EXHIBIT 3.3
CHANTAL LOCK-UP AGREEMENT
CHANTAL LOCK-UP AGREEMENT ("Lock-Up Agreement") dated as of November 13,
2003 by and among Utix Group, Inc. (fka Chantal Skin Care Corporation), a
Delaware corporation ("Utix"), and each of the stockholders listed on Schedule A
hereto (the "Stockholders").
WHEREAS, pursuant to the Share Exchange Agreement, dated as of October 31,
2003 (the "Exchange Agreement"), by and among Utix, Corporate Sports Incentives,
Inc., a corporation formed under the laws of the State of New Hampshire ("CSI"),
Xxxx Xxxxxxx, an individual (the "Utix Principal Stockholder"), and the
stockholders of CSI (the "CSI Stockholders"), (i) the CSI Stockholders will
exchange their shares (the "Exchange") of CSI common stock for shares of common
stock of Utix (the "Exchange Shares") and (ii) CSI will become a wholly-owned
subsidiary of Utix; and
WHEREAS, it is a condition precedent to the closing of the Exchange that
each of the Stockholders enter into and deliver this Lock-Up Agreement, which
sets forth the Stockholders' agreement not to sell their Exchange Shares unless
pursuant to the terms of this Lock-Up Agreement.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth below, the parties hereby agree with each other as follows:
1. LOCK-UP.
(a) Those Stockholders that own of record or beneficially less
than 10% of the issued and outstanding Chantal Common Shares (as defined in the
Exchange Agreement) shall not, unless permitted by the Board of Directors of
Utix, sell their Chantal Common Shares for a period of one (1) year from the
Effective Date (as defined in the Exchange Agreement) of the Exchange.
The foregoing period is called the "Lock-Up Period."
(b) Notwithstanding the foregoing, a Stockholder may transfer all
or any of the Exchange Shares owned by such Stockholder (i) by way of gift to
any member of his or her family or to any trust for the benefit of any such
family member of the Stockholder, provided that any such transferee shall agree
in writing with Utix, as a condition to such transfer, to be bound by all of the
provisions of this Lock-Up Agreement to the same extent as if such transferee
were the Stockholder, (ii) by will or the laws of descent and distribution, in
which event each such transferee shall be bound by all of the provisions of this
Lock-Up Agreement to the same extent as if such transferee were the Stockholder,
or (iii) pursuant to an effective registration statement. As used herein, the
word "family" shall include any spouse, lineal ancestor or descendant, brother
or sister.
(c) Any transfer or other disposition of the Exchange Shares owned
by the Stockholders in violation of the restrictions on transfer contained
herein shall be null and void.
2. RIGHTS OF STOCKHOLDER. It is understood and agreed that the
Stockholders have the right to vote all of the Exchange Shares held by them and
that the Stockholders shall be entitled to all other rights arising in respect
of the Exchange Shares during the Lock-Up Period.
3. LEGEND. All certificates evidencing any of the Exchange Shares
subject to this Lock-Up Agreement shall also bear a legend substantially as
follows:
"THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF
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UNTIL A REGISTRATION STATEMENT WITH RESPECT THERETO IS DECLARED
EFFECTIVE UNDER SUCH ACT, OR UTIX GROUP, INC. RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO COUNSEL FOR UTIX
GROUP, INC. THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT IS AVAILABLE."
"PURSUANT TO THE SHARE EXCHANGE AGREEMENT DATED AS OF OCTOBER 31,
2OO3 BY AND AMONG CHANTAL SKIN CARE CORPORATION, A DELAWARE
CORPORATION, CORPORATE SPORTS INCENTIVES, INC., A NEW HAMPSHIRE
CORPORATION, XXXX XXXXXXX, AN INDIVIDUAL, AND THE STOCKHOLDERS OF
CORPORATE SPORTS INCENTIVES, INC., THE SECURITIES WHICH ARE
REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, SOLD SHORT
OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE TERMS AND
CONDITIONS SET FORTH IN A LOCK-UP AGREEMENT BY AND BETWEEN THE
HOLDER HEREOF AND UTIX GROUP, INC. (FKA CHANTAL SKIN CARE
CORPORATION)"
4. SPECIFIC ENFORCEMENT. The parties hereby acknowledge and agree that
they may be irreparably damaged in the event that this Lock-Up
Agreement is not specifically enforced. Upon a breach or threatened
breach of the terms, covenants and/or conditions of this Lock-Up
Agreement by any party, any other party shall, in addition to all
other remedies, be entitled to a temporary or permanent injunction,
without showing any actual damage, and/or a decree for specific
performance, in accordance with the provisions hereof.
5. TERM OF AGREEMENT. This Lock-Up Agreement shall expire on the date
that is the end of the Lock-Up Period.
6. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Lock-Up Agreement shall
be construed in accordance with and governed by the laws of the State of New
York without regard to its conflict of laws provisions and shall be binding upon
the heirs, personal representatives, executors, administrators, successors and
assigns of the parties.
7. ENTIRE AGREEMENT AND AMENDMENTS. This Lock-Up Agreement constitutes
the entire agreement of the parties with respect to the subject matter hereof
and may not be modified, amended or terminated except by an agreement signed by
Utix and the holders of at least a majority of the Exchange Shares subject to
this Lock-Up Agreement; provided, however, that no amendment or modification
that imposes any additional obligations on any Stockholder or increases the
length of the Lock-Up Period shall be binding upon such Stockholder without such
Stockholder's written consent thereto.
8. WAIVERS. From time to time Utix may waive its rights hereunder
either generally or with respect to one or more specific transfers which have
been proposed, attempted or made. No waiver of any breach or default hereunder
shall be considered valid unless in writing, and no such waiver shall be deemed
a waiver of any subsequent breach or default of the same or similar nature.
9. SEVERABILITY. If any provision of this Lock-Up Agreement shall be
held to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other severable provision
of this Lock-Up Agreement, and this Lock-Up Agreement shall be carried out as if
any such illegal, invalid or unenforceable provision were not contained herein.
10. COUNTERPARTS. This Lock-Up Agreement may be executed in two or more
counterparts, each one of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Lock-Up Agreement
to be duly executed, as of the date first above written.
UTIX GROUP, INC.
By:
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Name:
Title:
STOCKHOLDERS
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Xxx Xxxxx
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Xxxx Xxxxxxxxx
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Xxxxxx Xxxx
Xxxx Financial Group:
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By: Xxxxxxx X. Xxxx
Title:
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Xxxxxx Xxxxxx
Xxxxx Family Irrevocable Stock Trust
By:
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Name:
Title:
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SCHEDULE A
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STOCKHOLDER EXCHANGE SHARES
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Xxxxxxxx Xxxxx 5,710,882
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Xxxx Xxxxxxxxx 2,323,071
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Xxxxxx Xxxx 1,209,933
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Xxxx Financial Group 1,451,919
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Xxxxxx Xxxxxx 96,795
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Xxxxx Family Irrevocable Stock Trust 1,375,000
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