
hereby appoints and constitutes each of Xxxx Xxxxx and Xxxxxxxxxxx X.
Xxxxx, with full power of substitution, as attorneys-in-fact (each an “Attorney-in–Fact”) to
act in the Shareholder’s name, place and stead, to transfer and convey to the
Company all Lock-Up Shares purchased by the Company pursuant to this Section
3(c) and to execute and deliver all stock powers, endorse all stock certificates
and execute and deliver any and all instruments, documents and agreements
necessary to transfer all Lock-Up Shares purchased by the Company pursuant to
this Section 3(c). The foregoing power of attorney is coupled with an interest
and is irrevocable. The Shareholder agrees to indemnify and hold the Company and
each Attorney-in-Fact, or their appointees, harmless from and against any and
all liabilities, claims, damages and expenses (including attorney’s fees and
court costs) incurred by the Company or an Attorney-in-Fact, or their
appointees, in connection with the exercise by the Company of its rights
hereunder.
(d) Transfer
Lock-Up Shares to one of the Shareholder’s Affiliated Entities, so long as such
Shareholder’s Affiliated Entity agrees in an additional written instrument
delivered to the Company to be subject to the terms and conditions of this
Agreement.
(e) In
the event that the Shareholder is subject, on the Effective Date, to any legally
binding, written “put” or “call” option (the “Option”), the
Shareholder shall furnish a copy of such written Option to the Chief Financial
Officer or General Counsel of the Company prior to or at the time of signing
this Agreement. In such event, the provisions of this Agreement shall not
prevent the Shareholder from honoring his or her “put” rights or “call”
obligations pursuant to such Option and the Company will, upon request, furnish
any reasonably required written waiver of the applicability of this Agreement to
the extent necessary to allow the Shareholder to meet his or her
obligation.
(f)
In a private sale transaction not effected on a trading
market.
4.
Application of this
Agreement to Shares Sold or Otherwise Transferred. So long as such sales
or other Transfers are made in compliance with the Volume Limitations and other
requirements of this Agreement, Lock-Up Shares sold in the public market shall
thereafter not be subject to the restrictions on sale or other Transfer
contained in this Agreement. Lock-Up Shares that are properly transferred to a
Charitable Donee or Lock-Up Shares sold or otherwise Transferred in private
sales or other Transfers pursuant to an Option shall thereafter not be subject
to the restrictions on sale or other Transfer contained in this Agreement.
Transfers of Lock-Up Shares or those sold in a private transaction pursuant to
Section 3(f) shall continue to be subject to the Volume Limitations and other
terms of this Agreement as described in that Section. Transferred Lock-Up Shares
may continue to be subject to restrictions imposed by federal or state
securities laws and contractual agreements outside of this
Agreement.
5.
Attempted Transfers.
Any attempted or purported sale or other Transfer of any Lock-Up Shares by the
Shareholder in violation or contravention of the terms of this Agreement shall
be null and void ab
initio. The Company shall, and shall instruct its transfer agent to,
reject and refuse to transfer on its books any Lock-Up Shares that may have been
attempted to be sold or otherwise Transferred in violation or contravention of
any of the provisions of this Agreement and shall not recognize any person or
entity
6.
Waiver of Claims. The
Shareholder hereby irrevocably waives any and all known or unknown claims and
rights, whether direct or indirect, fixed or contingent, that the Shareholder
may now have or that may hereafter arise against the Company or any of its
affiliates, or any of its respective officers, directors, shareholders,
employees, agents, attorneys or advisors arising out of the negotiation,
documentation of this Agreement.
7.
Consent or
Approval of Company. Whenever the waiver, consent or approval of the
Company is required herein or is desired to amend this Agreement or waive any
requirement in this Agreement, such consent, approval, amendment or waiver may
only be given by the Company if and when approved by a majority of the Company’s
then independent directors; provided, however, that the independent directors
may delegate this authority to executive officers of the Company if the
Shareholder seeking or benefiting from the consent, approval, amendment or
waiver is not serving as an officer or director of the Company.
8.
Acknowledgement of
Representation. The Shareholder represents and warrants to the Company
that the Shareholder was or had the opportunity to be represented by legal
counsel and other advisors selected by Shareholder in connection with the
Exchange Agreement and has been represented by legal counsel and other advisors
selected by the Shareholder in connection with this Agreement. The Shareholder
has reviewed this Agreement with his, her or its legal counsel and other
advisors and understands the terms and conditions hereof. The Shareholder
understands, acknowledges and confirms that Xxxxxxxxxxx X. Xxxxx of Xxxxx Xxxxx
& Xxxxx, LLP represented only Ambicom in connection with this Agreement.
Xxxxx Xxxxxxxxxxx of Xxxxxx Xxxxxxx & Xxxxxx, LLP represented only the
Company in connection with this Agreement.
9.
Legends on
Certificates. All Lock-Up Shares now or hereafter owned by the
Shareholder, except any shares purchased in open market transactions by
Shareholders that are not affiliates (as such term is defined under securities
laws) of the Company, shall be subject to the provisions of this Agreement and
the certificates representing such Lock-Up Shares shall bear the following
legends:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS.
THEY MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED FOR VALUE
UNLESS THEY ARE REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR UNLESS THE CORPORATION RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO
IT, OR OTHERWISE SATISFIES ITSELF, THAT AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
THE SALE,
ASSIGNMENT, GIFT, BEQUEST, TRANSFER, DISTRIBUTION, PLEDGE, HYPOTHECATION OR
OTHER ENCUMBRANCE OR DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE
IS RESTRICTED BY AND MAY BE MADE ONLY IN ACCORDANCE WITH THE TERMS OF A LOCK-UP
AGREEMENT, A COPY OF WHICH MAY BE EXAMINED AT THE OFFICE OF THE
CORPORATION.
10. Termination of Lock-Up
Agreement. This Agreement shall terminate
upon the merger or
consolidation of the Company with a corporation or other entity upon
consummation of which the Shareholder and all other persons or entities that are
party to a lock-up agreement regarding the Company’s stock with terms
substantially identical to this Lock-Up Agreement immediately thereafter own in
the aggregate less than 25% of the total voting power of the surviving or
resulting corporation.
11. Governing Law. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of California.
12. Notices. Any notices
and other communications given pursuant to this Agreement shall be in writing
and shall be effective upon delivery by hand or on the fifth (5th) day after
deposit in the mail if sent by certified or registered mail (postage prepaid and
return receipt requested) or on the next business day if sent by a nationally
recognized overnight courier service (appropriately marked for overnight
delivery) or upon transmission if sent by facsimile (with immediate electronic
confirmation of receipt in a manner customary for communications of such type).
Notices are to be addressed as follows:
If to the
Company, to
AmbiCom
Holdings, Inc.
000 Xxxxx
Xxxx Xxxxxxx
Xxx Xxxx,
XX 00000-0000
(___)
___-____- Phone
(___)
___-____ - Fax
Attention:
Xxxx Xxxxx, President
If to the
Shareholder, to the address set forth on the signature page attached
hereto
13. Binding Effect. This
Agreement will be binding upon and inure to the benefit of the Company, its
successors and assigns and to the Shareholder and their respective permitted
heirs, personal representatives, successors and assigns.
14. Entire Understanding.
This Agreement sets forth the entire agreement and understanding of the parties
hereto in respect of the subject matter hereof and the transactions contemplated
hereby and supersedes all prior written and oral agreements, arrangements and
understandings relating to the subject matter hereof. This Agreement may not be
changed orally, but may only be changed by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification or discharge
is sought.
15. Remedies. The parties
hereto acknowledge that money damages are not an adequate remedy for violations
of this Agreement and that any party may, in such party’s sole discretion, apply
to any court of competent jurisdiction for specific performance or injunctive
relief or such other relief as such court may deem just and proper in order to
enforce this Agreement or prevent any violation hereof and, to the extent
permitted by applicable law, each party hereto waives any objection to the
imposition of such relief. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof, whether at law or in equity,
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party hereto shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such
party.
16. Counterparts. This
Agreement may be executed by facsimile and in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument. Each counterpart may consist of a number
of copies each signed by less than all, but together signed by all, of the
parties hereto.
IN
WITNESS WHEREOF, this Agreement has been signed as of the date first above
written.
AMBICOM
HOLDINGS, INC.
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By:
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Name:
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Title:
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[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR SHAREHOLDER FOLLOW]
IN
WITNESS WHEREOF, the undersigned have caused this Lock-Up
Leak-Out Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of
Shareholder: __________________________________
Signature
of Authorized Signatory of Shareholder:
_______________________________
Name of
Authorized Signatory: __________________________________
Title of
Authorized Signatory: ___________________________________
Email
Address of Shareholder: ___________________________________
Facsimile
Number of Shareholder: __________________________________
Address
for Notice of Shareholder: __________________________________
Address
for Delivery of Shares for Shareholder (if not same as address for
notice):
SHAREHOLDER’S SPOUSE (as
applicable):
The
undersigned spouse of the Shareholder has read and hereby approves the foregoing
Agreement and agrees to be irrevocably bound by the Agreement and further agrees
that any community property interest shall be similarly bound by the Agreement.
I hereby irrevocably appoint my spouse as my attorney-in-fact with respect to
any amendment or exercise of any rights under the Agreement.
Signature:
Name:
__________________________________
Signature
of Authorized Signatory of Spouse:
__________________________________
