Exhibit 4.11
EXECUTION COPY
LOCKUP AGREEMENT
THIS LOCKUP AGREEMENT (the "Agreement") is entered into as of this 8th day
of November, 2006 (the "Effective Date," and each anniversary of the
Effective Date, an "Anniversary Date") by and between each shareholder listed on
Exhibit A (the "Shareholder") and Summit Global Logistics, Inc., a Delaware
corporation (the "Company").
WHEREAS, pursuant to that certain Asset/Stock Purchase Agreement by and
between the Shareholder, Dolphin US Logistics, Inc. (tbr: TUG USA, Inc.) and the
other parties thereto, dated as of October 2, 2006, the Shareholder acquired
shares of the Company's common stock, $0.001 par value per share (the "Common
Stock"), all of which shares of Common Stock shall be subject to this Agreement
(such shares of Common Stock are hereinafter referred to as the "Restricted
Shares"); and
WHEREAS, the Company has, concurrently with the execution of this
Agreement, issued approximately $60,000,000 in face amount of Convertible Notes
(the "Convertible Notes"); and
WHEREAS, it was a condition precedent to the consummation of certain
capital raising transactions by the Company as of the date hereof (including the
issuance of the Convertible Notes) that the Shareholder agree to refrain from
selling the Restricted Shares until the occurrence of certain events and/or the
passage of certain dates (all as provided in this Agreement);
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. LOCKUP OF SHARES. The Shareholder hereby agrees that he will not,
except as provided herein, prior to the third Anniversary Date, sell (including
without limitation in a short sale), transfer, assign or dispose of (by gift or
otherwise) (collectively, "Transfer"), other than Permitted Transfers, any of
the Restricted Shares (the "Transfer Restriction"). Notwithstanding the
foregoing, the Restricted Shares shall cease to be subject to the Transfer
Restriction in accordance with the following provisions:
(i) TRANSFER OF RESTRICTED SHARES. On the second Anniversary Date,
the Shareholder may Transfer up to fifty (50%) percent of their Restricted
Shares, and on the third Anniversary Date the Shareholder may Transfer up to the
remaining fifty (50%) percent of their Restricted Shares.
(ii) CONVERSION/ REDEMPTION OF CONVERTIBLE NOTES. After the second
Anniversary Date, the percentage obtained by dividing (a) the aggregate
principal amount of Convertible Notes converted by the holders thereof and
redeemed by the Company pursuant to Section 8 thereof by (b) the original
principal amount of the Convertible
Notes shall be the Converted/Redeemed Percentage (the "Converted/Redeemed
Percentage"). The percentage of Restricted Shares no longer subject to the
Transfer Restriction shall be equal to the Converted/Redeemed Percentage and
such percentage of Restricted Shares shall cease to be subject to this
Agreement. For example, if $30 million out of an aggregate $60 million in
principal amount of Convertible Notes is converted and $15 million in principal
amount of Convertible Notes is redeemed, then seventy-five (75%) percent of the
Restricted Shares shall cease to be subject to the Transfer Restriction.
(iii) DEATH OR INCAPACITY. Upon the death or incapacity of the
Shareholder, all of the Restricted Shares shall immediately cease to be subject
to the Transfer Restriction.
2. PERMITTED TRANSFERS TO TRUSTS. Notwithstanding the Transfer
Restriction, Transfers of Restricted Shares shall be permitted to any member or
members of the Shareholders immediate family, including the spouse, sibling,
child, step child, grandchild and/or parent of the Shareholder and/or the spouse
of any such person, and any corporation or company under the control of the
Shareholder (holding at least one hundred (100%) percent or its issued capital
stock and/or a trust or family limited partnership for the benefit of such
person or persons (each a "Section 2 Transferee") at any time; PROVIDED,
HOWEVER, that (x) Restricted Shares transferred pursuant to this Section 2 shall
remain Restricted Shares subject to the Transfer Restriction, except as provided
in Section 1; (y) the percentage limits set forth in Section 1 shall apply to
all transfers or attempted transfers by such persons of such Restricted Shares,
and (z) no transfer under this Section 2 shall be permitted or be recorded in
the records of the Company, unless and until the transferee of such Restricted
Shares agrees by notice in writing to the Company to be bound by the terms of
this Agreement.
3. REGISTRATION RIGHTS. Provided that the Shareholder timely provides the
necessary information regarding the Shareholder for inclusion in the
Registration Statement to be filed by the Company pursuant to the Securities Act
of 1933, as amended, with respect to, among other shares, the Common Stock
issuable upon conversion of the Convertible Notes and indemnifies the Company in
respect of such information to the same extent as the holders of the Convertible
Notes shall be required to indemnify the Company in respect thereof, the Company
shall include the Restricted Shares on such Registration Statement; to the
extent that the Company is not subject to restrictions imposed by the SEC as to
the number of shares of Common Stock registerable thereon. If the Company us
subject to such restrictions then subject to the limitations set forth in the
Registration Rights Agreement applicable to the Holders of the Convertible
Notes, the Shareholder shall have the right to demand that a registration
statement be filed in respect thereof. The existence of an effective
registration statement in respect of the shares shall in no way shorten the
periods during which sales are not permitted pursuant to this Agreement.
4. THIRD PARTY BENEFICIARIES. The Shareholder acknowledges and agrees that
pursuant to that certain Securities Purchase Agreement dated as of November
8,
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2006 in respect of the issuance of Convertible Notes and warrants of the Company
("Warrants") and that certain Stock/Asset Purchase Agreement dated as of
October 31, 2006 in respect of the issuance of Common Stock and Warrants,
his accepting to be bound by the terms and conditions of this Agreement is a
condition precedent to the issuance to him of the Restricted Shares.
Consequently, the Company agrees that it will not amend this Agreement without
the written consent of (x) the holders of a majority in principal outstanding
amount of the Convertible Notes and (y) the holders of a majority of the Common
Stock of the Company. Except as set forth above, this Agreement is solely for
the benefit of the Company and the Shareholder, and nothing contained in any
agreement shall be deemed to confer upon anyone other than the holders of
Convertible Notes, Common Stock and the Company and Shareholder any right to
insist upon or to enforce the performance or observance of any of the
obligations contained herein.
5. GOVERNING LAW/VENUE. This Agreement shall be governed by applicable
U.S. federal securities laws and the internal laws of the State of New York
(without regard to any conflict of law provisions). The sole and exclusive venue
for any legal proceeding involving this Agreement shall be the courts located in
the State of New York.
6. 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.
7. AMENDMENTS AND WAIVERS. This Agreement may only be amended with the
written consent of the Company and the Shareholder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SUMMIT GLOBAL LOGISTICS, INC.
By:________________________________
Print Name:________________________
Print Title:_______________________
Duly authorized
SHAREHOLDER
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EXHIBIT A
LIST OF SHAREHOLDER PARTIES TO AGREEMENT
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