Exhibit 10.10
LEAK-OUT AGREEMENT
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THIS LEAK-OUT AGREEMENT SUPERCEDES ANY AND ALL OTHER AGREEMENTS WHETHER IN
WRITING OR ORALLY COMMUNICATED BETWEEN DUTCHESS CAPITAL MANAGEMENT LLC AND ITS
PREDECESSORS (THE "COMPANY") AND ___________, HIS AFFILIATES, OR FAMILY MEMBERS
(HEREIN REFERRED TO AS "________").
July 14, 2006
(Address)
(City, State Zip Code)
(Phone)
(Fax)
Ladies and Gentlemen:
In consideration of the ___________shares (the "Shares") issued dated
____________, for other good and valuable consideration, receipt of which is
hereby acknowledged, the undersigned hereby agrees based upon the earlier of 1)
a period of thirty-six (36) months after the date of this Agreement ("Leak-Out
Period") or 2) until such time as the Debentures are no longer outstanding, not
to publicly or privately offer to sell, contract to sell or otherwise sell,
dispose of, loan, gift, donate, pledge or grant any rights with respect to
(collectively, a "Disposition") any shares of the Company's "Common Stock", any
options or warrants to purchase any shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock of New Colorado
Prime , Inc. (collectively, "Securities"), now owned or hereafter acquired
directly by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, otherwise than (i) as provided by
the Leak-Out provisions of this Agreement or (ii) with the prior written consent
of the Company's board of directors. The foregoing restriction is expressly
agreed to preclude the holder of the Securities from engaging in any hedging or
other transaction which is designed to or reasonably expected to lead to or
result in a Disposition of Securities during the Leak-Out Period even if such
Securities would be disposed of by someone other than the undersigned. Such
prohibited hedging or other transactions would include without limitation any
short sale (whether or not against the box) or any purchase, sale or grant of
any right (including without limitation any put or call option) with respect to
any Securities or with respect to any security (other than a broad-based market
basket or index) that includes, relates to or derives any significant part of
its value from Securities
Each week, _________shall have the right to effect open market sales of his
Common Stock in an aggregate amount equal to one percent (1.00%) of the total
weekly volume in the Common Stock for the prior week ended.
If during the Leak-Out Period the price of the Common Stock exceeds two dollars
and twenty-five cents ($2.25) per share, __________ shall have the right to
effect open market sales of his Common Stock in an aggregate amount equal to two
and five tenths percent (2.50%) of the total weekly volume in the Common Stock
for the prior week ended, only during that time the Common Stock is trading
above $2.25 per share. If during the Leak-Out Period the price of the Common
Stock exceeds three dollars and sixty-cents ($3.60) per share, __________ shall
have the right to effect open market sales of his Common Stock in an aggregate
amount equal to three and five tenths percent (3.5%) of the total weekly volume
in the Common Stock for the prior week ended, only during that time the Common
Stock is trading above $3.60 per share. If during the Leak-Out Period the price
of the Common Stock exceeds four dollars and thirty five cents ($4.35) per
share, there shall be no limitations on the amount of Common Stock which may be
sold by ________, only during that time the price is trading above $4.35 per
share. Any after-market prints to not count as daily volume.
Furthermore, ________ hereby agrees and consents to (i) effect sales of the
Common Stock through a broker approved by the New Colorado Prime, Inc. board of
directors and (ii) the entry of stop transfer instructions with the Company's
transfer agent against the transfer of the Securities held by the undersigned
except in compliance with this Leak-Out Agreement.
Very truly yours,
_____________, an Individual
_________________________________
Accepted as of the date first set forth above:
BY DUTCHESS CAPITAL MANAGEMENT LLC
___________________________________
Xxxxxxx X. Xxxxxxxx
Managing Member of:
Dutchess Capital Management, LLC
General Partner to:
Dutchess Private Equities Fund, L.P. &
Dutchess Private Equities Fund, X.X XX
