form+shareholder+agreement

8/8/2019 Form+Shareholder+Agreement

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HITECHLAW GROUP LLC 1

SHAREHOLDERS AGREEMENT

This Shareholders Agreement (the Agreement), dated as of December 1, 2008, is by and

among ACME TECHNOLOGY , INC., a Delaware corporation (the Corporation) and those

Shareholders listed in Schedule A hereto and referred to herein collectively as the Shareholders and

each individually as a Shareholder.

WHEREAS, the Shareholders consist of holders of all of the voting and non-voting shares of

common stock of the Corporation as set forth on Schedule A hereto (the Shares); and

WHEREAS, the Shareholders desire to promote their mutual interests and the interests of the

Corporation by providing for the matters set forth in this Agreement; and

WHEREAS, the Directors of the Corporation have determined that it is in the best interest of the

Corporation that the Corporation enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth

herein, and for other good and valuable consideration, the receipt and sufficiency of which are herebyacknowledged by the parties, the parties hereto hereby agree as follows:

1. General Provisions.1.1 Shares Covered. The Shareholders expressly agree that the terms and

restrictions of this Agreement shall apply to all shares of common stock of the Corporation, including

both voting and non-voting, which any of them now owns or hereafter acquires, whether by purchase or

assignment, or as a result of any stock dividend, stock split, reorganization or reclassification, whether

voluntary or involuntary and to any shares of common stock of any successor in interest of the

Corporation, whether by merger, operation of law, consolidation, assignment or purchase. Any Shares

without voting rights may hereinafter be referred to as the Non-Voting Shares, and any Shares which

have voting rights may hereinafter be referred to as Voting Shares. All Non-Voting Shares and VotingShares are identified on Schedule A.

1.2 No Partnership Relationship. Notwithstanding, but not in limitation of, anyother provision of this Agreement, it is understood and agreed that the creation, management and

operation of the Corporation shall not create or imply a general partnership among the Shareholders and

shall not make any Shareholder an agent of any other Shareholder for any purpose.

1.3 Termination.

a. This Agreement shall terminate upon the occurrence of any of the following

events:

(i) The consummation of any reorganization, merger or consolidation involving

another corporation in which the Shareholders cease to own Shares of the Corporation;

(ii) A public offering of the Shares of the Corporation which necessitates the filing

of a registration statement with the Securities and Exchange Commission pursuant to the

Securities Act of 1933, as amended;


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(iii) The liquidation or dissolution of the Corporation;

(iv) The written agreement of the Corporation and all of the then parties to this

Agreement who are shareholders of the Corporation;

(v) At such time that there is either one or no shareholder of the Corporation subject

to this Agreement, the Shares of the Shareholders having been transferred (and the successor(s)

in interest not being subject hereto) or redeemed; or

(vi) December 31, 2058.

2. Restrictions on Transfer.2.1 Non-Complying Transfers Prohibited. No Shares owned by any Shareholder

may be sold, assigned, pledged, hypothecated, encumbered, gifted, devised or otherwise transferred to

any person or entity, voluntarily, or by operation of law, court order, foreclosure, marital property

division or otherwise except in accordance with the terms and conditions hereinafter set forth, provided,

however, that the restrictions on transfers contained in this Section 2 shall not apply to transfers by a

Shareholder to a spouse, parent, sibling or descendant of such Shareholder (collectively, a Permitted

Transferee), provided that in any such event the Shares so transferred in the hands of each such

Permitted Transferee shall remain subject to all provisions of this Agreement and each such Permitted

Transferee shall so acknowledge in writing as a condition precedent to the effectiveness of such transfer.

2.2 Securities Law Restrictions. Each Shareholder agrees not to sell, transfer,pledge, hypothecate or otherwise dispose of (Transfer) all or any part of the Shares unless, prior

thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state

securities laws with respect to the Shares proposed to be transferred shall then be effective or (b) the

Corporation shall have received an opinion, from counsel reasonably satisfactory to the Corporation (and

concurred in by counsel to the Corporation), that such registration is not required because such

transaction complies with the Securities Act and/or the Securities Exchange Act of 1934, as amended,with the rules promulgated by the Securities and Exchange Commission thereunder and with all

applicable state securities laws.

2.3 Legending of Shares. All certificates representing the Shares shall haveendorsed thereon legends substantially as follows:

The securities represented by this certificate have not been registered under the

Securities Act of 1933, as amended (the Act), or any state securities law and

may not be sold, pledged, hypothecated, transferred or otherwise disposed of in

the absence of an effective registration statement covering these securities under

the Act and all applicable state securities laws or an opinion of counsel in form

and substance satisfactory to the Corporation that registration is not requiredunder the Act or under applicable state securities laws.

The securities represented by this certificate are subject to the restrictions on

transfer set forth in a Shareholders Agreement, dated July 1, 2008, a copy of

which is available for inspection at the offices of the Corporation or will be

made available upon request.

2.4 Rights of First Refusal on Voluntary Transfers.


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2.4.1 Any Shareholder who intends to sell, assign, transfer or otherwisevoluntarily dispose of all or part of his or her Shares (the Selling Shareholder), shall give written notice

of such intention to the Corporation, which notice shall include the name of the proposed transferee, the

proposed purchase price per Share, the terms of payment of such purchase price and all other matters

relating to such sale and such notice shall be accompanied by a copy of the binding written agreement of

the proposed transferee to purchase the Shares of the Selling Shareholder. Such notice shall constitute a

binding offer by the Selling Shareholder to sell to the Corporation such number of Shares then held by

the Selling Shareholder as are proposed to be sold in the notice at the monetary price per Share and on

the terms designated in such notice (provided, however, that the Corporation shall not be required to meet

any non-monetary terms of the proposed transfer, including, without limitation, delivery of other

securities in exchange for the Shares proposed to be sold). Within sixty days after receipt of written

notice from the Selling Shareholder, the Corporation shall give written notice to the Selling Shareholder

as to whether such offer has been accepted by the Corporation. The Corporation may only accept such

offer in whole and may not accept such offer in part. Such acceptance notice shall fix a time, location

and date for the closing on such purchase (Closing Date) which shall not be less than seven nor more

than thirty days after the giving of the acceptance notice. The place for such closing shall be at the

principal office of the Corporation or such other location agreed to by the parties. At such closing, the

Selling Shareholder shall accept such payment as is due at closing and shall deliver to the Corporation in

exchange therefor certificates for the number of Shares stated in the notice accompanied by duly

executed instruments of transfer.

2.4.2 If the Corporation shall fail to accept the offer within the sixty-dayperiod, then the Shareholders (the Buying Shareholders) shall have thirty days from the expiration of

such notice period within which to accept in whole, but not in part, the offer of the Selling Shareholder,

by giving to such Shareholder written notice as set forth above of Buying Shareholders intent to

purchase all, but not less than all, of the Shares proposed to be sold as provided in the notice to the

Corporation and the Buying Shareholders, at the monetary price per Share and on the terms designated in

such notice. Unless otherwise agreed between them, the purchase by the Buying Shareholders shall be

pro rata to their then holdings of Shares, except that if one of the Buying Shareholders elects not topurchase any Shares, the remaining Buying Shareholders may purchase all of the Shares without consent

of the non-purchasing Shareholders pro rata among them or in such other manner as they may agree. The

place for such closing shall be at the principal office of the Corporation or such other location agreed to

by the parties. At the closing of such purchase and sale, the Selling Shareholder shall accept such

payment as is due at closing and shall deliver to the Buying Shareholders in exchange therefor

certificates for the number of Shares stated in the notice accompanied by duly executed instruments of

transfer.

2.4.3 If the Corporation and the Buying Shareholders shall fail to accept anysuch offer, then the Selling Shareholder shall be free to sell all, but not less than all, of the Shares set

forth in his or her notice to the designated transferee at a price and on terms no less favorable to the

Selling Shareholder than described in the Selling Shareholder's notice, provided that such sale isconsummated within six months after the giving of notice by the Selling Shareholder to the Corporation

and the Shareholders as aforesaid, and further, provided that the Transferee agrees to become a party to

and be bound by the terms, conditions and restrictions set forth in this Agreement. Upon the expiration

of such six-month period, the provisions of this Section 2.4 shall again apply with respect to any

proposed transfer of the Selling Shareholder Shares.

2.4.4 The purchase price of any Shares to be acquired pursuant to this Section2.5 shall be payable on the terms offered to the Selling Shareholder by the proposed transferee (provided,


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however, that the Corporation and the Shareholders shall not be required to meet any non-monetary terms

of the proposed transfer, including, without limitation, delivery of other securities in exchange for the

Shares proposed to be sold).

2.5 Transfers by Operation of Law. In the event that a Shareholder (i) files avoluntary petition under any bankruptcy or insolvency law or a petition for the appointment of a receiver

or makes an assignment for the benefit of creditors, or (ii) is subjected involuntarily to such a petition or

assignment or to an attachment or other legal or equitable interest with respect to his or her Shares and

such involuntary petition or assignment or attachment is not discharged within thirty days after its date,

or (iii) is subject to a transfer of his or her Shares by operation of law (except upon his or her death) the

Corporation and the other Shareholders, and their respective assignees, shall have the right to elect to

purchase all of the Shares which are owned by the Shareholder at a purchase price per Share determined

in accordance with Section 3.1 hereof. Failure of the Corporation and the other Shareholders to elect to

purchase the Shares under this Section 2.5 shall not affect its or their right to purchase the same Shares

under any other Section of this Agreement.

2.7 Violation of Restrictions. If any transfer of Shares is made or attempted contrary

to the provisions of this Agreement or if any Shares are not offered as required by these provisions, the

Corporation or the other Shareholders shall have the right to purchase the Shares from the owner thereof

or his transferee at any time before or after the transfer for the price per share determined in accordance

with Section 3.1 hereof. In addition to any other legal or equitable remedies, the Corporation or the other

Shareholders may enforce this right by actions for specific performance (to the extent permitted by law).

The Corporation may also refuse to recognize any such transferee or Shareholder as one of its

Shareholders for any purpose, including without limitation for purposes of dividend and voting rights,

until all applicable provisions of these restrictions have been complied with.

2.8 Additional Shares or Substituted Securities. In the event of the declaration of a

share dividend, the declaration of an extraordinary dividend payable in a form other than Shares, a spin-

off, a share split, a recapitalization or a similar transaction affecting the Corporations outstanding shares

without receipt of consideration, or any new, substituted or additional securities which are by reason ofsuch transaction distributed with respect to any Shares subject to this Agreement or into which such

Shares thereby become convertible shall immediately be subject to this Agreement.

3. Purchase Price.3.1 Fair Market Value. Except with respect to purchases or sales made under

Section 2.5, the purchase price of each Share purchased hereunder shall be the fair market value per

Share determined by agreement of the parties, or if the parties are unable to agree within thirty (30) days,

by appraisal as follows. Within thirty days after any election to purchase pursuant to Sections 2.5 or 2.6,

or an election to purchase and sell under Section 6, the Corporation or the Buying Shareholders shall

appoint an appraiser, the Selling Shareholder (or his or her legally appointed representatives) shall

appoint a second appraiser, and the two appraisers so appointed shall appoint a third appraiser, or failingaction within such period by any party or the appraisers, any unappointed appraiser or appraisers shall be

appointed by the American Arbitration Association, Boston, Massachusetts, upon application of any

party or appraiser. Each appraiser shall independently determine the value of the shares of the

Shareholder whose Shares are being purchased as of a convenient date selected by the three appraisers.

Such determination shall be made by valuing the entire Corporation and attributing to each share,

whether voting or nonvoting, its pro-rata portion of such valuation, without discount or reduction on

account of control premiums, voting power or otherwise. The fair market value of the Shares shall be

based on the average of the two closest appraised values, and such determination shall be final and


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binding upon all interested persons. The Corporation shall promptly furnish to the appraisers such

information concerning its financial condition, earnings, capitalization, business prospects and sales of its

capital stock as they may reasonably request. The appraisers shall promptly notify in writing the

Corporation, the Selling Shareholder (or his/her legally appointed representatives), and the other

Shareholders, of the appraisers final determination of value. The parties shall each bear the fees and

expenses of the appraiser appointed by or for each of them, and the fees and expenses of the third

appraiser shall be borne one-half by the Selling Shareholder (or his/her legally appointed representatives)

and one-half by the purchaser of the Shares.

3.2 The Shareholder whose Shares are being purchased (or his/her legally appointedrepresentatives) shall tender all Shares being purchased hereunder to the Corporation or the other

Shareholders purchasing the Shares, or to one or more assignees designated by the purchaser, at the

principal office of the Corporation at a reasonable date and time specified by it (in any event within sixty

days of the purchaser's election), by delivery of certificates representing such Shares endorsed in blank

and in proper form for transfer against payment of the purchase price in cash or by certified or bank

checks, or upon such terms as are applicable under Section 2.4 hereof.

4. Waiver; Disposition of Shares. From time to time, the Corporation may waive its rightshereunder either generally or with respect to one or more specified transfers which have been proposed,

attempted or made. All action to be taken by the Corporation hereunder shall be taken by vote of a

majority of its Directors then in office. Any Shares which the Corporation has elected to purchase

hereunder may be disposed of by its Board of Directors in such manner as it deems appropriate, with or

without further restrictions on the transfer thereof.

5. Drag Along Provisions5.1 Drag Along Right. Upon the election by the holders of a majority of the Voting

Shares (the Electing Holders) to consummate a sale of the Corporation (a Sale Transaction), each

Shareholder shall take all necessary or desirable action within such Persons control (including, without

limitation, the removal and election of directors, attendance at shareholders meetings in person or byproxy for the purposes of obtaining a quorum and the execution of written consents in lieu of meetings)

such that any proposal or resolution requested by such holders in connection therewith shall be

implemented by the Corporation and if the Shareholders are entitled to vote on any such matter, whether

by law, under the Corporations Charter or otherwise, all of the Voting Shares over which such

Shareholder has voting control shall be voted in favor of the proposal or resolution in connection with

such Sale Transaction. Each Shareholder will consent to and raise no objections against such Sale

Transaction and if such Sale Transaction is structured as a sale of shares, each Shareholder shall sell the

Shares held by him or her on the terms and conditions approved by the Board and the Electing Holders.

Each Shareholder will take all action necessary and desirable in connection with the consummation of the

Sale Transaction, including, without limitation, the waiver of all appraisal rights available to any such

Shareholder under applicable law. Each Shareholder will bear its pro rata share (based upon the number

of shares of Common Stock held on a fully diluted basis) of the cost of any sale of Shares pursuant to aSale Transaction to the extent such costs are incurred for the benefit of all Shareholders and are not

otherwise paid by the Corporation or the acquiring party. Costs incurred by Shareholders on their own

behalf will not be considered costs of the transaction hereunder.

5.2 Right of Co-Sale.

5.2.1 At any time that one or more Shareholders desires to transfer a majority

of the Shares then outstanding (calculated on a fully diluted basis) or a majority of the voting power of


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the Corporation (the Selling Majority Holders) to a third party or parties in one or more related

transactions, the Selling Majority Holders shall first deliver written notice of their desire to do so (the

Co-Sale Notice) to the Corporation and each of the Shareholders other than the Selling Majority

Holders (the Co-Sale Stockholders). The Co-Sale Notice must specify: (i) the name and address of the

Person or Persons to which the Selling Majority Holders propose to transfer the Shares (the Offeror),

(ii) the number of Shares the Selling Majority Holders propose to transfer (the Co-Sale Offered

Shares), (iii) the total consideration to be delivered to the Selling Majority Holders for the proposed

transfer and the consideration for each Share the Selling Majority Holders propose to transfer, and (iv)

all other material terms and conditions of the proposed transaction.

5.2.2 Each Co-Sale Stockholder may within the 20 day period after delivery of

the Co-Sale Notice (the Option Period) notify the Selling Majority Holders of such Co-Sale

Stockholders desire to participate in the sale of the Co-Sale Offered Shares and to sell, at the price per

Share and on the terms set forth in the Co-Sale Notice, a number of Shares held by such Co-Sale

Stockholder up to such Co-Sale Stockholders Pro Rata Amount (as defined in Section 5.2.6. Each Co-

Sale Stockholder which has so notified the Selling Majority Holders within the Option Period of its

desire to sell Shares in the transaction (a Participating Stockholder) shall be entitled to do so, subject to

cut-back as set forth in Section 5.2.3.

5.2.3 The Selling Majority Holders shall use their best efforts to interest the

Offeror in purchasing, in addition to the Co-Sale Offered Shares, the shares of Common Stock which the

Participating Stockholders wish to sell. If the Offeror does not wish to purchase all of the shares of

Common Stock made available by the Selling Majority Holders and the Participating Stockholders (the

Selling Majority Holders and the Participating Stockholders being hereinafter referred to collectively as

Co-Sale Right Holders), then each Co-Sale Right Holder shall be entitled to sell a portion of the shares

of Common Stock being sold to the Offeror obtained by multiplying the number of shares of Common

Stock that the Offeror is willing to purchase by a fraction, the numerator of which is the number of shares

of Common Stock such Co-Sale Right Holder has proposed to sell to the Offeror, and the denominator of

which is the number of shares of Common Stock that all of the Co-Sale Right Holders have proposed to

sell to the Offeror. The transaction contemplated by the Co-Sale Notice shall be consummated not laterthan 90 days after the expiration of the Option Period.

5.2.4 If the Selling Majority Holders wish to Transfer any shares of Common

Stock to the Offeror or to any Person at a price or on terms and conditions which differ from those set

forth in the Co-Sale Notice, or more than 90 days after the expiration of the Option Period, then as a

condition precedent to such transaction, the Selling Majority Holders must again comply with the

procedures set forth in this Section 5.2.

5.2.5 Any sale made in violation of the provisions of this Section 5.2 shall be

void, and the proceeds of any sale made by the Selling Majority Holders in violation of the provisions of

this Section 5.2 shall be deemed to be held in constructive trust by the Selling Majority Holders in such

amount as would have been due the Participating Stockholders if the Selling Majority Holders hadcomplied with this Section 5.2.

5.2.6 As used in this Section 5.2, with respect to each Co-Sale Stockholder the

term Pro Rata Amount shall mean the number of Shares obtained by multiplying the number of Shares

held by such Co-Sale Stockholder by a fraction, the numerator of which is the number of Shares

proposed to be sold to the Offeror by the Selling Majority Holders, and the denominator of which is the

number of shares of Common Stock held by the Selling Majority Holders immediately prior to such sale.


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6. Participation Rights

6.1 Except as provided in Section 6.6, the Corporation shall not issue or sell any of

its equity securities (including securities convertible into or exercisable for equity securities)

(collectively, the Future Shares) to any Person (together with its Affiliates, the Prospective

Purchaser) without first providing each Shareholder (i) which is an accredited investor as that term is

defined in Rule 501 of the Securities Act and (ii) which together with its Affiliates holds at least 1% of

the then outstanding capital stock of the Corporation (including securities convertible into or exercisable

for capital stock of the Corporation) (each a Qualified Holder), the right to subscribe for its

Proportionate Percentage (as defined in Section 6.3) of such Future Shares at the same price and on the

same terms (including, without limitation, the method of purchase; provided, however, that the Qualified

Holders shall have the option of purchasing Future Shares with cash regardless of the method of purchase

offered to such Person) as shall be offered to the Prospective Purchaser and which shall have been

specified by the Corporation in a writing delivered to each Qualified Holder (the Proposal). The

Proposal by its terms shall remain open and irrevocable for a period of 20 days from the date it is

delivered by the Corporation to each Qualified Holder (the Future Shares Exercise Period). The

Proposal shall also certify that the Corporation has either (i) received a firm offer from a Prospective

Purchaser, who shall be identified in such certification, so that the Corporation in good faith believes abinding agreement of sale is obtainable for consideration having a fair market, cash equivalent or present

value set forth in such certification; or (ii) intends in good faith to make an offering of its securities at the

price and on the terms set forth in such certification.

6.2 Notice of each Qualified Holders acceptance, in whole or in part, of the

Proposal made pursuant to Section 6.1 hereof shall be evidenced by a writing signed by such Qualified

Holder delivered to the Corporation prior to the end of the Future Shares Exercise Period setting forth

that portion of the Future Shares, as the case may be, which the Qualified Holder elects to purchase (the

Notice of Purchase). If a Qualified Holder does not deliver such written notice within the Future

Shares Exercise Period, such Qualified Holder shall be deemed to have elected not to purchase all or any

part of such Future Shares.

In the event that the Qualified Holders elect not to purchase all of such Future Shares,

the Corporation shall have 120 days from the expiration of the Future Shares Exercise Period to offer and

sell any part of such Future Shares not elected to be purchased by the Qualified Holders (the Refused

Future Shares) to the Prospective Purchaser, but only upon terms and conditions in all respects

(including, without limitation, price, seniority, dividends and liquidation, redemption and conversion

rights) which are no more favorable to such Prospective Purchaser or less favorable to the Corporation

than those set forth in the Proposal. In the event that the Corporation so sells the Refused Future Shares

to the Prospective Purchaser, the sale to each Qualified Holder of the Future Shares in respect of which a

Notice of Purchase was delivered to the Corporation by such Qualified Holder before the expiration of

the Future Shares Exercise Period shall occur upon the closing of the sale to the Prospective Purchaser of

Refused Future Shares (which closing shall include full payment to the Corporation). If all other events,

the sale to such Qualified Holder of such Future Shares shall occur within 20 days of the expiration of

the Future Shares Exercise Period. In any event, the sale to such Qualified Holder of such Future Shares

shall be on the terms specified in the Proposal. Any Refused Future Shares not purchased by Person(s)

(other than Qualified Holders) within such 120-day period shall remain subject to this Section 6.

6.3 The term Proportionate Percentage in Section 6.1 shall mean, as to any

Qualified Holder, that percentage figure which expresses the ratio which (i) the aggregate number of

shares of Common Stock then (A) outstanding and owned by such Qualified Holder and (B) issuable


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upon conversion, exercise or exchange of options, warrants or other securities which are then vested and

convertible into or exercisable or exchangeable for Common Stock outstanding and owned by such

Qualified Holder bears to (ii) the aggregate number of shares of Common Stock (A) outstanding and

owned by all Qualified Holders and (B) issuable upon conversion, exercise or exchange of options,

warrants, other securities and other rights which are then vested and convertible into or exercisable or

exchangeable for Common Stock outstanding and owned by all Qualified Holders.

6.4 For purposes solely of the computation required under Section 6.3, Qualified

Holders shall be treated as having converted, exercised or exchanged all options, warrants, other

securities and other rights which are convertible into or exercisable or exchangeable for shares of

Common Stock at the rate at which such securities are convertible into or exercisable or exchangeable for

Common Stock at the time of such computation.

6.5 Notwithstanding anything in Section 6.1 to the contrary, a Qualified Holder shall

not be entitled to any of the preemptive rights set forth in this Article VI in connection with any issuance

of shares of Common Stock or options, warrants or other securities or other rights which are convertible,

exercisable or exchangeable for shares of Common Stock (i) to employees or consultants of the

Corporation, provided that such issuance is approved by the Board of Directors; (ii) to members of theCorporations Board of Directors, provided that such issuance is approved by a majority of disinterested

directors; (iii) to underwriters and/or the public pursuant to an initial public offering of the

Corporations securities pursuant to which all of the Series A Preferred Stock is converted into Common

Stock; (iv) issued pursuant to stock splits, dividends or similar events; (v) upon the exercise, conversion

or exchange of any Common Stock, options, warrants or convertible securities outstanding on the date

hereof or issued after the date hereof in compliance with the provisions of this Section 6.5; (vi) in

connection with any business combination or acquisition transaction involving the Corporation or any of

its subsidiaries, provided that such transaction is approved by a majority of the Board of Directors; (vii)

to financial institutions and leasing companies in connection with borrowing or lease financing

arrangements of the Corporation, provided that such issuances or grants are approved by a majority of the

Board of Directors; (viii) to a non-financial corporation in connection with a license, distribution,

development, foundry or similar corporate-partner agreement, provided that any such issuance isapproved by a majority of the Board of Directors; (ix) pursuant to the acquisition of technology or

licenses, the terms of which are approved by the Board of Directors; or (x) in connection with the Series

A Preferred Stock Offering currently contemplated by the Corporation.

7. Other Agreements.

7.1 Further Assurances. Each Shareholder agrees to execute such further documents

and instruments and to take such further action as may reasonably be necessary to carry out the intent of

this Agreement.

7.2 Confidentiality. Under no circumstances and at no time during or after the term

of this Agreement will any Shareholder, directly or indirectly, disclose, divulge, render or offer any

confidential knowledge or information (such information to be deemed confidential if (a) it would be

apparent to a reasonable person, familiar with the Corporations business and the industry in which it

operates, that such information is of a confidential or proprietary nature, or (b) the Corporation delivers

to such Shareholders receiving such information a written request that such information be kept

confidential) with respect to the affairs or plans of the Corporation or any of its Subsidiaries, if

applicable, unless otherwise in the public domain, and each Shareholder acknowledges and agrees that

any and all such information will be received by him or her and held in a confidential capacity. The


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Corporation and each Shareholder agree that the covenants set forth in this Section 7.2 shall be enforced

to the fullest extent permitted by law.

7.3 No Obligation as to Employment. The Corporation is not by reason of this

Agreement obligated to employ, or to continue to employ, any Shareholder in any capacity.

7.4 Notices. All notices, requests, consents and other communications hereunder

shall be in writing, shall be addressed to the receiving partys address set forth below or to such other

address as a party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) made

by telex, telecopy or facsimile transmission, (c) sent by overnight courier, or (d) sent by registered or

certified mail, return receipt requested, postage prepaid.

If to the Corporation:

ACME TECHNOLOGY , Inc.

With a copy to:

Henry E. Knoblock, III, Esq.

HITECHLAW GROUP LLC

1050 Winter Street, Suite 1000

Waltham, MA 02451

If to any Shareholder:

To the address set forth on the books and records of the Corporation.

All notices, requests, consents and other communications hereunder shall be deemed to have

been given either (i) if by hand, at the time of the delivery thereof to the receiving party at the address of

such party set forth above, (ii) if made by telex, telecopy or facsimile transmission, at the time that

receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight

courier, on the next business day following the day such notice is delivered to the courier service, or (iv)if sent by certified or registered mail, on the fifth (5th) business day following the day such mailing is

made.

7.5 Entire Agreement. This Agreement embodies the entire agreement and

understanding among the parties with respect to the subject matter hereof and supersedes all prior oral or

written agreements and understandings relating to the subject matter hereof. No statement,

representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement

shall affect, or be used to interpret, change or restrict, the express terms and provisions of this

Agreement.

7.6 Modifications and Amendments. The terms and provisions of this Agreement

may be modified or amended only by written agreement executed by all parties hereto.

7.7 Waivers and Consents. The terms and provisions of this Agreement may be

waived, or consent for the departure therefrom granted, only by written document executed by the party

entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or

shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement,

whether or not similar. Each such waiver or consent shall be effective only in the specific instance and

for the purpose for which it was given, and shall not constitute a continuing waiver or consent.


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7.8 Assignment. The rights and obligations under this Agreement may not be

assigned by either party hereto without the prior written consent of the other party.

7.9 Benefit. All statements, representations, warranties, covenants and agreements

in this Agreement shall be binding on the parties hereto and their respective successors and assigns and

shall inure to the benefit of the respective successors and permitted assigns of each party hereto.

7.10 Governing Law. This Agreement and the rights and obligations of the parties

hereunder shall be construed in accordance with and governed by the substantive laws of the State of

Delaware, without giving effect to the conflict of law principles thereof.

7.11 Attorneys Fees. In the event of any dispute with respect to the subject matter of

this Agreement, the prevailing party shall be entitled to all of its costs and expenses, including

reasonable attorneys fees and costs, incurred in resolving or settling the dispute. These costs and

expenses shall be in addition to any other damages to which the prevailing party may be entitled.

7.12 Severability. In the event that any court of competent jurisdiction shall

determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonableor unenforceable in any respect, then such provision shall be deemed limited to the extent that such court

deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event

that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining

provisions of this Agreement shall nevertheless remain in full force and effect.

7.13 No Waiver of Rights, Powers and Remedies. No failure or delay by a party

hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between

the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single

or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any

abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such

party from any other or further exercise thereof or the exercise of any other right, power or remedy

hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right ofsuch party to pursue other available remedies. No notice to or demand on a party not expressly required

under this Agreement shall entitle the party receiving such notice or demand to any other or further

notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving

such notice or demand to any other or further action in any circumstances without such notice or

demand.

7.14 Headings and Captions. The headings and captions of the various subdivisions

of this Agreement are for convenience of reference only and shall in no way modify, or affect the

meaning or construction of any of the terms or provisions hereof.

7.15 Counterparts. This Agreement may be executed in one or more counterparts,

and by different parties hereto on separate counterparts, each of which shall be deemed an original, butall of which together shall constitute one and the same instrument.

7.16 Void Transfers. Any transfers of Shares made or attempted in violation of this

Agreement shall be null and void.


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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above

written.

ACME TECHNOLOGY , INC.

By:

President

SHAREHOLDERS:

________________________________


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SCHEDULE A

Shareholders (As of December 10, 2008)

No. of Voting or

Name Address Shares Nonvoting

form+shareholder+agreement

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