Exhibit 10.8
LOCK-UP AGREEMENT
Lock-Up Agreement (this "Agreement") is entered into as of February 24, 2005,
by and between Consolidated Energy, Inc., a Wyoming corporation (the
"Company"), and the shareholder of the Company named on the signature page
hereof (the "Shareholder").
RECITALS:
A. The Company and certain purchasers (the "Purchasers"), have entered into a
Securities Purchase Agreement dated as of February 24, 2005 (the "Purchase
Agreement"), pursuant to which the Purchasers have agreed to purchase, and the
Company has agreed to sell, the Company's 6% Senior Secured Convertible Notes
Due 2008 (the "Notes"), warrants to purchase shares of the Company's Common
Stock, par value $0.001 per share (the "Common Stock"), and additional
investment rights to purchase additional Notes.
B. Shareholder is a shareholder of the Company and owns and/or controls shares
of Common Stock (the "Shares").
C. As a condition to the Purchasers entering into the Purchase Agreement,
Shareholder has agreed to the lock-up set forth in Section 1 hereof.
D. Capitalized terms used in this Agreement but not otherwise defined herein
shall have the meanings ascribed to such terms in the Purchase Agreement.
AGREEMENTS:
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Lock-Up. Shareholder hereby agrees that, except as set forth in Section 2
below, from the date hereof until the 45th day following the date that the
Registration Statement is declared effective by the Commission (the "Lock-up
Period"), without the prior written consent of the Company and the Purchasers,
he will not offer, pledge, sell, contract to sell, grant any options for the
sale of or otherwise transfer, distribute or dispose of, directly or
indirectly (collectively "Dispose of"), any Shares (the "Lock-up"). On and
after the 1st day following the last day of the Lock-up Period, no Shares
shall be subject to the Lock-up.
2. Permitted Dispositions. The following dispositions of Shares shall not be
subject to the Lock-up set forth in Section 1:
(a)Shareholder may Dispose of Shares to his spouse, siblings, parents or any
natural or adopted children or other descendants or to any personal trust in
which any such family member or Shareholder retains the entire beneficial
interest;
(b)Shareholder may Dispose of Shares on his death to Shareholder's estate,
executor, administrator or personal representative or to Shareholder's
beneficiaries pursuant to a devise or bequest or by laws of descent and
distribution;
(c)Shareholder may Dispose of Shares as a gift or other transfer without
consideration;
(d) Shareholder may make a bona fide pledge of Shares to a lender;
(e) Shareholder may Dispose of Shares in one or more private sales not made
pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended;
and
(f) Shareholder may Dispose of, through bona fide market sale transactions, up
to _____ Shares during the Lock-up Period.
provided, however, that in the case of any transfer of Shares pursuant to
clauses (a), (c), (d) and (e), the transferor shall, at the request of the
Company, provide evidence (which may include, without limitation, an opinion
of counsel satisfactory in form, scope and substance to the Company in its
sole discretion as the issuer thereof) satisfactory to the Company that the
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended.
In the event Shareholder Disposes of Shares pursuant to clause (a), (b), (c)
or (d) (but not (e) or (f)) of this Section 2, such Shares shall remain
subject to this Agreement and, as a condition of the validity of such
disposition, the transferee shall be required to execute and deliver a
counterpart of this Agreement. Thereafter, such transferee shall be deemed to
be the Shareholder for purposes of this Agreement.
3. Miscellaneous.
(a)Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given other than as initially agreed upon in
writing by the Company, Shareholder and the Purchasers.
(b)Successors and Assigns. Shareholder shall not assign any rights or benefits
under this Agreement without the prior written consent of the Company and the
Purchasers.
(c)Counterparts. This Agreement may be executed in a number of identical
counterparts and it shall not be necessary for the Company and Shareholder to
execute each of such counterparts, but when each has executed and delivered
one or more of such counterparts, the several parts, when taken together,
shall be deemed to constitute one and the same instrument, enforceable against
each in accordance with its terms. In making proof of this Agreement, it shall
not be necessary to produce or account for more than one such counterpart
executed by the party against whom enforcement of this Agreement is sought.
(d)Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(e)Governing Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OR CHOICE OF LAW. The Company and Shareholder (i) hereby
irrevocably submit to the non-exclusive jurisdiction of the United States
District Court sitting in the Northern District of Texas and the courts of the
State of Texas located in Dallas County for the purposes of any suit, action
or proceeding arising out of or relating to this Agreement, and (ii) hereby
waive, and agree not to assert in any such suit, action or proceeding, any
claim that he or it is not personally subject to the jurisdiction of such
court, that the suit, action or proceeding is brought in an inconvenient forum
or that the venue of the suit, action or proceeding is improper.
(f)Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the
term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision
or by its severance from this Agreement. Furthermore, in lieu of each such
illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
(g)Entire Agreement. This Agreement is intended by the Company and the
Shareholder as a final expression of their agreement and is intended to be a
complete and exclusive statement of their agreement and understanding in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the Company and the Shareholder
with respect to such subject matter.
(h)Third Party Beneficiaries. This Agreement is intended for the benefit of
the Company, Shareholder and the Purchasers and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other person or entity. The Company and Shareholder
each specifically acknowledge and agree that each Purchaser is a third party
beneficiary of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CONSOLIDATED ENERGY, INC.
By:
Xxxxx Xxxxxxx, President
"SHAREHOLDER":
Name:
By:
(signature)
Title of signatory:
(if not an individual)
