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EXHIBIT 4.3
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT is made as of October 17, 1999, by and among
Xxxxxxxx.xxx, Inc. (the "Company") and the undersigned directors, executive
officers and stockholders (individually a "Party" and collectively the
"Parties"). Capitalized terms not otherwise defined in this agreement have the
meaning given them in the Registration Rights Agreement.
RECITALS
WHEREAS, in order to induce Vulcan Ventures Incorporated to enter
into that certain Common Stock and Warrant Purchase Agreement of even date
herewith (the "Purchase Agreement"), the Parties wish to enter into this Lock-Up
Agreement (the "Agreement").
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the Parties hereto further agree as follows:
1. Lock-Up
1.1 Each Party hereby agrees that (i) from the date hereof until
January 17, 2000 and, (ii) during the period of duration specified by the
Company and an underwriter of common stock or other securities of the Company,
following the effective date of a registration statement of the Company filed
under the Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly (1) offer, pledge, sell, contract to sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or
dispose of, directly or indirectly or (2) enter into any swap or similar
agreement that transfers, in whole or in part, the economic risk of ownership of
the Company's securities, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or other securities,
in cash or otherwise; provided, however, that (i) such market stand-off time
period shall not exceed ninety (90) days and (ii) and this stand-off provision
shall not apply to gifts of the Company's securities to bona fide charitable
organizations that are not affiliated with the Parties.
1.2 The restriction set forth in Section 1.1(i) above shall not
apply however, with respect to sales of securities by Xx. Xxxxxxxxx resulting in
net proceeds to Xx. Xxxxxxxxx not in excess of $150,000.
1.3 In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the securities of the Company
held by each Party until the end of such period.
2. Miscellaneous
2.1 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the Parties (including
transferees of any shares of the Company's
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securities). Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the Parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
2.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, upon
confirmed facsimile transmission to the party to be notified, or upon deposit
with the United States Post Office, by registered or certified mail, postage
prepaid and addressed to the party to be notified at the address indicated for
such party on the signature page hereof, or at such other address as such party
may designate by ten (10) days' advance written notice to the other parties.
2.6 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
2.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and each Party
against which such amendment or waiver shall be binding.
2.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
2.9 Aggregation of Stock. All securities of the Company held or
acquired by affiliated entities or persons shall be aggregated together for the
purpose of determining the availability of any rights under this Agreement.
2.10 Entire Agreement; Amendment; Waiver. This Agreement constitutes
the full and entire understanding and agreement between the Parties with regard
to the subjects hereof and thereof.
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IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement
as of the date first above written.
COMPANY:
XXXXXXXX.XXX, INC.
By:
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Xxxxx XxxXxxxxx, President
Address: 0000 Xxxxx Xxx.,
Xxxxx Xxxxx, XX 00000
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By:
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Xxxxx XxxXxxxxx, President and Chairman of the
Board
Address: 0000 Xxxxx Xxx.,
Xxxxx Xxxxx, XX 00000
By:
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Xxx Xxxxxxxxx, Vice President of Engineering,
Secretary and Director
Address: 0000 Xxxxx Xxx.,
Xxxxx Xxxxx, XX 00000
By:
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Xxxxxx X. Xxxxxxx, Vice President of Finance
and Chief Financial Officer
Address: 0000 Xxxxx Xxx.,
Xxxxx Xxxxx, XX 00000
By:
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Xxxxxx X. Capolvilla, Vice President of Sales
and Business Development
Address: 0000 Xxxxx Xxx.,
Xxxxx Xxxxx, XX 00000
By:
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Xxxx Xxxxxxxxxxx, Vice President and General
Manager of Digital Publishing
Address: 0000 Xxxxx Xxx.,
Xxxxx Xxxxx, XX 00000
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By:
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Xxxx X. Xxxxxx, Vice President of Logisitcs
Address: 0000 Xxxxx Xxx.,
Xxxxx Xxxxx, XX 00000
By:
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Xxxxx X. Xxxxxx, Director
Address: APV Technology Partners, L.P.
000 Xxxxxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
By:
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Xxxx X. Xxxxxx, Director
Address: ONSALE, Inc.
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
By:
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Xxx X. Xxxxxxx, Director
Address: Trinity Ventures
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
By:
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Xxxxx X. Xxxxxx, Director
Address: Sierra Ventures
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
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By:
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Xxxxx X. Xxxxxxx, Director
Address: Sierra Ventures
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
VULCAN VENTURES INCORPORATED
By:
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Name:
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Title:
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Address: 000 000xx Xxxxxx X.X.
Xxxxx 000
Xxxxxxxx, XX 00000
SIERRA VENTURES V, LP
By:
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Its:
------------------------------------
By:
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Its:
------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
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TRINITY VENTURES V, LP
By:
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Its:
------------------------------------
By:
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Its:
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Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
HIGHLAND CAPITAL PARTNERS IV
LIMITED PARTNERSHIP
By: Highland Management Partners IV LLC
Its:
------------------------------------
By:
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Managing Member
Address: Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
HIGHLAND ENTREPRENEUR'S FUND IV
LIMITED PARTNERSHIP
By: Highland Entrepreneurs' Fund IV LLC
Its:
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By:
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Managing Member
Address: Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
