REGISTRATION RIGHTS AGREEMENT DATED AS OF JULY 22, 2009 BY AND BETWEEN LSI INDUSTRIES INC. AND DAVID T. FEENEY, KEVIN A. KELLY AND CRAIG A. MILLER
Exhibit 10.2
DATED AS OF JULY 22, 2009
BY AND BETWEEN
AND
XXXXX X. XXXXXX, XXXXX X. XXXXX AND XXXXX X. XXXXXX
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS |
1 | |||
ARTICLE 2 REGISTRATION RIGHTS |
2 | |||
2.1 Piggyback Registration |
2 | |||
ARTICLE 3 REGISTRATION PROCEDURES |
3 | |||
3.1 Filings; Information |
3 | |||
3.2 Registration Expenses |
5 | |||
ARTICLE 4 INDEMNIFICATION AND CONTRIBUTION |
6 | |||
4.1 Indemnification by the Company |
6 | |||
4.2 Indemnification by the Holder |
7 | |||
4.3 Conduct of Indemnification Proceedings |
7 | |||
4.4 Contribution |
8 | |||
ARTICLE 5 MISCELLANEOUS |
8 | |||
5.1 Rule 144 and Rule 145 |
8 | |||
5.2 No Inconsistent Agreements |
9 | |||
5.3 Successors and Assigns |
9 | |||
5.4 No Waivers, Amendments |
9 | |||
5.5 Notices |
10 | |||
5.6 Terms of Agreement |
11 | |||
5.7 Governing Law; Submission to Jurisdiction |
11 | |||
5.8 Section Headings |
11 | |||
5.9 Entire Agreement |
11 | |||
5.10 Severability |
11 | |||
5.11 Counterparts |
12 | |||
5.12 Parties in Interest |
12 | |||
5.13 Enforcement; Further Assurances |
12 |
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This Registration Rights Agreement (this “Agreement”) is entered into as of July 22,
2009 by and between LSI Industries Inc., an Ohio corporation (the “Company”), and Xxxxx X.
Xxxxxx, Xxxxx X. Xxxxx and Xxxxx X. Xxxxxx (each, a “Holder, and collectively, the
“Holders”). Capitalized terms used but not otherwise defined herein have the meanings given
to them in the Purchase Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, pursuant to that certain Purchase and Sale Agreement (the “Purchase
Agreement”), dated as of even date herewith, by and among the Company, LSI Acquisition Inc.,
and the Sellers identified therein and a Real Estate Purchase Agreement dated as of even date
herewith between certain parties to the Purchase Agreement, the Companies sold substantially all of
their assets to the Company; and
WHEREAS, the Holders own 100% of the issued and outstanding capital interests in Kelmilfeen,
Technology and Engineering and were induced in part to enter into the Purchase Agreement by the
Company’s agreement to enter into this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
As used in this Agreement, the following terms have the following meanings:
| (a) | “Affiliate”, as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition “control” (including, with correlative
meanings, the terms “controlling”, “controlled by” and “under common control with”), as
applied to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities (the ownership of more than 50% of the
voting securities of an entity shall for purposes of this definition be deemed to be
“control”), by contract or otherwise; |
| (b) | “Agreement” shall have the meaning set forth in the preamble of this
Agreement; |
| (c) | “Company” shall have the meaning set forth in the preamble of this
Agreement; |
| (d) | “Exchange Act” shall mean the United States Securities and Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder; |
| (e) | “Holders” shall have the meaning set forth in the preamble of this
Agreement; |
| (f) | “Indemnified Party” has the meaning set forth in Section 4.3; |
| (g) | “Indemnifying Party” has the meaning set forth in Section 4.3; |
| (h) | “Piggyback Registration” has the meaning set forth in Section 2.1(a); |
| (i) | “Purchase Agreement” has the meaning set forth in the recitals to this
Agreement; |
| (j) | “Registrable Security” means any LSI Common Shares constituting the
Stock Consideration pursuant to the Purchase Agreement (including such LSI Common
Shares held in escrow pursuant to the Purchase Agreement and the Escrow Agreement) and
held by the Holders. |
| (k) | “Registration Expenses” has the meaning set forth in Section 3.2; |
| (l) | “Securities Act” shall mean the United States Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder; |
ARTICLE 2
REGISTRATION RIGHTS
REGISTRATION RIGHTS
2.1 Piggyback Registration.
(a) Right to Piggyback. If at any time from the date hereof until the earlier of July
31, 2013 or second anniversary of the release of all of the Escrow Shares by the Escrow Agent under
the Escrow Agreement, the Company proposes, either unilaterally or pursuant to the exercise of
demand registration rights by a third party, to file a registration statement under the Securities
Act (except with respect to registration statements on Forms S-4 or S-8, or any other form not
available for registering the Registrable Securities for sale to the public generally) (a
“Registration Statement”) with respect to an offering for its own account or for the
account of another person (other than the Holders in their capacity as such) of LSI Shares (a
“Proposed Registration”), then the Company shall in each case give written notice (the
“Piggyback Notice”) of such proposed filing to each Holder at least fifteen (15) days
before the anticipated filing date, and shall, subject to the terms and conditions herein, include
in such Registration Statement such amount of Registrable Securities as the Holder may request
within five (5) days of the receipt of such notice (each a “Piggyback Reply Notice”.) The
Company shall register (“Piggyback Registration”) such Registrable Securities on the same
terms and subject to the same conditions applicable to the registration in the Proposed
Registration of securities to be sold by the Company or the persons selling under such Proposed
Registration. The Holders acknowledge that the Company makes no representation regarding its
eligibility to file a registration statement on Form S-3 with the Commission.
(b) Priority on Piggyback Registrations. If the managing underwriter or underwriters
of such offering delivers an opinion to the Holders that the total dollar amount which they and any
other persons intend to include in such offering is reasonably likely to materially and adversely
affect the success or offering price of such offering, then the amount of securities to be offered
for the accounts of holders of Registrable Securities shall be reduced and the securities to be
included in such Proposed Registration shall be prioritized as follows: first, the securities which
the Company proposes to sell or that the Company is requested to register pursuant to the exercise
by a third party of demand registration rights; and second, the Registrable Securities of the
Holders and the other securities requested to be included in such registration, pro rata in
accordance with the aggregate principal amount of such securities among the holders of securities
requested (including the Holders) to be included in such registration.
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(c) Right of Company to Withdraw/Abandon. Nothing herein shall be construed as
limiting or otherwise interfering with the right of the Company to withdraw or abandon in its sole
discretion any registration statement filed by it in connection with a Piggyback Registration
notwithstanding the inclusion of Registrable Securities.
ARTICLE 3
REGISTRATION PROCEDURES
REGISTRATION PROCEDURES
3.1 Filings; Information.
Whenever any Registrable Securities are to be registered pursuant to this Agreement:
| (a) | [Reserved.] |
| (b) | The Company will prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and to
comply with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement in accordance with the
intended method of distribution. |
| (c) | The Company will, prior to filing a Registration Statement or prospectus or any
amendment or supplement thereto, furnish to the Holders and their counsel copies of
such Registration Statement as proposed to be filed, together with exhibits thereto,
which documents will be subject to review and approval, which approval shall not be
unreasonably withheld or delayed, by the foregoing at least fifteen (15) days before
the anticipated date of filing of the Registration Statement or prospectus or at least
five (5) days before the anticipated date of filing of any amendments or supplements
thereto, and thereafter furnish to the Holders and their counsel such number of copies
of such Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus) and such other documents as the Holders may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by the Holders. |
| (d) | After the filing of the Registration Statement, the Company will promptly
notify the Holders covered by such Registration Statement of any stop order issued or
threatened by the Commission and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered. |
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| (e) | The Company will use its best efforts to (i) register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions in the United States and such other jurisdictions as any Holder
reasonably (in light of such Holder’s intended plan of distribution) requests and (ii)
cause such
Registrable Securities to be registered with or approved by such other governmental
agencies or authorities in the United States as may be necessary by virtue of the
business and operations of the Company and such Holder’s intended plan of
distribution and do any and all other acts and things that may be reasonably
necessary or advisable to enable such Holder to consummate the disposition of the
Registrable Securities owned by such Holder. |
| (f) | The Company will immediately notify the Holders of such Registrable Securities,
at any time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation of a supplement
or amendment to such prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and will promptly make
available to the Holders any such supplement or amendment. |
| (g) | The Company will deliver promptly to the Holders, subject to restrictions
imposed by the United States federal government or any agency or instrumentality
thereof, copies of all correspondence between the Commission and the Company and its
counsel or auditors and all memoranda relating to discussions with the Commission or
its staff with respect to the Registration Statement. The Company will make available
to the Holders appropriate officers of the Company to answer any questions that the
Holders may have with respect to the contents of the Registration Statement to the
extent reasonably necessary to conduct reasonable due diligence on the Company and the
matters addressed in the Registration Statement. |
| (h) | The Company will use its best efforts to comply with all applicable rules and
regulations of the Commission and make available to its securityholders, as soon as
reasonably practicable, an earnings statement covering a period of 12 months, beginning
within three months after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder. |
| (i) | The Company will use its best efforts to cause all Registrable Securities to be
listed on The Nasdaq Global Select Market or any successor thereof. |
| (j) | The Company may require the Holders to promptly furnish in writing to the
Company such information regarding the distribution of the Registrable Securities as
the Company may from time to time reasonably request and such other information as may
be legally required in connection with such registration. |
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| (k) | Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3.1(f) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Holder’s receipt
of the copies of the supplemented or amended prospectus contemplated by
Section 3.1(f) hereof, and, if so directed by the Company such Holder will deliver
to the Company all copies, other than permanent file copies then in such Holder’s
possession, of the most recent prospectus covering such Registrable Securities at
the time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such Registration Statement
shall be maintained effective (including the period referred to in Section 3.1(b)
hereof) by the number of days during the period from and including the date of the
giving of notice pursuant to Section 3.1(f) hereof to the date when the Company
shall make available to the Holders covered by such registration statement a
prospectus supplemented or amended to conform with the requirements of Section
3.1(f) hereof. |
| (l) | The Company will furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to Article 2, on the date or dates provided for in
the underwriting agreement if such securities are being sold through underwriters,
(i) an opinion, dated as of such date, of the counsel representing the Company
for the purposes of such registration, covering such matters as such counsel,
underwriters and the Holders may reasonably agree upon (including such matters as are
customarily given to underwriters in an underwritten public offering), addressed to the
underwriters, if any, and (ii) a letter or letters dated as of such date, from
the independent certified public accountants of the Company, addressed to the
underwriters, if any, covering such matters as such accountants, underwriters and
Holders may reasonably agree upon. |
3.2 Registration Expenses.
In connection with any registration statement filed pursuant to Section 2.1, the Company shall
pay the following registration expenses incurred in connection with any registration hereunder (the
“Registration Expenses”): (i) all registration and filing fees, (ii) fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel
in connection with blue sky qualifications of the Registrable Securities), (iii) printing expenses,
(iv) the Company’s internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), (v) fees and expenses incurred
in connection with the listing of the Registrable Securities, (vi) reasonable fees and
disbursements of counsel for the Company and not more than one counsel for the Holders, as may be
chosen by the Holders, and customary fees and expenses for independent certified public accountants
retained by the Company, and (vii) reasonable fees and expenses of any special experts retained by
the Company in connection with such registration.
The Company shall have no obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities. The Company shall have no obligation to
arrange for any offering of Registrable Securities by or through any underwriter, investment bank,
placement agent or other Person.
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ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification by the Company.
To the fullest extent permitted by law, the Company agrees to indemnify and hold harmless each
Holder, its officers, directors, employees and agents, and each person, if any, who controls each
Holder within the meaning of the Securities Act from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of LSI Common Shares) to
which such Holder, officer, director, employee or agent or controlling Person may become subject
under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement, preliminary prospectus or final prospectus or any
amendment or supplement thereto relating to the Registrable Securities or (ii) any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading and shall reimburse such Holder and each such officer,
director, employee, agent and controlling Person for any legal and other expenses reasonably
incurred by such Holder, officer, director, employee, agent or controlling Person in connection
with investigating or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred, except insofar as the same are contained in any
information furnished in writing to the Company by such Holder expressly for use therein;
provided, however, that the Company shall not be liable to any such Holder or such
Person’s directors, officers, agents or controlling Persons, in any such case for any such loss,
claim, damage or liability to the extent that it arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in connection with such
Registration Statement, preliminary prospectus, final prospectus or amendments or supplements
thereto, in conformity with written information relating to such Holder furnished to the Company by
such Holder expressly for inclusion therein in connection with such registration; and,
provided, further, that as to any preliminary prospectus or any final prospectus,
this indemnity agreement shall not inure to the benefit of any such Holder or such Person’s
directors, officers, agents or controlling Persons, on account of any loss, claim, damage or
liability arising from the sale of Registrable Securities to any Person by such Holder if such
Holder or its representatives failed to send or give a copy of the final prospectus or a prospectus
supplement, as the case may be (excluding documents incorporated by reference therein), as the same
may be amended or supplemented, to that Person within the time required by the Securities Act, and
the untrue statement or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in such preliminary prospectus or final prospectus was corrected in the
final prospectus or such prospectus supplement, as the case may be (excluding documents
incorporated by reference therein), unless such failure resulted from the non-compliance by the
Company with Section 3.1(f). The indemnities provided by this Section 4.1 shall remain in full
force and effect regardless of any investigation made by or on behalf of any Holder.
Notwithstanding the foregoing, the indemnity set forth in this Section 4.1 shall not apply to
amounts paid in settlement effected without the consent of the Company (which consent shall not be
unreasonably withheld or delayed).
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4.2 Indemnification by the Holders.
To the fullest extent permitted by law, each Holder jointly and severally agrees to indemnify
and hold harmless the Company its officers, directors and agents and each Person, if any, who
controls the Company within the meaning of the Securities Act to the same extent as the indemnity
from the Company to each Holder pursuant to clauses (i) and (ii) of Section 4.1, but only with
reference to information related to Holders furnished in writing by the Holders or on either
Holder’s behalf expressly for use in any Registration Statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto, or any preliminary prospectus;
provided will be limited to the net amount of proceeds received by the Holders from the sale of
Registrable Securities pursuant to such Registration Statement. Notwithstanding the foregoing, the
indemnity set forth in this Section 4.2, shall not apply to amounts paid in settlements effected
without the consent of each Holder (which consent shall not be unreasonably withheld or delayed).
4.3 Conduct of Indemnification Proceedings.
Promptly after receipt by any person in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2 (an “Indemnified Party”) of notice of any claim or the commencement of
any action, the Indemnified Party shall, if a claim in respect thereof is to be made against the
person against whom such indemnity may be sought (an “Indemnifying Party”) notify the
Indemnifying Party in writing of the claim or the commencement of such action, provided that the
failure to notify the Indemnifying Party shall not relieve it from any liability which it may have
to an Indemnified Party otherwise than under Section 4.1 or 4.2, except to the extent of any actual
prejudice resulting therefrom. If any such claim or action shall be brought against an Indemnified
Party, and it shall notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any other similarly
notified Indemnifying Party, to assume the defense thereof with counsel satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its
election to assume the defense of such claim or action, the Indemnifying Party shall not be liable
to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified
Party in connection with the defense thereof other than reasonable costs of investigation; provided
that the Indemnified Party shall have the right to employ separate counsel to represent the
Indemnified Party and its controlling Persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying
Party, but the fees and expenses of such counsel shall be for the account of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) in the reasonable judgment of such Indemnified Party
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any claim or pending or threatened
proceeding in respect of which the Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out of such claim or
proceeding.
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4.4 Contribution.
If the indemnification provided for in this Article 4 is unavailable to the Indemnified
Parties in respect of any losses, claims, damages, liabilities or expenses referred to herein, then
each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to
the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages,
liabilities or expenses as between the Company, on the one hand, and the Holders, on the other, in
such proportion as is appropriate to reflect the relative fault of the Company and of the Holders
in connection with such statements or omissions, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the Holders, on the
other, shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 4.4, the Holders shall not be
required to contribute any amount in excess of the amount by which the total price at which the
Registrable Securities were offered to the public (less underwriting discounts and commissions)
exceeds the amount of any damages which the Holders have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
ARTICLE 5
MISCELLANEOUS
MISCELLANEOUS
5.1 Rule 144 and Rule 145.
The Company covenants that it will use commercially reasonable efforts to file any reports
required to be filed by it under the Securities Act and the Exchange Act and that it will take such
further action as each Holder may reasonably request, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 or Rule 145 under the Securities
Act, as such Rules may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of either Holder, the Company will deliver
promptly to such Holder a written statement as to whether it has complied with such requirements.
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5.2 No Inconsistent Agreements.
The Company will not hereafter enter into any agreement with respect to its securities which
is inconsistent with the rights granted to the Holders in this Agreement.
5.3 Successors and Assigns.
(a) Except as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities) who shall, upon such successions or
assignment, as the case may be, be entitled to the rights of the Holders hereunder and shall be
deemed a “Holder” for this Agreement; provided further the rights to cause the Company to
register Registrable Securities pursuant to Article 2 may only be assigned pursuant to the terms of
Section 5.3(b). Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. In addition, the Holders shall be entitled to transfer any rights
hereunder to any Affiliate, subject solely to the obligation that such member notify the Company of
such assignment in writing and agree in writing to be bound by the terms of this Agreement.
(b) The rights to cause the Company to register Registrable Securities pursuant to Article 2
may be assigned (but only with all related obligations) by the Holders to their immediate family
members, or any entity which is wholly owned by such person or a trust established solely for the
benefit of one or more such persons, upon the transfer to such Person(s) of Registrable Securities,
provided that: (a) the Company is, at the time of or within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee and the securities with
respect to which such registration rights are being assigned; and (b) such transferee agrees in
writing to be bound by and subject to the terms and conditions of this Agreement, including the
execution of an Adoption Agreement in the form attached hereto as Exhibit A.
5.4 No Waivers, Amendments.
(a) Except as expressly set forth herein, no failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
(b) Any amendment, modification or supplement to this Agreement shall not be enforced against
any party hereto unless such amendment, modification or supplement is signed by the Company and the
Holders.
(c) Any provision of this Agreement may be waived if, but only if, such waiver is in writing
and is signed by the party against whom the enforcement of such waiver is sought.
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5.5 Notices.
All notices, requests and other communications to any party hereunder shall be in writing
(including telex, telecopier or similar writing) and shall be given to such party at its address or
telecopier number set forth below, or such other address or telecopier number as such party may
hereinafter specify for the purpose to the party giving such notice. Each such notice, request or
other communication shall be effective (a) if given by telecopy, when such telecopy is transmitted
to the telecopy number specified in this Section and the appropriate answerback is received or, (b)
if given by overnight courier or express mail service, when delivery is confirmed or, (c) if given
by any other means, when delivered at the address specified in this Section 5.5. In each case,
notice shall be sent to the parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
| (i) | if to the Company: |
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LSI Industries Inc. X.X. Xxx 00000 00000 Xxxxxxxx Xxxx Xxxxxxxxxx, Xxxx 00000 Attention: Xxxxxx X. Xxxxxxx Facsimile No.: (000) 000-0000 |
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with a copy to: |
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Xxxxxxx Muething & Xxxxxxx PLL Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxx, Xxxx 00000 Attention: Xxxxxxx X. Xxxxxxx and F. Xxxx Xxxxxx Facsimile No.:(000) 000-0000 |
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| (ii) | if to the Holders: |
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c/o Xxxxx X. Xxxxxx 0000 Xxxxxxxx Xxxxx Xxxxxx, XX 00000 Facsimile No.: (614) |
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with a copy to: |
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Xxxxxxx & Xxxxxx LLP 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx, Xxxx 00000 Attention: Xxxx X. Xxxx III Facsimile No.:(000) 000-0000 |
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5.6 Terms of Agreement.
This Agreement shall terminate at such time as each Holder ceases to beneficially own any
Registrable Securities; provided that any termination pursuant to this Section 5.6 will not relieve
any party for any liability arising from a breach of representation, warranty, covenant or
agreement occurring prior to such termination.
5.7 Governing Law; Submission to Jurisdiction.
The Agreement shall be governed by and construed in accordance with the laws of the State of
New York without regard to its conflict of law provisions. Each of the parties hereto irrevocably
agrees that any legal action or proceeding with respect to this Agreement or for the recognition
and enforcement of any judgment in respect hereof brought by the other party hereto or its, his or
her executors, heirs, legal representatives, successors or permitted assigns may be brought and
determined in any federal or state court located in New York, New York, and each of the parties
hereby irrevocably submits with regard to any action or proceeding for itself and in respect to its
property, generally and unconditionally, to the exclusive jurisdiction of the aforesaid courts.
Each of the parties hereby irrevocably waives and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement (a)
any claim that it is not personally subject to the jurisdiction of the above-named courts for any
reason other than the failure to lawfully serve process, (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced in such courts
(whether through service of notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise), and (c) to the fullest extent permitted by
applicable law, that (i) the suit, action or proceeding in any such court is brought in an
inconvenient forum, (ii) the venue of such suit, action or proceeding is improper and (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such courts.
5.8 Section Headings.
The section headings contained in this Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
5.9 Entire Agreement.
This Agreement and the Exhibit attached hereto constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior agreements and
understandings, written or oral, relating to the subject matter hereof.
5.10 Severability.
Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of this Agreement in any
other jurisdictions, it being intended that all rights and obligations of the parties hereunder
shall be enforceable to the fullest extent permitted by law.
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5.11 Counterparts.
This Agreement may be signed in counterparts, each of which shall constitute an original and
which together shall constitute one and the same agreement.
5.12 Parties in Interest.
This Agreement and all the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors. Except as expressly set forth herein, neither
this Agreement nor any of their rights hereunder shall be assigned by any of the parties hereto
without the prior written consent of the other parties.
5.13 Enforcement; Further Assurances.
(a) The parties hereto agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their specific terms. It is
accordingly agreed that the parties shall be entitled to specific performance of the terms hereof,
this being in addition to any other remedy to which they are entitled at law or in equity.
(b) The parties hereto agree to execute, acknowledge, deliver, file and record such further
certificates, amendments, instruments, agreements and documents, and to do all such other acts and
things, as may be required by law or as may be necessary or advisable to carry out the intent and
purposes of this Agreement.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth
above.
| LSI INDUSTRIES INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President, Chief Financial Officer, and Treasurer | |||
| /s/ Xxxxx X. Xxxxxx | ||||
| XXXXX X. XXXXXX | ||||
| /s/ Xxxxx X. Xxxxx | ||||
| XXXXX X. XXXXX | ||||
| /s/ Xxxxx X. Xxxxxx | ||||
| XXXXX X. XXXXXX | ||||
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EXHIBIT A
ADOPTION AGREEMENT
This Adoption Agreement (“Adoption Agreement”) is executed by the undersigned (the
“Transferee”) pursuant to the terms of that certain Registration Rights Agreement, dated as
of July 22, 2009 (the “Agreement”), by and between LSI Industries Inc. and the Holder
identified therein. Capitalized terms used but not defined herein shall have the respective
meanings ascribed to such terms in the Agreement. By the execution of this Adoption Agreement, the
Transferee agrees as follows:
1. Acknowledgement. Transferee acknowledges that Transferee is acquiring certain
shares of the capital stock of the Company (the “Stock”), which shares are subject to the
terms and conditions of the Agreement.
2. Agreement. As partial consideration for such transfer, Transferee (i) agrees that
the Stock acquired by Transferee shall be bound by and subject to the terms of the Agreement, to
the same extent and with the same rights and obligations as the person(s) from which such Stock is
received and (ii) hereby agrees to become a party to the Agreement with the same force and effect
as if Transferee were originally a party thereto.
3. Notice. Any notice required or permitted by the Agreement shall be given to
Transferee at the address listed beside Transferee’s signature below.
4. Joinder. The spouse of the undersigned Transferee, if applicable, executes this
Adoption to acknowledge its fairness and that it is in such spouse’s best interests and to bind to
the terms of the Agreement such spouse’s community interest, if any, in the Stock.
EXECUTED AND DATED this
day of
,
.
| TRANSFEREE: | ||||||||
| Title: | ||||||||
| Address: | ||||||||
| Fax: | ||||||||
| Spouse: (if applicable): | ||||||||
| Name: | ||||||||
Acknowledged and accepted on_______________________, ______.
| LSI INDUSTRIES INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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