TRULITE, INC. NOTE and warrant PURCHASE AGREEMENT JUNE 26, 2007
TRULITE,
INC.
NOTE
and warrant
JUNE
26, 2007
TABLE
OF CONTENTS
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1.
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Purchase
and Sale of Units; Registration Rights.
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1
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|||
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1.1.
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Notes
and Warrants.
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1
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1.2.
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Closing
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1
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|||
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1.3.
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Company
Registration.
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2
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1.4.
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Information
from Investor
|
3
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|||
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1.5.
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Expenses
of Registration
|
3
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|||
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1.6.
|
Indemnification
|
3
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2.
|
Representations
and Warranties of the Company
|
4
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2.1.
|
Organization,
Good Standing and Qualification
|
4
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2.2.
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Capitalization
|
4
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2.3.
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Authorization
|
4
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|||
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2.4.
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Valid
Issuance
|
5
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2.5.
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Governmental
Consents
|
5
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2.6.
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Offering
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5
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2.7.
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Litigation
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5
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2.8.
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Patents
and Trademarks
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5
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2.9.
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Agreements;
Action.
|
5
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2.10.
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Environmental
and Safety Laws
|
6
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|||
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2.11.
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Title
to Property and Assets
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6
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2.12.
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Insurance
|
6
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|||
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3.
|
Representations
and Warranties of Investor
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6
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3.1.
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Authorization
|
6
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|||
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3.2.
|
Purchase
Entirely for Own Account
|
6
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|||
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3.3.
|
Disclosure
of Information
|
6
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|||
|
3.4.
|
Investment
Experience
|
7
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|||
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3.5.
|
Accredited
Investor
|
7
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|||
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3.6.
|
Restricted
Securities
|
7
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|||
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3.7.
|
Further
Limitations on Disposition
|
7
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3.8.
|
Legends
|
8
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|||
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4.
|
Conditions
of Investor’s Obligations at Closing
|
8
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4.1.
|
Representations
and Warranties
|
8
|
|||
|
4.2.
|
Performance
|
8
|
|||
|
5.
|
Conditions
of the Company’s Obligations at Closing
|
8
|
|||
|
5.1.
|
Representations
and Warranties
|
8
|
|||
|
5.2.
|
Payment
of Consideration
|
8
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5.3.
|
Qualifications
|
8
|
|||
i
|
6.
|
Miscellaneous.
|
9
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|
6.1.
|
Survival
of Warranties
|
9
|
|||
|
6.2.
|
Successors
and Assigns
|
9
|
|||
|
6.3.
|
Choice
of Law, Venue and Forum
|
9
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|
6.4.
|
Counterparts
|
9
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|||
|
6.5.
|
Titles
and Subtitles
|
9
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|
6.6.
|
Notices
|
9
|
|||
|
6.7.
|
Finder’s
Fee
|
9
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|||
|
6.8.
|
Expenses
|
10
|
|||
|
6.9.
|
Amendments
and Waivers
|
10
|
|||
|
6.10.
|
Severability
|
10
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|||
|
6.11.
|
Entire
Agreement
|
10
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Exhibit
“A”
Form
of
Note
Exhibit
“B”
Form
of
Warrant
ii
TRULITE,
INC.
NOTE
and warrant PURCHASE AGREEMENT
This
Note
and Warrant Purchase Agreement (this “Agreement”)
is
made as of the 26th day of June, 2007, by and between Trulite, Inc., a
Delaware
corporation (the “Company”),
and
each of the other signatories to this Agreement (each individually, an
“Investor”
and
collectively the “Investors”).
WHEREAS,
the Company desires to sell to accredited investors Units (herein so called),
at
a price of $75,000 per Unit, each Unit to be comprised of (i) an unsecured
convertible promissory note in the form of Exhibit
A
attached
hereto in the original principal amount of $75,000 (individually a “Note”
and
collectively, the “Notes”)
and
(ii) a Warrant in the form of Exhibit
B
attached
hereto (individually a “Warrant”
and
collectively, the “Warrants”)
to
purchase 100,000 shares of the Company’s common stock, $0.001 par value
(“Common
Stock”)
at a
price of $1.00 per share; and
WHEREAS,
each Investor subscribes to purchase the number of Units set forth opposite
its
name on the signature pages to this Agreement, subject to the terms and
conditions of this Agreement.
NOW,
THEREFORE, the parties hereby agree as follows:
1. Purchase
and Sale of Units;
Registration Rights.
1.1. Notes
and Warrants.
(a) On
or
prior to the Closing (as defined below), the Company shall have authorized
(i) the sale of Units to each Investor, (ii) the issuance of shares of
Common Stock upon conversion of the Notes (the “Note Shares”) and (iii) the
issuance of the shares of Common Stock upon exercise by the Investors of
the
Warrants (the “Warrant Shares”).
(b) Subject
to the terms and conditions of this Agreement, each Investor agrees to
purchase
at the Closing,
and
the
Company agrees to sell and issue to Investor at the Closing, the number
of Units
set forth opposite its name on the signature pages to this Agreement at
a price
of $75,000 per Unit.
1.2. Closing.
The
purchase and sale of the Units shall take place at the offices of ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ at 10 a.m. Central Time, on June ___, 2007,
or at such other time and place as the Company and the Investors mutually
agree
upon orally or in writing (which time and place are designated as the
“Closing”).
At
the Closing, the Company shall deliver to each Investor, against payment
of
$75,000 per Unit by such Investor to the Company by check, wire transfer
or any
combination thereof, (i) a Note in the principal amount equal to $75,000
multiplied by the number of Units such Investor is purchasing hereunder,
and
(ii) a Warrant to purchase a number of shares of Common Stock equal to
100,000
multiplied by the number of Units such Investor is purchasing
hereunder.
1
1.3. Company
Registration.
(a) Registration.
If (but
without any obligation to do so) on or before June 30, 2009, the Company
proposes to register (including for this purpose a registration effected
by the
Company for stockholders other than Investor) any of its stock or other
securities under the Securities Act of 1933, as amended (the “Act”)
in
connection with the public offering of such securities (other than a
registration relating solely to the sale of securities of participants
in a
Company stock plan, a registration relating to a corporate reorganization
or
transaction under Rule 145 of the Act, a registration on any form that does
not include substantially the same information as would be required to
be
included in a registration statement covering the sale of the Warrant Shares
and
Note Shares, or a registration in which the only Common Stock being registered
is Common Stock issuable upon conversion of debt securities that are also
being
registered), the Company shall, at such time, promptly give each Investor
written notice of such registration. Upon the written request of Investor
given
within twenty (20) days after mailing of such notice by the Company in
accordance with Section 6.6, the Company shall, subject to the provisions
of Section 1.3(c), use all commercially reasonable efforts to cause to be
registered under the Act the resale of all of the Note Shares and Warrant
Shares
that Investor requests to be registered.
(b) Right
to Terminate Registration.
The
Company shall have the right to terminate or withdraw any registration
initiated
by it under this Section 1.3 prior to the effectiveness of such
registration whether or not Investor has elected to include Note Shares
or
Warrant Shares in such registration. The expenses of such withdrawn registration
shall be borne by the Company in accordance with Section 1.5
hereof.
(c) Underwriting
Requirements.
In
connection with any offering involving an underwriting of shares of the
Company’s capital stock, the Company shall not be required under this
Section 1.3 to include any Investor’s securities in such underwriting
unless such Investor accepts the terms of the underwriting as agreed upon
between the Company and the underwriters selected by the Company (or by
other
persons entitled to select the underwriters) and enter into an underwriting
agreement in customary form with such underwriters, and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount
of
securities, including Note Shares and Warrant Shares, requested by stockholders
to be included in such offering exceeds the amount of securities sold other
than
by the Company that the underwriters determine in their sole discretion
is
compatible with the success of the offering, then the Company shall be
required
to include in the offering only that number of such securities, including
Note
Shares and Warrant Shares, that the underwriters determine in their sole
discretion will not jeopardize the success of the offering. Additionally
in no
event shall any Note Shares or Warrant Shares be included in such offering
unless all other stockholders’ securities having prior registration rights,
pursuant to the Common Stock and Warrant Purchase Agreements entered into
by the
Company in April 2006, have been included to the extent requested by the
stockholders who are parties to such agreements. In the event that the
underwriters determine that less than all of the Note Shares and Warrant
Shares
requested to be registered can be included in such offering, then the Note
Shares and Warrant Shares that are included in such offering shall be
apportioned pro rata among Investors based on the number of shares of Common
Stock held by each Investor.
2
1.4. Information
from Investor.
It
shall be a condition precedent to the obligations of the Company to take
any
action pursuant to this Section 1 with respect to the registration of Note
Shares or Warrant Shares of any selling Investor that such Investor shall
furnish to the Company such information regarding itself, the Note Shares
and
Warrant Shares held by it, and the intended method of disposition of such
Note
Shares or Warrant Shares as shall be reasonably required to effect the
registration of such Investor’s Note Shares or Warrant Shares.
1.5. Expenses
of Registration.
All
expenses other than underwriting discounts and commissions incurred in
connection with registrations, filings or qualifications pursuant to Section
1.3, including (without limitation) all registration, filing and qualification
fees, printers’ and accounting fees, and fees and disbursements of counsel for
the Company shall be borne by the Company.
1.6. Indemnification.
To the
extent permitted by law, each Investor on whose behalf Note Shares and
Warrant
Shares will be registered will indemnify and hold harmless the Company,
each of
its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of the
Act,
legal counsel and accountants for the Company, any underwriter, any other
party
selling securities in such registration statement and any controlling person
of
any such underwriter against any losses, claims, damages or liabilities
(joint
or several) to which any of the foregoing persons may become subject, under
the
Act, the Securities Exchange Act of 1934, as amended (the “1934
Act”),
any
state securities laws or any rule or regulation promulgated under the Act,
the
1934 Act or any state securities laws, insofar as such losses, claims,
damages
or liabilities (or actions in respect thereto) arise out of or are based
upon
any Violation (defined below), in each case to the extent (and only to
the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by Investor expressly for use in connection
with
such registration; and each Investor on whose behalf Note Shares and Warrant
Shares will be registered will reimburse any person intended to be indemnified
pursuant to this subsection l.6 for any legal or other expenses reasonably
incurred by such person in connection with investigating or defending any
such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the indemnity agreement contained in this
subsection 1.6 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without
the consent of Investor (which consent shall not be unreasonably withheld),
and
provided that in no event shall any indemnity under this subsection 1.6
exceed the gross proceeds from the offering received by such Investor.
For
purposes of this section 1.6, “Violation”
shall
mean any of the following statements, omissions or violations (i) any
untrue statement or alleged untrue statement of a material fact contained
in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto,
(ii) the omission or alleged omission to state in such registration
statement a material fact required to be stated therein, or necessary to
make
the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities
laws or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities laws.
3
2. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to each Investor the
following:
2.1. Organization,
Good Standing and Qualification.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate
power
and authority to carry on its business as now conducted and as proposed
to be
conducted. The Company is duly qualified to transact business and is in
good
standing in each jurisdiction in which the failure to so qualify would
have a
material adverse effect on its business or properties.
2.2. Capitalization.
The
authorized capital of the Company consists of:
(a) 50,000,000
shares of Common Stock of which 11,785,591 shares are issued and
outstanding.
(b) The
outstanding shares of Common Stock are all duly and validly authorized
and
issued, fully paid and nonassessable, and were issued in accordance with
the
registration or qualification provisions of the Act and any relevant state
securities laws, or pursuant to valid exemptions therefrom.
(c) Except
for (i) currently outstanding options to purchase 2,344,864 shares of Common
Stock granted to employees and other service providers pursuant to the
Company’s
Second Amended and Restated Stock Option Plan (the “Option
Plan”),
(ii) outstanding warrants to purchase an aggregate of 1,400,000 shares of
Common Stock, and (iii) agreements with three holders of unsecured promissory
notes issued by the Company to convert principal and accrued interest on
those
promissory notes into Common Stock in the event certain conditions are
met,
there are not outstanding any options, warrants, rights (including conversion
or
preemptive rights) or agreements for the purchase or acquisition from the
Company of any shares of its capital stock. In addition to the aforementioned
options, the Company has reserved an additional 2,655,036 shares of its
Common
Stock for purchase upon exercise of options to be granted in the future
under
the Option Plan. The Company is not a party or subject to any agreement
or
understanding, and, to the best of the Company’s knowledge, there is no
agreement or understanding between any persons and/or entities, which affects
or
relates to the voting or giving of written consents with respect to any
security
or by a director of the Company.
2.3. Authorization.
All
corporate action on the part of the Company, its officers, directors and
stockholders necessary for the authorization, execution and delivery of
this
Agreement, the performance of all obligations of the Company hereunder
and
thereunder, and the authorization, issuance (or reservation for issuance),
sale
and delivery of the Notes and Warrants being sold hereunder, the issuance
of the
Note Shares on conversion of the Notes and the issuance of the Warrant
Shares
upon exercise of the Warrants has been taken or will be taken prior to
the
Closing, and this Agreement, the Notes and the Warrants constitute valid
and
legally binding obligations of the Company, enforceable in accordance with
their
respective terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors’ rights generally, and (ii) as limited
by laws relating to the availability of specific performance, injunctive
relief,
or other equitable remedies.
4
2.4. Valid
Issuance.
The
Note Shares and Warrant Shares have been duly and validly reserved for
issuance
and upon conversion of the Notes or upon exercise of the Warrants, as the
case
may be, in accordance with their terms will be duly and validly issued,
fully
paid, and nonassessable and will be free of restrictions on transfer other
than
restrictions on transfer under this Agreement and under applicable state
and
federal securities laws.
2.5. Governmental
Consents.
No
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority on the part of the Company is required in connection
with
the consummation of the transactions contemplated by this
Agreement.
2.6. Offering.
Subject
in part to the truth and accuracy of Investor’s representations set forth in
Section 3 of this Agreement, the offer, sale and issuance of the Notes
and
Warrants as contemplated by this Agreement is exempt from the registration
requirements of any applicable state and federal securities laws, and neither
the Company nor any authorized agent acting on its behalf will take any
action
hereafter that would cause the loss of such exemption.
2.7. Litigation.
There
is no action, suit, proceeding or investigation pending or, to the Company’s
knowledge, currently threatened against the Company that questions the
validity
of this Agreement, or the right of the Company to enter into this Agreement,
or
to consummate the transactions contemplated hereby, or that might result,
either
individually or in the aggregate, in any material adverse changes in the
assets,
condition, affairs or prospects of the Company, financially or otherwise,
or any
change in the current equity ownership of the Company. The Company is not
a
party or subject to the provisions of any order, writ, injunction, judgment
or
decree of any court or government agency or instrumentality. There is no
action,
suit, proceeding or investigation by the Company currently pending or that
the
Company intends to initiate.
2.8. Patents
and Trademarks.
To the
best of its knowledge (but without having conducted any special investigation
or
patent or trademark search), the Company has sufficient title and ownership
or
licenses to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights and processes necessary
for its
business as now conducted without any conflict with or infringement of
the
rights of others, except for such items as have yet to be conceived or
developed
or that are expected to be available for licensing on reasonable terms
from
third parties. The Company has not received any communications alleging
that the
Company has violated or, by conducting its business as proposed, would
violate
any of the patents, trademarks, service marks, trade names, copyrights
or trade
secrets or other proprietary rights of any other person or entity.
2.9. Agreements;
Action.
(a) Except
for agreements explicitly contemplated hereby and employment agreements
existing
as of the date hereof, there are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates,
or any affiliate thereof.
5
(b) The
Company is not a party to and is not bound by any contract, agreement or
instrument, or subject to any restriction under its Certificate of
Incorporation, as amended or Amended and Restated Bylaws that adversely
affects
its business as now conducted, its properties or its financial
condition.
2.10. Environmental
and Safety Laws.
To its
knowledge, the Company is not in violation of any applicable statute, law
or
regulation relating to the environment or occupational health and safety,
and to
its knowledge, no material expenditures are or will be required in order
to
comply with any such existing statute, law or regulation.
2.11. Title
to Property and Assets.
The
Company owns its property and assets free and clear of all mortgages, liens,
loans and encumbrances, except such encumbrances and liens that arise in
the
ordinary course of business and do not materially impair the Company’s ownership
or use of such property or assets. With respect to the property and assets
it
leases, the Company is in compliance with such leases and, to the best
of its
knowledge, holds a valid leasehold interest free of any liens, claims or
encumbrances.
2.12. Insurance.
The
Company has in full force and effect fire and casualty insurance policies,
with
extended coverage, sufficient in amount (subject to reasonable deductibles)
to
allow it to replace any of its properties that might be damaged or
destroyed.
3. Representations
and Warranties of Investor.
Each Investor
hereby represents and warrants with respect to itself that:
3.1. Authorization.
Such
Investor has full power and authority to enter into this Agreement and
such
Agreement constitutes its valid and legally binding obligation, enforceable
in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors’ rights generally, and (ii) as limited
by laws relating to the availability of specific performance, injunctive
relief,
or other equitable remedies.
3.2. Purchase
Entirely for Own Account.
This
Agreement is made with Investor in reliance upon such Investor’s representation
to the Company, which by Investor’s execution of this Agreement Investor hereby
confirms, that the Notes and Warrants to be received by Investor, the Note
Shares issuable on conversion of the Notes and the Warrant Shares issuable
upon
exercise of such Warrants (collectively, the “Securities”)
will
be acquired for investment for Investor’s own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, such Investor further represents that such Investor does not
have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person,
with
respect to any of the Securities.
3.3. Disclosure
of Information.
Such
Investor has read the Company’s Annual Report on Form 10-KSB for the year ended
December 31, 2006 and the amendment thereto, Proxy Statement related to
its
Annual Meeting of Stockholders held May 23, 2007, Quarterly Report on Form
10-QSB for the quarter ended March 31, 2007 and Current Reports on Form
8-K
filed with the Securities and Exchange Commission (“SEC”) on May 22, 2007 and
June 5, 2007, respectively. Investor believes it has received all the
information it considers necessary or appropriate for deciding whether
to
purchase the Units. Investor further represents that it has had an opportunity
to ask questions and receive answers from the Company regarding the terms
and
conditions of the offering of the Units and the business, properties, prospects
and financial condition of the Company. The foregoing, however, does not
limit
or modify the representations and warranties of the Company in Section 2 of
this Agreement or the right of any Investor to rely thereon.
6
3.4. Investment
Experience.
Such
Investor is an investor in securities of companies in the development stage
and
acknowledges that it is able to fend for itself, can bear the economic
risk of
its investment, has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Units and recognizes that it may realize a loss of its entire investment
in the Units. If other than an individual, such Investor also represents
it has
not been organized for the purpose of acquiring the Units.
3.5. Accredited
Investor.
Such
Investor is an “accredited investor” within the meaning of SEC Rule 501 of
Regulation D, as presently in effect.
3.6. Restricted
Securities.
Such
Investor understands that the Securities it is purchasing are characterized
as
“restricted securities” under the federal securities laws inasmuch as they are
being acquired from the Company in a transaction not involving a public
offering
and that under such laws and applicable regulations such securities may
be
resold without registration under the Act, only in certain limited
circumstances. In this connection, such Investor represents that it is
familiar
with SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Act.
3.7. Further
Limitations on Disposition.
Without
in any way limiting the representations set forth above, such Investor
further
agrees not to make any disposition of all or any portion of the Securities,
unless and until:
(a) (i) such
Investor shall have notified the Company of the proposed disposition and
shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if reasonably requested by
the Company, Investor shall have furnished the Company with an opinion
of
counsel, reasonably satisfactory to the Company that such disposition will
not
require registration of such shares under the Act.
(b) Notwithstanding
the provisions of Paragraphs (a) above, no such opinion of counsel shall
be
necessary for a transfer by Investor that is a partnership to a partner
of such
partnership or a retired partner of such partnership who retires after
the date
hereof, or to the estate of any such partner or retired partner or the
transfer
by gift, will or intestate succession of any partner to his or her spouse
or to
the siblings, lineal descendants or ancestors of such partner or his or
her
spouse, if the transferee agrees in writing to be subject to the terms
hereof to
the same extent as if he or she were the Investor hereunder.
7
3.8. Legends.
It is
understood that the certificates evidencing the Securities may bear one
or all
of the following legends:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH
ACT.”
4. Conditions
of Investor’s
Obligations at Closing.
The
obligations of each
Investor under subsection 1.1(b) of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions,
unless
otherwise waived by such Investor:
4.1. Representations
and Warranties.
The
representations and warranties of the Company contained in Section 2 shall
be true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of such
Closing.
4.2. Performance.
The
Company shall have performed and complied with all agreements, obligations
and
conditions contained in this Agreement that are required to be performed
or
complied with by it on or before the Closing.
4.5 Proceedings
and Documents.
All
corporate and other proceedings in connection with the transactions contemplated
at the Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to Investor, and they shall have received
all
such counterpart original and certified or other copies of such documents
as
they may reasonably request.
5. Conditions
of the Company’s
Obligations at Closing.
The
obligations of the Company to each Investor under this Agreement are subject
to
the fulfillment on or before the Closing of each of the following conditions
by
that Investor:
5.1. Representations
and Warranties.
The
representations and warranties of such Investor contained in Section 3
shall be true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the
Closing.
5.2. Payment
of Consideration.
Such
Investor shall have delivered the Consideration referenced in
Section 1.2.
5.3. Qualifications.
All
authorizations, approvals, or permits, if any, of any governmental authority
or
regulatory body of the United States or of any state that are required
in
connection with the lawful issuance and sale of the Securities pursuant
to this
Agreement shall be duly obtained and effective as of the Closing.
8
6. Miscellaneous.
6.1. Survival
of Warranties.
The
warranties, representations and covenants of the Company and Investor contained
in or made pursuant to this Agreement shall survive the execution and delivery
of this Agreement and the Closing and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of the
Investor
or the Company.
6.2. Successors
and Assigns.
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 Securities). 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.
6.3. Choice
of Law, Venue and Forum.
This
Agreement, the entire relationship of the parties hereto, and any litigation
between the parties (whether grounded in contract, tort, statute, law or
equity)
shall be governed by, construed in accordance with, and interpreted pursuant
to
the laws of the State of Texas, without giving effect to its choice of
laws
principles. Exclusive venue for any litigation between the parties hereto
shall
be in ▇▇▇▇▇▇ County, Texas, and shall be brought in the State District
Courts of
▇▇▇▇▇▇ County, Texas, or in the United States District Court for the Southern
District of Texas, Houston Division. The parties hereto waive any challenge
to
personal jurisdiction or venue (including without limitation a challenge
based
on inconvenience) in ▇▇▇▇▇▇ County, Texas, and specifically consent to
the
jurisdiction of the State District Courts of ▇▇▇▇▇▇ County and the United
States
District Court for the Southern District of Texas, Houston
Division.
6.4. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and
the same
instrument.
6.5. Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only
and
are not to be considered in construing or interpreting this
Agreement.
6.6. Notices.
Unless
otherwise provided, any notice required or permitted under this Agreement
shall
be given in writing and shall be deemed effectively given upon personal
delivery
to the party to be notified or upon deposit with the United States Post
Office,
by registered or certified mail, postage prepaid and addressed to the party
to
be notified at the address indicated for such party on the signature page
hereof, or at such other address as such party may designate by ten (10)
days’
advance written notice to the other parties.
6.7. Finder’s
Fee.
Each
Investor agrees to indemnify and to hold harmless the Company from any
liability
for any commission or compensation in the nature of a finders’ fee (and the
costs and expenses of defending against such liability or asserted liability)
for which Investor or any of its officers, partners, employees, or
representatives is responsible. The Company agrees to indemnify and hold
harmless each Investor from any liability for any commission or compensation
in
the nature of a finders’ fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
9
6.8. Expenses.
Irrespective of whether the Closing is effected, the Company shall pay
all costs
and expenses that it incurs with respect to the negotiation, execution,
delivery
and performance of this Agreement.
6.9. Amendments
and Waivers.
Any
term of this Agreement may be amended and the observance of any term of
this
Agreement may be waived (either generally or in a particular instance and
either
retroactively or prospectively), only with the written consent of the Company
and Investors who purchase two-thirds (⅔) of the Units purchased and sold
pursuant to the terms of this Agreement. Any amendment or waiver effected
in
accordance with this paragraph shall be binding upon each holder of any
securities purchased under this Agreement at the time outstanding (including
Note Shares and Warrant Shares), each future holder of all such securities,
and
the Company.
6.10. Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and
the
balance of the Agreement shall be interpreted as if such provision were
so
excluded and shall be enforceable in accordance with its terms.
6.11. Entire
Agreement.
This
Agreement and the documents referred to herein constitute the entire agreement
among the parties and no party shall be liable or bound to any other party
in
any manner by any warranties, representations, or covenants except as
specifically set forth herein or therein.
[Signature
Page Follows]
10
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
|
COMPANY:
Trulite,
Inc.
(a
Delaware corporation)
|
||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
|
▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board of Directors |
||
|
Address: ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
|
||
| INVESTORS: | ||
| |
|
|
| No. of Units Subscribed for: 3.33 | By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. |
|
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. |
||
|
Address:
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇., ▇▇. ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
|
||
| THE BONNYBROOK TRUST | ||
| |
|
|
| No. of Units Subscribed for: 3.33 | By: | /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇ |
|
J. ▇▇▇▇▇▇ ▇▇▇▇▇, Trustee |
||
|
Address:
c/o The
Beacon Companies
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
Signature
Page
EXHIBIT
“A”
FORM
OF NOTE
[See
Attached]
A-1
EXHIBIT
“B”
FORM
OF WARRANT
[See
Attached]
B-1