Exhibit 10.21
FORM OF LOCK-UP
AGREEMENT
This Lock-Up Agreement (the
“AGREEMENT”) is made and entered into as of
, 2005, between Dickie Walker Marine, Inc., a Delaware corporation
(“PARENT”), and the undersigned shareholder
(“HOLDER”) of Intelligent Energy Holdings Plc, a
company registered in England and Wales (the
“COMPANY”).
RECITALS
Pursuant to an Acquisition Agreement
dated as of February 3, 2005 (the “ACQUISITION
AGREEMENT”) by and between Parent and the Company, it is
proposed that Parent shall make the Offer and the Option Offer
within the meanings set forth in the Acquisition Agreement.
Concurrently with the execution and delivery of the Acquisition
Agreement and as a condition and inducement to Parent entering into
the Acquisition Agreement, Parent has required that Holder enter
into this Agreement. The Holder is the registered owner of (1) such
number of issued Ordinary Shares (the “SHARES”) and (2)
such number of options to purchase Ordinary Shares (the
“OPTIONS”), each as is indicated beneath Holder’s
signature on the last page of this Agreement. Terms used herein and
not defined herein shall have the meaning set forth in the
Acquisition Agreement.
AGREEMENT
The parties agree as
follows:
1. AGREEMENT TO RETAIN
SHARES.
(a) TRANSFER AND ENCUMBRANCE. Except
as contemplated by the Acquisition Agreement, and except as
provided in Sections 1(b) and 2 below, during the period beginning
on the date hereof and ending on the earlier to occur of (i) one
hundred eighty (180) days following the Closing Date, and (ii) the
Expiration Date (as defined below), Holder agrees not to, directly
or indirectly, (x) transfer (except as may be specifically required
by court order), sell, exchange, tender, pledge, assign, contribute
to the capital of any entity, hypothecate or otherwise dispose of
(including by merger, consolidation or otherwise by operation of
law) or encumber the Shares or any New Shares (as defined below),
including any shares of Parent Common Stock received in exchange
for such Shares pursuant to the Offer, enter into any short sale
with respect to the Shares or any New Shares, enter into or acquire
an offsetting derivative contract with respect to such Shares or
any New Shares, enter into or acquire a futures or forward contract
to deliver such Shares or any New Shares or enter into any other
hedging or other derivative transaction that has the effect of
materially changing the economic benefits and risks of ownership of
the Shares or any New Shares, or to, directly or indirectly, make
any offer or agreement relating thereto, (y) grant any proxies or
powers of attorney, deposit any of such Shares or New Shares into a
voting trust or enter into a voting agreement with respect to any
of such Shares or New Shares, or enter into any agreement or
arrangement providing for any of the actions described in this
clause (y), or (z) take any action that could reasonably be
expected to have the effect of preventing or disabling Holder from
performing Holder’s obligations under this Agreement, and
Holder warrants that it has not agreed to carry out any of the
foregoing matters in relation to the Shares or any New Shares;
provided , however that, notwithstanding the
provisions of this Section 1(a), the Holder may provide an
irrevocable undertaking or other form of support agreement to
Parent or Company in relation to the Offer and/or the Option Offer.
As used herein, the term “EXPIRATION DATE” shall mean
the date of termination of the Acquisition Agreement in accordance
with the terms and provisions thereof.
(b) PERMITTED TRANSFERS. Section
1(a) shall not prohibit a transfer of Shares or New Shares by
Holder (i) if Holder is an individual (A) to any member of
Holder’s immediate family,
or to a trust for the benefit of
Holder or any member of Holder’s immediate family, or (B)
upon the death of Holder, or (ii) if Holder is a partnership or
limited liability company, to one or more partners or members of
Holder or to an affiliated Person under common control or common
management with Holder; provided, however, that any such transfer
pursuant to either clause (i) or (ii) of this Section 1(b) shall be
permitted only if, as a precondition to such transfer, the
transferee agrees in writing to be bound by all of the terms of
this Agreement.
(c) NEW SHARES. Holder agrees that
any shares of capital stock or interests in shares or other
securities of the Company or Parent, including any shares of Parent
Common Stock received in exchange for such Shares pursuant to the
Offer, that Holder purchases or with respect to which Holder
otherwise acquires registered or beneficial ownership after the
date of this Agreement and prior to the earlier to occur of (i) one
hundred eighty (180) days following the Closing Date and (ii) the
Expiration Date (“NEW SHARES”) shall be subject to the
terms and conditions of this Agreement to the same extent as if
they constituted Shares.
2. AFFILIATE AGREEMENT.
(a) GENERAL. Holder has been advised
that, as of the date hereof, Holder may be deemed to be an
“affiliate” of the Company, as the term
“affiliate” is defined for purposes of paragraphs (c)
and (d) of Rule 145 of the rules and regulations (the “RULES
AND REGULATIONS”) of the SEC under the Securities Act. If
Parent acquires over 50% of the issued share capital of Company
pursuant to the terms of the Offer, Holder will receive Parent
Common Stock in exchange for the Shares or any New Shares.
Notwithstanding anything to the contrary set forth in this Section
2, the execution of this Agreement should not be considered an
admission on Holder’s part that Holder is an
“affiliate” of Company, nor as a waiver of any rights
Holder may have to object to any claim that Holder is such an
affiliate on or after the date of this Agreement.
(b) HOLDER REPRESENTATIONS;
RESTRICTIONS ON TRANSFER; LEGENDS. Holder represents, warrants and
covenants to Parent that in the event Holder receives any Parent
Common Stock upon consummation of the Offer:
(i) Holder shall not make any sale,
transfer or other disposition of the Parent Common Stock in
violation of the Securities Act.
(ii) Holder has carefully read this
Agreement and discussed the requirements of this Agreement and
other applicable limitations upon Holder’s ability to sell,
transfer or otherwise dispose of Parent Common Stock received in
exchange for the Shares, to the extent Holder has felt necessary,
with Holder’s counsel.
(iii) Holder has been advised that
the issuance of Parent Common Stock in connection with the Offer
will be registered on a registration statement on Form S-4
promulgated under the Securities Act (the “REGISTRATION
STATEMENT”) and the resale of such Parent Common Stock may be
subject to restrictions set forth in Rule 145 under the Securities
Act. Holder has been advised that, because Holder may be deemed to
be an “affiliate” of the Company, Holder may not sell,
transfer or otherwise dispose of the Parent Common Stock issued to
Holder in the Offer, unless (i) such sale, transfer or other
disposition is made in conformity with the limitations of Rule 145
promulgated by the SEC under the Securities Act, (ii) such sale,
transfer or other disposition has been registered under the
Securities Act or (iii) in the opinion of counsel reasonably
acceptable to Parent, such sale, transfer or other disposition is
otherwise exempt from registration under the Securities
Act.
- 2 -
(iv) Holder understands and agrees
that stop transfer instructions will be given to Parent’s
transfer agent with respect to the Parent Common Stock issued to
Holder and that there will be placed on the certificates for the
Parent Common Stock issued to Holder, or any substitutions
therefor, a legend stating in substance: “THE SHARES
REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, APPLIES. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY
ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF A LOCK-UP
AGREEMENT DATED
, 2005 BETWEEN THE REGISTERED HOLDER HEREOF AND DICKIE WALKER
MARINE, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICES OF DICKIE WALKER MARINE, INC.” If a sale or transfer
is made prior to such legend being removed pursuant to Section 2(c)
below, certificates with the above legend will be substituted by
delivery of certificates without such legend upon delivery of a
declaration to Parent (the “DECLARATION”), which
Declaration shall be reasonably satisfactory in form and substance
to Parent, that the requirements of Rule 145(d)(1) have been
complied with.
(v) Holder understands and agrees
that stop transfer instructions will be given to Parent’s
transfer agent with respect to the Parent Common Stock issued to
Holder and there will be placed on the certificates for the Parent
Common Stock issued to Holder, or any substitutions therefore, a
legend stating in substance: “THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE TRANSFERRED UNTIL THE DATE THAT IS 180 DAYS
FOLLOWING THE FIRST CLOSING DATE (AS DEFINED IN THE ACQUISITION
AGREEMENT DATED FEBRUARY 3, 2005 BETWEEN DICKIE WALKER MARINE, INC.
AND INTELLIGENT ENERGY HOLDINGS PLC) IN ACCORDANCE WITH THE TERMS
OF A LOCK-UP AGREEMENT DATED
, 2005 BETWEEN THE REGISTERED HOLDER HEREOF AND DICKIE WALKER
MARINE, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICES OF DICKIE WALKER MARINE, INC.”
(c) PARENT
REPRESENTATIONS.
(i) Parent hereby agrees that,
unless previously sold pursuant to the applicable requirements of
Rule 145, it is understood and agreed that certificates with the
legend set forth in Section 2(b)(iv) above will be substituted by
delivery of certificates without such legend, and any stop transfer
instructions then in effect will be terminated, if (i) one year
shall have elapsed from the date Holder acquired the Parent Common
Stock received in the Offer and the provisions of Rule 145(d)(2)
are then available to Holder, (ii) two years shall have elapsed
from the date Holder acquired the Parent Common Stock received in
the Offer and the provisions of Rule 145(d)(3) are then available
to Holder, or (iii) Parent has received either an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory
to Parent, or a “no action” letter obtained by Holder
from the staff of the SEC, to the effect that the restrictions
imposed by Rule 145 under the Securities Act no longer apply to
Holder. For as long as resale of any shares of Parent Common Stock
owned by Holder are subject to Rule 145, Parent will use its
reasonable efforts to make all filings of the nature specified in
paragraph (c)(1) of Rule 144 under the Securities Act. Upon receipt
of a properly completed Declaration, Parent shall use its
reasonable efforts to instruct its transfer agent to deliver shares
of Parent Common Stock without the legend set forth in Section
2(b)(iv) above in accordance with the terms of the transfer set
forth in the Declaration as soon as practicable following receipt
of such Declaration.
(ii) Parent hereby agrees that it is
understood and agreed that certificates with the legend set forth
in Section 2(b)(v) above will, to the extent required to enable the
shares represented by such certificate to be transferred by the
holder thereof, be substituted by delivery of certificates without
such legend upon the written request of the Holder if 180 days
shall have elapsed from the Closing Date. Upon receipt of any such
written request, Parent shall use its reasonable efforts
to
- 3 -
instruct its transfer agent to
deliver shares of Parent Common Stock without the legend set forth
in Section 2(b)(v) above as soon as practicable following receipt
of such written request.
3. RESALE REGISTRATION
RIGHTS.
(a) REGISTRABLE SHARES. For purposes
of this Agreement, “REGISTRABLE SHARES” shall mean the
shares of Parent Common Stock issued to the Company shareholders
who have executed a Lock-Up Agreement (the “ORIGINAL HOLDER
GROUP”), including Holder, pursuant to the Offer.
(b) REQUIRED REGISTRATION. Parent
shall use its commercially reasonable efforts to (i) file a
post-effective amendment to the Registration Statement on Form S-3
registering the resale of the Registrable Shares within 60 days
following the Closing Date (the “AMENDMENT”), so long
as the holders of such Registrable Shares shall provide the
information necessary for inclusion therein in a timely manner to
enable Parent to file the Amendment within such period, (ii) to
cause such Amendment to be declared effective by the SEC as soon
thereafter as possible and in any event no later than one hundred
eighty (180) days following the Closing Date, (iii) to file such
amendments or supplements as may be necessary so that the
prospectus contained in the Amendment will not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing,
and (iv) to effect all such registrations, qualifications and
compliances (including, without limitation, obtaining appropriate
qualifications under applicable state securities or “blue
sky” laws and compliance with any other applicable
governmental requirements or regulations) as Holder may reasonably
request and that would permit or facilitate the sale of all
Holder’s Registrable Shares (provided, however, that Parent
shall not be required in connection therewith to qualify to do
business or to file a general consent to service of process in any
such state or jurisdiction), and in each case Parent will use its
commercially reasonable efforts to cause such Amendment and all
other such registrations, qualifications and compliances to be
declared effective as promptly as practicable thereafter. As soon
as reasonably practicable after the Closing Date, Parent will
provide to each holder of Registrable Securities a questionnaire
setting forth the information that Parent will require from each
such holder to include such holder’s Registrable Shares in
the Registration Statement. If Holder shall fail to furnish such
information to Parent within twenty (20) days following the date on
which such questionnaire shall be delivered to the Holders, Parent
may exclude Holder from the Registration Statement.
(c) EFFECTIVENESS; DELIVERY OF
PROSPECTUS; SUSPENSION RIGHT.
(i) Parent will use its commercially
reasonable efforts to maintain the effectiveness of the Amendment
and other applicable registrations, qualifications and compliances
until such time as fewer than 25% of the Registrable Securities
remain held by the Original Holder Group, calculated on an
aggregate basis (the “REGISTRATION EFFECTIVE PERIOD”).
As soon as practicable following the effectiveness of the
Amendment, Parent will furnish to each holder of Registrable Shares
such number of copies of the prospectus contained in the Amendment
in conformity with the requirements of the Securities Act, and such
other documents as such holder may reasonably request in order to
facilitate the public sale or other disposition of such
shares.
(ii) For any offer or sale of any of
the Registrable Shares by a shareholder in a transaction that is
not exempt under the Securities Act, the shareholder, in addition
to complying with any other federal securities laws, will deliver a
copy of the final prospectus (or amendment of or supplement to such
prospectus) of Parent covering the Registrable Shares in the form
furnished to the shareholder by Parent to the purchaser of any of
the Registrable Shares on or before the settlement date for the
purchase of such Registrable Shares.
- 4 -
