EXHIBIT 10.5
LOCK-UP AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of August 31, 2004 by and
among Systems Evolution Inc., an Idaho corporation (the "Company"), and the
shareholders of the Company listed on Schedule A attached hereto (collectively,
the "Shareholders")
WHEREAS, to induce certain investors (the "Investors") to enter into
that certain Note and Warrant Purchase Agreement dated as of the date hereof
(the "Purchase Agreement") by and among the Company and the Investors, the
Shareholders have agreed not to sell any shares of the common stock, no par
value per share, of the Company that such Shareholders presently own or may
acquire after the date hereof (the "Common Stock"), except in accordance with
the terms and conditions set forth herein. Capitalized terms used herein without
definition shall have the meanings assigned to such terms in the Purchase
Agreement.
NOW, THEREFORE, in consideration of the covenants and conditions
hereinafter contained, the parties hereto agree as follows:
1. Restriction on Transfer; Term. The Shareholders hereby agree with
the Company that the Shareholders will not offer, sell, contract to sell,
assign, transfer, hypothecate, pledge or grant a security interest in, or
otherwise dispose of, or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition of (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, any of the shares of Common Stock for a period of two (2) years
following the date of this Agreement (the "Period").
2. Ownership. During the Period, the Shareholders shall retain all
rights of ownership in the Common Stock, including, without limitation, voting
rights and the right to receive any dividends, if any, that may be declared in
respect thereof.
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3. Company and Transfer Agent. The Company is hereby authorized to
disclose the existence of this Agreement to its transfer agent. The Company and
its transfer agent are hereby authorized to decline to make any transfer of the
Common Stock if such transfer would constitute a violation or breach of this
Agreement and the Purchase Agreement.
4. Notices. All notices, demands, consents, requests, instructions and
other communications to be given or delivered or permitted under or by reason of
the provisions of this Agreement or in connection with the transactions
contemplated hereby shall be in writing and shall be deemed to be delivered and
received by the intended recipient as follows: (i) if personally delivered, on
the business day of such delivery (as evidenced by the receipt of the personal
delivery service), (ii) if mailed certified or registered mail return receipt
requested, four (4) business days after being mailed, (iii) if delivered by
overnight courier (with all charges having been prepaid), on the business day of
such delivery (as evidenced by the receipt of the overnight courier service of
recognized standing), or (iv) if delivered by facsimile transmission, on the
business day of such delivery if sent by 6:00 p.m. in the time zone of the
recipient, or if sent after that time, on the next succeeding business day (as
evidenced by the printed confirmation of delivery generated by the sending
party's telecopier machine). If any notice, demand, consent, request,
instruction or other communication cannot be delivered because of a changed
address of which no notice was given (in accordance with this Section 4), or the
refusal to accept same, the notice, demand, consent, request, instruction or
other communication shall be deemed received on the second business day the
notice is sent (as evidenced by a sworn affidavit of the sender). All such
notices, demands, consents, requests, instructions and other communications will
be sent to the following addresses or facsimile numbers as applicable.
If to the Company:
Systems Evolution Inc.
00000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
With copies to:
Xxxxxxx & Xxxxxxxx, P.C.
00000 00xx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx Xxxxx, Esq.
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
and to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
The Chrysler Building,
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.:: (000) 000-0000
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If to any of the Shareholders, addressed to such Shareholder at:
c/o Systems Evolution Inc.
00000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
or to such other address as any party may specify by notice given to the other
party in accordance with this Section 4.
5. Amendment. This Agreement may not be modified, amended, altered or
supplemented, except by a written agreement executed by each of the parties
hereto.
6. Entire Agreement. This Agreement contain the entire understanding
and agreement of the parties relating to the subject matter hereof and
supersedes all prior and/or contemporaneous understandings and agreements of any
kind and nature (whether written or oral) among the parties with respect to such
subject matter, all of which are merged herein.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in that state, without regard to any of its principles of
conflicts of laws or other laws which would result in the application of the
laws of another jurisdiction. This Agreement shall be construed and interpreted
without regard to any presumption against the party causing this Agreement to be
drafted.
8. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH OF THE PARTIES UNCONDITIONALLY AND IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
LOCATED IN NEW YORK COUNTY AND THE FEDERAL DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND
EACH OF THE PARTIES HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY OBJECTION
TO VENUE IN NEW YORK COUNTY OR SUCH DISTRICT, AND AGREES THAT SERVICE OF ANY
SUMMONS, COMPLAINT, NOTICE OR OTHER PROCESS RELATING TO SUCH SUIT, ACTION OR
OTHER PROCEEDING MAY BE EFFECTED IN THE MANNER PROVIDED IN SECTION 4.
9. Severability. The parties agree that if any provision of this
Agreement be held to be invalid, illegal or unenforceable in any jurisdiction,
that holding shall be effective only to the extent of such invalidity, illegally
or unenforceability without invalidating or rendering illegal or unenforceable
the remaining provisions hereof, and any such invalidity, illegally or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. It is the intent of the
parties that this Agreement be fully enforced to the fullest extent permitted by
applicable law.
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10. Binding Effect; Assignment. This Agreement and the rights and
obligations hereunder may not be assigned by any party hereto without the prior
written consent of the other parties hereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11. Headings. The section headings contained in this Agreement
(including, without limitation, section headings and headings in the exhibits
and schedules) are inserted for reference purposes only and shall not affect in
any way the meaning, construction or interpretation of this Agreement. Any
reference to the masculine, feminine, or neuter gender shall be a reference to
such other gender as is appropriate. References to the singular shall include
the plural and vice versa.
12. Third Parties. Except as expressly permitted by Section 10 hereof,
nothing herein is intended or shall be construed to confer upon or give to any
person, firm or entity, other than the parties hereto, any rights, privileges or
remedies under or by reason of this Agreement.
13. Counterparts. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original, and all of which, when
taken together, shall constitute one and the same document. This Agreement shall
become effective when one or more counterparts, taken together, shall have been
executed and delivered by all of the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above herein.
SYSTEMS EVOLUTION INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxxx
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Schedule A
Shareholders
1. Xxxxxx X. Xxxxxx - 27,780,000 shares / 5,000,000 options
2. Xxxxxxx X. Xxxxxxxx - 1,000,000 shares / 6,500,000 options
3. Xxxxxx X. Xxxxxxx, Xx. - 100,000 shares / 1,900,000 options
4. Xxxxxxx X. Xxxxxxxx - 6,463,094 / 0 options
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