Exhibit 4.3
FORM OF
LOCK-UP/LEAK-OUT AGREEMENT
THIS LOCK-UP/LEAK-OUT AGREEMENT (the
“Agreement”) is made and entered into as of the 20th
day of July, 2004, between Lone Moose Adventures, Inc., a Nevada
corporation (“Lone Moose”), and MBC Global, LLC (the
party) that execute and deliver a Counterpart Signature Page hereof
and sometimes collectively referred to herein as the
“Shareholders” and each, a
“Shareholder.”
WHEREAS, Lone Moose intends to enter
into an Agreement and Plan of Reorganization between Lone Moose;
certain Principal Shareholders of Lone Moose; a wholly-owned
Minnesota subsidiary of Lone Moose (the “Lone Moose
Subsidiary”); and Southwest Casino and Hotel Corp., a
Minnesota corporation (“Southwest”) (the “Merger
Agreement”), pursuant to which the execution and delivery of
this Agreement is a condition precedent to the closing of the
Merger Agreement; and
WHEREAS, in order to facilitate the
consummation of the transactions contemplated by the Merger
Agreement and to provide for an orderly market for the Common Stock
of Lone Moose subsequent to the Closing of the Merger Agreement (as
defined therein), the Shareholders have agreed to enter into this
Agreement and to restrict the public sale, assignment, transfer,
conveyance, hypothecation or alienation of the Common Stock, all on
the terms set forth below.
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.
Notwithstanding anything contrary
contained in this Agreement, a Shareholder may transfer his/her/its
shares of Common Stock to his/her/its affiliates, partners in a
partnership, subsidiaries and trusts, or spouses and lineal
descendants for estate planning purposes, or pursuant to bona fide
non-public transactions, 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 potential subsequent resale of the Common Stock so
acquired.
2.
Except as otherwise expressly
provided herein, and except as each Shareholder may be otherwise
restricted from selling shares of Common Stock, each Shareholder
may only publicly sell Common Stock subject to the following
conditions for the twelve (12) month period from the Closing of the
Merger Agreement (the “Lock-Up/Leak-Out
Period”):
2.1
Each Shareholder shall be allowed to
sell 1/12th of such Shareholder’s shares of Common Stock per
month during the Lock-Up/Leak-Out Period, on a cumulative basis,
meaning that if no Common Stock was sold during one month while
Common
Stock was qualified to be sold, up
to 2/12ths of such Shareholder’s shares of Common Stock could
be sold in the next successive month and so forth; provided,
however, that for determining qualification of Common Stock for
sale and the availability to resell on a cumulative basis
hereunder, no such accumulation shall be applicable until the
particular shares owned by a Shareholder that is party hereto are
otherwise freely publicly tradeable (meaning that they are no
longer restricted). Each Shareholder 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
Common Stock.
2.2
The Common Stock may not be sold at
a price below $2.50 per share, which may be waived by the
Reorganized Parent.
2.3
Except as otherwise provided herein,
all Common Stock shall be sold in “broker’s
transactions” and each Shareholder will comply with the
“manner of sale” requirements as those terms are
defined in Rule 144 of the Securities and Exchange Commission
during the Lock-Up/Leak-Out Period.
2.4
An appropriate legend describing
this Agreement shall be imprinted on each stock certificate
representing Common Stock covered hereby, and the transfer records
of Lone Moose’s transfer agent shall reflect such appropriate
restrictions.
2.5
The Shareholders agree that they
will not engage in any short selling of the Common Stock during the
Lock-Up/Leak-Out Period.
2.6
During the Lock-Up/Leak/Out Period,
Lone Moose shall maintain its “reporting” status with
the Securities and Exchange Commission; file all reports that are
required to be filed by it during such period; and use its
reasonable “best efforts” to ensure that the Common
Stock is continually quoted for public trading on a nationally
recognized medium of no less significance than the OTC Electronic
Bulletin Board of the National Association of Securities Dealers,
Inc. (the “NASD”), the NASDAQ Small Cap or a recognized
national stock exchange.
3.
All shares that are the subject of
this Agreement shall be deposited, to the extent that they can be
then sold hereunder, with the broker/dealer selected by Lone Moose
for any secondary offering of its securities during the
Lock-Up/Leak-Out Period. The delivery of a duly executed copy
of the Broker/Dealer Agreement by a selling Shareholder’s
broker and a duly executed Seller’s Resale Agreement by the
selling Shareholder in the form attached hereto shall be
satisfactory evidence for all purposes of
this Agreement that such selling Shareholder and
its broker will comply with the “broker’s
transactions” and “manner of sale” requirements
of this Agreement, and no further evidence thereof will be required
of any selling Shareholder; provided, however, Lone Moose may
confirm such compliance with any Shareholder and any selling
Shareholder’s broker, to the extent that it deems reasonably
required or necessary to assure compliance with this
Agreement.
4.
Notwithstanding anything to the
contrary set forth herein, Lone Moose may, in its sole discretion,
at any time and from time to time, waive any of the conditions or
restrictions contained herein to increase the liquidity of the
Common Stock or if such waiver would otherwise be in the best
interests of the development of the trading market for the Common
Stock
