WAIVER AGREEMENT
Exhibit
10.13
This
Waiver Agreement (this “Agreement”) is dated and effective as of this
22nd
day of
July, 2004, by and among Trulite Technology, LC, a Utah limited liability
company (the “Company”), and Xxxxx Xxxxxxxxx and Xxxxxx Xxxxxxx, each a member
of the Company (collectively, the “Members”).
WHEREAS,
the Members, collectively, own all the Membership Interests of the Company
(the
“Interests”);
WHEREAS,
pursuant to the Operating Agreement of the Company (the “Operating Agreement”),
dated and effective as of July 17, 2002, certain restrictions on the sale
or
other transfers of the Interests of the Company were imposed;
WHEREAS,
pursuant to a contribution agreement (the “Contribution Agreement”), the Members
desire to transfer their Interests of the Company to Trulite, Inc., a
newly-formed Delaware corporation;
WHEREAS,
in order to complete the transactions contemplated by the Contribution
Agreement, each Member and the Company must waive all of its rights with
respect
to the transfer restrictions set forth in Article VI of the Operating Agreement;
and
WHEREAS,
Article VI of the Operating Agreement creates a right of first refusal in
favor
of the Company and the Members, pursuant to which no Interests of the Company
can be transferred, unless the Interests have first been offered for sale
to the
Company and, if the Company should fail or refuse to accept the offer, then
to
the Members.
NOW,
THEREFORE, in accordance with the above, (i) the Company hereby irrevocably
waives, and refuses to exercise, the right of first refusal in its favor
as
described in Article VI of the Operating Agreement with respect to any transfer
of any Interests of the Company, and (ii) each of the Members hereby irrevocably
waives, and refuses to exercise, the right of first refusal in its favor
as
described in Article VI of the Operating Agreement with respect to any transfer
of its Interests of the Company that has taken place prior to the date hereof,
or which will take place in connection with the transactions the subject
of the
Contribution Agreement.
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of
the date first written above. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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TRULITE
TECHNOLOGY, LC
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By:
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/s/
Xxxxx
Xxxxxxxxx
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Title:
Manager
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/s/
Xxxxx
Xxxxxxxxx
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Member
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/s/
Xxxxxx Xxxxxxx
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Member
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