FORM OF LOCK-UP AGREEMENT
Exhibit 10.21
FORM OF LOCK-UP AGREEMENT
This Lock-Up Agreement (the “AGREEMENT”) is made and entered into as of , 2005, between Xxxxxx Xxxxxx Marine, Inc., a Delaware corporation (“PARENT”), and the undersigned shareholder (“HOLDER”) of Intelligent Energy Holdings Plc, a company registered in England and Wales (the “COMPANY”).
Pursuant to an Acquisition Agreement dated as of February 3, 2005 (the “ACQUISITION AGREEMENT”) by and between Parent and the Company, it is proposed that Parent shall make the Offer and the Option Offer within the meanings set forth in the Acquisition Agreement. Concurrently with the execution and delivery of the Acquisition Agreement and as a condition and inducement to Parent entering into the Acquisition Agreement, Parent has required that Holder enter into this Agreement. The Holder is the registered owner of (1) such number of issued Ordinary Shares (the “SHARES”) and (2) such number of options to purchase Ordinary Shares (the “OPTIONS”), each as is indicated beneath Holder’s signature on the last page of this Agreement. Terms used herein and not defined herein shall have the meaning set forth in the Acquisition Agreement.
The parties agree as follows:
1. AGREEMENT TO RETAIN SHARES.
or to a trust for the benefit of Holder or any member of Holder’s immediate family, or (B) upon the death of Holder, or (ii) if Holder is a partnership or limited liability company, to one or more partners or members of Holder or to an affiliated Person under common control or common management with Holder; provided, however, that any such transfer pursuant to either clause (i) or (ii) of this Section 1(b) shall be permitted only if, as a precondition to such transfer, the transferee agrees in writing to be bound by all of the terms of this Agreement.
(i) Holder shall not make any sale, transfer or other disposition of the Parent Common Stock in violation of the Securities Act.
(ii) Holder has carefully read this Agreement and discussed the requirements of this Agreement and other applicable limitations upon Holder’s ability to sell, transfer or otherwise dispose of Parent Common Stock received in exchange for the Shares, to the extent Holder has felt necessary, with Holder’s counsel.
(iii) Holder has been advised that the issuance of Parent Common Stock in connection with the Offer will be registered on a registration statement on Form S-4 promulgated under the Securities Act (the “REGISTRATION STATEMENT”) and the resale of such Parent Common Stock may be subject to restrictions set forth in Rule 145 under the Securities Act. Holder has been advised that, because Holder may be deemed to be an “affiliate” of the Company, Holder may not sell, transfer or otherwise dispose of the Parent Common Stock issued to Holder in the Offer, unless (i) such sale, transfer or other disposition is made in conformity with the limitations of Rule 145 promulgated by the SEC under the Securities Act, (ii) such sale, transfer or other disposition has been registered under the Securities Act or (iii) in the opinion of counsel reasonably acceptable to Parent, such sale, transfer or other disposition is otherwise exempt from registration under the Securities Act.
- 2 -
(iv) Holder understands and agrees that stop transfer instructions will be given to Parent’s transfer agent with respect to the Parent Common Stock issued to Holder and that there will be placed on the certificates for the Parent Common Stock issued to Holder, or any substitutions therefor, a legend stating in substance: “THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF A LOCK-UP AGREEMENT DATED , 2005 BETWEEN THE REGISTERED HOLDER HEREOF AND XXXXXX XXXXXX MARINE, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF XXXXXX XXXXXX MARINE, INC.” If a sale or transfer is made prior to such legend being removed pursuant to Section 2(c) below, certificates with the above legend will be substituted by delivery of certificates without such legend upon delivery of a declaration to Parent (the “DECLARATION”), which Declaration shall be reasonably satisfactory in form and substance to Parent, that the requirements of Rule 145(d)(1) have been complied with.
(v) Holder understands and agrees that stop transfer instructions will be given to Parent’s transfer agent with respect to the Parent Common Stock issued to Holder and there will be placed on the certificates for the Parent Common Stock issued to Holder, or any substitutions therefore, a legend stating in substance: “THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED UNTIL THE DATE THAT IS 180 DAYS FOLLOWING THE FIRST CLOSING DATE (AS DEFINED IN THE ACQUISITION AGREEMENT DATED FEBRUARY 3, 2005 BETWEEN XXXXXX XXXXXX MARINE, INC. AND INTELLIGENT ENERGY HOLDINGS PLC) IN ACCORDANCE WITH THE TERMS OF A LOCK-UP AGREEMENT DATED , 2005 BETWEEN THE REGISTERED HOLDER HEREOF AND XXXXXX XXXXXX MARINE, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF XXXXXX XXXXXX MARINE, INC.”
(c) PARENT REPRESENTATIONS.
(i) Parent hereby agrees that, unless previously sold pursuant to the applicable requirements of Rule 145, it is understood and agreed that certificates with the legend set forth in Section 2(b)(iv) above will be substituted by delivery of certificates without such legend, and any stop transfer instructions then in effect will be terminated, if (i) one year shall have elapsed from the date Holder acquired the Parent Common Stock received in the Offer and the provisions of Rule 145(d)(2) are then available to Holder, (ii) two years shall have elapsed from the date Holder acquired the Parent Common Stock received in the Offer and the provisions of Rule 145(d)(3) are then available to Holder, or (iii) Parent has received either an opinion of counsel, which opinion and counsel shall be reasonably satisfactory to Parent, or a “no action” letter obtained by Holder from the staff of the SEC, to the effect that the restrictions imposed by Rule 145 under the Securities Act no longer apply to Holder. For as long as resale of any shares of Parent Common Stock owned by Holder are subject to Rule 145, Parent will use its reasonable efforts to make all filings of the nature specified in paragraph (c)(1) of Rule 144 under the Securities Act. Upon receipt of a properly completed Declaration, Parent shall use its reasonable efforts to instruct its transfer agent to deliver shares of Parent Common Stock without the legend set forth in Section 2(b)(iv) above in accordance with the terms of the transfer set forth in the Declaration as soon as practicable following receipt of such Declaration.
(ii) Parent hereby agrees that it is understood and agreed that certificates with the legend set forth in Section 2(b)(v) above will, to the extent required to enable the shares represented by such certificate to be transferred by the holder thereof, be substituted by delivery of certificates without such legend upon the written request of the Holder if 180 days shall have elapsed from the Closing Date. Upon receipt of any such written request, Parent shall use its reasonable efforts to
- 3 -
instruct its transfer agent to deliver shares of Parent Common Stock without the legend set forth in Section 2(b)(v) above as soon as practicable following receipt of such written request.
3. RESALE REGISTRATION RIGHTS.
(a) REGISTRABLE SHARES. For purposes of this Agreement, “REGISTRABLE SHARES” shall mean the shares of Parent Common Stock issued to the Company shareholders who have executed a Lock-Up Agreement (the “ORIGINAL HOLDER GROUP”), including Holder, pursuant to the Offer.
(c) EFFECTIVENESS; DELIVERY OF PROSPECTUS; SUSPENSION RIGHT.
(i) Parent will use its commercially reasonable efforts to maintain the effectiveness of the Amendment and other applicable registrations, qualifications and compliances until such time as fewer than 25% of the Registrable Securities remain held by the Original Holder Group, calculated on an aggregate basis (the “REGISTRATION EFFECTIVE PERIOD”). As soon as practicable following the effectiveness of the Amendment, Parent will furnish to each holder of Registrable Shares such number of copies of the prospectus contained in the Amendment in conformity with the requirements of the Securities Act, and such other documents as such holder may reasonably request in order to facilitate the public sale or other disposition of such shares.
(ii) For any offer or sale of any of the Registrable Shares by a shareholder in a transaction that is not exempt under the Securities Act, the shareholder, in addition to complying with any other federal securities laws, will deliver a copy of the final prospectus (or amendment of or supplement to such prospectus) of Parent covering the Registrable Shares in the form furnished to the shareholder by Parent to the purchaser of any of the Registrable Shares on or before the settlement date for the purchase of such Registrable Shares.
- 4 -
(iii) Following the date on which the Amendment is first declared effective, the holder of Registrable Shares will be permitted (subject in all cases to Section 4 below) to offer and sell Registrable Shares pursuant to the Amendment during the Registration Effective Period in the manner described in the Amendment provided that the Amendment remains effective and has not been suspended.
(iv) Notwithstanding any other provision of this Section 3 but subject to Section 4, Parent shall have the right at any time to require that all holders of Registrable Shares suspend further open market offers and sales of Registrable Shares pursuant to the Amendment whenever, and for so long as, in the reasonable judgment of Parent after consultation with counsel there is or may be in existence material undisclosed information or events with respect to Parent (the “SUSPENSION RIGHT”) ; provided, however, that Parent shall not be entitled to invoke the Suspension Right unless such right or an equivalent restriction has been imposed on, and is then applicable to, all of Parent’s executive officers, directors and other holders of Parent Common Stock which are registered for resale under the Securities Act. In the event Parent exercises the Suspension Right, such suspension will continue for the period of time reasonably necessary for disclosure (including any necessary filings with the SEC) to occur at a time that is not detrimental to Parent and its shareholders or until such time as the information or event is no longer material, each as determined in good faith by Parent (it being understood that Parent will use all reasonably commercial efforts to minimize the duration of the suspension period). The termination of the Registration Effective Period will extend by one (1) day for each day during which the holders of Registrable Shares suspend further open market offers and sales of Registrable Shares pursuant to the Parent’s exercise of the Suspension Right.
(i) To the extent permitted by law, Parent will indemnify and hold harmless each holder of Registrable Shares, any underwriter (as defined in the Securities Act) for such shareholder, its officers, directors, shareholders or partners and each person, if any, who controls such shareholder or underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a “VIOLATION”): (A) any untrue statement or alleged untrue statement of a material fact contained in the Amendment, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (B) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (C) any violation or alleged violation by Parent of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law; and Parent will pay to each such shareholder (and its officers, directors, shareholders or partners), underwriter or controlling person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this Section 3(e)(i) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of Parent; nor shall Parent be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon (a) a Violation which occurs
- 5 -
in reliance upon and in conformity with written information furnished expressly for use in the Amendment by any such shareholder, or (b) a Violation that would not have occurred if such shareholder had delivered to the purchaser the version of the Prospectus most recently provided by Parent to the shareholder as of the date of such sale.
(ii) To the extent permitted by law, each Selling Shareholder will indemnify and hold harmless Parent, each of its directors, each of its officers who has signed the Amendment, each person, if any, who controls Parent within the meaning of the Securities Act, any underwriter, any other Selling Shareholder selling securities pursuant to the Amendment and any controlling person of any such underwriter or other shareholder, against any losses, claims, damages, or liabilities (joint or several) to which any of the foregoing persons may become subject, under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or are based upon any Violation (which includes without limitation the failure of the shareholder to comply with the prospectus delivery requirements under the Securities Act, and the failure of the shareholder to deliver the most current prospectus provided by Parent prior to such sale), in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Selling Shareholder expressly for use in the Amendment or such Violation is caused by the shareholder’s failure to deliver to the purchaser of the Selling Shareholder’s Registrable Shares a prospectus (or amendment or supplement thereto) that had been made available to the shareholder by Parent; and each such Selling Shareholder will pay any legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this Section 3(e)(ii) in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this Section 3(e)(ii) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Selling Shareholder, which consent shall not be unreasonably withheld. The aggregate indemnification liability of each Selling Shareholder under this Section 3(e)(ii) shall not exceed the net proceeds received by such Selling Shareholder in connection with sale of shares pursuant to the Amendment.
(iii) Each person entitled to indemnification under this Section 3(e) (the “INDEMNIFIED PARTY”) shall give notice to the party required to provide indemnification (the “INDEMNIFYING PARTY”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought and shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who conducts the defense of such claim or any litigation resulting therefrom shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 3 unless the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in the defense of any such claim or litigation, shall (except with the consent of each Indemnified Party) consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.
(iv) To the extent that the indemnification provided for in this Section 3(e) is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage or expense referred to herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such
- 6 -
Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions which resulted in such loss, liability, claim, damage or expense, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The aggregate contribution liability of each Selling Shareholder under this Section 3(e)(iv) shall not exceed the net proceeds received by such Selling Shareholder in connection with sale of shares pursuant to the Amendment.
4. PROCEDURES FOR SALE OF SHARES UNDER REGISTRATION STATEMENT.
5. WAIVER OF RIGHTS OF FIRST REFUSAL.
(a) Holder irrevocably undertakes represents and warrants to the Parent that in transferring any Shares to Parent pursuant to the Offer it will transfer to Parent all accrued dividend rights and entitlements attaching to the Shares (whether or not declared, due or owing) including any debts due by the Company in respect thereof.
- 7 -
(b) Solely in connection with the exchange of Shares pursuant to the Offer, Holder hereby waives any and all rights of pre-emption or first refusal that it may have with respect to the proposed transfer of any shares in the capital of the Company to Parent pursuant to the terms of the Offer, or any Shares or other securities in the share capital of the Company owned by, or issuable to, any person.
(b) GOVERNING LAW. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.
- 8 -
- 9 -
The parties have caused this Agreement to be duly executed on the date first above written.
PARENT | ||
By: | ||
Name: |
||
Title: |
Address: |
Xxxxxx Xxxxxx Marine, Inc. | |
0000 Xxxxx Xxxxx Xxxxxxx | ||
Xxxxxxxxx, Xxxxxxxxxx 00000 | ||
Attention: |
Xxxxxx X. Xxxxxxx | |
Facsimile No.: |
(000) 000-0000 |
HOLDER | ||
By: |
Print Name: |
||
Holder’s Address for Notice: | ||
Attention: |
||
Facsimile No.: |
Shares owned of record: |
Beneficially owned shares: | |||||||
Class of Shares |
Number |
Class of Shares |
Number | |||||
Ordinary Shares |
Ordinary Shares | |||||||
Options to Purchase Ordinary Shares | Options to Purchase Ordinary Shares |
- 10 -
CONSENT OF SPOUSE
[TO BE EXECUTED WHERE RELEVANT]
The undersigned is the spouse of , the Holder (as such term is defined in the Lock-Up Agreement) in the foregoing Lock-Up Agreement dated as of , 2005 (the “LOCK-UP AGREEMENT”) between Xxxxxx Xxxxxx Marine, Inc. and Holder. Capitalized terms used herein and not defined herein have the meaning set forth in the Lock-Up Agreement.
I hereby acknowledge that I have carefully reviewed the Lock-Up Agreement and such other documents as I have deemed appropriate. I have discussed the contents of the Lock-Up Agreement, to the extent I felt necessary, with my legal counsel. I understand fully the transactions described in the Lock-Up Agreement, and I hereby approve of and consent to all such transactions. I am aware that by the provisions of the Lock-Up Agreement, my spouse agrees, among other things, to certain matters related to the control and disposition of Company capital stock. I hereby agree, on behalf of myself and all persons who may claim on my behalf, that prior to fulfillment of all of my spouse’s obligations under the Lock-Up Agreement in accordance with the terms and provisions of the Lock-Up Agreement, upon any legal separation from or dissolution of my marriage to my present spouse, or upon the death of my spouse, neither I nor anyone claiming on my behalf will seek to partition my or my spouse’s community property interest in the Company capital stock and that in any such event I shall be entitled only to the value of my interest in such Company capital stock, if any, and that I shall have no claim or right to the Company capital stock itself.
EXECUTED this day of , 2005 |
- 11 -
SCHEDULE A
SIGNATORIES TO LOCK-UP AGREEMENTS
- 12 -