Exhibit 10.8
Execution Version
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (the “
Agreement ”) is made and entered into on June 18,
2009 between each person set forth on Schedule A to this Agreement
(each, a “ Holder ”) and Nexxus Lighting, Inc.,
a Delaware corporation (the “ Company
”).
RECITALS
A. The Company has determined that
it is advisable and in its best interest to enter into that certain
Note and Warrant Purchase Agreement, dated as of June 18, 2009
(the “ Purchase Agreement ”) with the Investors
named therein (the “ Investors ”), pursuant to
which the Company will issue and sell in a private offering
securities of the Company (the “ Offering ”).
Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement will have the meanings given such
terms in the Purchase Agreement.
B. It is a condition to the
Investors’ respective obligations to close under the Purchase
Agreement and provide the financing contemplated by the Offering
that the Holder execute and deliver to the Company this
Agreement.
C. In contemplation of, and as a
material inducement for the Investors to enter into, the Purchase
Agreement, the Holder and the Company have each agreed to execute
and deliver this Agreement.
NOW, THEREFORE, for and in
consideration of the mutual covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
1. Effectiveness of Agreement
. This Agreement shall become null and void if the Purchase
Agreement is terminated prior to closing of the
Offering.
The Holder has independently
evaluated the merits of its decision to enter into and deliver this
Agreement, and such Holder confirms that it has not relied on the
advice of the Company or any other person.
2. Representations and
Warranties . Each of the parties hereto, by their respective
execution and delivery of this Agreement, hereby represents and
warrants to the others and to all third party beneficiaries of this
Agreement that (a) such party has the full right, capacity and
authority to enter into, deliver and perform its respective
obligations under this Agreement, (b) this Agreement has been
duly executed and delivered by such party and is the binding and
enforceable obligation of such party, enforceable against such
party in accordance with the terms of this Agreement and
(c) the execution, delivery and performance of such
party’s obligations under this Agreement will not conflict
with or breach the terms of any other agreement, contract,
commitment or understanding to which such party is a party or to
which the assets or securities of such party are bound.
3. Beneficial Ownership .
Holder hereby represents and warrants that it does not beneficially
own (as determined in accordance with Section 13(d) of the
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder) any shares of Common Stock, or any economic
interest therein or derivative therefrom, other than those shares
of Common Stock specified on its signature page to this Agreement.
For purposes of the Agreement the shares of Common Stock
beneficially owned by such Holder as specified on its signature
page to this Agreement are collectively referred to as the
“Holder’s Shares.”
4. Lockup . From and after
the date of this Agreement and through and including the date on
which all outstanding principal and interest due and payable under
the Notes (as defined in the Purchase Agreement) has been paid in
full (the period from the date of this Agreement to the date on
which all outstanding principal and interest due and payable under
the Notes (as defined in the Purchase Agreement) has been paid in
full is hereinafter referred to as the “ Lockup Period
”), the Holder irrevocably agrees it will not offer, pledge,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly
or indirectly, or announce the offering of, any of the
Holder’s Shares (including any securities convertible into,
or exchangeable for, or representing the rights to receive,
Holder’s Shares) except for (i) the Holder’s
Shares purchased upon the exercise of previously issued stock
options, which options were within
