LOCK-UP/LEAK-OUT AGREEMENT
THIS
LOCK-UP/LEAK-OUT AGREEMENT (the "Agreement") is made and
entered into as of this 27th day of
July 2010, between _______________ (the "Holder") and The Xxxxxxxx
Group Two, Inc., a Nevada corporation (the "Company").
Capitalized
terms used and not defined herein shall have the meanings ascribed to them in
that certain Share Exchange Agreement (defined below).
RECITALS
WHEREAS, concurrent herewith
the parties are entering into Share Exchange Agreement among the Company,
BioFuel Technologies, Inc., a Georgia corporation ("BFT"), and the holders of
all of the outstanding shares of the capital stock of BFT, pursuant to which the
Company is acquiring 100% of the outstanding shares of the capital stock of BFT
in exchange for shares of the Company's common stock, par value $0.0001 per
share ("Common Stock"),
and certain other parties named therein (the "Share Exchange Agreement");
and
WHEREAS, in connection with
the Share Exchange Agreement, the Company has entered into a Registration Rights
Agreement with various stockholders in the Company after the closing of the
Share Exchange Agreement, pursuant to which the Company granted to certain
registration rights to said stockholders and, in furtherance thereof, has agreed
to file a registration statement under the Securities Act of 1933, as amended
(the "Securities Act"),
to enable them to resell their Common Stock (the "Registration Statement");
and
WHEREAS, as a material
inducement for the parties to enter into the Share Exchange Agreement and as a
condition to the parties' respective obligations to close under the Share
Exchange Agreement, that the Holder and the Company have each agreed to execute
and deliver to the Company this Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Representations and
Warranties. Each of the parties hereto, by their respective execution and
delivery of this Agreement, hereby represents and warrants to the others and to
all third party beneficiaries of this Agreement that (a) such party has the full
right, capacity and authority to enter into, deliver and perform its respective
obligations under this Agreement, (b) this Agreement has been duly executed and
delivered by such party and is the binding and enforceable obligation of such
party, enforceable against such party in accordance with the terms of this
Agreement and (c) the execution, delivery and performance of such party’s
obligations under this Agreement will not conflict with or breach the terms of
any other agreement, contract, commitment or understanding to which such party
is a party or to which the assets or securities of such party are
bound.
The
Holder has independently evaluated the merits of its decision to enter into and
deliver this Agreement, and such Holder confirms that it has not relied on the
advice of the Company or any other person.
2. Beneficial Ownership. Holder
hereby represents and warrants that it beneficially owns (as determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder) only those shares
of Common Stock and other securities of the Company specified on the signature
page to this Agreement and does not possess any economic or derivative interest
in any other securities of the Company. For purposes of this
Agreement the shares of Common Stock beneficially owned by the Holder or which
the Holder has the contractual right to acquire after the date hereof
are collectively referred to as the "Shares," which term also shall
include any shares of Common Stock or securities convertible into or
exchangeable for Common Stock acquired by the Holder after the date hereof (i)
upon any stock split, recapitalization or reorganization and (ii) in any
non-public transaction from another holder of Common Stock as of the date of
this Agreement.
3. Lock-Up and Leak
Out.
(a)
Except as otherwise expressly provided herein, and subject to any other
restrictions prohibiting the offer, sale or transfer of the Shares under
applicable United States federal or state securities laws, rules and regulations
(collectively, the "Regulations"), the Holder
irrevocably agrees that:
(i) For a period of one hundred and
eighty (180) days commencing on the effective date of the Registration Statement
(the "Initial Lock-Up
Period"), the Holder will not offer, pledge, encumber, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, or announce the offering of, any of the
Shares (including any securities convertible into, or exchangeable for, or
representing the rights to receive, Common Stock) or engage in any Short Sales
(as defined below) with respect to any security of the Company (collectively,
the "Lock-Up
Restrictions").
(ii) Upon and after the expiration of
the Initial Lock-Up Period, Holder shall be entitled to offer, sell, transfer
and pledge, in each month thereafter, without regard to the Lock-Up Restrictions
(but subject to the Regulations), a number of Shares calculated by dividing the
total number of Shares by thirty six (36) (the "Monthly Allotment" and the
period during which the Holder is limited as to the monthly volume he is
entitled to sell pursuant to this Agreement, the "Leak Out
Period").
(iii) Upon the expiration of said
thirty-six month period, all of the Lock-Up Restrictions shall expire in their
entirety, subject to the Regulations.
(b) All
Shares shall be sold on a non-cumulative basis, meaning that if the Holder did
not sell all of the Shares the Holder was entitled to sell during any particular
month, the Holder may not cumulate the unsold portion of that month's Monthly
Allotment with or carry such amount over to the next month's Monthly
Allotment.
(c) The
Holder agrees that all sales will be made at no less than the best “asked”
prices, and no sales will be made at the “bid” prices for the
Shares.
(d)
Except as otherwise provided herein, all Shares shall be sold in “broker’s
transactions” and the Holder will comply with the “manner of sale” requirements
as those terms are defined in Rule 144 of the Securities and Exchange Commission
during the Leak-Out Period.
(e) The
Holder agrees and acknowledges that the Company may (i) imprint an appropriate
legend describing the terms of this Agreement on each stock certificate
representing the Shares, (ii) place a stop order with the Company's transfer
agent on all Shares, including those which are covered by a registration
statement filed under the Securities Act and (iii) notify its transfer agent in
writing of the stop order and the restrictions on the Shares and direct the
transfer agent not to process any attempts by the Holder to resell or transfer
any Shares except in compliance with this Agreement.
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(f) The
Monthly Allotment shall be adjusted as appropriate upon (i) dividend or
distribution of securities by the Company or (ii) any split or other
reclassification of the class of Common Stock.
(g) The
resale restrictions set forth in this Agreement shall be in addition to all
other restrictions on transfer imposed by applicable United States and state
securities laws, rules and regulations.
(h) For
purposes of this Agreement, the term "Short Sales" includes, without
limitation, all "short sales" as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, swaps and similar
arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated
brokers.
3. Certain Permitted Transfers.
Notwithstanding anything contained in this Agreement, the Holder may transfer
its Shares to its affiliates, spouse and lineal descendants (individually, a
"Transferee") for estate
planning purposes, at such value as determined by the Holder to be appropriate,
provided that the Transferee (or the legal representative of the Transferee)
executes an agreement to be bound by all of the terms and conditions of this
Agreement in connection with the resale of any Shares, in form and substance
reasonably satisfactory to and to be executed by the
Company. Further, Holder shall be permitted to pledge, encumber, or
create a security interest in any or all of the hares to secure the payment or
performance of indebtedness and other obligations of the Company to bona fide
commercial lending institutions.
4. Termination of Agreement upon
Certain Events. In the event of: (a) a completed tender offer to purchase
all or substantially all of the Company’s issued and outstanding securities or
(b) a merger, consolidation or other reorganization of the Company with or into
an unaffiliated entity that results in a subsequent change in control of the
Company, then this Agreement shall terminate as of the closing of such event and
the Shares restricted pursuant hereto shall be released from such
restrictions.
5. Rights of Holder. Except as
otherwise provided in this Agreement or any other agreements between the
parties, the Holder shall be entitled to exercise its beneficial rights of
ownership over the Shares, including the right to vote the Shares for any and
all purposes.
6. Remedies. The Company shall
have the right to specifically enforce all of the obligations of the Holder
under this Agreement (without posting a bond or other security), in addition to
recovering damages by reason of any breach of any provision of this Agreement
and to exercise all other rights granted by law. Furthermore, the Holder
recognizes that if it fails to perform, observe, or discharge any of its
obligations under this Agreement, any remedy at law may prove to be inadequate
relief to the Company. Therefore, the Holder agrees that the Company shall be
entitled to seek temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages and without posting a bond or
other security. If the Company prevails in an action to enforce this
Agreement, it shall be entitled to receive from the Holder reimbursement for all
fees and expenses incurred in connection therewith, including reasonable fees of
counsel.
7. Further
Assurances. The Holder and the Company shall take all such
actions reasonably necessary to effectuate the terms and conditions of this
Agreement.
8. Third-Party Beneficiaries.
The Holder and the Company acknowledge and agree that this Agreement is entered
into for the benefit of and is enforceable by the Company and each holder of the
Company's securities and their successors and assigns.
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9. No Additional Fees/Payment.
Other than the consideration specifically referenced herein, the parties hereto
agree that no fee, payment or additional consideration in any form has been or
will be paid to the Holder in connection with this Agreement.
10. Notices. All notices,
instructions or other communications required or permitted to be given pursuant
to this Agreement shall be given in writing and delivered by facsimile,
certified mail, return receipt requested or overnight courier by a nationally
recognized courier service:
All
notices shall be deemed to be given on the same day if delivered by facsimile,
on the following business day if sent by overnight delivery or on the third
business day following the date of mailing.
11. Entire Agreement. This
Agreement sets forth the entire understanding of the parties hereto with respect
to the subject matter hereof, and may not be amended except by a written
instrument executed by the parties hereto.
12. Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Georgia applicable to contracts entered into and to be performed wholly within
said State; and the Company and the Holder agree that any action based upon this
Agreement may be brought in the United States and state courts of Savannah,
Georgia, only and the Holder submits to the jurisdiction of such courts for all
purposes hereunder.
13. Execution. This Agreement may
be executed in two or more counterparts, all of which when taken together shall
be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
14. Severability. In
the event any provision of this Agreement is held to be invalid, illegal or
unenforceable for any reason and in any respect, such invalidity, illegality, or
unenforceability shall in no event affect, prejudice or disturb the validity of
the remainder of this Agreement, which shall remain in full force and effect,
enforceable in accordance with its terms.
IN
WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement
as of the day and year first above written.
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HOLDER:
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COMPANY:
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THE
XXXXXXXX GROUP TWO, INC.
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By:
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Xxxx Xxxxx,
President
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