**Exhibit 4.10**

 

**EXHIBIT D-l**

 

LOCK-UP/LEAK-OUT AGREEMENT

 

THISLOCK-UP/LEAK-OUT AGREEMENT (the “Agreement”) is made and entered into as of the       day of December, 2004, between Two MoonsKachinas Corp., a Nevada corporation (“Two Moons”), and the individuals thatexecute and deliver a Counterpart Signature Page hereof, and sometimescollectively referred to herein as the “Shareholders” and each, a“Shareholder.”    For all purposes ofthis Agreement, “Shareholder” includes any “affiliate, controlling person ofShareholder, agent, representative or other person with whom Shareholder isacting in concert with.

 

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

 

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

 

WHEREAS,in order to facilitate the consummation of the transactions contemplatedby the Change in Control Transaction and to protect the Company, theShareholders have agreed to enter into this Agreement and to restrict thepublic sale, assignment, transfer, conveyance, hypothecation or alienation ofthe Common Stock, all on the terms set forth below.

 

NOW,THEREFORE, in consideration of the foregoing premises and the mutual covenantscontained herein, the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as follows:

 

1.                                       Except as otherwiseexpressly provided herein, and except as each Shareholder may be otherwiserestricted from selling shares of Common Stock, each Shareholder may onlypublicly sell Common Stock subject to the following conditions commencing onthe execution and delivery of this Agreement and for the twelve (12) monthperiod from the Closing of the Change in Control Transaction (the“Lock-Up/Leak-Out Period”):

 

1.1                                 Each Shareholdershall be allowed to sell 1/12th of such Shareholder’s shares of Common Stockper 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 Stockwas qualified to be sold, such shares of Common Stock could not be sold in thenext successive month.

 

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1.2                                 Except as otherwiseprovided herein, all Common Stock shall be only sold in “broker’s transactions”and each Shareholder must comply with the “manner of sale” requirements asthose terms are defined in Rule 144 of the Securities and ExchangeCommission during the Lock-Up/Leak-Out Period.

 

1.3                                 An appropriate legenddescribing this Agreement shall be imprinted on each stock certificaterepresenting Common Stock covered hereby, and the transfer records of TwoMoons’ transfer agent shall reflect such appropriate restrictions.

 

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

 

1.5                                 During theLock-Up/Leak/Out Period, Two Moons shall maintain its “reporting” status withthe Securities and Exchange Commission; file all reports that are required tobe filed by it during such period; and use its “best efforts” to ensure thatthe Common Stock is continually quoted for public trading on a nationallyrecognized medium of no less significance than the OTC Electronic BulletinBoard of the National Association of Securities Dealers, Inc. (the “NASD”),the NASDAQ Small Cap or a recognized national stock exchange.

 

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

 

2.                                       The delivery of aduly executed copy of the Broker/Dealer Agreement by a selling Shareholder’sbroker and a duly executed Seller’s Resale Agreement by the selling Shareholderin the forms attached hereto shall be satisfactory evidence for all purposes ofthis Agreement that such selling Shareholder and its broker will comply withthe “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 anyselling Shareholder’s broker, to the extent that it deems reasonably requiredor necessary to assure compliance with this Agreement.

 

3.                                       Notwithstandinganything to the contrary set forth herein, Two Moons may, in its solediscretion and in good faith, at any time and from time to time, waive any ofthe conditions or restrictions contained herein to increase the liquidity ofthe Common Stock or if such waiver would otherwise be in the best interests ofthe development of the trading market for the Common Stock. Unless otherwiseagreed by the Shareholders, all such waivers shall be pro rata, as to all ofthe Shareholders who

 

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

 

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

 

5.                                       Except as otherwiseprovided in this Agreement or any other agreements between the parties, theShareholders shall be entitled to their respective beneficial rights ofownership of the Common Stock, including the right to vote the Common Stock forany and all purposes.

 

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

 

7.                                       This Agreement maybe executed in any number of counterparts with the same force and effect as ifall parties had executed the same document.

 

8.                                       All notices,instructions or other communications required or permitted to be given pursuantto this Agreement shall be given in writing and delivered by certified mail,return receipt requested, overnight delivery or hand-delivered to all partiesto 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 ReorganizationTransaction, to One Innovation Drive, Worcester, MA 01605; and to the Shareholders,at the addresses in their Counterpart Signature Pages. All notices shall be deemedto be given on the same day if delivered by hand or on the following business dayif sent by overnight delivery or the second business day following the date of mailing.

 

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

 

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

 

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

 

11.                                 This Agreement setsforth the entire understanding of the parties hereto with respect to thesubject matter hereof, and may not be amended except by a written instrumentexecuted by the parties hereto.

 

12.                                 This Agreementshall be governed by and construed in accordance with the laws of the State ofUtah applicable to contracts entered into and to be performed wholly withinsaid State; and Two Moons and the Shareholders agree that any action based uponthis 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 forall purposes hereunder.

 

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

 

IN WITNESS WHEREOF, the undersigned have dulyexecuted and delivered this Agreement as of the day and year first abovewritten.

 

 
|   |   | TWO MOONS  KACHINAS CORP. |
|--------|--------|---------------------------|
|   |   |                      |
|   |   |                      |
| Date:  |   | .                         |   | By |   |   |
|   |   |                      |
|   |   | Its                       |   |   |
|        |        |                           |  |  |  |  |

 

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LOCK-UP/LEAK-OUT AGREEMENTCOUNTERPART SIGNATURE PAGE

 

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

 

 
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|   | (Signature)                                              |
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|   | (Number of  Shares Owned or Underlying Other Securities) |
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|   | (Date)                                                   |

 

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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:

 

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

 

Inconsideration of transferring these securities free of any legend or othernotation respecting the resale of these securities so that the undersignedbroker can effect a sale of such shares (a “CompanyApproved Sale”), the undersigned broker agrees:

 

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

 

(ii)                                  That there will beno legend removal or DTC’s of any securities of the Customer prior to a CompanyApproved Sale during the “Resale Restrictions Period”;

 

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

 

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The undersigned broker further agrees that we willprovide you with reasonable documentation on your request to verify ourcompliance with this Letter Agreement.

 
|   | Very truly  yours, |
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|   | Broker/Dealer      |
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|   | Address            |
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|   | City, State,  Zip  |
|   |               |   |
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| Date:  |               |   | By |   |   |
|   |               |   |
|   |               |   |
|   | Its                |   |   |
|        |                    |  |  |  |  |  |

 

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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 restrictionof certain shares of common stock of Two Moons Kachinas Corp,, a Nevadacorporation (“Two Moons” or the “Company”)

 

Dear Ladies and Gentlemen:

 

The undersigned agrees to effectall 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 orbefore                 ,200   .

 

DATED this                    day of                                                  ,200    .

 
|   | Very truly  yours, |   |
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| Date:  |               |   | By |   |   |
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|   | Its                |   |   |
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|   | Address            |   |
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SCHEDULE 1

 

SELLER’S REQUIREMENTS IN “BROKERS’ TRANSACTIONS”RULE 144 “MANNER OF SALE” REQUIREMENTS

 

Thesecurities shall be sold in “brokers’ transactions” within the meaning ofSection 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 theSecurities Exchange Act of 1934, and the person selling the securities shallnot (1) solicit or arrange for the solicitation of orders to buy thesecurities in anticipation of or in connection with such transaction, or(2) make any payment in connection with the offer or sale of thesecurities to any person other than the broker who executes the order to sellthe securities.

 

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