EXHIBIT 99.3
LOCK-UP AGREEMENT
Surf Group, Inc.
00 Xxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Att: Board of Directors
Re: Agreement not to Trade Shares of Common
Stock of Surf Group, Inc., a New York corporation
(the "Company")
Gentlemen:
Pursuant to that certain Stock Purchase Agreement dated the date hereof
(the Stock Purchase Agreement"), the undersigned owners (the "Owners") of 40,000
shares of common stock of the Company (the "Shares") as set opposite the Owners
name on the signature page hereof and in consideration of the transfer of
control of the Company to new Company management and the prospect of the Company
acquiring a significant operating business, thereby adding value to the Shares
hereby agrees as follows:
1. The Owners agree not to sell or otherwise transfer, lien, pledge or
encumber the Shares except in accordance with this Agreement.
2. The Owners warrant and represent that the Owners have full power and
authority to enter into this Agreement and to restrict the transfer of the
Shares except in accordance with this Agreement, and that the Owners' compliance
with this Agreement will not conflict with or result in a breach of any other
agreement relating to the Shares.
3. Subject to Section 4 hereof, the Owners hereby agree that they shall not
collectively sell more than 9,000 of the Shares in any calendar month during the
six (6) months commencing from the date of the closing of the above-referenced
change of control and that such sales shall be made over the OTC BB or any
successor exchange.
4. The Owners further agree not to make any private transfer of any of the
Shares unless the transferee thereof agrees in writing to be unconditionally
bound by the provisions of this Agreement, copies of which unconditional
assignment and acceptance shall be promptly provided to the Company.
5. The Owners also agree that each stock certificate held or received by the
Owners shall bear a legend on the face thereof, as follows:
"Pursuant to a certain leakout agreement dated November __,
2002 (the "Agreement"), the shares represented by this stock
certificate may not be sold in whole or in part until
_________, 2003 and thereafter may not be sold in quantities
(measured in the aggregate by all Owners similarly situated)
in excess of 9,000 Shares per month; and no private transfer
may be made unless the transferee agrees in writing to be
unconditionally bound by the terms of the Agreement."
6. The provisions of this Agreement shall be binding upon and shall inure to
the benefit of the heirs, successors and assigns of the parties hereto.
7. Miscellaneous
7.1 Entire Agreement. This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter hereof.
7.2 Further Assurances. Without limiting the generality of any provision of
this Agreement, each party hereto agrees that upon request of any other party
hereto, it shall, from time to time, do any and all other acts and things as may
reasonably be required to carry out its obligations hereunder, to consummate the
transactions contemplated hereby and to effectuate the purposes hereof.
7.3 Rights and Remedies. All rights and remedies of any party under any
provision of this Agreement shall to the extent not inconsistent with the other
provisions of this Agreement, be in addition to any other rights and remedies
provided for by any legal requirement (including all forms of legal and
equitable relief including specific performance without the need to post any
security), all rights and remedies contemplated in the preceding clause shall be
independent and cumulative, and may, to the extent permitted by legal
requirements, be exercised concurrently or separately, and the exercise of any
one right or remedy shall not be deemed to be an election of such right or
remedy or to preclude or waive the exercise of any other right or remedy.
7.4 Amendments. No amendment or modification of this Agreement shall be
valid or binding upon the parties hereto unless made in writing and executed by
the parties hereto and the Company.
7.5 Applicable Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of New York, exclusive of conflicts of law provisions. The parties
hereby irrevocably and unconditionally consent and submit to the exclusive
jurisdiction of state and federal courts located in New York, New York (the
"Dispute Courts") with respect to the matters relating herein. The parties agree
that service of process in any action or proceeding hereunder may be served upon
such party by certified mail, return receipt requested to the address for notice
set forth herein and such notice shall have the same force and effect as if
service were made personally upon such party. Each party hereto irrevocably
2
waives any objection it may have to the venue of any action, suit or proceeding
brought in such courts or to the convenience of the forum and each party
irrevocably waives the right to proceed in any other jurisdiction. Final
judgment in any such action, suit or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment, a certified or true
copy of which shall be conclusive evidence of the fact and the amount of any
indebtedness or liability of any party therein described.
7.6 Notice. Any notice, demand, offer, consent, report, approval or other
written document required or permitted to be given pursuant to this Agreement
shall be in writing signed by the party giving such notice or its agent and
shall be hand delivered against receipt or sent by certified letter, return
receipt requested, or by recognized courier service to the other parties at the
addresses listed on the signature page hereto and shall be effective upon
receipt. Each party shall have the right to change the place to which notice
shall be sent or delivered by similar notice sent in like manner to any other
party.
7.7 Severability. If any provision of this Agreement or the application
thereof to any person(s) or circumstance(s) shall be invalid or unenforceable to
any extent, (i) the remainder of this Agreement and the application of such
provision to other person(s) or circumstance(s) shall not be affected thereby;
and (ii) each such provision shall be enforced to the greatest extent permitted
by applicable law.
7.8 Assignment. Subject to the restrictions on transfers set forth herein,
this Agreement shall inure to the benefit of, be binding upon and be enforceable
by and against the parties and their successors and permitted assigns.
7.9 No Waiver. No consent or waiver, express or implied, by a party or of
any breach by a party in the performance by it of any of its obligations
hereunder shall be deemed or construed to be a consent or waiver to or of the
breach in the performance by such party of the same or any other obligation of
such party hereunder. Failure on the part of any party to complain of any act or
failure to act of any other party or to declare any other party in default,
irrespective of how long such failure continues, shall not unless otherwise
herein provided to the contrary constitute a waiver by a party of its rights
hereunder. All consents and waivers shall be in writing.
7.10 Expenses; Method of Payment. Each party shall pay all of its expenses,
including legal and accounting fees, relating to the transactions contemplated
hereby, regardless of whether the transactions contemplated hereby are
consummated.
7.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one Agreement. It shall not be necessary
that any counterpart be signed by the parties so long as each party shall have
executed a counterpart.
3
IN WITNESS WHEREOF, the parties have signed this Leakout Agreement on the
______ day of November, 2002.
Certificate and Number of Shares Owners Signature, Name Printed
Subject to Leak Out and Address
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
Surf Group, Inc.
By: ______________________________
Authorized Signatory
4
