Exhibit 10.1
LOCK-UP/LEAK-OUT AND
REGISTRATION RIGHTS AGREEMENT
THIS LOCK-UP/LEAK-OUT AGREEMENT (the
“Agreement”) is made and entered into as of August 12,
2005, between Fuel Corporation of America, a Delaware corporation
(the “Company”), and Tryant LLC, a Delaware limited
liability company (“Tryant” or the
“Shareholder”).
RECITALS
WHEREAS, the Company intends to enter into an
Agreement and Plan of Merger (the “Merger Agreement”)
between the Company, a wholly-owned Delaware subsidiary of the
Company (“Merger Sub”) and flexSCAN, Inc., a Delaware
corporation (“flexSCAN”), pursuant to which the
execution and delivery of this Agreement is a condition precedent
to the closing of the Merger Agreement; and
WHEREAS, all capitalized terms not defined
herein shall have the meanings ascribed to them in 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 post-merger
common stock of the Company (the “Reorganized Company Common
Stock”), the Company and Tryant have agreed to enter into
this Agreement and to restrict the sale, assignment, transfer,
conveyance, hypothecation or alienation of such Reorganized Company
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 contained in this Agreement, the
Shareholder may transfer his/its shares of Reorganized Company
Common Stock to his/its affiliates, partners in a partnership,
subsidiaries and trusts, or spouses and lineal descendants for
estate planning purposes, 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 resale of the Reorganized Company Common Stock
acquired.
2. If the
Reorganized Company determines to register any Common Stock under
the Securities Act of 1933 (the “Securities Act”) for
sale in connection with a public offering of Common Stock (other
than pursuant to an employee benefit plan or a merger, acquisition
or similar transaction), the Reorganized Company will give written
notice thereof to Tryant and its designees and will to the extent
permitted by any party initiating such registration, include in
such registration statement any of the
Reorganized
Company Common Stock
held by Tryant and its designees on the date that the registration
statement is filed, without cost or expense to them, save for their
respective attorneys’ fees and underwriting costs and sales
commissions related to the sale of their respective securities so
held; provided, however if the offering is to be firmly
underwritten, and the representative of the underwriters of the
offering refuse in writing to include in the offering all of the
shares of the Reorganized Company Common Stock requested by the
Reorganized Company and others, the shares to be included shall be
allocated first to the Reorganized Company and any shareholders who
initiated such registration and then among the others based on the
respective number of shares of the Reorganized Common Stock held by
such persons; and provided further, however, that in the event that
a registration statement is filed by the Reorganized Company and
all of the Reorganized Company Common Stock held by Tryant and its
designees is not included for resale in any such registration
statement, then the such shares that have not been included will no
longer be subject to the resale limitations of this Agreement and
this Agreement shall forthwith become void as it applies to such
shares; and additionally, provided, further, however, that if the
SEC or any other regulatory agency or the Reorganized Company
determines that the shares of the Reorganized Company Common Stock
held by Tryant and its designees must be registered with the SEC
and sold under an effective registration statement, then the
Reorganized Company agrees that it shall (i) promptly file a
registration statement with the SEC, without cost or expense to
Tryant and its designees save for their respective attorneys’
fees and underwriting costs and sales commissions related to the
sale of their respective securities so held, covering such shares
or (ii) solely based upon the actual knowledge of the then existing
officers and directors of the Reorganized Company and the books and
records of the Company and the Reorganized Company, stipulate to
the material facts of how Tryant acquired such shares from the
Company or the Reorganized Company in any legal proceeding brought
by Tryant or its designees to have a decl
