SUBSCRIPTION AGREEMENT
SulphCo,
Inc.
0000 Xxxx
Xxx Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Gentlemen:
The
undersigned (the "Investor") hereby confirms its agreement with SulphCo, Inc., a
Nevada corporation (the "Company") as follows:
1. This
Subscription Agreement, including the Terms and Conditions for Purchase of Units
attached hereto as Annex I (collectively, this "Agreement") is made as of the
date set forth on the signature page hereto between the Company and the
Investor.
2. The
Company has authorized the sale and issuance of up to an aggregate of 11,764,706
Units (the "Units"), each comprising (i) 1 share of common stock of the Company,
par value $0.001 per share ("Common Stock"); (ii) a warrant to purchase 0.5
shares of Common Stock at the price of $0.70 per share; and (iii) a warrant to
purchase 0.5 shares of Common Stock at the price of $1.00 per share
(collectively, the "Warrants"), at the price of $0.51 per Unit (the "Purchase
Price").
3. The
offering and sale of the Units (the "Offering") are being made pursuant to (a)
an effective Registration Statement on Form S-3 (File No. 333-145460) (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission"), including the Prospectus contained therein (the
"Base Prospectus"), (b) if applicable, certain "free writing prospectuses" (as
that term is defined in Rule 405 under the Securities Act of 1933, as amended
(the "Act")), that have been or will be filed with the Commission and delivered
to the Investor on or prior to the date hereof (the "Issuer Free
Writing Prospectus"), containing certain supplemental information regarding the
Units, the terms of the Offering and the Company and (c) a Prospectus Supplement
(the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") containing certain supplemental information regarding the Units
and terms of the Offering that has been or will be filed with the Commission and
delivered to the Investor (or made available to the Investor by the filing by
the Company of an electronic version thereof with the Commission).
4. The
Company and the Investor agree that the Investor shall purchase from the Company
and the Company shall issue and sell to the Investor the Units set forth on the
signature page hereto for the aggregate purchase price set forth on the
signature page hereto. The Units shall be purchased pursuant to the
Terms and Conditions for Purchase of Units attached hereto as Annex I and
incorporated herein by this reference as if fully set forth
herein. The Investor acknowledges that the Offering is not being
underwritten by FIG Partners, L.L.C., a Georgia limited liability company (the
"Placement Agent") and that there is no minimum offering amount.
5. (a)
The manner of settlement of the Common Stock included in the Units purchased by
the Investor shall be as follows:
Delivery
versus payment ("DVP") through the Depository Trust Company ("DTC") (i.e., at
Closing (as defined in Annex I) the Company shall issue the Common Stock
included in the Units registered in the Investor's name and address as set forth
below and released by Integrity Stock Transfer and Registrar, the Company's
transfer agent (the "Transfer Agent") directly to the account(s) identified by
the Investor, and simultaneously therewith Company shall have access to funds
held in escrow by the Company). NO LATER THAN 1 BUSINESS DAY AFTER
THE EXECUTION OF THIS SUBSCRIPTION AGREEMENT BY THE INVESTOR AND THE COMPANY,
THE INVESTOR SHALL:
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(I)
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NOTIFY
COMPANY AND TRANSFER AGENT OF THE ACCOUNT(S) TO BE CREDITED WITH THE
COMMON STOCK INCLUDED IN THE UNITS BEING PURCHASED BY SUCH INVESTOR,
AND
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(II)
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REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE
FOR THE UNITS BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING
ACCOUNT:
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Beneficiary
Bank:
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Citibank,
N.A.
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Beneficiary
Bank Address:
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00000
Xxxxxxxxxx Xx., Xxxxxxx, XX
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Beneficiary
Name:
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SulphCo,
Inc.
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Beneficiary
Account Number:
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9786200617
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ABA
/ Routing Number:
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000000000
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IT
IS THE INVESTOR'S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER IN A
TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DVP IN A TIMELY
MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE
FOR THE UNITS OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY
MANNER, THE UNITS MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE
INVESTOR MAY BE EXCLUDED FROM THE OFFERING ALTOGETHER.
(b) The Company shall issue and deliver
the executed Warrants included in the Units within 3 Trading Days after the
Closing Date.
6. The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past 3 years with the Company
or persons known to it to be affiliates of the Company, (b) it is not a FINRA
member or an Associated Person (as such term is defined under the NASD
Membership and Registration Rules Section 1011) as of the Closing, and (c)
neither the Investor nor any group of Investors (as identified in a public
filing made with the Commission) of which the Investor is a part in connection
with the Offering of the Units, acquired, or obtained the right to acquire, 5%
or more of the Common Stock (or Warrants convertible into or exercisable for
Common Stock) of the Company on a post-transaction
basis. Exceptions:
(If no
exceptions, write "none." If left blank, response will be deemed to be
"none.")
7. The
Investor represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with the
Commission) the Base Prospectus, the documents incorporated by reference therein
and any Issuer Free Writing Prospectus (collectively, the "Disclosure Package"),
prior to or in connection with the receipt of this Subscription
Agreement. The Investor acknowledges that, prior to the delivery of
this Subscription Agreement to the Company, the Investor will receive certain
additional information regarding the Offering, including pricing information
(the "Offering Information"). Such information may be provided to the Investor
by any means permitted under the Act, including the Prospectus Supplement, a
free writing prospectus and oral communications.
8. No
offer by the Investor to buy Units will be accepted and no part of the Purchase
Price will be delivered to the Company until the Investor has received the
Offering Information and the Company has accepted such offer by countersigning a
copy of this Subscription Agreement, and any such offer may be withdrawn or
revoked or rejected, without obligation or commitment of any kind, at any time
prior to the Company (or the Placement Agent on behalf of the Company) sending
(orally, in writing or by electronic mail) notice of its acceptance of such
offer. An indication of interest will involve no obligation or
commitment of any kind until the Investor has been delivered the Offering
Information and this Subscription Agreement is accepted and countersigned by or
on behalf of the Company.
9. The
Company and the Investor acknowledge that the only material, non-public
information relating to the Company provided to the Investor in connection with
the Offering prior to the date hereof is the existence of the
Offering.
10. The
Investor shall have a right to participate in any private or public offerings by
the Company of any equity or debt securities conducted during the 12-month
period following the Closing Date (as defined in Annex I).
Signatures
Appear on the Following Page.
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Number
of Units:
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Purchase
Price Per Unit:
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Aggregate
Purchase Price:
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Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
Dated as
of: _____________, 2010
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INVESTOR
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By:
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Print
Name:
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Title:
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Address:
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Agreed
and Accepted
this ___
day of ___________, 2010:
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SulphCo,
Inc.
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By:
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Name:
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Title:
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ANNEX
I
TERMS
AND CONDITIONS FOR PURCHASE OF UNITS
1. Authorization and Sale of the
Units. Subject to the terms and conditions of this Agreement,
the Company has authorized the sale of the Units.
2. Agreement
to Sell and Purchase the Units; Placement Agent.
2.1 At
the Closing (as defined in Section 3.1), the Company shall sell to the Investor,
and the Investor shall purchase from the Company, upon the terms and conditions
set forth herein, the number of Units set forth on the signature page of the
Subscription Agreement to which these Terms and Conditions for Purchase of Units
are attached (the "Signature Page") for the aggregate purchase price therefor
set forth on the Signature Page.
2.2 The
Company proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (the "Other Investors") and expects to
complete sales of Units to them. The Investor and the Other Investors
are hereinafter sometimes collectively referred to as the "Investors," and this
Subscription Agreement and the Subscription Agreements executed by the Other
Investors are hereinafter sometimes collectively referred to as the
"Agreements."
2.3 Investor
acknowledges that (i) the Company has agreed to pay the Placement Agent a fee
(the "Placement Fee") in connection with the sale of Units to the
Investors.
2.4 The
Company has entered into a Placement Agency Agreement, dated January 25, 2010
(the "Placement Agreement"), with the Placement Agent that contains certain
representations, warranties, covenants and agreements of the Company that may be
relied upon by the Investor, which shall be a third party beneficiary thereof.
Investor shall be treated as a Placement Agent Indemnified Party for purposes of
Section 6 (Indemnification) and Section 7 (Contribution) of the Placement
Agreement.
3. Closings
and Delivery of the Units and Funds.
3.1 Closing. The
completion of the purchase and sale of the Units (the "Closing") shall occur no
later than three 3 Trading Days following the date hereof (the "Closing Date")
at a place to be specified by the Company and the Placement Agent, and of which
the Investors will be notified in advance by the Placement Agent, in accordance
with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). At the Closing, (a) the Company shall
cause the Transfer Agent to deliver to the Investor 1 share of Common Stock
multiplied by the number of Units set forth on the Signature Page registered in
the name of the Investor or, if so indicated on the Investor Questionnaire
attached hereto as Exhibit A, in the name of a nominee designated by the
Investor; (b) the Company shall cause to be delivered to the Investor the two
Warrants to purchase 0.5 shares of Common Stock multiplied by the number of
Units set forth on the Signature Page in the forms attached hereto as Exhibits B
and C; and (c) the aggregate purchase price for the Units being purchased by the
Investor shall be delivered by or on behalf of the Investor to the
Company.
3.2 Conditions
to the Obligations of the Parties.
(a) Conditions to the Company's
Obligations. The Company's obligation to issue and sell the
Units to the Investor shall be subject to: (i) the receipt by the Company of the
purchase price for the Units being purchased hereunder as set forth on the
Signature Page, (ii) the accuracy of the representations and warranties made by
the Investor and the fulfillment of those undertakings of the Investor to be
fulfilled prior to the Closing Date, and (iii) the absence of any order, writ,
injunction, judgment or decree that could negatively affect the validity of this
Agreement or the right of the Company to enter into this Agreement or to
consummate the transactions contemplated hereby.
(b) Conditions to the Investor's
Obligations. The Investor's obligation to purchase the Units will be
subject to the following conditions, each of which may be waived by the
Investor: (i) the accuracy of the representations and warranties made by the
Company, and (ii) the fulfillment of those undertakings of the Company to be
fulfilled prior to the Closing Date, including without limitation, those
contained in the Placement Agreement. The Investor's obligations are
expressly not conditioned on the purchase by any or all of the Other Investors
of the Units that they have agreed to purchase from the Company.
3.3
Delivery of
Funds. No later than 1 business day after the execution
of this Agreement by the Investor and the Company, the Investor shall remit by
wire transfer the amount of funds equal to the aggregate purchase price for the
Units being purchased by the Investor to the following account designated by the
Company:
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Beneficiary
Bank:
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Citibank,
N.A.
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Beneficiary
Bank Address:
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00000
Xxxxxxxxxx Xx., Xxxxxxx, XX
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Beneficiary
Name:
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SulphCo,
Inc.
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Beneficiary
Account Number:
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9786200617
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ABA
/ Routing Number:
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000000000
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Such
funds shall be held in escrow by the Company until the Closing pending the
satisfaction, in the sole judgment of the Placement Agent, of the conditions set
forth in Section 3.2(b) hereof. The Placement Agent shall have no
rights in or to any of the escrowed funds until the Closing, at which time a
portion of the escrowed funds shall be applied to the Placement
Fee.
3.4 Delivery of Units.
The Investor has elected to settle the Common Stock
included in the Units purchased by such Investor by DVP through DTC. No later
than 1 business day after the execution of this Agreement by the Investor and
the Company, the Investor shall notify the Company and the Transfer Agent of the
account(s) to be credited with the Common Stock included in the Units being
purchased by such Investor. On the Closing Date, the Company shall deliver the
Common Stock included in the Units to the Investor through DTC directly to the
account(s) identified by the Investor and simultaneously therewith payment shall
be made by the Investor by wire transfer to the Company (to the extent the
aggregate Purchase Price is not already held in escrow by the
Company).
If the
Company fails to deliver the Common Stock included in the Units to the Investor
by the Closing Date, and if after the Closing Date the Investor purchases (in an
open market transaction) shares of Common Stock to deliver in satisfaction of a
sale by the Investor that the Investor anticipated receiving from the Company,
then the Company shall, within three 3 Trading Days after the Investor’s written
request and at the Company’s sole discretion, either (i) pay cash to the
Investor in an amount equal to the Investor’s total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so purchased (the
“Buy-In Price”), at which point the Company’s obligation to issue and deliver
the Common Stock included in the Units shall terminate, or (ii) promptly honor
its obligation to deliver to the Investor the Common Stock included in the Units
and pay cash to the Investor in an amount equal to the excess (if any) of the
Buy-In Price over the product of (A) such number of shares of Common Stock, and
(B) the Closing Price on the Closing Date. As used herein, “Closing Price” means
the closing sale price on the applicable date on the securities exchange or
other-the-counter trading market on which the Common Stock is quoted, listed or
admitted for trading.
In
addition, on the Closing Date, the Company shall deliver or cause to be
delivered by overnight courier the Warrants included in the Units purchased by
such Investor.
4. Representations, Warranties and
Covenants of the Investor. The Investor acknowledges, represents and
warrants to, and agrees with, the Company and the Placement Agent
that:
4.1 The
Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in securities
presenting an investment decision like that involved in the purchase of the
Units, including investments in securities issued by the Company and investments
in comparable companies, (b) has answered all questions on the Signature Page
and the Investor Questionnaire and the answers thereto are true and correct as
of the date hereof and will be true and correct as of the Closing Date and (c)
in connection with its decision to purchase the number of Units set forth on the
Signature Page, has received and is relying solely upon the Disclosure Package
and the documents incorporated by reference therein and the Offering
Information.
4.2 (a)
No action has been or will be taken in any jurisdiction outside the United
States by the Company, the or the Placement Agent that would permit an offering
of the Units, or possession or distribution of offering materials in connection
with the issue of the Units in any jurisdiction outside the United States where
action for that purpose is required, (b) if the Investor is outside the United
States, it will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Units or has in
its possession or distributes any offering material, in all cases at its own
expense and (c) the Placement Agent is not authorized to make and have not made
any representation, disclosure or use of any information in connection with the
issue, placement, purchase and sale of the Units, except as set forth or
incorporated by reference in the Base Prospectus or the Prospectus
Supplement.
4.3
(a) The Investor has full right, power,
authority and capacity to enter into this Subscription Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Subscription
Agreement, (b) this Subscription Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor 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) and except as
to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or regulation) and (c) the
execution and delivery of this Subscription Agreement and the consummation of
the transactions contemplated hereby do not conflict with or result in a breach
of (i) Investor's certificate of incorporation or by-laws (or other similar
governing documents), or (ii) any material agreement or any law or regulation to
which Investor is a party or by which any of its property or assets is
bound.
4.4
The Investor understands that nothing in this Subscription
Agreement, the Prospectus or any other materials presented to the Investor in
connection with the purchase and sale of the Units constitutes legal, tax or
investment advice. The Investor has consulted such legal, tax and
investment advisors and made such investigation as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of
Units.
4.5 Each
Investor represents and warrants that, except as otherwise disclosed to the
Company in writing, from the date on which the Placement Agent first identified
the Company to the Investor as contemplating the Offering (the "Discussion
Time") up through the execution of this Subscription Agreement, the Investor did
not, directly or indirectly, execute any Short Sales or engage in any other
trading in the Common Stock or any derivative security
thereof. Notwithstanding the foregoing, in the case of an Investor
and/or its affiliates that is, individually or collectively, a multi-managed
investment vehicle whereby separate portfolio managers manage separate portions
of the Investor's or affiliates assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio managers managing
other portions of the Investor's or affiliates assets, the representation set
forth above shall only apply with respect to the portion of assets managed by
the portfolio managers that have knowledge about the financing transaction
contemplated by this Subscription Agreement and the Placement
Agreement. Each Investor represents, warrants, covenants and agrees
that (a) from the Discussion Time through the date hereof, such Investor and its
affiliates did not, and (b) from the date hereof until the date the transactions
contemplated by this Subscription Agreement and the Placement Agreement are
first publicly announced by the Company as described in Section 14, such
Investor will not, directly or indirectly, trade in the Common Stock or execute
or effect (or cause to be executed or effected) any Short Sale in the Common
Stock or disclose the existence of the offering contemplated by this Agreement
to any other person not subject to a non-disclosure or similar agreement
regarding the same. Furthermore, for the time period set forth in
clause (b) above, the Investor will not directly or indirectly sell, offer to
sell, solicit offers to buy, dispose of, loan, pledge or grant any right with
respect to shares of Common Stock, except in compliance with all relevant
securities laws and regulations. Notwithstanding the foregoing, no
Investor makes any representation, warranty or covenant hereby that it will not
engage in Short Sales in the securities of the Company after the time that the
transactions contemplated by this Agreement are first publicly announced by the
Company as described in Section 14. "Short Sales" means all "short
sales" as defined in Rule 200 of Regulation SHO promulgated under the Exchange
Act, whether or not against the box, and all types of direct and indirect stock
pledges, forward sales contracts, options, puts, calls, short sales, swaps, "put
equivalent positions" (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker dealers or foreign regulated
brokers.
5. Lock–Up
Agreement. The Company agrees that its directors and executive
officers shall not, for a period of 180 days following the Closing Date, sell,
assign or transfer any of their shares of the Company's securities without the
Placement Agent's prior written consent, other than (i) to satisfy the exercise
price and/or tax withholding obligations in connection with the exercise of
stock options granted by the Company; (ii) pursuant to a Rule 10b5-1 Selling
Plan effective as of the date of this Agreement (provided that prior notice of
any sale, assignment or transfer is given to the Placement Agent); (iii) to
complete one or more bona fide gift transfers of securities; (iv) to transfer
securities to one or more trusts for bona fide estate planning purposes; (v) to
transfer securities to any corporation, partnership, limited liability company
or other entity all of the beneficial ownership interests of which are held by
the transferor or the immediate family of the transferor; or (vi) to effect the
cashless exercise of any stock options outstanding as of the date hereof,
provided that any shares received by the director or executive officer upon such
exercise will be subject to the terms of this Section 5 and except that in
connection with such exercise the director or executive officer shall be
permitted to sell or otherwise transfer only such number of shares of Common
Stock necessary to fund the exercise price of such stock options and any
withholding taxes resulting from such exercise.
6. Survival of Representations,
Warranties and Agreements; Third Party
Beneficiary. Notwithstanding any investigation made by any
party to this Subscription Agreement or by the Placement Agent, all covenants,
agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Subscription Agreement, the delivery
to the Investor of the Units being purchased and the payment
therefor. The Placement Agent shall be third party beneficiary with
respect to the representations, warranties and agreements of the Investor in
Section 4 hereof.
7. Notices. All
notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or (b) if delivered from outside the
United States, by Federal Express or facsimile, and (c) will be deemed given (i)
if delivered by first-class registered or certified mail domestic, 3 business
days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, 1 business day after so mailed, (iii) if delivered by Federal Express,
2 business days after so mailed and (iv) if delivered by facsimile, upon
electric confirmation of receipt and will be delivered and addressed as
follows:
(a) if
to the Company, to:
SulphCo,
Inc.
0000 Xxxx
Xxx Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: Xx.
Xxxxx X. Xxxx
Facsimile:
713.896.8803
with
copies to:
K&L
Gates, LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx
Facsimile:
212.536.3901
(b) if
to the Investor, at its address on the Signature Page hereto, or at such other
address or addresses as may have been furnished to the Company in
writing.
8. Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
9. Headings. The headings of the
various sections of this Agreement have been inserted for convenience of
reference only and will not be deemed to be part of this Agreement.
10. 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 will not in any way be affected or
impaired thereby.
11. Governing Law. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
12. Counterparts. This
Agreement may be executed in 2 or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute
but 1 instrument, and will become effective when 1 or more counterparts have
been signed by each party hereto and delivered to the other
parties. The Company and the Investor acknowledge and agree that the
Company shall deliver its counterpart to the Investor along with the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
13. Confirmation of
Sale. The Investor acknowledges and agrees that such
Investor's receipt of the Company's signed counterpart to this Agreement,
together with the Prospectus Supplement (or the filing by the Company of an
electronic version thereof with the Commission), shall constitute written
confirmation of the Company's sale of Units to such Investor.
14. Press Release. The
Company and the Investor agree that the Company shall issue a press release
announcing the Offering and disclosing all material information regarding the
Offering (subject to the requirements of Rule 135 under the Act) on or before
9.30am Eastern Standard Time on January 26, 2010.
EXHIBIT
A
INVESTOR
QUESTIONNAIRE
Pursuant
to Section 3 of Annex I to the Agreement, please provide us with the following
information:
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1.
The exact name that your Common Stock and Warrant(s) are to be registered
in. You may use a nominee name if appropriate:
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2.
The relationship between the Investor and the registered holder listed in
response to item 1 above:
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3.
The mailing address of the registered holder listed in response to item 1
above:
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4.
The Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above:
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5.
Name of DTC Participant (broker-dealer at which the account or accounts to
be credited with the Common Stock are maintained):
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6.
DTC Participant Number:
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7.
Name of Account at DTC Participant being credited with the Common
Stock:
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8.
Account Number at DTC Participant being credited with the Common
Stock:
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EXHIBIT
B
FORM
OF WARRANT
See
Attached.
EXHIBIT
C
FORM
OF WARRANT
See
Attached.
