Exhibit 20.3
LOCK-UP AGREEMENT
This LOCK-UP AGREEMENT, dated as of March 20, 2003 (this "Agreement"),
by and between Algiers Resources, Inc., a Delaware corporation ("Algiers"), and
James A. Prestiano (the "Stockholder").
W I T N E S S E T H:
WHEREAS, Algiers, Algiers Merger Co., a Delaware corporation and a
wholly-owned subsidiary of Algiers ("Algiers Merger Co.") and Command
International Acquisition Corp., a Delaware corporation ("Command"), have
entered into an Agreement and Plan of Merger, dated as of March 20, 2003 (the
"Merger Agreement"), whereby Command will merge with and into Algiers Merger
Co., with Algiers Merger Co. continuing as the surviving corporation and
changing its name to Command International Corporation, on the terms and subject
to the conditions set forth in the Merger Agreement (the "Merger"); and
WHEREAS, the Stockholder is the holder of shares of common stock of
Algiers; and
WHEREAS, pursuant to the Merger Agreement, each outstanding share of
common stock of Command will, at the Effective Time, be converted into one share
of common stock, par value $0.001 per share, of Algiers ("Algiers Common Stock")
in accordance with the Merger Agreement; and
WHEREAS, it is a condition to the Merger Agreement that the Stockholder
enter into this Agreement with Algiers.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereby agree as follows:
1. Defined Terms. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Shares" shall mean and include all shares of Algiers
Common Stock or any securities convertible into or exercisable or exchangeable
for Algiers Common Stock held by the Stockholder as of the date hereof
(including, without limitation, shares of Algiers Common Stock or securities
convertible into or exercisable or exchangeable for Algiers Common Stock which
may be deemed to be beneficially owned by the Stockholder in accordance with the
rules and regulations of the Securities and Exchange Commission), and all other
securities of Algiers Common Stock which may be issued in exchange for or in
respect thereof (whether by way of stock split, stock dividend, conversion,
combination, reclassification, reorganization, merger or any other means).
(b) Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings ascribed to them in the Merger Agreement.
2. Prohibited Transfers.
(a) The Stockholder shall not, during any month, sell, assign,
transfer, pledge, hypothecate, mortgage, encumber or otherwise dispose of more
than ten percent (10%) of the Shares held by the Stockholder at the beginning of
such month during the Term, as defined in Section 3 hereof. The term "dispose"
includes, but is not limited to, the act of selling, assigning, transferring,
pledging, hypothecating, encumbering, mortgaging, giving and any other form of
disposing or conveying, whether voluntary or by operation of law. Any Algiers
Common Stock acquired by Stockholder in the open market after the date hereof
will not be Lock-Up Shares (as defined below) and will not be subject to the
provisions of this Section 2.
For purposes of this Agreement, Lock-Up Shares shall mean the Shares
not disposed of by the Stockholder during any month which exceeds more than ten
percent (10%) of the shares held by the Stockholder during such month during the
Term, as defined in Section 3 hereof. For so long as this Agreement is in
effect, all Lock-Up Shares shall be subject to the prohibitions on transfer
contained in this Section 2.
(b) Notwithstanding the foregoing, the Stockholder may transfer
all or any of his Shares (i) by way of gift to any member of the Stockholder's
family or to any trust for the benefit of any such family member or the
Stockholder, provided that any such transferee shall agree in writing with
Algiers, as a condition to such transfer, to be bound by all of the provisions
of this Agreement to the same extent as if such transferee were the Stockholder,
or (ii) by will or the laws of descent and distribution, in which event each
such transferee shall be bound by all of the provisions of this Agreement to the
same extent as if such transferee were the Stockholder, or (iii) if such
Stockholder is a corporation, trust, partnership, limited liability company or
similar entity, to its stockholders, beneficiaries, partners or members, as the
case may be, provided that any such transferee shall agree in writing with
Algiers, as a condition to such transfer, to be bound by all of the provisions
of this Agreement to the same extent as if such transferee were the Stockholder.
As used herein, the word "family" shall include any spouse, lineal ancestor or
descendant, brother or sister.
(c) No transfer of Shares otherwise permitted by this Agreement
may be made unless such transfer is within the limitations of and in compliance
with Rule 144 under the Securities Act of 1933, as amended (the "Securities
Act") to the extent the Stockholder is an affiliate, unless the transfer of the
Shares has been registered under the Securities Act.
(d) Any transfer or other disposition of Shares in violation of
the restrictions on transfer contained herein shall be null and void and shall
not entitle the Stockholder or any proposed transferee or other person to have
any Shares transferred upon the books of Algiers.
3. Term of Agreement. This Agreement shall expire one hundred
eighty (180) days following the Effective Date of the Merger (the "Term").
4. Rights as Stockholder. It is understood that the Stockholder
has the right to vote all of the Shares held by him and that he shall be
entitled to all dividends or distributions made by Algiers arising in respect of
the Shares, in cash, stock or other property, including warrants, options or
other rights.
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5. Specific Enforcement. The parties hereby acknowledge and agree
that they may be irreparably damaged in the event that this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by any party, any other party
shall, in addition to all other remedies, be entitled to a temporary or
permanent injunction, without showing any actual damage, and/or a decree for
specific performance, in accordance with the provisions hereof.
6. Legend. All certificates evidencing any of the Shares subject
to this Agreement shall also bear a legend substantially as follows during the
term of this Agreement:
"Until 180 days following the Effective Date of the Merger,
the shares represented by this certificate are subject to
restrictions on transfer and may not be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of
except in accordance with and subject to all the terms and
conditions of a certain Lock-Up Agreement, dated as of March
20, 2003, as it may be amended from time to time, a copy of
which the corporation will furnish to the holder of this
certificate upon request and without charge."
Algiers may impose stop-transfer instructions with respect to the Shares subject
to the foregoing restriction until the end of the Term.
7. Governing Law; Successors and Assigns. This Agreement shall be
construed in accordance with and governed by the laws of the State of New York
without regard to its conflict of laws provisions and shall be binding upon the
heirs, personal representatives, executors, administrators, successors and
assigns of the parties.
8. Notices. All notices and other communications to be given or
otherwise made to any party to this Agreement shall be deemed to be sufficient
if contained in a written instrument, delivered by hand in person, or by express
overnight courier service, or by electronic facsimile transmission (with a copy
sent by first class mail, postage prepaid), or by registered or certified mail,
return receipt requested, postage prepaid, addressed to such party at the
address set forth below or at such other address as may hereafter be designated
in writing by the addressee to the addresser listing all parties:
If to Algiers: Algiers Resources, Inc.
317 Madison Avenue, Suite 2310
New York, New York 10017
Attention: President
Facsimile: (212) 949-6241
If to Stockholder: James A. Prestiano
317 Madison Avenue, Suite 2310
New York, New York 10017
Facsimile: (212) 949-6241
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10. Entire Agreement and Amendments. This Agreement constitutes
the entire agreement of the parties with respect to the subject matter hereof
and may not be modified, amended or terminated except by an agreement signed by
the parties hereto.
11. Assignment. Subject to Section 2(b), neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
the Stockholder without the prior written consent of Algiers; provided that
Algiers may assign its rights and obligations to any affiliate, but no such
assignment shall relieve such Algiers of its obligations hereunder.
12. Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other severable provision
of this Agreement, and this Agreement shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each one of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
Algiers Resources, Inc.
By: /s/ James A. Prestiano
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James A. Prestiano, President
/s/ James A. Prestiano
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James A. Prestiano
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