COMMON STOCK AND WARRANT PURCHASE AGREEMENT
This
Common Stock and Warrant Purchase Agreement (this “Agreement”) is made as of
September 15, 2006 (the “Execution Date”), by and among O2Diesel Corporation, a
Delaware corporation (the “Company”), and Energenics Holdings Pte Ltd (the
“Purchaser”).
In
consideration of the mutual promises and covenants herein, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1.
AUTHORIZATION
AND SALE OF COMMON STOCK AND WARRANTS
1.1 Authorization
of Common Stock and Warrants.
The
Company has authorized the sale and issuance to the Purchaser of 1,371,742
shares (the “Shares”) of its Common Stock, par value $ 0.0001 per share (the
“Common Stock”), and warrants to purchase 685,871 shares of Common Stock (the
“Warrants”), such Warrants having the terms set forth in the form attached
hereto as Exhibit
A.
The
Shares and Warrants to be purchased hereunder are referred to collectively
as
the “Units”, and a single “Unit” shall consist of one Share and a Warrant to
purchase one half Share.
1.2 Sale
and Issuance of Units.
Subject
to the terms and conditions hereof, the Company will issue and sell to the
Purchaser and the Purchaser will buy from the Company 1,371,742 Units at a
per
Unit purchase price of US$0.729 (the “Per Unit Price”), and at the aggregate
purchase price of US$1,000,000 (the “Purchase Price”). The Per Unit Price shall
be calculated as 75% of the daily volume weighted average closing price per
share of Common Stock for each of the five (5) consecutive full trading days
in
which such shares are traded on the American Stock Exchange during the five
days
prior to and including September 13, 2006 (“VWAP”).
1.3 Issuance
of Additional Warrants.
The
Company has authorized the sale and issuance to the Purchaser of additional
warrants (“Additional Warrants”) having the terms set forth in the form attached
hereto as Exhibit
B,
at 120%
VWAP, based on the following purchases of O2D05 or equivalent, pursuant to
the
Supply and Distribution Agreement, by and between the Company and Energenics
PTE
Ltd, an affiliate of the Purchaser (“Energenics”), on September 15, 2006
(“Supply Agreement”):
|
Warrant
Coverage
|
Purchases
(in metric tons)
|
|
10%
|
*
|
|
10%
|
*
|
|
10%
|
*
|
|
10%
|
*
|
|
10%
|
*
|
“Warrant
Coverage” shall mean the number of warrants received for purchasing O2D05 or
equivalent, based on a percentage of the number of Shares purchased. “Purchases”
shall mean the total cumulative amount of metric tons of O2D05 or equivalent
purchased.
[*]
=
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. OMITTED TEXT IS INDICATED
BY A
“*”.
1.4 Sale
and Issuance of Additional Shares.
The
Company has authorized the sale and issuance to the Purchaser of additional
shares equal to twenty-five (25%) of the Shares (“Additional Shares”) at the Per
Unit Price and at the aggregate purchase price of US$250,000 (the “Additional
Purchase Price”). The purchase of the Additional Shares shall occur if
Energenics purchases * milliion metric tons of O2D05 or the equivalent in any
calendar year, pursuant to the Supply Agreement.
2.
CLOSING
DATE; DELIVERY
2.1 Closing
Date.
It
is
anticipated that the purchase and sale of the Units hereunder shall be
consummated at a closing (the “Closing”) held at the offices of Xxxxxx &
Xxxxxx llp,
0000
Xxxxxx Xxxxxxxxx, Xxxxx 000, XxXxxx, XX 00000 on September 30, 2006, at 10:00
a.m., local time, or at such other date, time and place upon which the Company
and the Purchaser shall agree (the date and time of the Closing is hereinafter
referred to as the “Closing Date”).
2.2 Delivery
and Payment.
At
the
Closing, the Company will deliver to the Purchaser a certificate or
certificates, registered in the Purchaser’s name, representing the Shares and
Warrants to be purchased by the Purchaser at the Closing, against payment of
the
Purchase Price therefor, by wire transfer per the Company’s
instructions.
2.3 Escrow
of Funds Pending Closing.
Concurrent
with the execution of this Agreement, the Purchaser will tender to legal counsel
for the Company funds equal to the Purchase Price for the Units. Such funds
will
be held by such counsel in escrow pending notice by the Company and Purchaser
of
the Closing. If the Closing has not occurred by the termination date specified
in Section 9.1, the parties will instruct counsel to return the funds to the
Purchaser. Such funds shall be delivered to Xxxxxx & Xxxxxx llp,
0000
Xxxxxx Xxxxxxxxx, XxXxxx, Xxxxxxxx 00000, Attn.: Xxxxx X. Xxxxx, Esq. by wire
transfer to the following account:
|
Account
Name:
|
Xxxxxx
& Xxxxxx llp Client Trust Account
|
|
Account
No.
|
3700
3879
|
|
ABA
No.
|
000
00 0000
|
|
Bank
Name:
|
Citibank
FSB
|
|
0000
Xxxxxxxxxxxx Xxxxxx, XX
|
|
|
Xxxxxxxxxx,
XX 00000
|
|
|
Note:
|
O2Diesel
Corporation / Equity Subscription
|
3.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Purchaser that, as of the Closing
Date:
3.1 Organization
and Standing; Certificate of Incorporation and Bylaws.
The
Company is a corporation duly organized and existing under, and by virtue of,
the laws of the State of Delaware and is in good standing under such laws.
The
Company has all requisite legal and corporate power and authority to execute
and
deliver this Agreement, to sell and to issue the Units hereunder, and to issue
the shares of Common Stock issuable upon exercise of the Warrants.
-2-
3.2 Disclosure
Documents.
The
Disclosure Documents (as hereinafter defined) are true, correct and complete
in
all material respects, and do not contain an untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading. Since the respective dates as of which information
was given in the Disclosure Documents, except as otherwise stated therein,
there
has been no material adverse change in the financial condition, or in the
results of operations or affairs of the Company.
4.
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
The
Purchaser hereby represents and warrants to the Company as follows:
4.1 Preexisting
Relationship with Company; Business and Financial
Experience.
By
reason
of its business or financial experience or the business or financial experience
of its professional advisors who are unaffiliated with the Company and who
are
not compensated by the Company, the Purchaser has the capacity to protect its
own interests in connection with the purchase of the Units. Purchaser is an
“accredited investor” as defined in Rule 501(a) under the Securities Act of
1933, as amended (“Securities Act”).
4.2 Investment
Intent; Blue Sky.
It
is
acquiring the Units for investment for its own account, not as a nominee or
agent, and not with a view to, or for resale in connection with, any
distribution thereof. It understands that the issuance of the Units and the
Shares of Common Stock issuable upon exercise of the Warrants 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, the
availability of which depends upon, among other things, the bona fide nature
of
the Purchaser’s investment intent and the accuracy of the Purchaser’s
representations as expressed herein. The Purchaser’s address set forth herein
represents the Purchaser’s true and correct state of domicile, upon which the
Company may rely for the purpose of complying with applicable “Blue Sky”
laws.
4.3 Rule
144.
It
acknowledges that the Units and the shares of Common Stock issuable upon
exercise of the Warrants must be held indefinitely unless subsequently
registered under the Securities Act or unless an exemption from such
registration is available. It is aware of the provisions of Rule 144 promulgated
under the Securities Act which permit limited resale of shares purchased in
a
private placement subject to the satisfaction of certain conditions, including,
among other things, the existence of a public market for the shares, the
availability of certain current public information about the Company, the resale
occurring not less than one year after a party has purchased and paid for the
security to be sold, the sale being effected through a “broker’s transaction” or
in a transaction directly with a “market maker,” and the number of shares being
sold during any three-month period not exceeding specified limitations.
4.4 Restrictions
on Transfer; Restrictive Legends.
It
understands that the transfer of the Units and the shares of Common Stock
issuable upon exercise of the Warrants is restricted by applicable state and
Federal securities laws and by the provisions of this Agreement, and that the
certificates representing the Shares, the Warrants and the shares of Common
Stock issuable upon exercise of the Warrants will be imprinted with legends
in
the following form restricting transfer except in compliance
therewith:
-3-
THE
SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED BY THE HOLDER FOR ITS OWN
ACCOUNT, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO THE DISTRIBUTION OF
SUCH
SECURITIES. THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “ACT”),
OR
ANY APPLICABLE STATE SECURITIES LAWS AND MAY
NOT
BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT (I)
PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND COMPLIANCE WITH SUCH
STATE SECURITIES LAWS, (II)
IN
COMPLIANCE WITH RULE 144 UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS,
OR
(III) UPON
THE DELIVERY TO O2DIESEL CORPORATION (THE
“COMPANY”)
OF AN
OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION AND/ OR COMPLIANCE IS NOT REQUIRED.
Without
in any way limiting the above, the Purchaser agrees not to make any disposition
of all or any portion of the Shares or Warrants unless and until eighteen (18)
months after the Closing Date. Notwithstanding anything to the contrary, the
legend requirements shall terminate when (i) the security has been effectively
registered under the Securities Act and disposed of pursuant thereto, or (ii)
the Company shall have received an opinion of counsel reasonably satisfactory
to
it that such legend is not required in order to insure compliance with the
Securities Act.
4.5 Access
to Data; Disclosure Documents.
Purchaser
acknowledges that it has received all such information as Purchaser deems
necessary and appropriate to enable it to evaluate the financial risk inherent
in making an investment in the Units, including but not limited to the Company’s
reports filed under the Securities Exchange Act of 1934, as amended (“Exchange
Act”), with the SEC (“Disclosure Documents”). Purchaser further acknowledges
that Purchaser has (a) received satisfactory and complete information
concerning the business and financial condition of the Company in response
to
all inquiries in respect thereof, and (b) been given the opportunity to
meet with management of the Company. Purchaser has relied solely upon the
Disclosure Documents, advice of its representatives, if any, and independent
investigations made by the Purchaser and/or its representatives, if any, in
making the decision to purchase the Units and acknowledges that no
representations or agreements other than those set forth in this Agreement
have
been made to the Purchaser in respect thereto.
4.6 Authorization.
All
action on the part of the Purchaser’s partners, members, board of directors, and
stockholders, as applicable, necessary for the authorization, execution,
delivery and performance of this Agreement by the Purchaser, the purchase of
and
payment for the Units and the performance of all of the Purchaser’s obligations
under this Agreement have been taken or will be taken prior to the
Closing.
-4-
5.
COVENANTS.
5.1 Intellectual
Property.
No
patent
or intellectual property of the Company is subject to any litigation, proceeding
or judgment restricting in any manner the use, transfer, or licensing thereof
by
the Company, or that may affect the validity, use, or enforceability of the
patent or intellectual property. Following the Closing, the Company will provide
to the Purchaser all necessary documentation to verify the Company’s ownership
in the patents and intellectual property.
5.2 Registration.
(a)
The
Company agrees it shall include the Shares and Additional Shares and all Common
Stock issued or issuable upon the exercise of the Warrants and the Additional
Warrants including the Common Stock issued pursuant to recapitalizations, stock
splits, stock dividends and similar distributions with respect to such shares
(the “Registrable Securities”) on the next registration statement filed by the
Company (the “Registration Statement”) under the Securities Act with the SEC,
qualify the Registrable Securities under all applicable state securities laws
and include such Registrable Securities in all other applicable compliance,
which registration, qualification and compliance shall in no event be later
than
one year following the Closing Date (“Deadline”). The
Company will pay to the Purchaser, in cash or shares of Common Stock at the
Company’s discretion, 1% of the Purchase Price as liquidated damages for every
month after the Deadline that it takes for the Registration Statement to be
declared effective; provided
that
the
maximum aggregate liquidated damages payable to the Purchaser under this
Section 5.1(a) shall not exceed eight percent (8%) of the Purchase Price.
If
a
Registration Statement is not declared effective eighteen (18) months following
the Closing Date, the registration rights set forth in this Section 5.2 may
be
transferred to any transferee of Registrable Securities.
(b) The
Company will use its reasonable best efforts to cause such Registration
Statements to become effective within ninety (90) days, or one hundred twenty
(120) days if such Registration Statement is subject to review by the staff
of
the SEC, in each case from the initial filing thereof.
(c)
All
the
costs and expenses incurred in connection with the registration of the Shares,
Warrants and Additional Warrants shall be borne by the Company.
6.
INDEMNIFICATION
6.1 Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless the Purchaser, and each subsequent holder of the Registrable
Securities (each a “Holder,” and collectively, the “Holders”), the officers,
directors, members, partners, agents, brokers (including brokers who offer
and
sell Registrable Securities as principal as a result of a pledge or any failure
to perform under a margin call of Common Stock), investment advisors and
employees (and any other persons with a functionally equivalent role of a person
holding such titles, notwithstanding a lack of such title or any other title)
of
each of them, each person who controls any such Holder (within the
-5-
meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) and
the
officers, directors, members, shareholders, partners, agents and employees
(and
any other persons with a functionally equivalent role of a person holding such
titles, notwithstanding a lack of such title or any other title) of each such
controlling person, to the fullest extent permitted by applicable law, from
and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys’ fees) and expenses (collectively,
“Losses”), as incurred, arising out of or relating to (1) any untrue or alleged
untrue statement of a material fact contained in a Registration Statement,
any
prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any prospectus or
form
of prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading, or (2) any violation or alleged violation by
the
Company of the Securities Act, Exchange Act or any state securities law, or
any
rule or regulation thereunder, in connection with the performance of its
obligations under this Agreement, except to the extent, but only to the extent,
that (i) such untrue statements or omissions are based solely upon information
regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to
such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in a Registration Statement, such prospectus or such form
of
prospectus or in any amendment or supplement thereto or (ii) the use by such
Holder of an outdated or defective prospectus after the Company has notified
such Holder in writing that the prospectus is outdated or defective. The Company
shall notify the Holders promptly of the institution, threat or assertion of
any
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened (“Proceeding”) arising from or in connection
with the transactions contemplated by this Agreement of which the Company is
aware.
6.2 Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, to the extent arising out of or based
solely upon: (x) such Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, any prospectus,
or
any form of prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading (i) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company specifically for inclusion
in
such Registration Statement or such prospectus or (ii) to the extent that such
information relates to such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in writing by
such Holder expressly for use in a Registration Statement, such prospectus
or
such form of prospectus or in any amendment or supplement thereto or (ii) the
use by such Holder of an outdated or defective prospectus after the Company
has
notified such Holder in writing that the prospectus is outdated or defective.
In
no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
-6-
6.3 Conduct
of Indemnification Proceedings.
If
any
Proceeding shall be brought or asserted against any person entitled to indemnity
hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify
the person from whom indemnity is sought (the “Indemnifying Party”) in writing,
and the Indemnifying Party shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with
defense thereof; provided, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that
it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed within thirty days of
written notice to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or
(3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and counsel
to
the Indemnified Party shall reasonably believe that a material conflict of
interest is likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if such Indemnified
Party notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party shall not have the right to assume the defense thereof and the reasonable
fees and expenses of no more than one separate counsel shall be at the expense
of the Indemnifying Party). The Indemnifying Party shall not be liable for
any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld or delayed. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter
of
such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in
a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten business days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is judicially
determined to be not entitled to indemnification hereunder.
-7-
7.
CONDITIONS
TO CLOSING OF THE PURCHASER
The
Purchaser’s obligation to purchase the Units is, unless waived in writing by the
Purchaser, subject to the fulfillment as of the date of Closing of the following
conditions:
7.1 Representations
and Warranties Correct.
The
representations and warranties made by the Company in Section 3 hereof shall
be
true and correct in all material respects as of the date of the
Closing.
7.2 Covenants.
All
covenants, agreements and conditions contained in this Agreement to be performed
or complied with by the Company on or prior to the Closing Date shall have
been
performed or complied with.
7.3 Listing.
The
Shares and Warrants to be issued to the Purchaser under this Agreement shall
have been authorized for listing on the AMEX, subject to official notice of
issuance.
7.4 Compliance
and Incumbency Certificates.
The
Company shall have delivered to the Purchaser a certificate of the Company,
executed by the Chief Executive Officer of the Company, dated as of the date
of
the Closing and certifying to the fulfillment of the conditions specified in
Sections 7.1 and 7.2 of this Agreement.
8.
CONDITIONS
TO CLOSING OF THE COMPANY
The
Company’s obligation to sell and issue the Units is, unless waived in writing by
the Company, subject to the fulfillment as of the date of Closing of the
following conditions:
8.1 Representations
and Warranties Correct.
The
representations made in Section 4 hereof by the Purchasers shall be true
and correct in all material respects as of the date of Closing.
8.2 Covenants.
All
covenants, agreements, and conditions contained in this Agreement to be
performed or complied with by the Purchaser on or prior to the date of Closing
shall have been performed or complied with in all material
respects.
8.3 Listing.
The
Shares and Warrants to be issued to the Purchaser under this Agreement shall
have been authorized for listing on the American Stock Exchange, subject to
official notice of issuance.
9.
MISCELLANEOUS
9.1 Termination.
This
Agreement may be terminated (a) by mutual agreement of the Company and the
Purchaser at any time or (b) by either the Company or the Purchaser if the
Closing shall not have occurred by the thirtieth (30th)
day
following the date of this Agreement. If this Agreement is terminated in
accordance with this Section 9.1 and the transactions contemplated hereby are
not consummated, (i) this Agreement shall become null and void and of no further
force and effect except that the terms and provisions of this Section 9 shall
survive the termination of this Agreement and (ii) any termination of this
Agreement shall not relieve any party hereto from any liability for any willful
breach of its obligations hereunder.
-8-
9.2 Governing
Law.
This
Agreement shall be governed in all respects by the internal laws of the State
of
Delaware without regard to conflict of laws provisions.
9.3 Survival.
The
warranties, representations, and covenants of the Company and the Purchasers
contained in or made pursuant to this Agreement shall survive the execution
and
delivery of this Agreement and Closing.
9.4 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. 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.
9.5 Entire
Agreement; Amendment.
This
Agreement, including the exhibits hereto, constitutes the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof, 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. 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 Purchaser.
9.6 Notices,
etc.
All
notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by registered or certified mail, postage prepaid,
or
otherwise delivered by facsimile transmission, by hand or by messenger,
addressed:
(a) if
to the
Purchaser, to:
Energenics
Holdings Pte Limited
0
Xxxxxxx
Xxxxxxxxx
Xxxxxx
Xxxx Xxxxx 0 #00-00X
Xxxxxxxxx
000000
Attn: Xxxxx
Xxxxxxxx
Fax:
x00
0000
0000
(b) if
to the
Company, to:
O2Diesel
Corporation
000
Xxxxxxxx Xxxxx
Xxxxx
000
Xxxxxx,
Xxxxxxxx 00000
Attn:
Xxxx Xxx
Fax:
000-000-0000
-9-
or
at
such other address as the Company shall have furnished to the Purchasers, with
a
copy to:
Xxxxxx
& Xxxxxx, llp
0000
Xxxxxx Xxxx.
Xxxxx
000
XxXxxx,
Xxxxxxxx 00000
Attn:
Xxxxx X. Xxxxx
Fax:
000-000-0000
Each
such
notice or other communication shall for all purposes of this Agreement be
treated as effective or having been given when received if delivered personally,
if sent by facsimile, the first business day after the date of confirmation
that
the facsimile has been successfully transmitted to the facsimile number for
the
party notified, or, if sent by mail, at the earlier of its receipt or 72 hours
after the same has been deposited in a regularly maintained receptacle for
the
deposit of the United States mail, addressed and mailed as
aforesaid.
9.7 Delays
or Omissions.
Except
as
expressly provided herein, no delay or omission to exercise any right, power
or
remedy accruing to any party, upon any breach or default of another party under
this Agreement, shall impair any such right, power or remedy of such party
nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring.
Any
waiver, permit, consent or approval of any kind or character on the part of
any
party of any breach or default under this Agreement, or any waiver on the part
of any party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in
such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
9.8 Expenses.
The
Company and the Purchasers shall bear their own expenses incurred on their
own
behalf with respect to this Agreement and the transactions contemplated
hereby.
9.9 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, and all of which together shall constitute one
instrument.
9.10 Severability.
In
the
event that any provision of this Agreement becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision, which shall
be
replaced with an enforceable provision closest in intent and economic effect
as
the severed provision; provided that no such severability shall be effective
if
it materially changes the economic benefit of this Agreement to any
party.
9.11 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.
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9.12 Designation
of Forum and Consent to Jurisdiction.
The
parties hereto (i) designate the courts of the State of Delaware as the
forum where all matters pertaining to this Agreement may be adjudicated, and
(ii) by the foregoing designation, consent to the exclusive jurisdiction and
venue of such courts for the purpose of adjudicating all matters pertaining
to
this Agreement.
9.13 Waiver
of Jury Trial.
Each
of
the parties hereto waives any right it may have to have a jury participate
in
resolving any dispute arising out of or related to this Agreement. Instead,
any
such disputes resolved in court shall be resolved in a bench trial without
a
jury.
[Remainder
of Page Intentionally Left Blank]
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The
foregoing agreement is hereby executed effective as of the date first set forth
above.
O2DIESEL
CORPORATION
By:
/s/
Xxxx X. Xxx
Name:
Xxxx X.
Xxx
Title:
Chief
Executive Officer
ENERGENICS
HOLDINGS PTE LTD
By:
/s/
Xxxxx Xxxxxxxx
Name:
Xxxxx
Xxxxxxxx
Title: Director
[Signature
Page to Common Stock and Warrant Purchase Agreement]
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EXHIBIT
A
FORM
OF WARRANT
EXHIBIT
B
FORM
OF ADDITIONAL WARRANT
