LOCK-UP AGREEMENT
Lock-Up
Agreement (this “Agreement”) is
entered into as of May __, 2005, by and between Lighting Science Group
Corporation, a Delaware corporation (the “Company”), and
the stockholder of the Company named on the signature page hereof (the
“Stockholder”).
RECITALS:
A. The
Company and certain purchasers (the “Purchasers”), have
entered into a Securities Purchase Agreement dated as of May __, 2005 (the
“Purchase
Agreement”),
pursuant to which the Purchasers have agreed to purchase, and the Company has
agreed to sell, shares of the Company’s 6%
Convertible Preferred Stock (the “Preferred Shares”), and
warrants to purchase shares of the Company’s Common Stock, par value
$0.001 per
share (the “Common
Stock”).
B. Stockholder
is a stockholder of the Company and owns and/or controls shares of Common Stock
(the “Shares”).
C. Additionally,
the undersigned Stockholder is an affiliate of the Company being either a
director, officer or 10% stockholder of the Company.
D. As a
condition to the Purchasers entering into the Purchase Agreement, such
affiliated Stockholders must and agree to the lock-up set forth in Section 1
hereof and such Stockholder has agreed to the lock-up.
E. Capitalized
terms used in this Agreement but not otherwise defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement.
AGREEMENTS:
NOW,
THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Lock-Up.
Stockholder hereby agrees that, except as set forth in Section 2 below, from the
date hereof until the 180th day
following the date that the Registration Statement is declared effective by the
Commission (the “Lock-up
Period”),
without the prior written consent of the Company and the Purchasers, he will not
offer, pledge, sell, contract to sell, grant any options for the sale of or
otherwise transfer, distribute or dispose of, directly or indirectly
(collectively “Dispose
of”), any
Shares (the “Lock-up”). On
and after the 1st day
following the last day of the Lock-up Period, no Shares shall be subject to the
Lock-up.
2. Permitted
Dispositions. The
following dispositions of Shares shall not be subject to the Lock-up set forth
in Section 1:
(a) Stockholder
may Dispose of Shares to his spouse, siblings, parents or any natural or adopted
children or other descendants or to any personal trust in which any such family
member or Stockholder retains the entire beneficial interest;
(b) Stockholder
may Dispose of Shares on his death to Stockholder’s estate, executor,
administrator or personal representative or to Stockholder’s beneficiaries
pursuant to a devise or bequest or by laws of descent and
distribution;
(c) Stockholder
may Dispose of Shares as a gift or other transfer without
consideration;
| (d) |
Stockholder
may make a bona fide pledge of Shares to a lender;
|
(e) Stockholder
may Dispose of Shares in one or more private sales not made pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended;
(f) Stockholder
may dispose of Preferred Shares and any underlying common stock, par value
$0.001 per
share, which the Stockholder may receive either through: (i) conversion of the
Preferred Shares, (ii) exercise of related warrants or (iii) via dividends
received due to Stockholder’s status as a holder of the Preferred
Shares.
provided,
however, that in
the case of any transfer of Shares pursuant to this Section 2 the transferor
shall, at the request of the Company, provide evidence (which may include,
without limitation, an opinion of counsel satisfactory in form, scope and
substance to the Company in its sole discretion as the issuer thereof)
satisfactory to the Company that the transfer is exempt from the registration
requirements of the Securities Act of 1933, as amended.
In the
event Stockholder Disposes of Shares described in this Section 2, such Shares
shall remain subject to this Agreement and, as a condition of the validity of
such disposition, the transferee shall be required to execute and deliver a
counterpart of this Agreement. Thereafter, such transferee shall be deemed to be
the Stockholder for purposes of this Agreement.
3. Miscellaneous.
(a) Amendments
and Waivers. The
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
other than as initially agreed upon in writing by the Company, Stockholder and
the Purchasers.
(b) Successors
and Assigns.
Stockholder shall not assign any rights or benefits under this Agreement without
the prior written consent of the Company and the Purchasers.
(c) Counterparts. This
Agreement may be executed in a number of identical counterparts and it shall not
be necessary for the Company and Stockholder to execute each of such
counterparts, but when each has executed and delivered one or more of such
counterparts, the several parts, when taken together, shall be deemed to
constitute one and the same instrument, enforceable against each in accordance
with its terms. In making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart executed by the party
against whom enforcement of this Agreement is sought.
(d) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(e) Governing
Law; Venue. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW.
The Company and Stockholder (i) hereby irrevocably submit to the exclusive
jurisdiction of the United States District Court sitting in the Northern
District of Texas and the courts of the State of Texas located in Dallas County
for the purposes of any suit, action or proceeding arising out of or relating to
this Agreement, and (ii) hereby waive, and agree not to assert in any such suit,
action or proceeding, any claim that he or it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper.
(f) Severability. If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term of this Agreement, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of each such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
(g) Entire
Agreement. This
Agreement is intended by the Company and the Stockholder as a final expression
of their agreement and is intended to be a complete and exclusive statement of
their agreement and understanding in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the Company and the Stockholder with respect to such subject
matter.
(h) Third
Party Beneficiaries. This
Agreement is intended for the benefit of the Company, Stockholder and the
Purchasers and their respective successors and permitted assigns and is not for
the benefit of, nor may any provision hereof be enforced by, any other person or
entity. The Company and Stockholder each specifically acknowledge and agree that
each Purchaser is a third party beneficiary of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
|
LIGHTING
SCIENCE GROUP CORPORATION |
By:
Xxx Xxxx,
Chairman
& CEO
“STOCKHOLDER”:
Name:
By:
(signature)
(if not
an individual)
