LOCK-UP AGREEMENT
Exhibit
10.3
_______________
__, 2007
GoFish
Corporation
[ADDRESS]
Gentlemen:
Reference
is made to that certain Agreement and Plan of Merger (the “Agreement”) dated as
of February 11, 2007, by and among Hot Tuna Corporation, a Nevada Corporation
(“Buyer”), BM Acquisition Corp., Inc., a Delaware corporation (“Transitory
Subsidiary”), Bolt, Inc., a Delaware corporation (the “Company”) and the party
identified therein as the Indemnification Representative, pursuant to which
the
parties contemplate that the Company will merge with and into the Transitory
Subsidiary. Capitalized terms used but not defined herein shall have the
meanings set forth in the Agreement. The purpose of this letter agreement (this
“Lock-Up Agreement”) is to satisfy the condition set forth in Section 5.2(g) of
the Agreement with respect to a lock-up of the Merger Shares to be issued by
the
Buyer to each of the Company Stockholders under the Agreement. Accordingly,
for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby covenants and agrees as
follows:
1. During
the period from the Closing and ending on the date that is 330 days after the
Effective Date, the undersigned will not offer, sell, contract to sell or
otherwise dispose of, transfer title to, pledge, mortgage, or otherwise encumber
(in each case, “Sell”), other than to the Buyer, any of the Salable Shares
constituting Basic Shares issued to the undersigned pursuant to the Merger
Agreement, provided, that during any consecutive thirty (30) day period, the
undersigned may not Sell Salable Shares constituting Basic Shares in excess
of
one-third (1/3) the total number of Salable Shares constituting Basic Shares
issued to the undersigned at the Closing.
2. During
the period from the Closing Date and ending on the date that is thirty (30)
months after the Closing Date, the undersigned will not Sell any of the Salable
Shares constituting Supplemental Shares, provided that after each thirty (30)
days during such thirty (30) month period, the foregoing restriction shall
be
automatically terminated as to one-thirtieth (1/30) the aggregate number of
Salable Shares constituting Supplemental Shares issued to the undersigned at
the
Closing, provided further that the foregoing restrictions on the undersigned’s
ability to Sell Salable Shares constituting Supplemental Shares shall be
automatically terminated in its entirety upon the consummation by the Buyer
of a
transaction constituting a Change of Control (as defined in Schedule 1.5(a)(iii)
to the Merger Agreement).
3. If
the
undersigned is defined as “Managing Shareholder” under the Merger Agreement,
during the period from the Closing Date and ending on the date that is forty
two
(42) months after the Closing Date, the undersigned will not Sell any Salable
Shares constituting Subsequent Shares in excess of (i) four percent (4%) of
the
Salable Shares constituting Subsequent Shares issued to the undersigned after
the Closing during any consecutive thirty (30) day period or (ii) twenty percent
(20%) of the Salable Shares constituting Subsequent Shares issued to the
undersigned after the Closing during any consecutive one hundred eighty (180)
day period.
4. Until
the
fourth (4th)
anniversary of the Closing Date, if and for so long as the undersigned is either
(i) the beneficial owner of at least five percent (5%) of the Buyer Common
Stock
issued and outstanding or (ii) a director or officer of the Buyer or the
Surviving Corporation, the undersigned shall not Sell any Buyer Company Stock
during any thirty (30) day period in excess of five percent (5%) of the number
of Merger Shares then held by the undersigned, except for sales pursuant to
an
effective registration statement filed by Buyer.
5. For
the
avoidance of doubt, the foregoing restrictions are cumulative and not in the
alternative. Furthermore, the foregoing restrictions are in addition to any
restrictions on transfer applicable to the Merger Shares and/or the undersigned
under applicable law.
6. If
requested by the Buyer, in connection with any offering of securities by the
Buyer that generates gross proceeds of at least $15,000,000, the undersigned
will execute and deliver any further lock-up agreement that may be deemed
reasonably necessary by any underwriter, placement agent or financial advisor
engaged by the Buyer in connection with such offering.
7. This
Letter Agreement shall be governed by and construed in accordance with the
laws
of the State of New York, without regard to its conflict of laws principles.
Any
dispute hereunder shall be subject to the exclusive jurisdiction of the city,
county, state and federal courts located in the county, city and state of New
York, New York.
8. This
undersigned is entering into this Lock-Up Agreement to induce the Buyer and
the
Transitory Subsidiary to complete the transactions contemplated by the
Agreement.
9. This
Lock-Up Agreement will become a binding agreement on the undersigned as of
the
Effective Time. This Lock-Up Agreement may be duly delivered by facsimile
counterpart. If and to the extent that any provision of this Lock-Up Agreement
is judicially determined to be unenforceable under applicable law, then the
offending provision shall be severed and the remaining provisions shall continue
to be in full force and effect. This Lockup Agreement may be modified or waived
only by a separate writing signed by the Buyer, the Surviving Corporation and
the undersigned.
10. The
restrictions set forth in this Lock-Up Agreement shall not apply
to:
(1) if
the
undersigned is a natural person, any transfers made by the undersigned (a)
as a
bona fide gift to any member of the immediate family (as defined below) of
the
undersigned or to a trust the beneficiaries of which are exclusively the
undersigned or members of the undersigned’s immediate family, (b) by will or
intestate succession upon the death of the undersigned or (c) as a bona fide
gift to a charity or educational institution,
(2) if
the
undersigned is a corporation, partnership, limited liability company or other
business entity, any transfers to any shareholder, partner or member of, or
owner of a similar equity interest in, the undersigned, as the case may be,
if,
in any such case, such transfer is not for value, and
(3) if
the
undersigned is a corporation, partnership, limited liability company or other
business entity, any transfer made by the undersigned (a) in connection with
the
sale or other bona fide transfer in a single transaction of all or substantially
all of the undersigned’s capital stock, partnership interests, membership
interests or other similar equity interests, as the case may be, or all or
substantially all of the undersigned’s assets, in any such case not undertaken
for the purpose of avoiding the restrictions imposed by this agreement or (b)
to
another corporation, partnership, limited liability company or other business
entity so long as the transferee is an affiliate (as defined below) of the
undersigned and such transfer is not for value;
provided,
however, that in the case of any transfer described in clause (1), (2) or (3)
above, it shall be a condition to the transfer that (A) the transferee executes
and delivers to Buyer, not later than one business day prior to such transfer,
a
written agreement, in substantially the form of this agreement (it being
understood that any references to “immediate family” in the agreement executed
by such transferee shall expressly refer only to the immediate family of the
undersigned and not to the immediate family of the transferee) and otherwise
satisfactory in form and substance to Buyer, and (B) if the undersigned is
required to file a report under Section 16(a) of the Securities Exchange Act
of
1934, as amended, reporting a reduction in beneficial ownership of Buyer’s
securities during the term of this Agreement, the undersigned shall include
a
statement in such report to the effect that, in the case of any transfer
pursuant to clause (1) above, such transfer is being made as a gift or by will
or intestate succession or, in the case of any transfer pursuant to clause
(2)
above, such transfer is being made to a shareholder, partner or member of,
or
owner of a similar equity interest in, the undersigned and is not a transfer
for
value or, in the case of any transfer pursuant to clause (3) above, such
transfer is being made either (a) in connection with the sale or other bona
fide
transfer in a single transaction of all or substantially all of the
undersigned’s capital stock, partnership interests, membership interests or
other similar equity interests, as the case may be, or all or substantially
all
of the undersigned’s assets or (b) to another corporation, partnership, limited
liability company or other business entity that is an affiliate of the
undersigned and such transfer is not for value. For purposes of this paragraph,
“immediate family” shall mean a spouse, child, grandchild or other lineal
descendant (including by adoption), father, mother, brother or sister of the
undersigned; and “affiliate” shall have the meaning set forth in Rule 405 under
the Securities Act of 1933, as amended.
Very
truly yours,
__________________________________
