LOCK UP AGREEMENT
The undersigned, [Insert Name of Shareholder],
agrees that he will not, directly or indirectly, issue, offer, agree or offer to
sell, sell, grant an option for the purchase or sale of, transfer, pledge,
assign, hypothecate, distribute or otherwise encumber or dispose (collectively,
“Sale”) of any
of the [Insert Number of
Shares] shares of the common stock of the Helix Wind, Corp.
(the “Company”), including
without limitation, options, rights, warrants or other securities underlying,
convertible into, exchangeable or exercisable for or evidencing any right to
purchase or subscribe for any common stock (whether or not beneficially owned by
the undersigned), or any beneficial interest therein, except as follows: [Insert Leak Out
terms]
Notwithstanding the foregoing, the
following transfers are permitted, provided the transferee agrees in writing
prior to the transfer to be bound by the terms of this Agreement: (i) a transfer
on death by will or intestacy; (ii) a transfer to a member of the undersigned's
immediate family; (iii) a transfer to a family trust; or (iv) a transfer
resulting from the enforcement of a bona fide pledge entered into by the
undersigned prior to the date hereof. For purposes of this paragraph,
"immediate family" shall mean the spouse, lineal descendant, father, mother,
brother or sister of the transferor.
In order to enable the enforcement of
this agreement, the undersigned hereby consents to the placing of legends on
certificates in the form below and/or stop orders with the transfer agent of the
Company with respect to the shares and the Company and its transfer agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this agreement.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A LOCK-UP
AGREEMENT, AS THE SAME MAY BE AMENDED, MODIFIED OR SUPPLEMENTED, A COPY OF WHICH
IS ON FILE AT THE OFFICES OF THE ISSUER AND WILL BE FURNISHED BY THE ISSUER TO
THE HOLDER HEREOF UPON WRITTEN REQUEST. SUCH AGREEMENT PROVIDES,
AMONG OTHER THINGS, FOR THE GRANTING OF CERTAIN RESTRICTIONS ON THE SALE,
TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES REPRESENTED
BY THIS CERTIFICATE. BY ACCEPTANCE OF THIS CERTIFICATE, EACH HOLDER
HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF SUCH AGREEMENT. THE
ISSUER RESERVES THE RIGHT TO REFUSE TO TRANSFER THE SHARES REPRESENTED BY THIS
CERTIFICATE UNLESS AND UNTIL THE CONDITIONS TO TRANSFER SET FORTH IN SUCH
AGREEMENT HAVE BEEN FULFILLED.
Any obligations of the undersigned
under this agreement shall be binding upon the heirs and personal
representatives of the undersigned.
This
Agreement shall become effective only upon the occurrence of each of the
following events: (i) the entry into a lock up agreement by [Insert reference to other lock up
agreements], on substantially identical terms to this Agreement, covering
all of the shares of the Company's common stock beneficially owned held by that
entity and providing for the release of shares on the same basis and in the same
amount as set forth therein and (ii) the Company's closing of a financing
transaction resulting in gross proceeds of not less than $5 million on or before
February 10, 2010.
Page 1 of
3
The provisions contained herein shall
terminate and have no further force and effect on the earlier of: (i) the
termination of the [Insert
reference to other lock up agreements], (ii) the date that any "person"
(as defined in Section 13(d) and 14(d) of the Securities Exchange Act of 1934)
acquires beneficial ownership of voting securities of the Company, of securities
representing more than fifty percent (50%) of the combined voting power of the
Company's then outstanding securities; (iii) the consummation of a
reorganization, merger or consolidation or sale or other disposition of
substantially all of the assets of the Company unless, in each case, the
beneficial owners of outstanding voting securities of the Company immediately
prior to transaction continue to beneficially own, directly or indirectly, more
than fifty percent (50%) of the combined voting power of the then outstanding
voting securities of the Company; (iv) approval by the stockholders of the
Company of a complete liquidation or dissolution of the Company; or (v) February
11, 2012.
This Agreement is being entered into by
the undersigned with the understanding that the [Insert reference to other lock up
agreements] will remain in effect during its term. The Company
shall provide the undersigned with written notice of any amendment or waiver of
observance of any term of the [Insert reference to other lock up
agreements] (either generally or in a particular instance and either
retroactively or prospectively), and the undersigned shall have the right, in
his sole discretion, to have the amendment or waiver apply to this lock up
agreement on the same basis.
Any notices required or permitted by
this Agreement shall be deemed given when delivered personally or sent by one
party to the other by facsimile or in writing by registered or certified mail,
return receipt requested, addressed as follows:
Company:
Helix
Wind, Inc.
0000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx
Xxxxxxx
Facsimile
No.: (000) 000-0000
Undersigned:
[Insert Contact
Information]
with a
copy (which shall not constitute notice) to:
[Insert Contact
Information]
Any
notice pursuant to this Agreement shall be deemed to be delivered, given, and
received for all purposes as of the date received; and provided further, that
(i) mail sent via Certified Mail, Return Receipt Requested, certified fee
and normal postage prepaid, shall be deemed to have been received on the earlier
of actual receipt thereof or the date of refusal or inability to deliver,
indicated on the Receipt for Certified Mail and (ii) mail sent via Federal
Express or other recognized overnight courier shall be deemed delivered one (1)
business day after deposit with Federal Express or such other recognized
overnight courier service, charges prepaid. The above addresses may
be changed from time to time by giving notice thereof in the manner provided
herein.
Page 2 of
3
The rights and obligations of the
parties hereunder and the interpretation of this Agreement shall be governed by
the laws of the State of California (without regard to the principles of
conflicts of law) applicable to contracts executed and to be performed in such
state. The parties hereto consent to the personal jurisdiction of the
courts of the State of California in connection with any claim or dispute
arising in connection with the Agreement. Any action or proceeding
seeking to enforce any provision of, or any right arising out of this Agreement
may be brought only the courts of the State of California, County of San
Diego.
Dated: ___________________,
2009
| Signature: | |
| [Insert Name of Shareholder] |
Page 3 of
3
