EXHIBIT 10.5
LOCKUP AGREEMENT
THIS LOCKUP AGREEMENT ("AGREEMENT") is made effective as of this ___
day of October 2008, by and among Lafayette 543, LLC, Philadelphia New York
Investors, Global Investment Advisors, LLC ("SHAREHOLDER") and Sungame
Corporation, a Delaware corporation ("COMPANY").
WHEREAS, the Shareholder holds common stock of the Company or
securities convertible into or exercisable for common stock of the Company (the,
"SECURITIES");
WHEREAS, the Company believes it is in the best interests of its
stockholders to establish an orderly trading market for shares of the Company's
common stock;
WHEREAS, the Company desires the Shareholder to refrain selling
Securities held by the Shareholder to encourage orderly trading in shares of the
Company's common stock;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. LOCKUP OF SECURITIES. The Shareholder agrees, that without the prior
written consent of the Company, that, until the earlier of 1) 90 days after the
shareholders stock has been registered under an effective Registration Statement
with the SEC 2) the second anniversary of the date of this Agreement or a 3) 90
days after Change in Control (as defined in the Securities Exchange Act of
1934), the Shareholder will not make or cause any sale more than 5% of shares
outstanding per quarter, irrespective of whether their shares are subsequently
registered of any Securities listed on Exhibit I hereto which, as of the date of
this Agreement, the Shareholder owns either of record or beneficially, and which
the Shareholder has the power to control the disposition; provided, however,
that the Shareholder may, without the Company's prior written consent, (i) make
a gift of Securities without consideration to an organization exempt from
taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
2 CONSIDERATION FOR LOCKUP In consideration for the Shareholder
agreeing to be bound by the terms of this Agreement, the Company will pay the
Shareholder $100.
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3. FAILURE TO ISSUE OPTION. Should the option required by Section 2 of
this agreement not be issued within 30 days of this Agreement, then this
Agreement shall be null and void and of no further force and effect.
4. TRANSFER; SUCCESSOR AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
5. GOVERNING LAW. This Agreement shall, to the fullest extent allowed
by law, be construed, interpreted and enforced in accordance with the laws of
the State of California, without regard to or application of conflict of law
rules, and the venue in regard to any disputes arising hereunder shall, to the
fullest extent allowed by law, be in Wilmington, Delaware.
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. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8. NOTICES.
(a) All notices, requests, demands and other communications
under this Agreement or in connection herewith shall be given or made upon (i)
the Shareholder at such Shareholder's address set forth on the signature page
hereto; and (ii) the Company at Sungame Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention President.
(b) All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement shall be in
writing, and shall be sent by overnight courier, or by facsimile with
confirmation of receipt, and shall be deemed to be given or made when receipt is
so confirmed.
(c) Any party may, by written notice to the other, alter its
address or respondent, and such notice shall be given in accordance with the
terms of this Section 8.
9. ATTORNEYS' FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled as determined by such court, equity or arbitration proceeding.
10. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
with the written consent of the Company and the Shareholder.
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11. SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
12. DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party to this Agreement shall impair any such right, power
or remedy of such holder nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party to this Agreement of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any holder shall be cumulative
and not alternative.
13. ENTIRE AGREEMENT. This Agreement and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
existing between the parties hereto are expressly canceled.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SUNGAME CORPORATION., a Delaware corporation
By: __________________________________
Name: ▇▇▇ ▇▇▇▇▇▇
Title: President
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SHAREHOLDER
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Lafayette 543 LLC
Address:
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Philadelphia New York Investors
Address:
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Global Investment Advisers, LLC
Address:
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EXHIBIT I
SECURITIES SUBJECT TO LOCKUP AGREEMENT
Lafayette 543 140,000
Philadelphia New York Investors 265,750
Global Investments Advisory LLC 265,750
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