Investment Agreement

Investment Agreement

Table of Contents

Exhibit 10.2

 

 

 

INVESTMENT AGREEMENT

 

 

 


Table of Contents

TABLE OF CONTENTS

 

ARTICLE I PURCHASE AND SALE OF SHARES; USE OF PROCEEDS      1   
  1.1    Agreement to Issue, Sell and Purchase the Shares      1   
  1.2    Closing and Delivery of the Shares      1   
  1.3    Use of Proceeds      2   
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY      2   
  2.1    Organization and Qualification      2   
  2.2    Authorized Capital Stock      2   
  2.3    Issuance, Sale and Delivery of the Shares      3   
  2.4    Due Execution, Delivery and Performance of the Agreement      3   
  2.5    Valid Offering      4   
  2.6    No Defaults      4   
  2.7    No Material Change      4   
  2.8    Compliance      5   
  2.9    Litigation      5   
  2.10    Transfer Taxes      6   
  2.11    Investment Company      6   
  2.12    Customers and Suppliers      6   
  2.13    Corrupt Practices      6   
  2.14    SEC Filings; Financial Statements      6   
  2.15    Internal Accounting Controls      8   
  2.16    Corporate Records      8   
  2.17    Nasdaq Compliance and Listing      8   
  2.18    Full Disclosure      8   
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS      9   
  3.1    Investment Representations and Covenants      9   
  3.2    Authorization; Validity of the Agreement      9   
  3.3    No Conflict      9   
  3.4    No Legal, Tax or Investment Advice      10   

 

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  3.5    Restrictive Legend      10   
  3.6    Sufficient Funds      10   
ARTICLE IV COVENANTS      10   
  4.1    Efforts      10   
  4.2    Injunctive Relief      10   
  4.3    Covenants      11   
  4.4    Rights to Future Stock Issuances      11   
  4.5    Lock-Up Agreement      13   
  4.6    Nasdaq Matters      13   
  4.7    Piggy-Back Registration Rights      13   
  4.8    Public Announcements      13   
  4.9    Reimbursement of Purchase Price; Repurchase of Shares      14   
ARTICLE V CONDITIONS TO THE CLOSING      14   
  5.1    Conditions to Each Party’s Obligation to Effect the Closing      14   
  5.2    Conditions to Each Purchaser’s Obligation to Effect the Closing      14   
  5.3    Conditions to the Company’s Obligation to Effect the Closing      15   
ARTICLE VI INDEMNIFICATION      15   
  6.1    Survival      15   
  6.2    Limits on Claims      15   
  6.3    Indemnification by the Company      16   
  6.4    Indemnification by the Purchasers      16   
  6.5    Procedure for Indemnification      16   
  6.6    Remedies Exclusive      17   
  6.7    Right of Set-Off      17   
ARTICLE VII MISCELLANEOUS      17   
  7.1    Broker’s Fee      17   
  7.2    Assignment      17   
  7.3    Expenses      17   
  7.4    Notices      18   
  7.5    Changes      18   

 

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  7.6    Headings      19   
  7.7    Severability      19   
  7.8    Governing Law      19   
  7.9    Counterparts      19   
  7.10    Entire Agreement      19   
  7.11    No Third-Party Beneficiaries      19   

 

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INVESTMENT AGREEMENT

THIS INVESTMENT AGREEMENT (this “Agreement”) is made as of August 5, 2015, by and among Revolution Lighting Technologies, Inc. (the “Company”), a corporation organized under the laws of the State of Delaware, with its principal offices at 177 Broad Street, 12th Floor, Stamford, CT 06901, Great American Insurance Company, a corporation organized under the laws of the State of Ohio, with its principal offices at 301 East Fourth Street, Cincinnati, OH 45202 (“Great American”), Great American Life Insurance Company, a corporation organized under the laws of the State of Ohio, with its principal offices at 301 East Fourth Street, Cincinnati, OH 45202 (“Great American Life”), and BFLT, LLC, an Ohio limited liability company (“BFLT”, and together with Great American and Great American Life, the “Purchasers”).

IN CONSIDERATION of the mutual covenants contained in this Agreement, the Company and the Purchasers agree as follows:

ARTICLE I

PURCHASE AND SALE OF SHARES; USE OF PROCEEDS

1.1 Agreement to Issue, Sell and Purchase the Shares. At the Closing (as defined in Section 1.2) and upon the terms and conditions hereinafter set forth, the Company will sell to:

(a) Great American, and Great American will purchase from the Company, for an aggregate purchase price of Four Million Two Hundred Fifty Thousand Dollars ($4,250,000.00), 3,695,652 shares (the “Great American Shares”) of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”);

(b) Great American Life, and Great American Life will purchase from the Company, for an aggregate purchase price of Four Million Two Hundred Fifty Thousand Dollars ($4,250,000.00), 3,695,652 shares (the “Great American Life Shares”) of Common Stock; and

(c) BFLT, and BFLT will purchase from the Company, for an aggregate purchase price of One Million Five Hundred Thousand Dollars ($1,500,000.00), 1,304,348 shares (the “BFLT Shares” and together with the Great American Shares and the Great American Life Shares, the “Shares”) of Common Stock.

1.2 Closing and Delivery of the Shares.

(a) Closing. The purchase and sale of the Shares (the “Closing”) shall occur at the offices of Lowenstein Sandler LLP, 1251 Avenue of the Americas, New York, NY 10020, or such other place as the parties may agree, at 9:00 a.m., local time, upon three (3) Business Days’ written notice (the “Closing Notice”) from the Company to the Purchasers stating that the conditions set forth in Article V hereof are expected to be satisfied or (to the extent permitted by Law) waived as of such date, and identifying such condition that is expected to be or has been waived (the “Closing Conditions”). The obligations of the parties to consummate the Closing shall remain subject solely to the actual satisfaction or waiver of the Closing Conditions. The date on which the Closing occurs is referred to herein as the “Closing Date”. Notwithstanding

 

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anything to the contrary contained herein, the Closing shall occur no later than August 31, 2015 (the “Outside Date”). For purposes of this Agreement, the term “Business Day” shall mean any day other than a Saturday, Sunday or a day on which the banks in New York, New York are authorized by Law (as defined in Section 2.8 ) or executive order to be closed.

(b) Payment and Delivery of the Shares. At the Closing, the Company shall deliver to each Purchaser one or more stock certificates, registered in the name of such Purchaser, or book-entry evidence of ownership, in either case representing the Shares set forth in Section 1.1 above and bearing the legend specified in Section 3.5 hereof referring to the fact that the Shares were sold in reliance upon the exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) against delivery of the purchase price therefore by wire transfer of immediately available funds to an account designated by the Company.

1.3 Use of Proceeds. Proceeds from the sale of the Shares shall be used by the Company to pay a portion of the purchase price for the acquisition of Energy Source, LLC (the “Acquisition”) and for working capital purposes, if any proceeds remain after giving effect to such acquisition.

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to, and covenants with, the Purchasers as follows:

2.1 Organization and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and the Company is qualified to do business as a foreign corporation in each jurisdiction in which such qualification is required, except where failure to be so qualified would not reasonably be expected to result in a Material Adverse Effect (as defined in Section 2.7). Each Subsidiary is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and is qualified to do business as a foreign entity in each jurisdiction in which such qualification is required, except where failure to be so qualified would not reasonably be expected to result in a Material Adverse Effect. Schedule 2.1 sets forth each direct or indirect subsidiary of the Company (each a “Subsidiary” and collectively, the “Subsidiaries”).

2.2 Authorized Capital Stock. As of the date hereof, the Company’s authorized capital stock consists of (i) 200,000,000 shares of Common Stock, of which 140,046,474 shares are issued and outstanding, and (ii) 5,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”), of which no shares are issued and outstanding. Except as set forth on Schedule 2.2, the Company has not issued any shares since March 31, 2015 other than pursuant to employee or director equity incentive plans or purchase plans approved by the Board and upon the exercise or conversion of options, warrants and preferred stock outstanding on such date. The issued and outstanding shares of the Company’s Common Stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities. Except as set forth in

 

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Schedule 2.2 or as contemplated by this Agreement, the Company does not have outstanding any options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any agreements or commitments to issue or sell, shares of capital stock or other securities of the Company and there are no agreements or commitments obligating the Company to repurchase, redeem, or otherwise acquire capital stock or other securities of the Company. Except as set forth in Schedule 2.2 or as contemplated by this Agreement, there are no agreements to which the Company is a party or by which it is bound with respect to the voting (including without limitation voting trusts or proxies), registration under the Securities Act, or sale or transfer (including without limitation agreements relating to pre-emptive rights, rights of first refusal, rights of first offer, buy-sell rights, co-sale rights or “drag-along” rights) of any securities of the Company. With respect to each Subsidiary, (i) the Company owns (directly or through its direct Subsidiaries) 100% of each Subsidiary’s capital stock, (ii) all the issued and outstanding shares of each such Subsidiary’s capital stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with applicable federal and state securities laws, and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, (iii) there are no outstanding options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into, or any contracts or commitments to issue or sell, shares of any Subsidiary’s capital stock, and (iv) there are no agreements or commitments obligating any Subsidiary of the Company to repurchase, redeem, or otherwise acquire capital stock or other securities of the Company or any such Subsidiary. The Company does not directly or indirectly own, or have a right to acquire, any equity or similar interest in, or any interest convertible or exchangeable or exercisable for, any equity or similar interest in, any Person, other than the Subsidiaries. For purposes of this Agreement, the term “Person” shall mean any individual, partnership, corporation, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or agency or political subdivision thereof, or other entity.

2.3 Issuance, Sale and Delivery of the Shares. The Shares will be, when issued, sold and delivered in accordance with the terms hereof, duly authorized, validly issued, fully paid and nonassessable and shall be free and clear of all liens, claims, encumbrances and restrictions, except as imposed by applicable securities laws. No further approval or authorization of the board of directors of the Company (the “Board of Directors” or the “Board”) will be required for the issuance, sale and delivery of the Shares to the Purchasers pursuant to the terms hereof.

2.4 Due Execution, Delivery and Performance of the Agreement. The Company has full legal right, corporate power and authority to authorize, execute and deliver this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby. The execution and delivery of this Agreement, the performance of the Company’s obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by the Company. The execution and performance of this Agreement by the Company and the consummation of the transactions herein contemplated will not (i) violate any provision of the organizational documents of the Company, (ii) result in the creation of any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, restriction, adverse claim, interference or right of third party of any nature upon any material assets of the Company pursuant to the terms or provisions of, or will not conflict with, result in the breach or violation of, or constitute, either by itself or upon notice or the passage of time or both, a default under,

 

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any material agreement, commitment, undertaking, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument of any nature to which the Company or any Subsidiary is a party or by which the Company or its properties, or any Subsidiary or any Subsidiary’s properties, may be bound or affected, or (iii) violate any statute or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental or quasi-governmental body applicable to the Company or any Subsidiary or any of their respective properties. No consent, approval, authorization, order, filing with, or action by or in respect of any court, regulatory body, administrative agency or other governmental or quasi-governmental body is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, other than such as have been made or obtained and except for compliance with state securities Laws, federal securities Laws and NASDAQ rules applicable to the listing of the Shares. Upon their execution and delivery, and assuming the valid execution thereof by the Purchasers, this Agreement will constitute the valid and binding obligations of the Company, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

2.5 Valid Offering. Assuming the accuracy of the representations and warranties of Purchasers set forth in Article III, the offer, sale, and issuance of the Shares will be exempt from the registration requirements of the Securities Act and will have been registered or qualified (or are exempt from registration and qualification) under the registration or qualification requirements of all applicable state securities Laws. Neither the Company nor any Person acting on its behalf will knowingly take any action that would cause the loss of any such exemption.

2.6 No Defaults. The Company is not in violation or default of any provision of its certificate of incorporation or bylaws, or other organizational documents, except as to defaults, violations and breaches which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; and, to the knowledge of the Company there does not exist any state of fact which, with notice or lapse of time or both, would constitute a breach or default on the part of the Company, except such breaches or defaults which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect.

2.7 No Material Change. Since March 31, 2015, and except for the matters set forth on Schedule 2.7, (i) neither the Company nor any Subsidiary has incurred any material liabilities or obligations which would be required under generally accepted accounting principles in the United States (“GAAP”) to be set forth on the Company’s balance sheet; (ii) neither the Company nor any Subsidiary has sustained any material loss or interference with its respective businesses or properties from fire, flood, windstorm, accident or other calamity whether or not covered by insurance; (iii) the Company has not paid, authorized or declared any dividends or other distributions with respect to its capital stock, or redeemed or repurchased any securities of the Company; (iv) neither the Company nor any Subsidiary is in default in the payment of principal or interest on any outstanding debt obligations; (v) there has not been any change, by split, combination, reclassification or otherwise, in the capital stock of the Company or, other than the sale of the Shares hereunder and the issuance of shares or options pursuant to employee

 

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or director equity incentive plans or purchase plans approved by the Board of Directors or upon the exercise of options and warrants outstanding on such date, the issuance, sale or other disposition of any shares of capital stock of the Company, (vi) there has not been any waiver, not in the ordinary course of business, by the Company or any Subsidiary of a material right or of a material debt owed to it; (vii) there has not been any satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or any Subsidiary, except in the ordinary course of business and which is not material to the assets (including intangible assets), properties, condition (financial or otherwise), operations or results of operations or business of the Company and the Subsidiaries taken as a whole; (viii) there has not been any change or amendment to the Company’s certificate of incorporation or bylaws, or material change to any material contract or arrangement by which the Company or any Subsidiary is bound or to which any of their respective assets or properties is subject; (ix) there has not been any contract or transaction entered into by the Company or any Subsidiary other than in the ordinary course of business; (x) there has not been the loss or threatened loss of any material customer; (xi) there has not been the incurrence of any lien upon any of the Company’s properties, capital stock or assets, tangible or intangible; and (xii) there have been no events or occurrences which, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect. For purposes of this Agreement, the term “Material Adverse Effect” shall mean: (a) a material adverse effect on the condition (financial or otherwise), properties, assets (including intangible assets), business, operations or results of operations of the Company and the Subsidiaries, taken as a whole, or (b) a material adverse effect on the ability of the Company to perform its obligations under this Agreement.

2.8 Compliance. Each of the Company and the Subsidiaries has complied with each Law and is not in violation of any such Law. There have been no written notices or orders of material noncompliance issued to the Company or any Subsidiary under or in respect of any such Law and, to the knowledge of the Company, none of the Company or any Subsidiary is or has been charged or under investigation with respect to any material noncompliance. To the knowledge of the Company, there are no existing circumstances that are reasonably likely to result in any such violation. “Law” means any judgment, ruling, order, edict, decree, statute, law (including common law), ordinance, rule, permit, code or regulation applicable to the Company or any Subsidiary or their respective businesses, properties or assets.

2.9 Litigation. Except as set forth in Schedule 2.9, there is no action, suit, proceeding, claim, arbitration, mediation or investigation pending, or, to the Company’s knowledge, threatened, before any regulatory body, agency, court, tribunal or governmental or quasi-governmental entity, foreign or domestic (“Governmental Entity”), against or affecting the Company or any Subsidiary. Except as set forth in Schedule 2.9, neither the Company nor any Subsidiary has received any notice or assertion of such an action, suit, proceeding, claim, arbitration, mediation or investigation. To the knowledge of the Company, there is no reasonable basis for any such action, suit, proceeding, claim, arbitration, mediation or investigation except for the matters set forth on Schedule 2.9, or for any Person to assert a claim against the Company or any Subsidiary based upon the Company entering into this Agreement, performing its obligations hereunder or consummating the transactions contemplated hereby. There is no judgment, decree, writ, award, temporary or permanent injunction, stipulation, determination or order against the Company or any Subsidiary or any of their respective officers (in their capacities as such), or any of their respective properties or assets, or, to the knowledge of the

 

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Company, any of the Company’s employees (in their capacities as such). There are no settlements or similar agreements with any Governmental Entity affecting the Company or any Subsidiary or any of their respective properties or assets. None of the Company or any Subsidiary has any actions, suits, proceedings, claims, arbitrations, mediations or investigations pending before any regulatory body, agency, court, tribunal or governmental or quasi-governmental body against any other Person, nor is the Company or any Subsidiary a party to, or subject to the provisions of, any judgment, decree, writ, award, temporary or permanent injunction, stipulation, determination or order of any Governmental Entity.

2.10 Transfer Taxes. Prior to the issuance of the Shares, all stock transfer or other taxes (other than income taxes) which are required to be paid in connection with such sale and issuance will be, or will have been, fully paid or provided for by the Company, all Laws imposing such taxes will be or will have been fully complied with, and all tax returns with respect to such taxes will be timely filed.

2.11 Investment Company. The Company is not an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for an investment company, within the meaning of the Investment Company Act of 1940, as amended.

2.12 Customers and Suppliers. Since March 31, 2015, no significant customer or supplier of the Company or any Subsidiary, including but not limited to any state or federal agency, has given the Company or any Subsidiary any written notice terminating, suspending, or reducing in any material respect, or specifying an intention to terminate, suspend, or reduce in any material respect in the future, or otherwise reflecting a material adverse change in, the business relationship between such customer or supplier and the Company or any Subsidiary, and, there has not been any materially adverse change in the business relationship of the Company or any Subsidiary with any such customer or supplier since March 31, 2015.

2.13 Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) directly or indirectly, made any unlawful payment to any foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from corporate funds, (iii) established or maintained any unlawful or unrecorded fund of corporate monies or other assets, (iv) made any false or fictitious entries on the book and records of the Company, (v) failed to disclose fully any contribution made by the Company or any Subsidiary or made by any person acting on its behalf and of which the Company is aware in violation of Law, or (vi) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.

2.14 SEC Filings; Financial Statements.

(a) The Company’s Common Stock is registered pursuant to Section 12(b) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and the Company has filed all forms, reports and documents required to be filed with the SEC since January 1, 2013, all of which are available to the Purchasers on the website maintained by the SEC at

 

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http://www.sec.gov (the “SEC Website”). All such required forms, reports and documents (including those that the Company may file subsequent to the date hereof) are referred to herein collectively as the “Company SEC Reports”. In addition, all documents filed as exhibits to the Company SEC Reports (“Exhibits”) are available on the SEC Website. All documents required to be filed as Exhibits to the Company SEC Reports have been so filed. As of their respective filing dates, the Company SEC Reports (i) complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports, and (ii) did not at the time they were filed (or if amended or superseded by a subsequent filing prior to the date of this Agreement, then on the date of such subsequent filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company is engaged only in the business described in the Company SEC Reports, and the Company SEC Reports contain a complete and accurate description in all material respects of the Company’s and the Subsidiaries’ business.

(b) Each of the consolidated financial statements (including, in each case, any related notes thereto) contained in the Company SEC Reports (the “Company Financials”), (i) complied or will comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto as of their respective dates, (ii) was or will be prepared in accordance with GAAP applied on a consistent basis throughout the periods involved and consistent with each other (except as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q under the Exchange Act) and (iii) fairly presented in all material respects the consolidated financial position of the Company and the Subsidiaries as at the respective dates thereof and the consolidated results of operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are reasonably expected to be subject to normal and recurring year-end adjustments. Since January 1, 2015, there has been no material change in the Company’s accounting policies except as described in the notes to the Company Financials. The balance sheet of the Company contained in the Company SEC Report for the quarter ended March 31, 2015, is hereinafter referred to as the “Company Balance Sheet.” Except as set forth on Schedule 2.14(b), neither the Company nor any Subsidiary has incurred any obligations or liabilities (absolute, accrued, contingent or otherwise) of any nature required to be disclosed on a balance sheet or in the related notes to the consolidated financial statements prepared in accordance with GAAP which are, individually or in the aggregate, material to the business, operations, results of operations or condition (financial or otherwise) of the Company and the Subsidiaries taken as a whole, except liabilities (i) reflected on, reserved against, or disclosed in the notes to the Company Balance Sheet, or (ii) incurred since the date of the Company Balance Sheet in the ordinary course of business consistent with past practice.

(c) The Company has heretofore made available to the Purchasers complete and correct copies of any amendments or modifications, which have not yet been filed with the SEC but which are required to be filed, to agreements, documents or other instruments which previously had been filed by the Company with the SEC pursuant to the Securities Act or the Exchange Act.

 

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2.15 Internal Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has disclosure controls and procedures (as defined in Rules 13a-14 and 15d-14 under the Exchange Act) that are designed to ensure that material information relating to the Company is made known to the Company’s principal executive officer and the Company’s principal financial officer or persons performing similar functions. The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 (the “Act”). Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive officer and former principal financial officer of the Company, as applicable) has made all certifications required under Sections 302 and 906 of the Act and the related rules and regulations promulgated thereunder.

2.16 Corporate Records. The Company has delivered or made available to Purchasers true and complete copies of the certificate of incorporation and bylaws (in each case as amended to the date of this Agreement) of the Company and the certificate of incorporation and bylaws (or other comparable organization or governance documents) of each Subsidiary. Except as set forth on Schedule 2.16, the minute books of the Company and the Subsidiaries previously made available to Purchasers contain complete and accurate minutes of all meetings of the Board of Directors and the board of directors of each Subsidiary (and all committees thereof) ratified as of the date hereof and accurately reflect all other corporate action of the stockholders of the Company, the Board of Directors and the board of directors of each Subsidiary (and all committees thereof) to the date hereof, including all amendments and corrections. Schedule 2.16 sets forth minutes from prior meetings of the Board of Directors (and the audit committee thereof) which minutes have not yet been approved by the Board of Directors (or the audit committee, as the case may be) but which are substantially complete and accurately reflect, in all material respects, the corporate action of the Board of Directors (or the audit committee, as the case may be) taken at such meetings.

2.17 Nasdaq Compliance and Listing. The Company’s Common Stock is listed on the NASDAQ Stock Market. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the NASDAQ Stock Market. No order ceasing or suspending trading in any securities of the Company or prohibiting the issuance and/or sale of the Shares is in effect and no proceedings for such purpose are pending or threatened. The Company is in compliance with the continued listing requirements and standards of the NASDAQ Stock Market with respect to the Common Stock. The Company shall comply with all requirements of the Financial Industry Regulatory Authority, Inc. with respect to the issuance of the Shares.

2.18 Full Disclosure. No representation or warranty by the Company in this Agreement and no statement contained in the Schedules to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

 

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ARTICLE III

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS

Each of the Purchasers hereby represents and warrants to, and covenants with, the Company as follows:

3.1 Investment Representations and Covenants. The Purchaser represents and warrants to, and covenants with, the Company that: (i) the Purchaser is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities including the Shares; (ii) the Purchaser is acquiring the number of Shares set forth in Section 1.1 above in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares within the meaning of Section 2(a)(11) of the Securities Act; (iii) the Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Purchaser is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. The Purchaser understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Purchaser’s investment intent as expressed herein.

3.2 Authorization; Validity of the Agreement. The Purchaser further represents and warrants to, and covenants with, the Company that (i) the Purchaser has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) upon the execution and delivery of this Agreement, assuming the valid execution hereof by the Company, this Agreement shall constitute valid and binding obligations of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

3.3 No Conflict. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby by the Purchaser will not result in any violation of, be in conflict with or constitute a default under, any law, statute, regulation, ordinance, material contract or agreement, instrument, judgment, decree or order to which the Purchaser is a party or by which it is bound, except as would not reasonably be expected to have a material adverse effect on the ability of Purchaser to consummate the transactions contemplated hereby.

 

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3.4 No Legal, Tax or Investment Advice. The Purchaser understands that nothing in this Agreement, the Company SEC Reports or any other materials presented to the Purchaser in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares. The Purchaser acknowledges that it has not relied on any representation or warranty from the Company or any other Person in making its investment or decision to invest in the Company, except as expressly set forth in this Agreement.

3.5 Restrictive Legend. The Purchaser understands that, until such time as a registration statement covering the Shares has been declared effective or the Shares may be sold pursuant to Rule 144 under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Shares shall bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for the Shares):

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL, IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.”

3.6 Sufficient Funds. The Purchaser has sufficient funds to consummate the purchase of the Shares.

ARTICLE IV

COVENANTS

4.1 Efforts. At and from time to time after the Closing, at the request of any party hereto, the other party shall execute and deliver such additional certificates, instruments, and other documents and take such other actions as such party may reasonably request in order to carry out the purposes of this Agreement.

4.2 Injunctive Relief. Each party acknowledges that any breach or threatened breach of the provisions of Section 4.4 of this Agreement will cause irreparable injury to the other party for which an adequate monetary remedy does not exist. Accordingly, in the event of any such breach or threatened breach, the non-breaching party shall be entitled, in addition to the exercise of other remedies, to seek and (subject to court approval) obtain injunctive relief, without necessity of posting a bond, restraining the breaching party from committing such breach or threatened breach. The right provided under this Section 4.2 shall be in addition to, and not in lieu of, any other rights and remedies available to the parties.

 

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4.3 Covenants. Each party hereto shall promptly inform the other party of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If any party or affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity in respect of the transactions contemplated hereby, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request.

4.4 Rights to Future Stock Issuances.

(a) Right of First Offer. Subject to the terms and conditions of this Agreement, including this Section 4.4, and applicable securities laws, if, during the Lock-Up Period (as defined in Section 4.5), the Company proposes to offer or sell (a “New Equity Offering”) any shares of Common Stock or other equity securities of the Company, whether or not currently authorized, or any other securities of any type whatsoever that are, or may become, with or without the payment of consideration, convertible or exchangeable into or exercisable for equity securities of the Company (collectively, the “New Securities”), the Company shall first offer such New Securities (the “Right of First Offer”) to each Purchaser (each, a “ROFO Purchaser”).

(i) The Company shall give notice (the “Offer Notice”) to each ROFO Purchaser, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.

(ii) By notification to the Company within ten (10) days after the Offer Notice is given, each ROFO Purchaser may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the respective number of Shares issued to such ROFO Purchaser at the Closing bears to the total number of Shares issued to all Purchasers at the Closing. The closing of any sale pursuant to this Section 4.4(a)(ii) shall occur by the earlier of thirty (30) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 4.4(a)(iii).

(iii) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 4.4(a)(ii), the Company may, during the one hundred twenty (120) day period following the expiration of the periods provided in Section 4.4(a)(ii), offer and sell the remaining unsubscribed portion of such New Securities (subject to the RVL 1 Offer Right (as defined below)) to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the ROFO Purchasers in accordance with this Section 4.4(a).

 

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(iv) The parties acknowledge that the Company has previously granted a right of first offer with respect to the issuance of new equity securities to RVL 1 LLC (the “RVL 1 Offer Right”) pursuant to the Investment Agreement, dated as of September 12, 2012, by and between Nexxus Lighting, Inc. (as predecessor to the Company) and RVL 1 LLC. In the event of any conflict between the relative priority of the Right of First Offer hereunder and the RVL 1 Offer Right, the RVL 1 Offer Right shall be subordinated to the Right of First Offer. Accordingly, upon any New Equity Offering, the Company shall first comply with the terms of this Section 4.4; thereafter, to the extent that any portion of the New Securities in the New Equity Offering are not elected to be purchased or acquired as provided in Section 4.4(a)(ii), the Company shall then comply with its obligations pursuant to the RVL 1 Offer Right with respect to such unsubscribed portion. On or prior to the Closing, the Company shall deliver to the Purchasers an acknowledgement of RVL 1 LLC to this Section 4.4(a)(iv), and a waiver of the RVL 1 Offer Right in connection with the sale of the Shares pursuant to this Agreement.

(b) Termination of Right of First Offer. The covenants set forth in this Section 4.4 shall terminate and be of no further force or effect upon the earliest to occur of (x) the expiration of the Lock-Up Period, or (y) a Change of Control (as defined in Section 4.5). For the avoidance of doubt, the Company shall have no obligation to make any Right of First Offer to the Purchasers pursuant to this Section 4.4 until the Lock-Up Period shall have commenced in accordance with Section 4.5.

(c) Exempt Securities Issuance. Notwithstanding anything contained herein to the contrary, the Right of First Offer in this Section 4.4 shall not be applicable to any Exempt Securities Issuance. For purposes of this Agreement, an “Exempt Securities Issuance” shall mean the issuance of any equity securities of the Company (i) under an equity incentive plan approved by the affirmative vote of a majority of the members of the Board, including the Company’s 2013 Stock Incentive Plan (as amended or modified from time to time); (ii) to financial institutions or lessors in connection with commercial credit arrangements, equipment financing or similar transactions; (iii) to third Persons as a component of any business relationship with such Person for purposes of (A) joint venture, technology licensing or development activities, (B) distribution, supply or manufacture of the Company’s products or services or (C) any other arrangements involving corporate partners that are primarily for purposes other than raising capital; (iv) as consideration in connection with the acquisition of another corporation or entity by the Company by consolidation, merger, purchase of all or substantially all of the assets, or other reorganization in which the Company acquires, in a single transaction or series of related transactions, all or substantially all of the assets of such other corporation or entity or fifty percent (50%) or more of the voting power of such other corporation or entity or fifty percent (50%) or more of the equity ownership of such other entity; (v) pursuant to any split, reverse split, dividend, recapitalization, combination or reclassification of any capital stock of the Company without the receipt of consideration by the Company; (vi) pursuant to the conversion or exercise of convertible or exercisable securities; or (vii) in a sale to the public in an offering pursuant to an effective registration statement under the Securities Act.

 

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(d) Waiver of Right of First Refusal. Notwithstanding anything contained herein to the contrary, (x) any ROFO Purchaser may, by written notice to the Company, waive such ROFO Purchaser’s right to exercise such ROFO Purchaser’s Right of First Offer with respect to any New Equity Offering; provided, however, that any such waiver shall be irrevocable unless all of the other Purchasers and the Company, in their sole discretion, determine otherwise, and (y) the Purchasers may together, by written notice to the Company, waive the rights of all ROFO Purchasers to exercise their Right of First Offer with respect to any New Equity Offering.

4.5 Lock-Up Agreement. Except in connection with a Change of Control (as defined below), the Purchasers shall not, without prior written approval of the Company, directly or indirectly, sell, offer or agree to sell, contract to sell, grant any option for the sale of, make any short sale, pledge, or enter into any hedging transaction that could result in a transfer of, or otherwise dispose of the Shares for a period commencing as of the Closing Date and ending on the six (6) month anniversary of the Closing Date (the “Lock-Up Period”). For purposes of this Agreement, a “Change of Control” shall mean (x) the consummation of any of the following transactions: (i) the sale, lease, exchange, conveyance or other disposition of all or substantially all of the Company’s property or business, (ii) the merger of the Company into or its consolidation with any other entity in which the Company is not the surviving entity (other than a wholly-owned subsidiary of the Company) or (iii) any transaction (including a merger or other reorganization) or series of related transactions, in which more than 50% of the voting power of the Company is disposed of; or (y) individuals who, immediately after giving effect to the Closing, constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to such date, whose election or nomination for election was approved by a vote of at least a majority of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director) shall be an Incumbent Director.

4.6 Nasdaq Matters. The Company shall comply with all requirements of the Financial Industry Regulatory Authority, Inc. with respect to the issuance of the Shares. The Company shall take all necessary actions, including without limitation, complying with all requirements of the Financial Industry Regulatory Authority, Inc. and providing appropriate notice to NASDAQ with respect to the Shares in order to obtain the listing of the Shares on the NASDAQ Stock Market as soon as reasonably practicable.

4.7 Piggy-Back Registration Rights. Simultaneously with the execution of this Agreement, the Company and the Purchasers shall enter into a Registration Rights Agreement in the form attached hereto as Annex A (the “Registration Rights Agreement”), granting the Purchasers “piggy-back” registration rights with respect to the Shares.

4.8 Public Announcements. The Company and the Purchasers will consult with each other and will mutually agree (the agreement of each party not to be unreasonably withheld) upon the content and timing of any press release or other public statement in respect of the transactions contemplated hereby and shall not issue any such press release or make any such public statement prior to such consultation and agreement, except as may be required by applicable law or stock exchange regulation, provided any such press release or other public announcement shall not contain the name of any Purchaser unless required by applicable law or unless consented in writing by such Purchaser.

 

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4.9 Reimbursement of Purchase Price; Repurchase of Shares. In the event that the Closing shall have occurred, and either (i) the Membership Interest Purchase Agreement (as defined in Section 5.1) shall have been terminated in accordance with its terms or (ii) the closing of the Acquisition shall not have occurred prior to the Outside Date, the Company hereby agrees that it shall promptly (but in no event later than two (2) Business Days following the occurrence of the events specified in clauses (i) or (ii), as the case may be) repurchase the Shares from the Purchasers for the full dollar amount paid by the Purchasers at the Closing as set forth in Section 1.1.

ARTICLE V

CONDITIONS TO THE CLOSING

5.1 Conditions to Each Party’s Obligation to Effect the Closing. The respective obligations of the Company and the Purchasers to effect the Closing shall be subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:

(a)(x) All conditions precedent to the closing of the transactions contemplated by that certain Membership Interest Purchase Agreement, dated as of the date hereof, by and among Revolution Lighting Technologies – Energy Source, Inc., a wholly-owned subsidiary of the Company, Energy Source, LLC and the sellers party thereto (the “Membership Interest Purchase Agreement”) shall have been satisfied or waived (to the extent permitted by Law); (y) a duly authorized officer of the Company shall have delivered a certified Closing Notice to the Purchasers; and (z) the Chief Executive Officer, the President or the Chief Financial Officer of the Company shall have certified to the Purchasers that the Company has received wire transfer instructions to transfer payment for its funding obligations as required pursuant to Membership Interest Purchase Agreement, which the Company shall execute immediately following receipt of funding from the Purchasers.

5.2 Conditions to Each Purchaser’s Obligation to Effect the Closing. The obligations of each Purchaser to purchase and pay for the Shares shall be subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:

(a) Each of the representations and warranties of the Company contained in Article II hereof shall be true and correct in all material respects on and as of the date hereof (provided, however, that such qualification shall only apply to representations and warranties not otherwise qualified by materiality) and on and as of the Closing Date (or, if given as of a specific date, at and as of such date) with the same effect as though such representations and warranties had been made as of the Closing, except where the failure to be so true and correct has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

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(b) The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the Closing.

(c) The Company will have delivered to the Purchasers a certificate signed on its behalf by a duly authorized officer certifying that the conditions specified in Sections 5.2(a) and 5.2(b) hereof have been fulfilled.

5.3 Conditions to the Company’s Obligation to Effect the Closing. The obligations of the Company to sell the Shares to the Purchasers shall be subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:

(a) Each of the representations and warranties of each Purchaser contained in Article III hereof shall be true and correct in all material respects on and as of the date hereof (provided, however, that such qualification shall only apply to representations and warranties not otherwise qualified by materiality) and on and as of the Closing Date with the same effect as though such representations and warranties had been made as of the Closing.

(b) The Purchasers shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by them on or before the Closing.

ARTICLE VI

INDEMNIFICATION

6.1 Survival. The representations and warranties contained herein or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing until the eighteen (18) month anniversary of the Closing and any investigation or finding made by or on behalf of a Purchaser or the Company; provided that the representations and warranties in Sections 2.1, 2.2, 2.3, and 2.4 shall survive indefinitely or until the latest date permitted by law. The covenants and agreements contained herein or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing indefinitely or for the shorter period explicitly specified herein or therein. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if written notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time.

6.2 Limits on Claims. The Company’s indemnification obligations under this Agreement shall be subject to the following:

(a) The Company shall have no obligation to indemnify or hold harmless the any Purchaser unless, and only to the extent that, the aggregate amount of Losses (as defined in Section 6.3) incurred by the Purchasers exceeds $50,000, in which event the Company shall be required to pay or be liable for all such Losses from the first dollar; and

 

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(b) The Company shall have no obligation to make indemnification payments hereunder that exceed the aggregate of the purchase price paid for the Shares by all Purchasers as set forth in Section 1.1.

In determining the foregoing thresholds and in otherwise determining the amount of any Losses for which a party is entitled to assert a claim for indemnification hereunder, the amount of any such Losses shall be determined disregarding any materiality or similar qualifiers contained in this Agreement or in any other certificate or writing delivered pursuant to this Agreement.

6.3 Indemnification by the Company. From and after the Closing Date, subject to any applicable limitations set forth in Section 6.1 and Section 6.2, the Company shall indemnify and hold each Purchaser and its affiliates, and their respective officers, directors, stockholders, partners, managers, members, employees, agents, and representatives (collectively, the “Purchaser Indemnified Parties”) harmless from and against all claims, liabilities, obligations, costs, damages, losses and expenses (including reasonable attorneys’ fees) of any nature (each a “Loss” and collectively, “Losses”) arising out of or relating to any breach or violation of the representations, warranties, covenants or agreements of the Company set forth in this Agreement or in any other certificate or writing delivered by the Company pursuant to this Agreement (in each case disregarding for this purpose any materiality, Material Adverse Effect or similar qualifiers contained herein or therein).

6.4 Indemnification by the Purchasers. From and after the Closing Date, subject to any applicable limitations set forth in Section 6.1 and Section 6.2, each Purchaser, severally and not jointly and severally, shall indemnify and hold the Company and its affiliates, and their respective officers, directors, stockholders, partners, managers, members, employees, agents, and representatives (the “Company Indemnified Parties”) harmless from and against all Losses arising out of or relating to any breach or violation of the representations, warranties, covenants or agreements of such Purchaser set forth in this Agreement or in any other certificate or document delivered by such Purchaser pursuant to this Agreement (in each case disregarding for this purpose any materiality or similar qualifiers contained herein or therein).

6.5 Procedure for Indemnification. Any party making a claim for indemnification hereunder shall promptly notify the indemnifying party of the claim in writing, describing the claim in reasonable detail, the amount thereof, and the basis therefor; provided, however, that the failure to provide prompt notice shall not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent that the indemnifying party is actually prejudiced by the failure to give such prompt notice. The party from whom indemnification is sought shall respond to each such claim within thirty (30) days of receipt of such notice. No action shall be taken pursuant to the provisions of this Agreement or otherwise by the party seeking indemnification until the later of (i) the expiration of the 30-day response period (unless reasonably necessary to protect the rights of the party seeking indemnification), or (ii) 30 days following the termination of the 30-day response period if a response, received within such 30 day period by the party seeking indemnification, requests an opportunity to cure the matter giving rise to indemnification (and, in such event, the amount of such claim for indemnification shall be reduced to the extent so cured).

 

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6.6 Remedies Exclusive. Subject to Section 4.2 hereof and except with respect to the assertion of any claim based on fraud, the remedies provided in this Article VI shall be the exclusive remedies of the parties hereto after the Closing in connection with the transactions contemplated by this Agreement, including without limitation any breach or non-performance of any representation, warranty, covenant or agreement contained herein or in any other certificate or document delivered pursuant to this Agreement. Subject to Section 4.2 hereof and except with respect to the assertion of any claim based on fraud, after the Closing, no party may commence any suit, action or proceeding against any other party hereto with respect to the subject matter of this Agreement, whether in contract, tort or otherwise, except to enforce such party’s express rights under this Article VI. No officer, director, employee or agent of the Company shall be personally liable in any manner or to any extent (whether in contract or tort) under or in connection with this Agreement. The limitation of liability provided in this Section 6.6 is in addition to, and not in limitation of, any limitation on liability applicable to any such person provided by law or by this Agreement or any other contract, agreement or instrument.

6.7 Right of Set-Off. If the indemnifying party has not satisfied in cash any indemnification obligation owed by them hereunder, the party seeking indemnification may, at its discretion, satisfy the unpaid portion of such obligation by, to the extent permitted by law, setting-off against any amounts due and owing from the party seeking indemnification to the indemnifying party.

ARTICLE VII

MISCELLANEOUS

7.1 Broker’s Fee. Each of the parties hereto hereby represents to the other that, on the basis of any actions and agreements by it, there are no brokers or finders entitled to compensation in connection with the sale of the Shares to the Purchasers.

7.2 Assignment. This Agreement and the rights and obligations hereunder shall not be assigned, delegated, or otherwise transferred (whether by operation of law, by contract, or otherwise) without the prior written consent of the other party hereto; provided, however, that each Purchaser may, without obtaining the prior written consent of the Company, assign, delegate, or otherwise transfer its rights and obligations hereunder to any Affiliate of such Purchaser who is an “accredited investor” as set forth in Section 3.1 and agrees to be bound by the terms and conditions of this Agreement. The Company shall execute such acknowledgements of such assignments and collateral assignments in such forms as a Purchaser may from time to time reasonably request. Any attempted assignment, delegation, or transfer in violation of this Section 7.2 shall be void and of no force or effect. “Affiliate” means, in respect of any Person, any other Person that is directly or indirectly controlling, controlled by, or under common control with such Person or any of its Subsidiaries, and the term “control” (including the terms “controlled by” and “under common control with”) means having, directly or indirectly, the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or by contract or otherwise.

7.3 Expenses. (a) The legal, accounting, financing, due diligence and other costs and expenses incurred by the Purchasers in connection with the transactions contemplated hereby will be borne by the Purchasers and (b) the legal and other costs and expenses incurred by the Company in connection with the transactions contemplated hereby will be borne by the Company.

 

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7.4 Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be mailed by first-class registered or certified airmail, facsimile (with receipt confirmed by telephone) or nationally recognized overnight express courier postage prepaid, and shall be deemed given when so mailed and shall be delivered as addressed as follows:

 

  (a) if to the Company, to:

Revolution Lighting Technologies, Inc.

177 Broad Street, 12th Floor

Stamford, CT 06901

Facsimile:       (704) 405-0422

Attention:        Chief Executive Officer

with copies to:

Lowenstein Sandler LLP

1251 Avenue of the America

New York, NY 10020

Facsimile:       (973) 535-3357

Attention:        Marita A. Makinen, Esq.

or to such other person at such other place as the Company shall designate to the Purchasers in writing; and

 

  (b) if to the Purchasers, to:

c/o American Money Management Corp.

301 East Fourth Street

Cincinnati, Ohio 45202

Facsimile:       (513) 579-2911

Attention:        Joseph A. Haverkamp

with a copy to:

c/o American Financial Group, Inc.

27th Floor

301 East Fourth Street

Cincinnati, Ohio 45202

Facsimile:       (513) 352-9272

Attention:        Mark A. Weiss

or at such other address as may have been furnished to the Company in writing.

7.5 Changes. This Agreement may not be modified or amended except pursuant to an instrument in writing signed by the Company and the Purchasers.

 

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7.6 Headings. The headings of the various Sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be part of this Agreement.

7.7 Severability. In case any provision contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

7.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of laws.

7.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other parties. The submission of a signature page transmitted by facsimile (or other electronic transmission, including PDF) shall be considered as an “original” signature page for purposes of this Agreement.

7.10 Entire Agreement. This Agreement, the Schedules and the other agreements, documents and instruments contemplated hereby and referenced herein contain the entire understanding of the parties, and there are no further or other agreements or understanding, written or oral, in effect between the parties relating to the subject matter hereof.

7.11 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto 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 (other than the Purchaser Indemnified Parties and the Company Indemnified Parties).

[Signatures appear on following page.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written.

 

COMPANY:
REVOLUTION LIGHTING TECHNOLOGIES, INC.
By  

/s/ James A. DePalma

  Name:   James A. DePalma
  Title:   Chief Financial Officer
PURCHASERS:  
GREAT AMERICAN LIFE INSURANCE COMPANY
By  

/s/ Mark F. Muething

  Name:   Mark F. Muething
  Title:   Executive Vice President
GREAT AMERICAN INSURANCE COMPANY
By  

/s/ Stephen C. Beraha

  Name:   Stephen C. Beraha
  Title:   Assistant Vice President
BFLT, LLC
By  

/s/ John B. Berding

  Name:   John B. Berding
  Title:   Manager

[Signature Page to Investment Agreement]