Exhibit
10.03


 


EXHIBIT
D-1


 


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 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 Closing of the Change in Control 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 be only 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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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.


 


 


	
   

  	
   

  	
   

  
	
   

  	
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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:

  	
   

  	
   

  	
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  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:

  	
   

  	
   

  	
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  Its

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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  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.