Exhibit 10.4
LOCK-UP AGREEMENT
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THIS LOCK-UP AGREEMENT (this "Agreement") is made this 16th day of May,
2006, by and between ▇▇▇▇▇▇▇ Apple and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustee and
beneficiary, respectively, under the ▇▇▇▇▇ ▇▇▇▇▇ Irrevocable Trust UTD March 29,
2004, with respect to shares of Common Stock of Aventura Holdings, Inc., a
Florida corporation ("Aventura") held by it (the "Stockholder"), and ▇▇▇▇▇▇▇
Holdings, LLC, a Michigan limited liability company ("▇▇▇▇▇▇▇ Holdings"). All
other capitalized terms not defined herein have the meaning given to them in the
Securities Purchase Agreement of even date herewith.
RECITALS:
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A. Contemporaneously with the delivery of this Agreement, ▇▇▇▇▇▇▇, Ohio
Funding Group, Inc., a Michigan corporation ("Ohio Funding") and Aventura are
closing the transactions contemplated by that certain Securities Purchase
Agreement of even date herewith, among such parties (the "Securities Purchase
Agreement") and Aventura is issuing and delivering a Class A Common Stock
Purchase Warrant to ▇▇▇▇▇▇▇ of even date herewith (the "Warrant").
B. It is a condition to the closing of the transactions contemplated by the
Securities Purchase Agreement and the Warrant that the Stockholder agrees during
the Exercise Period as defined in the Warrant not to make any Transfer (defined
herein) of any shares of Aventura common stock currently held by, to be issued
to, or which may be received by, the Stockholder ("Aventura Stock"), except in
accordance with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto hereby agree as follows:
1. General Restrictions on Transfer of Aventura Stock. The Stockholder
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hereby agrees that, except as otherwise provided in this agreement, without the
consent of ▇▇▇▇▇▇▇, he will not, directly or indirectly, from the date hereof
until 5:00 p.m., E.S.T on the fifth (5th) anniversary of the date hereof
("Term"), Transfer any Aventura Stock "(General Restriction"). In furtherance
of the foregoing restrictions, Aventura and any duly appointed transfer agent
for the registration or transfer of the securities described herein are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Agreement.
For purposes of this Agreement, "Transfer" means and includes the following: (i)
an offer to sell, a contract to sell, or to sell, transfer or otherwise dispose
of, directly or indirectly, any shares of stock, any options, rights or warrants
to purchase any shares of Aventura Stock (including any stock appreciation
right, or similar right, or similar right with an exercise or conversion
privilege at a price related to, or derived from, the market price of Aventura
Stock) or any securities convertible into or exchangeable for Aventura Stock, in
each case held of record or beneficially by the Stockholder; and (ii) any swap
or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of Aventura Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Aventura
Stock held by the Stockholder. Notwithstanding the foregoing, any transfer of
Aventura Stock by the Stockholder in which the acquirer, pledgee, donee or other
recipient of all or a portion of the Aventura Stock, as the case may be, is
permitted to "tack" the holding period of the Stockholder pursuant to Rule
144(d)(3), under the Securities Act of 1933, as amended, shall not be deemed a
"Transfer" for purposes of this Agreement.
2. Permitted Transferees. Notwithstanding the General Restriction, the
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Stockholder is permitted to Transfer Aventura Stock to the persons and in the
share amounts set forth in the following chart:
PERMITTED TRANSFEREE PERMITTED NUMBER OF TRANSFER SHARES
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▇▇▇▇ ▇▇▇▇▇▇▇ 75,000,000
▇▇▇▇ ▇▇▇▇▇▇▇ 75,000,000
▇▇▇▇▇ ▇▇▇▇▇▇ 25,000,000
▇▇▇▇▇ ▇▇▇▇▇▇ 25,000,000
▇▇▇▇ ▇▇▇▇▇▇▇ 15,000,000
TOTAL 215,000,000
3. Partial Releases of Aventura Stock for Transfer. Notwithstanding the
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foregoing General Restriction, Stockholder shall be entitled to the following
partial releases of Aventura Stock for Transfer:
(a) 5% Incremental Partial Release. From the first (1st) through the fourth
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(4th) anniversary dates of the Issue Date (individually, an "Anniversary
Date"),Stockholder shall be entitled to Transfer an annual amount of shares
equal to five percent (5%) of the total number of shares of Aventura Stock
("Incremental Release"). Stockholder shall provide ▇▇▇▇▇▇▇ Holdings with
written notice of its intention to Transfer any shares of Aventura Stock subject
to an Incremental Release and such Transfer must be completed within thirty (30)
days of each Anniversary Date ("Transfer Period"). Any shares subject to an
annual Incremental Release which are not Transferred pursuant to this section
during the Transfer Period shall, again, be subject to the General Restriction
until the following Anniversary Date.
(b) Partial Release for Registration. In the event ▇▇▇▇▇▇▇ exercises its
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registration rights under the Registration Rights Agreement during the Term of
this Lock Up Agreement, Stockholder shall be entitled to participate in such
registration as a selling shareholder on a pro rata basis, determined by a
fraction, the numerator of which is equal to the number of shares of Aventura
Stock held by Aventura and the denominator of which is equal to the number of
shares of Aventura Stock held by Aventura plus the number of shares of Aventura
common stock then held by ▇▇▇▇▇▇▇ Holdings pursuant to the Securities Purchase
Agreement and/or the Warrant. Any shares of Aventura Stock sold by Stockholder
in such registered offering shall be treated as shares released from this
Agreement as an Incremental Release.
4. Early Termination. The rights and obligations granted under this Lock Up
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Agreement shall terminate prior to the expiration of the Term in the event that
▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ employment with Aventura is terminated without "cause" under the
terms of his Executive Employment Agreement with Aventura.
5. Miscellaneous
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(a) Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. Neither this Agreement nor any of
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the rights, interests or obligations of the parties hereto may be assigned by
any of the parties hereto without the prior written consent of the other.
Subject to the foregoing, this Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(c)Amendments and Modification. This Agreement may not be modified,
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amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by ▇▇▇▇▇▇▇ and Stockholder.
(d)Specific Performance. The parties hereto acknowledge that ▇▇▇▇▇▇▇ will
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be irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of the Stockholder set forth
herein. Therefore, it is agreed that, in addition to any other remedies which
may be available to ▇▇▇▇▇▇▇ upon such violation, ▇▇▇▇▇▇▇ shall have the right to
enforce such covenants and agreements by specific performance, injunctive relief
or by any other means available to ▇▇▇▇▇▇▇ at law or in equity.
(e) Notices. All notices and other communications hereunder shall be
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in writing and shall be acceptable if (a) delivered personally or by telecopy,
or (b) if sent by registered or certified mail (return receipt requested) and
postage prepaid, or (c) if sent by reputable overnight courier, so long as the
parties to this Agreement receive such notices at the following addresses or at
such other address for a party as shall be specified by like notice.
If to the Stockholder:
▇▇▇▇▇▇▇ Apple, Trustee of the
▇▇▇▇▇ ▇▇▇▇▇ Irrevocable Trust UTD
March 29, 2004
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Aventura Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Holdings, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy via email to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
All such notices and communications shall be deemed to have been received on the
date of delivery if delivered personally or by telecopy, or on the date of
receipt, if mailed, or one day after mailing, if by overnight courier. Any
party giving notice under this Agreement to one party to this Agreement shall be
required to give such notice to all parties to this Agreement in order for such
notice to be effective.
(f) Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written and oral.
(g) Applicable Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Florida.
(h) Section Headings. The section and other headings contained in
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this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
(i) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be a single agreement. The signatures to this
Agreement need not all be on a single copy of this Agreement, and may be
facsimiles rather than originals, and shall be fully as effective as though all
signatures were originals on the same copy.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Agreement as of the date first above written.
STOCKHOLDER:
THE ▇▇▇▇▇ ▇▇▇▇▇ IRREVOCABLE
TRUST UTD MARCH 29, 2004
By: /s/ ▇▇▇▇▇▇▇ Apple, Trustee
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▇▇▇▇▇▇▇ Apple, Trustee
▇▇▇▇▇▇▇ HOLDINGS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
ACKNOWLEDGMENT BY BENEFICIARY
OF THE STOCKHOLDER:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date: May 16, 2006