EXHIBIT 10.8
LOCK-UP AGREEMENT, LIMITED POWER
OF ATTORNEY AND NASD QUESTIONNAIRE
January 30, 2002
Xxxxxxxxx Securities, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned understands that Xxxxxxxxx Securities, Inc. (the
"Representative") proposes to enter into an Underwriting Agreement with Xxxxxx
Xxxxxx Marine, Inc., a Delaware corporation ( the "Company"), providing for the
public offering of shares of Common Stock of the Company (the "Securities")
pursuant to a Registration Statement on Form SB-2 (the "Registration Statement")
to be filed with the Securities and Exchange Commission.
Restrictions on Transfer (Lock-Up). In consideration of the agreement
by the Representative to offer and sell the Securities pursuant to the public
offering, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees that he,
she or it will not, directly or indirectly, for a period of twelve months
following the date of the Prospectus relating to the public offering of the
Securities, sell, offer to sell, contract to sell, grant any option for the sale
of, grant any security interest in, pledge, hypothecate, or otherwise sell or
dispose of any of the Common Stock, or any options or warrants to purchase any
Common Stock, or any securities convertible into or exchangeable for Common
Stock, or any interest in such securities or rights, owned directly by the
undersigned or with respect to which the undersigned has the power of
disposition, in any such case whether now owned or hereafter acquired at any
time prior to the Effective Date of the Registration Statement, other than as a
bona fide gift or gifts, provided that the undersigned provides prior written
notice of such gift or gifts to the Representative and the donee or donees
thereof agree to be bound by the restrictions set forth herein. The undersigned
also agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of any of the Common
Stock held by the undersigned except in compliance with the foregoing
restrictions.
In the event that the undersigned owns no Common Stock of the Company
at the date hereof or prior to the Effective Date, but has the right to acquire
Common Stock of the Company pursuant to options or warrants, and if the
undersigned exercises such options or warrants prior to the expiration of the
twelve month period commencing on the Effective Date, he, she or it agrees that
the Common Stock purchased on such exercise of options or warrants will be
subject to the terms of this agreement on restrictions on transfer for the
remaining portion of such twelve month period which commenced on the Effective
Date. In addition, the
Xxxxxxxxx Securities, Inc.
January 30, 2002
Page 2
undersigned agrees that he, she or it will not sell, pledge, hypothecate or
otherwise dispose of such Common Stock pursuant to the exemption afforded by
Rule 701 under the Securities Act of 1933, as amended, during such twelve month
period without the prior written consent of the Representative.
The undersigned further agrees that he, she or it shall not enter into
any swap or other arrangement that transfers all or a portion of the economic
consequences associated with the ownership of any Common Stock owned by the
undersigned at the date hereof, or that the undersigned obtains ownership of
during the twelve month period commencing on the Effective Date (regardless of
whether any of the transactions are to be settled by the delivery of Common
Stock, other securities, cash or otherwise), for a period of twelve months from
the Effective Date.
The undersigned further agrees that all of the rights, authority and
preemptive provisions granted to the Representative pursuant to the foregoing
provisions may be transferred by the Representative to any other NASD member
firm that participates in the proposed public offering of the Company's
Securities.
Power of Attorney. The undersigned is aware that in order to comply
with the corporate governance rules of The Nasdaq Stock Market, Inc.,
restrictions on transfer of the Company's Common Stock which are not subject to
waiver may be imposed for a period of time after the date of the public
offering. The undersigned agrees that the Common Stock certificate(s) issued to
the undersigned may, at the Company's discretion, contain a legend to reflect
the aforementioned restriction(s). Furthermore, it is possible that The Nasdaq
Stock Market, Inc. may require an extension of the foregoing restrictions on
transfer and lock-up beyond one year as a condition of listing the Common Stock.
The undersigned hereby appoints Xxxx X. Xxxxxxx his attorney-in-fact to execute
any required extension of the restrictions on transfer and lock-up on his, her
or its behalf so that the Common Stock may be listed on the Nasdaq SmallCap
Market. This power of attorney is a special power of attorney for the execution
of restrictions on transfer upon the securities of the undersigned to ensure
compliance with the corporate governance rules of The Nasdaq Stock Market, Inc.,
and such special power of attorney (but not any additional restriction on
transfer agreed to by the attorney-in-fact) shall terminate following the sale
of the Securities in the public offering. This power of attorney must be
exercised by the attorney-in-fact such that all shareholders of the Company are
subject to the same restrictions on transfer or lock-up provisions. The
attorney-in-fact is authorized to notify the Company's transfer agent of any
additional restrictions imposed pursuant to agreement with The Nasdaq Stock
Market, Inc., and to instruct such transfer agent to appropriately legend any
certificates representing Common Stock owned by the undersigned to reflect any
additional restrictions agreed to by the attorney-in-fact.
Xxxxxxxxx Securities, Inc.
January 30, 2002
Page 3
NASD Questionnaire. In connection with the proposed public offering of
Securities of the Company and the requirements of the National Association of
Securities Dealers, Inc. ("NASD") as they relate to the underwriting terms of
such offering, the undersigned, a shareholder, an officer, or a director of the
Company, hereby represents to you as follows:
1. a. Is the undersigned or any person in the immediate family(1) of
the undersigned a member of the NASD(2) ("Member"), a person associated with a
Member,(3) or the beneficial owner of any securities of a Member or an
affiliate(4) of a Member?
Yes No
------------ ------------
If "Yes," please list any members with whom you are associated or
affiliated, or with whom you have an immediate family relationship.
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If "Yes" to Question 1(a) above, will any of the Member(s) listed
immediately above participate in any capacity in this offering?
Yes No
------------ ------------
If "Yes," please describe each such Member's participation in this
offering.
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(b) Has the undersigned provided any consulting or other
services to the Company?
Yes No
------------ ------------
If "Yes," please attach a detailed description of the consulting or
other services you provided, a statement as to all cash and non-cash
compensation received in return for such services and copies of all written
agreements or correspondence governing or describing such services.
(c) Is the undersigned an "underwriter or related person(5)"
as to the Company?
Yes No
------------ ------------
If "Yes," please provide details.
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Xxxxxxxxx Securities, Inc.
January 30, 2002
Page 4
(d) Does the undersigned have any oral or written agreements
with any Member or any associated persons of such Member concerning the
disposition of securities of the Company?
Yes No
------------ ------------
If "Yes," please provide details.
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(e) If this section is being completed on behalf of an entity,
are any of such entity's officers, directors, or 5% or greater shareholders (if
a corporation); partners (if a general or limited partnership); or members (if a
limited liability company), a Member; or the beneficial owner of any securities
of a Member or an affiliate of a Member; or does any such person have an
"immediate family" relationship with any Member?
Yes No
------------ ------------
If "Yes," please state the name of the respective officer, director, 5%
shareholder, partner, or member; the Member with whom such person is associated
or affiliated; and the nature of such association or affiliation.
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(f) Has the undersigned participated in any bridge
financing(6) within the past two years?
Yes No
------------ ------------
If the answer was "Yes," please provide the following information about
that bridge financing:
a. The name of the company whose securities
were purchased.
b. Identify any relationship to the Company.
c. The name of the broker-dealer through whom
the undersigned purchased the securities.
Xxxxxxxxx Securities, Inc.
January 30, 2002
Page 5
d. Identify any relationship to such
broker-dealer.
e. The name of the broker-dealer who managed
the subsequent public offering.
f. The terms of the bridge financing.
g. The amount and terms of the securities
purchased in the bridge financing.
h. The date of the bridge financing and the
subsequent public offering.
2. To the knowledge of the undersigned, the Company does not intend to
register as broker/dealer, merge with or acquire a registered broker/dealer, or
otherwise become a member of the NASD;
3. To the knowledge of the undersigned, the Company has not and does
not intend to engage any NASD Member to provide any services to the Company
following the offering, except as will be disclosed in the Company's
Registration Statement to be filed in connection with a public offering of
securities by your firm as managing underwriter; and
4. The undersigned will notify the addressee if the responses in any of
the preceding items change subsequent to the date hereof.
If the undersigned is a corporation, trust or partnership, the
foregoing representations are true for the officers, directors or principals of
such entity.
Xxxxxxxxx Securities, Inc.
January 30, 2002
Page 6
In witness whereof, the undersigned has executed and delivered this
Lock-Up Agreement, Limited Power of Attorney and NASD Questionnaire intending to
be bound thereby in accordance with the above terms and conditions. Execution
and return of this Lock-Up Agreement, Limited Power of Attorney and NASD
Questionnaire by facsimile transmission will be considered execution and return
of an original for all purposes and the undersigned authorizes the
Representative and the attorney-in-fact to rely upon a facsimile copy as if it
was an original for all purposes.
Very truly yours,
-----------------------------------------
(Signature(s)-two required if held
jointly)
-----------------------------------------
(Name as it appears on the Company's
registration books)
-----------------------------------------
(Position with Company, i.e., officer,
director and/or shareholder)
-----------------------------------------
(Print Social Security number or EIN
number)
-----------------------------------------
(Address of record for all shareholder
communications)
-----------------------------------------
(Day Phone Number, Fax Number and E-mail
Address)
-----------------------------------------
(Date)
Xxxxxxxxx Securities, Inc.
January 30, 2002
Page 7
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(1) "Immediate family" includes parents, mother-in-law, father-in-law, husband
or wife, brother or sister, brother-in-law or sister-in-law, son-in-law or
daughter-in-law, and children, and any other person who supports another person,
directly or indirectly, to a material extent.
(2) The NASD defines a "member" as being either individual, partnership,
corporation, or other legal entity, admitted to membership in the NASD.
(3) The NASD defines a "person associated with a member" to mean every sole
proprietor, partner, officer, director or branch manager of such member, or any
natural person occupying a similar status or performing similar functions, or
any natural person engaged in the investment banking or securities business who
is directly or indirectly controlling or controlled by such member (for example,
any employee), whether or not any such person is registered or exempt from
registration with the NASD. Thus, "person associated with a member" includes a
sole proprietor, general or limited partner, officer, director or branch manager
or an organization of any kind (whether a corporation, partnership or other
business entity) which itself is a "member" or a "person associated with a
member." In addition, an organization of any kind is a "person associated with a
member" if its sole proprietor or anyone of its general or limited partners,
officers, director or branch managers is a "member" or "person associated with a
member."
(4) The term "affiliate" means a company which controls, is controlled by, or is
under common control with a member, and is presumed to include:
a. A company will be presumed to control a member if the company
beneficially owns 10% or more of the outstanding voting securities of a member
which is a corporation, or beneficially owns a partnership interest in 10% or
more of the distributable profits or losses of a member which is a partnership;
b. A member will be presumed to control a company if the member and persons
associated with the member beneficially own 10% or more of the outstanding
voting securities of a member which is a corporation, or beneficially owns a
partnership interest in 10% or more of the distributable profits or losses of a
company which is a partnership;
c. A company will be presumed to be under common control with a member if
(i) the same natural person or company controls both the member and company by
beneficially owning 10% or more of the distributable profits or losses of a
member or company which is a partnership; or (ii) a person having the power to
direct or cause the direction of the management or policies of the member or
company also has the power to direct or cause the direction of the management or
policies of the other entity in question.
(5) "Underwriter or related person" includes underwriters, underwriter's
counsel, financial consultants and advisors, finders, members of the selling or
distribution group, any member participating in the public offering, and all
other persons associated with or related to and members of the immediate family
of any of the aforementioned persons.
(6) A bridge financing is a transaction in which a person acquires securities
and/or loans money to an entity in a private offering and those securities are
subsequently registered in a public offering and/or those loans were repaid, in
whole or in part, from the proceeds of the public offering.
