NOTE AND WARRANT PURCHASE AGREEMENT TRULITE, INC. NOTE AND WARRANT PURCHASE AGREEMENT NOVEMBER 7, 2007
TRULITE,
INC.
NOTE
AND WARRANT
PURCHASE
AGREEMENT
NOVEMBER
7, 2007
TABLE
OF CONTENTS
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Page
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1.
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Purchase
and Sale of Units; Registration Rights.
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2
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1.1.
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Notes
and Warrants.
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2
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1.2.
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Closing
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2
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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
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2
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1.5.
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Expenses
of Registration
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2
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1.6.
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Indemnification
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2
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2.
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Representations
and Warranties of the Company
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2
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2.1.
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Organization,
Good Standing and Qualification
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2
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2.2.
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Capitalization
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2
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2.3.
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Authorization
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2
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2.4.
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Valid
Issuance
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2
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2.5.
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Governmental
Consents
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2
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2.6.
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Offering
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2
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2.7.
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Litigation
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2
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2.8.
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Patents
and Trademarks
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2
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2.9.
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Agreements;
Action.
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2
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2.10.
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Environmental
and Safety Laws
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2
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2.11.
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Title
to Property and Assets
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2
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2.12.
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Insurance
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2
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3.
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Representations
and Warranties of Investor
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2
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3.1.
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Authorization
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2
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3.2.
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Purchase
Entirely for Own Account
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2
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3.3.
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Disclosure
of Information
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2
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3.4.
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Investment
Experience
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2
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3.5.
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Accredited
Investor
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2
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3.6.
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Restricted
Securities
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2
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3.7.
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Further
Limitations on Disposition
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2
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3.8.
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Legends
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2
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4.
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Conditions
of Investor’s Obligations at Closing
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2
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4.1.
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Representations
and Warranties
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2
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4.2.
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Performance
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2
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5.
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Conditions
of the Company’s Obligations at Closing
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2
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5.1.
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Representations
and Warranties
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2
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5.2.
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Payment
of Consideration
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2
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5.3.
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Qualifications
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2
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| 6. |
Miscellaneous.
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2
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6.1.
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Survival
of Warranties
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2
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i
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Trulite,
Inc.
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6.2.
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Successors
and Assigns
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2
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6.3.
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Choice
of Law, Venue and Forum
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2
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6.4.
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Counterparts
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2
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6.5.
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Titles
and Subtitles
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2
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6.6.
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Notices
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2
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6.7.
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Finder’s
Fee
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2
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6.8.
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Expenses
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2
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6.9.
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Amendments
and Waivers
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2
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6.10.
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Severability
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2
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6.11.
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Entire
Agreement
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2
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Exhibit
“A”
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Form
of Note
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Exhibit
“B”
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Form
of Warrant
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ii
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Trulite,
Inc.
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This
Note
and Warrant Purchase Agreement (this “Agreement”)
is
made as of the 7th day of November, 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 $25,000 per Unit, each Unit to be comprised of (i) an unsecured
promissory note in the form of Exhibit
A
attached
hereto in the original principal amount of $25,000 (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 25,000 shares of the Company’s common stock, $0.0001 par value
(“Common
Stock”)
at a
price of $0.50 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, and (ii) 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 $25,000 per Unit.
1.2. Closing.
The
purchase and sale of the Units shall take place at the offices of 0000 XxXxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000 at 10 a.m. Central Time, on November 7, 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
$25,000 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 $25,000
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 25,000
multiplied by the number of Units such Investor is purchasing
hereunder.
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Trulite,
Inc.
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1.3. Company
Registration.
(a) Registration.
If (but
without any obligation to do so) on or before October 15, 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,
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 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 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 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 Warrant Shares, that
the
underwriters determine in their sole discretion will not jeopardize the success
of the offering. Additionally in no event shall any 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 and pursuant to the Note
and Warrant Purchase Agreements entered into by the Company on June 26, 2007,
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 Warrant Shares requested to be registered can be included in such
offering, then the 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.
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Trulite,
Inc.
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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
Warrant Shares of any selling Investor that such Investor shall furnish to
the
Company such information regarding itself, the Warrant Shares held by it, and
the intended method of disposition of such Warrant Shares as shall be reasonably
required to effect the registration of such Investor’s 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 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 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.
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Trulite,
Inc.
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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 11,935,591 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 3,520,676 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 2,066,666 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 1,531,421 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 Warrants being sold hereunder, 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 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.
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Trulite,
Inc.
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2.4. Valid
Issuance.
The
Warrant Shares have been duly and validly reserved for issuance 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.
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Note
and Warrant Purchase Agreement
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Trulite,
Inc.
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(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 Warrants to be received by Investor 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 June 30, 2007 and Current Reports on Form 8-K
filed
with the Securities and Exchange Commission (“SEC”) on July 18, 2007, on August
3, 2007, on August 13,2007, on August 24, 2007, and on September 27, 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.
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Note
and Warrant Purchase Agreement
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Trulite,
Inc.
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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.
3.8. Legends.
It is
understood that the certificates evidencing the Securities may bear one or
all
of the following legends:
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Note
and Warrant Purchase Agreement
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7
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Trulite,
Inc.
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“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.
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.
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Note
and Warrant Purchase Agreement
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8
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Trulite,
Inc.
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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 Xxxxxx County, Texas, and shall be brought in the State District Courts
of
Xxxxxx 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 Xxxxxx County, Texas, and specifically consent to the
jurisdiction of the State District Courts of Xxxxxx 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 an express delivery service
or
with the United States Post Office, by registered, express 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.
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Note
and Warrant Purchase Agreement
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9
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Trulite,
Inc.
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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
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]
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Note
and Warrant Purchase Agreement
|
10
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Trulite,
Inc.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
COMPANY:
|
|
|
Trulite,
Inc.
|
|
|
(a
Delaware corporation)
|
|
|
By:
|
/S/
G.XXXX XXXXXXXXXXXX
|
|
Title:
|
Chief
Financial Officer
|
|
Address:
|
0000
XxXxxxxx, Xxxxx 000
|
|
Xxxxxxx,
Xxxxx 00000
|
|
INVESTORS:
|
||
|
No.
of Units Subscribed for: 2
|
/s/
Xxxxxxxx X. Xxxxxxxx
|
|
|
Address:
|
0000
Xxxxxx Xxxx
|
|
|
Xxxxxxx,
XX 00000
|
||
|
No.
of Units Subscribed for: 1
|
/s/
Xxxxxxx X. Xxxxxxxxx
|
|
|
Address:
|
0000
Xx Xxxx Xx.
|
|
|
Xxxxxx,
XX 00000
|
||
|
No.
of Units Subscribed for: 1
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Address:
|
0000
Xxxxxx Xxxxx
|
|
|
Xxxxxx,
XX 00000
|
||
|
No.
of Units Subscribed for: 1
|
/s/
Xxxx X. Love
|
|
|
Address:
|
3400
JPMorgan Chase Tower
|
|
|
000
Xxxxxx Xxxxxx
|
||
|
Xxxxxxx,
XX 00000-0000
|
||
|
No.
of Units Subscribed for: 1
|
/s/
X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxxx
|
|
|
Address:
|
0000
Xxxxxxx Xx.
|
|
|
Xxxxxxxxxx,
XX 00000-0000
|
||
|
No.
of Units Subscribed for: 1
|
/s/
Xxxxxxxx Xxxxxxxxxx
|
|
|
Address:
|
0000
Xxxxxxxx Xx.
|
|
|
Xxxxx,
X.X. 00000
|
||
|
Note
and Warrant Purchase Agreement
|
A-1
|
Trulite,
Inc.
|
|
/s/
Xxxxxx X. Xxxxxxx
|
||
|
Address:
|
00
Xxxxxxxx Xx.
|
|
|
Xxxxxxxxxx,
XX 00000
|
||
|
No.
of Units Subscribed for: 1
|
/s/
Xxx Xxxxxxx
|
|
|
Address:
|
||
|
No.
of Units Subscribed for: 4
|
/s/
Xxxx X. Xxxxxxxxxxxx, Xx.
|
|
|
Address:
|
0000
Xxx 00X.
|
|
|
Xxxxx
X XXX 000
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
No.
of Units Subscribed for: 1
|
/s/
Xxxx Xxxxxxxxx
|
|
|
Address:
|
00000
Xxxxxxx Xxx
|
|
|
Xxxxxxx,
XX 00000
|
||
|
No.
of Units Subscribed for: 2
|
/s/
Tikchik Narrows Partners
|
|
|
By:
|
Xxxxxx
X. Xxxx, Xx., Partner
|
|
|
Address:
|
0000
Xxxxxxxx Xxxx Xxxx
|
|
|
Xxxxxxx,
XX 00000
|
||
|
No.
of Units Subscribed for: 1
|
/s/
Xxxx X. Xxxxx
|
|
|
Address:
|
0000
XxXxxxxx, Xxxxx 000
|
|
|
Xxxxxxx,
XX 00000
|
||
|
Note
and Warrant Purchase Agreement
|
A-2
|
Trulite,
Inc.
|
EXHIBIT
“A”
FORM
OF NOTE
[See
Attached]
|
Note
and Warrant Purchase Agreement
|
A-3
|
Trulite,
Inc.
|
EXHIBIT
“B”
FORM
OF WARRANT
[See
Attached]
|
Note
and Warrant Purchase Agreement
|
A-4
|
Trulite,
Inc.
|
