Exhibit 10.04


 


EXHIBIT D


 


LOCK-UP/LEAK-OUT AGREEMENT


 


THIS
LOCK-UP/LEAK-OUT AGREEMENT (the “Agreement”) is made and entered into as of the
         day of December, 2004,
between Two Moons Kachinas Corp., a Nevada corporation (“Two Moons”), and the
individuals that execute and deliver a Counterpart Signature Page hereof, and
sometimes collectively referred to herein as the “Shareholders” and each, a “Shareholder.”
     For all purposes of this Agreement, “Shareholder”
includes any “affiliate, controlling person of Shareholder, agent,
representative or other person with whom Shareholder is acting in concert with.


 


WHEREAS, the
Buyers (as defined herein), along with certain other persons, are acquiring
Common Stock of Two Moons from certain current stockholders of Two Moons
(respectively, the “Change in Control Transaction” and the “Buyers”); and


 


WHEREAS, the
Buyers that are participating in the Change in Control Transaction have
identified a potential reorganization, merger or acquisition for Two Moons that
may or may not be completed or if completed, may or may not be beneficial to
Two Moons and its stockholders (the “Reorganization Transaction”); and


 


WHEREAS, in
order to facilitate the consummation of the transactions contemplated by the
Change in Control Transaction and the Reorganization Transaction and to protect
the Company,  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.             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 commencing on the execution
and delivery of this Agreement and for the twelve (12) month period from the
filing of a Form 8-K12g-3 (“successor issuer” 8-K Current Report) the Closing
of the Reorganization Transaction (the “Lock-Up/Leak-Out Period”):


 


1.1                                 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 non-cumulative
basis, meaning that if no Common Stock was sold during one month while Common
Stock was qualified to be sold,  such  shares of Common Stock could not be sold in
the next successive month.


 
















 


1.2                                 Except
as otherwise provided herein, all Common Stock shall only be sold in “broker’s
transactions” and each Shareholder must 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.


 


1.3                                 An
appropriate legend describing this Agreement shall be imprinted on each stock
certificate representing Common Stock covered hereby, and the transfer records
of Two Moons’ transfer agent shall reflect such appropriate restrictions.


 


1.4                                 The
Shareholders agree that they will not engage in any short selling of the Common
Stock during the Lock-Up/Leak-Out Period.


 


1.5                                 During
the Lock-Up/Leak/Out Period, Two Moons 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 “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.


 


1.6                                 During
the Lock-Up/Leak-Out Period, each Shareholder will be required to submit a
legal opinion to the Company with any requested transfer hereunder to the
effect that any monthly sale is being made in compliance with this Agreement.


 


2.             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 forms 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, Two Moons 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.


 


3.             Notwithstanding anything to the
contrary set forth herein, Two Moons may, in its sole discretion and in good
faith, 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. 
Unless otherwise agreed by the Shareholders, all such waivers shall be
pro rata, as to all of the Shareholders who


 
















 


executed a Lock-Up/Leak-Out
Agreement in connection with the Change in Control Transaction whose Common
Stock can, at the time of any such waiver, be publicly sold in accordance with
the Securities Act of 1933, as amended (the “Securities Act”), or Rule 144
promulgated thereunder by the Securities and Exchange Commission or otherwise.


 


4.             Other than the contemplated
Reorganization Transaction or any merger with a subsidiary, in the event
of:  (a) a completed tender offer to
purchase all or substantially all of Two Moons’ issued and outstanding
securities; or (b) a merger, consolidation or other reorganization of Two Moons
with or into an unaffiliated entity, then this Agreement shall terminate as of
the closing of such event and the Common Stock restricted pursuant hereto shall
be released from such restrictions.


 


5.             Except as otherwise provided in
this Agreement or any other agreements between the parties, the Shareholders
shall be entitled to their respective beneficial rights of ownership of the
Common Stock, including the right to vote the Common Stock for any and all
purposes.


 


6.             The number of shares of Common Stock
included in any monthly allotment that can be sold by a Shareholder shall be
appropriately adjusted should Two Moons make a dividend or distribution,
undergo a forward split or a reverse split or otherwise reclassify its shares
of Common Stock.


 


7.             This Agreement may be executed in
any number of counterparts with the same force and effect as if all parties had
executed the same document.


 


8.             All notices, instructions or other
communications required or permitted to be given pursuant to this Agreement shall
be given in writing and delivered by certified mail, return receipt requested,
overnight delivery or hand-delivered to all parties to this Agreement, to Two
Moons, at 9005 Cobble Canyon Lane, Sandy, Utah 84093; or, subsequent to the
Closing of the Change in Control Transaction and the Reorganization
Transaction, to One Innovation Drive, Worcester, MA 01605; and to the
Shareholders, at the addresses in their Counterpart Signature Pages.  All notices shall be deemed to be given on
the same day if delivered by hand or on the following business day if sent by
overnight delivery or the second business day following the date of mailing.


 


9.             The resale restrictions on the
Common Stock set forth in this Agreement shall be in addition to all other
restrictions on transfer imposed by applicable United States and state
securities laws, rules and regulations.


 


10.           Two Moons or each Shareholder who
fails to fully adhere to the terms and conditions of this Agreement shall be
liable to every other party for any damages suffered by any party by reason of
any such breach of the terms and conditions hereof.  Each Shareholder agrees that in the event of
a breach of any of the terms and conditions of this Agreement by any such
Shareholder, that in addition to all other remedies that may be available in
law or in equity to the non-defaulting parties, a


 
















 


preliminary and permanent
injunction, without bond or surety, and an order of a court requiring such
defaulting Shareholder to cease and desist from violating the terms and
conditions of this Agreement and specifically requiring such Shareholder to
perform his/her/its obligations hereunder is fair and reasonable by reason of
the inability of the parties to this Agreement to presently determine the type,
extent or amount of damages that Two Moons or the non-defaulting Shareholders
may suffer as a result of any breach or continuation thereof.


 


11.           This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof,
and may not be amended except by a written instrument executed by the parties
hereto.


 


12.           This Agreement shall be governed by
and construed in accordance with the laws of the State of Utah applicable to
contracts entered into and to be performed wholly within said State; and Two
Moons and the Shareholders agree that any action based upon this Agreement may
be brought in the United States and state courts of Utah only, and each submits
himself/herself/itself to the jurisdiction of such courts for all purposes
hereunder.


 


13.           In the event of default hereunder,
the non-defaulting parties shall be entitled to recover reasonable attorney’s
fees incurred in the enforcement of this Agreement.


 


IN WITNESS
WHEREOF, the undersigned have duly executed and delivered this Agreement as of
the day and year first above written.


 


 


	
   

  	
  TWO MOONS
  KACHINAS CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
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  By

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Its

  	
   

  	
   

  
						



 





















 


LOCK-UP/LEAK-OUT AGREEMENT


COUNTERPART SIGNATURE PAGE


 


This
Counterpart Signature Page for that certain Lock-Up/Leak-Out Agreement (the “Agreement”)
dated as of the         day of
December, 2004, among Two Moons Kachinas Corp., a Nevada corporation (“Two
Moons”); and certain persons who are “Shareholders” of Two Moons, by which the
undersigned, through execution and delivery of this Counterpart Signature Page,
intends to be legally bound by the terms of the Agreement, as a Shareholder, of
the number of shares of Two Moons set forth below or hereafter acquired during
the Lock-Up/Leak-Out Period as defined in the Agreement.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Entity
  Name, if Applicable)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Printed
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  (Signature)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Street
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  (City and
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  (Number of
  Shares Owned or Underlying Other Securities)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Date)

  



 





















 


Broker/Dealer Agreement


 


Two Moons Kachinas Corp.


9005 Cobble Canyon Lane


Sandy, Utah 84093


 


Interwest Transfer Company


1981 East Murray-Holladay Blvd.


Salt Lake City, Utah 84117


 


	
  Re:

  	
   

  	
  Resale
  restriction of certain shares of common stock of Two Moons Kachinas Corp., a
  Nevada corporation (“Two Moons” or the “Company”)

  



 


Dear Ladies and Gentlemen:


 


The
undersigned broker hereby acknowledges receipt of stock certificates
representing                                   shares
of common stock of the Company that are owned by                                                                                                    
(the “Customer”).


 


In
consideration of transferring these securities free of any legend or other
notation respecting the resale of these securities so that the undersigned broker
can effect a sale of such shares (a “Company Approved Sale”), the undersigned
broker agrees:


 


(i)            That all sales of
these securities or any other securities of Two Moons on deposit in the
accounts of the Customer will be made in “broker’s transactions” only as that
term is defined in Rule 144 of the Securities and Exchange Commission until                                        ,
200     (the “Resale Restriction Period”);


 


(ii)           That there will be no
legend removal or DTC’s of any securities of the Customer prior to a Company
Approved Sale during the “Resale Restrictions Period”;


 


(iii)          That if any of the
securities of the Company are ordered out by the Customer for delivery prior to
the expiration of the Resale Restriction Period, that instructions will be
given to the Company’s transfer agent to re-issue the stock certificates for
the Customer with the appropriate restriction or restrictions as are outlined
in the Letter Agreement of the Customer, and to the effect that such securities
can only be sold in “broker’s transactions.”


 





















 


The
undersigned broker further agrees that we will provide you with reasonable
documentation on your request to verify our compliance with this Letter
Agreement.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Broker/Dealer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  City, State, Zip

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Its

  	
   

  
					



 





















 


Seller’s Resale Agreement


 


Two Moons Kachinas Corp.


9005 Cobble Canyon Lane


Sandy, Utah 84093


 


Interwest Transfer Company


1981 East Murray-Holladay Blvd.


Salt Lake City, Utah 84117


 


	
  Re:

  	
   

  	
  Resale restriction of certain shares of common stock of Two Moons
  Kachinas Corp., a Nevada corporation (“Two Moons” or the “Company”)

  



 


Dear Ladies and Gentlemen:


 


The
undersigned agrees to effect all sales of shares of common stock of Stock
Certificate No.                       
representing                             shares
of common stock of Two Moons in accordance with the “manner of sale”
requirements of Rule 144 as outlined in Schedule 1 hereto until on or before                                 ,
200    .


 


DATED this                      day
of                                        ,
200    .


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Its

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  City, State, Zip

  
					



 


 





















 


SCHEDULE 1


 


SELLER’S REQUIREMENTS IN “BROKERS’ TRANSACTIONS”


RULE 144 “MANNER OF SALE” REQUIREMENTS


 


The securities
shall be sold in “brokers’ transactions” within the meaning of Section 4(4) of
the Securities Act or in transactions directly with a “market maker,” as that
term is defined in Section 3(a)(38) of the Securities Exchange Act of 1934, and
the person selling the securities shall not (1) solicit or arrange for the
solicitation of orders to buy the securities in anticipation of or in
connection with such transaction, or (2) make any payment in connection with
the offer or sale of the securities to any person other than the broker who
executes the order to sell the securities.