EXHIBIT 10.17
Pubco Common Stock Lock-up Agreement
LOCK-UP AGREEMENT REGARDING THE ISSUANCE OF PUBCO MERGER SHARES
PRESBY CORP SERIES B PREFERRED STOCK
Presby Corp ("Presby" or the "Company") plans to enter into a reverse
merger transaction (the "Reverse Merger") with a publicly-traded company,
concurrent with a private placement of equity securities (the "Funding
Transactions"). The public-traded company, which is called ("Pubco") for
purposes of this letter, will then succeed to and operate the eyecare surgical
products business of Presby under the current management of Presby. We expect to
close these Funding Transactions within the next several weeks. Pubco is not
identified at this time due to securities regulations regarding knowledge of
upcoming transactions involving public-traded securities.
You are a current holder of shares of outstanding Series B Preferred Stock
of Presby (a "Series B Holder") which will be converted into common stock of
Presby in connection with the Funding Transactions, and if we are successful in
closing the Funding Transactions, you will receive common stock of Pubco ("Pubco
Merger Shares") in exchange for your stock in Presby.
The undersigned, _______________________________________hereby agrees not
to, directly or indirectly, (1) publicly sell, contract to sell or otherwise
transfer any of the Pubco Merger Shares beneficially owned by you or (2)
privately sell, contract to sell or otherwise transfer (unless the proposed
transferee agrees to be bound by the restrictions on transfer contained herein)
any of the Pubco Merger Shares beneficially owned by you; provided, however,
that (a) following the effective date of the Registration Statement covering the
Pubco Merger Shares, you may transfer your Pubco Merger Shares, publicly or
otherwise, at the rate of three percent (3%) of the Pubco Merger Shares
beneficially owned by you (calculated at the date of the closing of the Funding
Transactions) per month, and (b) following six months after the effective date
of the Registration Statement covering the Pubco Merger Shares, you may transfer
your Pubco Merger Shares, publicly or otherwise, at a rate of nine percent (9%)
of the Pubco Merger Shares beneficially owned by you (calculated at the date of
the closing of the Funding Transactions) per month, subject to applicable
securities laws. You will no longer be bound by the terms of this lock-up letter
following two years after the date of closing of the Reverse Merger.
Pubco, acting with the consent of the placement agents and financial
advisors, may waive in writing any provision of the lock up agreements executed
by Series B Holders if and only if (i) any such waiver is simultaneously
applicable to all other Pubco Merger Shares issued to Series B Holders, and (ii)
at least 5 business days advance written notice of such waiver is provided to
all Series B Holders. In the event that a particular waiver applies to only a
percentage of the Pubco Merger Shares exchanged by each Series B Holder, then
the percentage shall be identical for each such holder.
If you do not execute and return this lock-up letter to the Company on or
before March 4, 2003, the Company may not be able to consummate the Funding
Transactions. If the Funding Transactions are consummated notwithstanding your
failure to execute and return this lock-up letter to the Company, you will not
be entitled to include any of your Pubco Merger Shares in the Registration
Statement.
By signing and returning this letter in the manner indicated below, you
further (i) represent and consent that you have full power and authority to
enter into this lock-up letter, and that, upon request, you will execute any
additional documents necessary or desirable in connection with this lock-up
letter and its enforcement; and (ii) understand that this lock-up letter is
irrevocable by you, all authority herein conferred by you or agreed to be
conferred by you shall survive your death or incapacity, and any of your
obligations hereunder shall be binding on you and your heirs, personal
representatives, successors and assigns.
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In order to enable the aforesaid covenant to be enforced, you hereby
consent to the placing of a legend and/or stop-transfer order with the transfer
agent of Pubco Common Stock with respect to any of the Pubco Merger Shares
registered in your name or beneficially owned by you.
Whether or not the Funding Transactions actually occur depends on a number
of factors. Notwithstanding the foregoing, the terms of this lock-up letter will
expire on March 31, 2003 in the event that the Funding Transactions are not
consummated on or before such date.
Accordingly, to evidence your agreement to the terms hereof, please date,
sign and return this lock-up letter to the Company by courier, Federal Express
or fax no later than the close of business on March 4, 2003. The Company's fax
number is 000-000-0000. If you return your signed lock-up letter to the Company
by fax, please promptly mail the executed copy of the lock-up letter to the
Company.
Acknowledged and Agreed
this __ day of March 2003
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By:
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Name;
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Entity (if any):
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Title (if Shares held by Entity):
RETURN TO THE COMPANY BY FAX: 214/000-0000
OR BY FEDERAL EXPRESS OR COURIER:
Presby Corp
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxx, Vice President
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