MTI MICROFUEL CELLS INC. COMMON STOCK AND WARRANT PURCHASE AGREEMENT
MTI MICROFUEL CELLS INC.
This Common Stock and Warrant Purchase Agreement
(this “Agreement”) is made as of January 11, 2010 by and among MTI
MicroFuel Cells Inc., a
Delaware corporation (the
“Company”) and Counter Point Ventures Fund II, LP (the
“Purchaser”).
RECITALS
The Company desires to issue and sell and the
Purchaser desires to purchase Common Stock, par value $0.01 per share
(“Common Stock”), and Warrants (each, a “Warrant”) in substantially the form attached to this
Agreement as Exhibit C, over a period of twelve (12) months. The Common
Stock, the Warrants, and the equity securities issuable upon exercise thereof
are collectively referred to herein as the “Securities.”
AGREEMENT
In consideration of the mutual promises contained
herein and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties to this Agreement agree as follows:
1. Purchase and Sale of Common
Stock.
(a)
Sale and Issuance of Common
Stock.
(i)
Subject to the terms and conditions of this Agreement, the Purchaser agrees to
purchase and the Company agrees to sell and issue to the Purchaser (i) an
aggregate of up to 28,571,429 shares of Common Stock at a purchase price per
share of $0.070 (the “Purchase Price”), for an aggregate purchase price of $2,000,000.03;
and (ii) Warrants exercisable for a number of shares of Common Stock equal to
20% of the shares of Common Stock purchased by the Purchaser hereunder, at an
exercise price of $0.070 per share as set forth in the Warrant. The sale and
issuance of the Common Stock and Warrants shall occur over multiple closings
(each, a “Closing”) occurring over two (2) one month closing periods
and five (5) two-month closing periods (each, a “Closing Period”), the first Closing of which shall occur on or
about January 11, 2010, and with subsequent Closings occurring thereafter during
the Closing Periods as set forth on Exhibit A attached hereto. No later than thirty (30) calendar
days prior to each proposed Closing, or such shorter period as agreed upon by
the parties in writing, the Company shall deliver to the Purchaser a written
notice (each, a “Closing Notice”), in substantially the form attached hereto as
Exhibit B, wherein the Company shall notify the Purchaser of
the Company’s election to sell and issue to the Purchaser at such proposed
Closing up to the maximum number of shares of Common Stock permitted to be sold
and issued to the Purchaser during the applicable Closing Period as set forth on
Exhibit A, less any shares of Common Stock already issued and
sold to the Purchaser during such Closing Period, and subject to increase upon
mutual agreement by the parties pursuant to Section 1(a)(ii). Within seven (7)
calendar days of receipt of the Closing Notice, the Purchaser must either accept
or reject in a writing delivered to the Company the offer to purchase Common
Stock as set forth in the Closing Notice. If the Company does not deliver a
Closing Notice to the Purchaser no less than thirty (30) calendar days prior to
such proposed Closing, or such shorter period as agreed upon by the parties in
writing, or the Purchaser accepts or rejects the offer to purchase the Common
Stock as set forth in the Closing Notice within seven (7) calendar days of
receipt of the Closing Notice, or if the Purchaser does not respond to the
Closing Notice within such time, then the Closing Notice and offer to purchase
the Common Stock shall be deemed rejected and the proposed Closing shall occur
unless the parties otherwise agree in writing. If the Purchaser accepts the
Company’s offer to purchase the Common Stock as set forth in the Closing Notice,
such Closing shall occur on the date set forth in the Closing Notice and Exhibit A shall be updated accordingly to reflect the
consummation of the Closing.
(ii)
Upon mutual written agreement between the Company and the Purchaser, (A) up to
an aggregate additional 285,713 shares of Common Stock (the “Additional Shares”) may be included in one or more Closings for sale
and issuance to the Purchaser, and (B) to the extent the actual number of shares
of Common Stock issued and sold by the Company to the Purchaser at any Closing
does not equal the maximum number of shares of Common Stock available for sale
and issuance at such Closing as set forth on Exhibit A, the Company and the Purchaser may include such
unissued shares of Common Stock from prior Closings in one or more subsequent
Closings, provided the maximum total number of shares of Common Stock issued and
sold under the Agreement shall not exceed 28,571,429 shares for an aggregate
Purchase Price of $2,000,000.03.
(b)
Closing; Delivery.
(i) The purchase and sale
of the Common Stock and Warrants shall take place at the offices of the Company
at 2:00 p.m. (Eastern) on each Closing date, or at such other time and place as
the Company and the Purchaser mutually agree upon, orally or in writing.
(ii) At each Closing, the Company shall
deliver to the Purchaser a certificate evidencing the Common Stock and a Warrant
to be purchased by the Purchaser against: (1) payment of the Purchase Price with
respect to the Common Stock purchased at such Closing, in the amount to be set
forth next to the Purchaser’s name on Exhibit A with respect to the applicable Closing, by
(a) a check payable to the order of the Company drawn on a U.S. bank, (b) wire
transfer of immediately available funds to an account designated by the Company
or (c) the surrender of promissory notes or other instruments representing
indebtedness of the Company to the Purchaser, the principal amounts of which
shall be exchanged dollar-for-dollar for Purchase Price of such shares of Common
Stock (“Exchanged Principal”); (2) delivery of counterpart signature
pages to this Agreement, the Closing Notice and the Warrant; and (3) delivery of
a validly completed and executed Certificate of Accredited Investor Status,
establishing the Purchaser’s status as an accredited investor as defined in Rule
501(a) of Regulation D promulgated under the Securities Act of 1933, as amended
(the “Securities Act”), in the form is attached to this Agreement
as Exhibit D (an “Investor Certification”).
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(iii) The sale and issuance of Common Stock
and Warrants under this Agreement may continue hereunder until the earlier of
(a) such time as the aggregate Purchase Price of Common Stock issued and sold
under this Agreement equals a total of $2,000,000.03, or such higher amount as
approved by the Company’s Board of Directors and the Purchaser, or (b) the close
of business on December 31, 2010. All such sales shall be made on the terms and
conditions set forth in this Agreement. Effective upon delivery to the Company
of the items (1) through (3) listed in Section 1(b)(ii) above by such persons or
entities, any common stock and warrants sold pursuant to this Section 1(b) shall
be deemed to be “Common Stock” and “Warrants,” respectively, for all purposes
under this Agreement, and the purchaser thereof shall be deemed to be the
“Purchaser” for all purposes under this Agreement.
2. Additional
Provisions.
(a) Stock Purchase
Agreement. The Purchaser
understands and agrees that the exercise of the Warrants for equity securities
of the Company may require the Purchaser’s execution of certain agreements
relating to the purchase and sale of such securities as well as registration,
co-sale and voting rights, if any, relating to such equity securities.
3. Representations and Warranties of the
Company. The Company
hereby represents and warrants to the Purchaser that:
(a) 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.
(b) Authorization. This Agreement,
the Common Stock and the Warrants have been duly authorized by the Board of
Directors of the Company. The Agreement and the Warrants, when executed and
delivered by the Company, shall constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws of general
application affecting enforcement of creditors’ rights generally, and as limited
by laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies.
4. Representations and Warranties of the
Purchaser. The Purchaser
hereby represents and warrants to the Company that:
(a) Authorization. The Purchaser has
full power and authority to enter into this Agreement. This Agreement, when
executed and delivered by the Purchaser, will constitute a valid and legally
binding obligation of the Purchaser, enforceable in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and any other laws of general application
affecting enforcement of creditors’ rights generally, and as limited by laws
relating to the availability of a specific performance, injunctive relief, or
other equitable remedies.
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(b) Purchase Entirely for Own
Account. This Agreement is
made with the Purchaser in reliance upon the Purchaser’s representation to the
Company, which by the Purchaser’s execution of this Agreement, the Purchaser
hereby confirms, that the Securities to be acquired by the Purchaser will be
acquired for investment for the Purchaser’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 the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, the Purchaser further represents that the Purchaser does not
presently have any contract, undertaking, agreement or arrangement with any
person or entity to sell, transfer or grant participations to such person or
entity or to any third person, with respect to any of the Securities. The
Purchaser has not been formed for the specific purpose of acquiring any of the
Securities.
(c) Knowledge. The Purchaser is
aware of the Company’s business affairs and financial condition and has acquired
sufficient information about the Company to reach an informed and knowledgeable
decision to acquire the securities.
(d) Restricted
Securities. The Purchaser
understands that the Securities have not been, and will not be, registered under
the Securities Act, by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of the Purchaser’s
representations as expressed herein. The Purchaser understands that the
Securities are “restricted securities” under applicable U.S. federal and state
securities laws and that, pursuant to these laws, the Purchaser must hold
the Securities indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Purchaser acknowledges that the
Company has no obligation to register or qualify the Securities for resale. The
Purchaser further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities, and on requirements relating to the Company which are
outside of the Purchaser’s control, and which the Company is under no obligation
and may not be able to satisfy.
(e) No Public Market. The Purchaser
understands that no public market now exists for any of the securities issued by
the Company, that the Company has made no assurances that a public market will
ever exist for the Securities.
(f) Legends. The Purchaser
understands that the Securities, and any securities issued in respect thereof or
exchange therefor, may bear one or all of the following legends:
(i) “THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933.”
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(ii) Any legend required by the Blue Sky laws
of any state to the extent such laws are applicable to the shares represented by
the certificate so legended.
(g)
Accredited Investor. The Purchaser is
an accredited investor as defined in Rule 501(a) of Regulation D promulgated
under the Securities Act.
(h) Legal Advice. The Purchaser has
had the opportunity to consult with his, her or its counsel regarding the
matters relevant to this Agreement and the transactions contemplated hereby.
(i) Foreign Investors. If the Purchaser
is not a United States person or entity (as defined by Rule 902(k) under the
Securities Act), the Purchaser hereby represents that it has satisfied itself as
to the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Securities or any use of this Agreement,
including: (A) the legal requirements within its jurisdiction for the purchase
of the Securities; (B) any foreign exchange restrictions applicable to such
purchase; (C) any governmental or other consents that may need to be obtained;
and (D) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale or transfer of the Securities. The
Purchaser’s subscription and payment for, and his or her continued beneficial
ownership of the Securities, will not violate any applicable securities or other
laws of Purchaser’s jurisdiction.
5. Conditions of the Purchasers’ Obligations at
Closing. The obligations
of the Purchaser to the Company
under this Agreement are subject to the fulfillment, on or before each Closing,
of each of the following conditions, unless otherwise waived:
(a) Representations and
Warranties. The
representations and warranties of the Company 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 date of the
Closing.
(b) 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 obtained and effective on or following the Closing.
6. Conditions of the Company’s Obligations at
Closing. The obligations
of the Company to the Purchaser
under this Agreement are subject to the fulfillment, on or before the Closing,
of each of the following conditions, unless otherwise waived:
(a) Representations and
Warranties. The
representations and warranties of the Purchaser contained in Section 4 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.
(b) 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 obtained and effective as of the Closing.
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(c) Delivery of Investor
Certification. The Purchaser
shall have completed and delivered to the Company a validly executed Investor
Certification establishing such Purchaser’s status as an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
7. Lock-up Agreement.
(a) Lock-Up Period;
Agreement. In connection
with the initial public offering of the Company’s securities and upon request of
the Company or the underwriters managing such offering of the Company’s
securities, the Purchaser agrees not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any securities of
the Company, however or whenever acquired (other than those included in the
registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time (not to exceed 180
days) from the effective date of such registration as may be requested by the
Company or such managing underwriters and to execute an agreement reflecting the
foregoing as may be requested by the underwriters at the time of the Company’s
initial public offering.
(b) Limitations. The obligations
described in Section 7(a) shall apply only if all officers and directors of the
Company and shareholders holding at least 1% of the Company’s outstanding Common
Stock enter into similar agreements, and shall not apply to a registration
relating solely to employee benefit plans, or to a registration relating solely
to a transaction pursuant to Rule 145 under the Securities Act.
(c) Stop-Transfer
Instructions. In order to
enforce the foregoing covenants, the Company may impose stop-transfer
instructions with respect to the securities of the Purchaser (and the securities
of every other person or entity subject to the restrictions in Section 7(a)).
(d) Transferees Bound. The Purchaser
agrees that prior to the Company’s initial public offering it will not transfer
securities of the Company unless each transferee agrees in writing to be bound
by all of the provisions of this Section 7.
8. Miscellaneous.
(a) Successors and
Assigns. 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. 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.
(b) Governing Law. This Agreement
and all acts and transactions pursuant hereto and the rights and obligations of
the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of Delaware, without giving effect to principles of
conflicts of law.
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(c) Counterparts. This Agreement
may be executed in two or more counterparts and by facsimile, each of which
shall be deemed an original and all of which together shall constitute one
instrument.
(d) 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.
(e) Notices. Any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally, by overnight courier three
days after deposit with such courier, by facsimile (upon customary confirmation
of receipt) or sent electronically (upon customary confirmation of receipt),
addressed to the party to be notified at such party’s address as set forth on
the signature page hereto, or as subsequently modified by written notice, and if
to the Company.
(f) Finder’s Fee. Each party
represents that it neither is nor will be obligated for any finder’s fee or
commission in connection with this transaction. The Purchaser agrees to
indemnify and to hold harmless the Company from any liability for any commission
or compensation in the nature of a finder’s fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Purchaser
or any of its officers, employees, or representatives is responsible. The
Company agrees to indemnify and hold harmless the Purchaser from any liability
for any commission or compensation in the nature of a finder’s 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.
(g) Amendments and
Waivers. Any term of this
Agreement may be amended or waived only with the written consent of the Company
and the Purchaser. Any amendment or waiver effected in accordance with this
Section 8(g) shall be binding upon the Purchaser and each transferee of the
Securities, each future holder of all such Securities, and the Company.
(h) Severability. If one or more
provisions of this Agreement are held to be unenforceable under applicable law,
the parties agree to renegotiate such provision in good faith, in order to
maintain the economic position enjoyed by each party as close as possible to
that under the provision rendered unenforceable. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (i) such provision shall be excluded from this Agreement, (ii)
the balance of the Agreement shall be interpreted as if such provision were so
excluded and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms.
(i) Entire Agreement. This Agreement,
and the documents referred to herein constitute the entire agreement between the
parties hereto pertaining to the subject matter hereof, and any and all other
written or oral agreements existing between the parties hereto are expressly
canceled.
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(j)
Corporate Securities
Law. THE SALE OF THE SECURITIES WHICH ARE THE
SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF DELAWARE AND THE ISSUANCE OF THE SECURITIES OR THE
PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
THE QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE DELAWARE CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
[Signature Pages
Follow]
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The parties have executed this Common Stock
and Warrant Purchase Agreement as of the date first written above.
| COMPANY: | |
| MTI MICROFUEL CELLS INC. | |
| /s/ ▇▇▇▇ ▇. ▇▇▇ | |
| ▇▇▇▇ ▇. ▇▇▇ | |
| Chief Executive Officer | |
| Address: | ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ |
| ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| PURCHASER: | |
| COUNTER POINT VENTURES | |
| FUND II, LP | |
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
| General Partner | |
| Address: | c/o Vantage Management, Inc. |
| ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
| ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| E-mail: | ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇.▇▇▇ |
SIGNATURE PAGE TO MTI MICROFUEL CELLS INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF CLOSINGS
| Closing Period and | Maximum | Maximum | Actual Common | Actual Aggregate |
| Actual Closing Date | Common | Purchase Price* | Stock Issued and Sold | Purchase Price At |
| Stock | At Each Closing | Each Closing | ||
| Issuable* | ||||
| January 1 – February | 4,714,286 | $330,000.02 | ||
| 28, 2010 | ||||
| January 11, 2010 | 2,357,143 | $165,000.00 | ||
| March 1 – April 30, | 4,714,286 | $330,000.02 | ||
| 2010 | ||||
| [Actual Closing | ||||
| Date(s)] | ||||
| May 1 – June 30, 2010 | 4,714,286 | $330,000.02 | ||
| [Actual Closing | ||||
| Date(s)] | ||||
| July 1 – August 31, | 4,714,286 | $330,000.02 | ||
| 2010 | ||||
| [Actual Closing | ||||
| Date(s)] | ||||
| September 1 – | 4,714,286 | $330,000.02 | ||
| October 31, 2010 | ||||
| [Actual Closing | ||||
| Date(s)] | ||||
| November 1 – | 4,714,286 | $330,000.02 | ||
| December 31, 2010 | ||||
| [Actual Closing | ||||
| Date(s)] | ||||
| Additional Shares* | 285,713 | $19,999.91 | ||
| TOTAL**: | 28,571,429 | $2,000,000.03 |
*Upon mutual written agreement between the
Company and the Purchaser, up to the full amount of the “Additional Shares” may
be included in one or more Closings.
**To the extent the actual number of shares of
Common Stock issued and sold by the Company to the Purchaser at any Closing does
not include the maximum number of shares of Common Stock available for sale and
issuance at such Closing as set forth herein, the Company and the Purchaser may
include such unissued shares of Common Stock from prior Closings in one or more
subsequent Closings, provided the maximum total number of shares of Common Stock
issued and sold under the Agreement shall not exceed 28,571,429 shares for an
aggregate Purchase Price of $2,000,000.03.
EXHIBIT B
FORM OF CLOSING NOTICE
| To: Counter Point Ventures Fund II, LP | Dated: ____________, 20__ |
MTI MicroFuel Cells Inc. (the “Company”), pursuant to the provisions set forth in
the Common Stock and Warrant Purchase Agreement, dated December __, 2009 (the
“Agreement”), entered into by and between the Company
and you, hereby notifies you of its desire to issue and sell to you
______________ shares of Common Stock of the Company (the “Common Stock”) at a purchase price of $0.070 per share,
for an aggregate purchase price of $____________ (the “Aggregate Purchase Price”), the closing of which issuance and sale
shall occur on __________________, 2010 (the “Closing Date”) in accordance with the terms and conditions
of the Agreement.
By countersigning this Closing Notice, you
accept the Company’s offer to sell, and agree to purchase therefrom, the shares
of Common Stock for the Aggregate Purchase Price on the Closing Date set forth
above and on the terms and conditions set forth in the Agreement, and shall
cause to be delivered to the Company the Aggregate Purchase Price on or before
the Closing Date in accordance with the terms and conditions of the Agreement.
| MTI MICROFUEL CELLS INC. |
| ▇▇▇▇ ▇. ▇▇▇ |
| Chief Executive Officer |
OFFER AGREED AND ACCEPTED:
COUNTER POINT VENTURES FUND II, LP
| By: |
| Name: |
| Title: |
| Date: |
EXHIBIT C
FORM OF WARRANT
EXHIBIT D
CERTIFICATE OF ACCREDITED INVESTOR STATUS
Except as may be indicated by the undersigned
below, the undersigned is an “accredited investor,” as that term is defined in
Regulation D under the Securities Act of 1933, as amended (the “Securities Act”).
The undersigned has initialed the line below indicating the basis on which he is
representing his status as an “accredited investor”:
_______ a bank as
defined in Section 3(a)(2) of the Securities Act, or any savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the
Securities Act whether acting in its individual or fiduciary capacity; a broker
or dealer registered pursuant to Section 15 of the Securities Exchange Act of
1934, as amended (the “Securities Exchange Act”); an insurance company as defined in Section
2(13) of the Securities Act; an investment company registered under the
Investment Company Act of 1940 or a business development company as defined in
Section 2(a)(48) of that Act; a small business investment company licensed by
the U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; a plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, and such plan has
total assets in excess of $5,000,000; an employee benefit plan within the
meaning of the Employee Retirement Income Security Act of 1974, if the
investment decision is made by a plan fiduciary, as defined in Section 3(21) of
such Act, which is either a bank, savings and loan association, insurance
company, or registered investment adviser, or if the employee benefit plan has
total assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are “accredited investors”;
____ a private
business development company as defined in Section 202(a)(22) of the Investment
Advisers Act of 1940;
____ an organization
described in Section 501(c)(3) of the Internal Revenue Code, corporation,
Massachusetts or similar business trust, or partnership, not formed for the
specific purpose of acquiring the securities offered, with total assets in
excess of $5,000,000;
____ a natural person
whose individual net worth, or joint net worth with the undersigned’s spouse, at
the time of this purchase exceeds $1,000,000;
____ a natural person
who had an individual income in excess of $200,000 in each of the two most
recent years or joint income with the undersigned’s spouse in excess of $300,000
in each of those years and has a reasonable expectation of reaching the same
income level in the current year;
____ a trust with
total assets in excess of $5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is directed by a person who has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of the prospective
investment;
____ an entity in
which all of the equity holders are “accredited investors” by virtue of their
meeting one or more of the above standards; or
____ an individual
who is a director or executive officer of MTI MicroFuel Cells Inc.
IN WITNESS WHEREOF,
the undersigned has executed this Certificate of Accredited Investor Status
effective as of __________________, 20__.
| Signature of Purchaser | |
| Name of Purchaser |