Investment Agreement, dated as of April 14, 2006, by and among Xethanol Corporation, a Delaware corporation, H2Diesel, Inc., a Delaware corporation, and the Investors. INVESTMENT AGREEMENT
Exhibit
1.1
Investment
Agreement, dated as of April 14, 2006, by and among Xethanol Corporation, a
Delaware corporation, H2Diesel, Inc., a Delaware corporation, and the
Investors.
This
INVESTMENT AGREEMENT (the “Agreement”) is entered into as of this 14th day of
April, 2006 (the “Effective
Date”),
by
and among, Crestview Capital Master, LLC (“Crestview”),
TOIBB
Investment, LLC (“TOIBB”)
(Crestview and TOIBB are referred to collectively as the “Investors”
and
each individually as an “Investor”),
H2Diesel, Inc., a Delaware corporation (the “Company”),
and
Xethanol Corporation, a Delaware corporation (“Xethanol”).
WHEREAS,
the Company is the exclusive licensee of a unique technology used for making
bio-fuel for internal combustion engines (the “Technology”)
pursuant to the terms and conditions of an Exclusive License Agreement between
the Company and the inventor of the Technology (the “Inventor”)
(the
“License
Agreement”);
and
WHEREAS,
Xethanol’s corporate mission is to convert biomass into ethanol and valuable
co-products; and
WHEREAS,
the Company and Xethanol are interested in entering into a strategic
relationship in order to maximize the exploitation of the Technology; and
WHEREAS,
the Investors have acknowledged the business potential of the Technology
combined with the strategic relationship between the Company and
Xethanol;
NOW
THEREFORE, based upon the premises and mutual promises set forth below, the
parties agree as follows:
1. Purchase,
Sale and Issuance of Stock
Crestview
Investment
1.1. Subject
to the terms and conditions of this Agreement, Crestview agrees to purchase
from
the Company at the Closing (as defined below), and the Company agrees to sell
and issue to Crestview at the Closing, Two Million Two Hundred Seventy Five
Thousand (2,275,000) shares (the “Crestview
Shares”)
of the
Company’s common stock, par value $0.0001 per share (the “Common
Stock”),
representing seventeen and 50/100 percent (17.5%) of the Company’s issued and
outstanding Common Stock at Closing. The purchase price for the Crestview Shares
is One Million Four Hundred Thousand Dollars (US$1,400,000.00) (the
“Crestview
Purchase Price”).
TOIBB
Investment
1.2. Subject
to the terms and conditions of this Agreement, TOIBB agrees to purchase from
the
Company at the Closing (as defined below), and the Company agrees to sell and
issue to TOIBB at the Closing, Nine Hundred Seventy Five Thousand (975,000)
shares (the “TOIBB
Shares”)
of the
Company’s Common Stock, representing seven and 50/100 percent (7.5%) of the
Company’s issued and outstanding Common Stock at Closing. The purchase price for
the TOIBB Shares is Six Hundred Thousand (US$600,000.00) (the “TOIBB
Purchase Price”).
The
Crestview Shares and the TOIBB Shares are referred to collectively as the
“Shares.”
Xethanol
Share Issuance
1.3. Subject
to the terms and conditions of this Agreement, the Company agrees issue to
Xethanol at the Closing:
(a) One
Million Three Hundred Thousand (1,300,000) shares of Common Stock (the
“Xethanol
Shares”),
representing ten percent (10%) of the Company’s issued and outstanding Common
Stock as of the Effective Date, on a fully-diluted basis, as consideration
for
agreeing to be bound by the Put Right (as defined below); and
(b) One
Million Three Hundred Thousand (1,300,000) shares of Common Stock (the
“Xethanol
Management Shares”),
representing ten percent (10%) of the Company’s issued and outstanding Common
Stock as of the Effective Date, on a fully-diluted basis, as consideration
for
agreeing to manage the Company’s day to day affairs which shall be undertaken
pursuant to a management agreement (the “Management
Agreement”)
in the
form and substance of Exhibit 4.1(g) to this Agreement.
The
Crestview Purchase Price and the TOIBB Purchase Price are referred to
collectively as the “Purchase Price”.
2. Option
to Purchase Additional Shares
2.1. The
Company hereby grants to Crestview the option (the “Crestview
Option”),
to
purchase One Million Four Hundred Thousand (1,400,000) shares of Common Stock
(the “Crestview
Option Shares”).
Upon
exercise of the Crestview Option, the cost to acquire the Crestview Investor
Option Shares is Three Million Five Hundred Thousand Dollars (US$3,500,000.00),
or $2.50 per share (the “Crestview
Option Purchase Price”).
Crestview is entitled to exercise the Crestview Option during the period
commencing on the date hereof and expiring at 5:00 p.m. (EST) on the sixtieth
(60th)
day
after the Investors receive the Test Trial Notice, as hereinafter defined (the
“Investor
Option Exercise Period”).
The
Crestview Option may be exercised in whole or in part.
2.2. The
Company hereby grants to TOIBB the option (the “TOIBB
Option”),
to
purchase Six Hundred Thousand (600,000) shares of Common Stock (the
“TOIBB
Option Shares”).
Upon
exercise of the TOIBB Option, the cost to acquire the TOIBB Option Shares is
One
Million Five Hundred Thousand (US$1,500,000.00), or $2.50 per share (the
“TOIBB
Option Purchase Price”).
TOIBB
is entitled to exercise the TOIBB Option during the Investor Option Exercise
Period. The TOIBB Option may be exercised in whole or in part.
The
Crestview Option and the TOIBB Option are referred to collectively as the
“Investor Options”.
2.3. The
Company hereby grants to Xethanol the exclusive option (the “Xethanol
Option”),
to
purchase Two Million (2,000,000) shares of Common Stock (the “Xethanol
Option Shares”).
Upon
exercise of the Xethanol Option, the cost to acquire the Xethanol Option Shares
is Three Million Six Hundred Thousand Dollars ($3,600,000.00), or $1.80 per
share (the “Xethanol
Option Purchase Price”).
Xethanol is entitled to exercise the Xethanol Option during the period
commencing on the date hereof and expiring at 5:00 p.m. (EST) on the sixtieth
(60th)
day
after Xethanol receives the Test Trial Notice (the “Xethanol
Option Exercise Period”).
The
Xethanol Option may be exercised in whole or in part and from time to time
throughout the Xethanol Option Exercise Period.
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2.4. If
either
Investor elects to exercise the Investor Options during the Investor Option
Period, then the exercising Investor(s) shall provide written notice to the
Company setting forth each such Investor’s election to exercise the Investor
Options on the terms and conditions of this Agreement including, but not limited
to Section 4.2 (the “Investor
Option Exercise Notice”),
and
specifying the number of Option Shares with respect to which the option is
being
exercised. If either Investor, but not both, fails to exercise the Investor
Options in full during the Investor Option Exercise Period or the rights of
either Investor, but not both, to exercise the Investor Options terminate
pursuant to Section 3.7, the Company shall provide written notice to the other
Investor (the “Extended
Option Purchase Right Notice”)
within
three (3) business days following the expiration of the Investor Option Exercise
Period or termination date, as the case may be, advising such Investor that
it
has the right to purchase the remaining Investor Option Shares for the Investor
Option Price (the “Extended
Option Purchase Right”).
If
such Investor elects to exercise the Extended Option Purchase Right, then such
Investor shall provide written notice to the Company within five (5) business
days after receiving the Extended Option Purchase Right Notice (the
“Extended
Option Purchase Right Period”),
setting forth such Investor’s election to exercise the Extended Option Purchase
Right in accordance with the terms and conditions of this Agreement, including,
but not limited to Section 4.2 (the “Extended
Option Purchase Right Exercise Notice”).
If
both Investors fail to exercise the Investor Options in full during the Investor
Option Exercise Period, or rights of both Investors to exercise the Investor
Options terminate pursuant to Section 3.7, or a combination thereof, then
neither Investor shall be entitled to exercise the Extended Option Purchase
Right.
2.5. If
either
or both Investors fail to exercise the Investor Options and/or the Extended
Option Purchase Right during the Investor Option Exercise Period, or the
Extended Option Purchase Right Period or the Investor’s right to exercise the
Investor Options terminate pursuant to Section 3.7, or a combination thereof,
the Company shall provide written notice to Xethanol (the “Xethanol
Purchase Right Notice”)
within
three (3) business days following the later of the expiration of the Extended
Option Purchase Right Period or termination date, as the case may be, advising
Xethanol that the Investor will not be exercising the Investor Options or the
Extended Option Purchase Right in full and that Xethanol, in its sole and
absolute discretion, has the exclusive right to purchase so many of the Investor
Option Shares as have not been purchased by the Investors for the Investor
Option Price (the “Xethanol
Purchase Right”).
If
Xethanol elects to exercise the Xethanol Purchase Right, then Xethanol shall
provide written notice to the Company within five (5) business days after
receiving the Xethanol Purchase Right Notice, setting forth Xethanol’s election
to exercise the Xethanol Purchase Right in accordance with the terms and
conditions of this Agreement, including, but not limited to Section 4.2 (the
“Xethanol
Purchase Right Exercise Notice”).
2.6. If
Xethanol elects to exercise the Xethanol Option during the Xethanol Option
Period, then Xethanol shall provide written notice to the Company setting forth
Xethanol’s election to exercise the Xethanol Option on the terms and conditions
of this Agreement including, but not limited to, Section 4.2 (the “Xethanol
Option Exercise Notice”).
Until
the expiration of the Xethanol Option Standstill Period (as defined in Section
3.8), Xethanol may exercise its option to purchase not more than One Million
Five Hundred Thousand (1,500,000) of the Xethanol Option Shares. If the
Investors’ do not timely exercise the 25% Xethanol Option in full pursuant to
Section 3.8, then upon expiration of the Xethanol Option Standstill Period,
Xethanol may exercise the Xethanol Option to purchase the remaining Five Hundred
Thousand (500,000) of the Xethanol Option Shares, or, if the 25% Xethanol Option
has been exercised in part, a number of Xethanol Option Shares equal to the
difference between 500,000 shares and the number of shares as to which the
25%
Xethanol Option has not been exercised. Subject to Section 3.8, if Xethanol
fails to exercise the Xethanol Option during the Xethanol Option Exercise
Period, the Company shall provide written notice to the Investors (the
“Investor
Purchase Right Notice”)
within
three (3) business days following the expiration of the Xethanol Option Exercise
Period, advising the Investors that (a) Xethanol did not exercise the Xethanol
Option and that the Investors, in their sole and absolute discretion, have
the
right to purchase up to their pro rata portion of the Shares purchased pursuant
to Sections 1.1 and 1.2 of this Agreement the Xethanol Option Shares for the
Xethanol Option Price (the “Investor
Purchase Right”);
and
(b) that if either Investor, but not both, elect to exercise the Investor
Purchase Right in full, then such electing Investor shall have the right to
exercise the entire Xethanol Option to the extent not exercised by the other
Investor. To exercise the Investor Purchase Right, each electing Investor shall
provide written notice to the Company within five (5) business days after
receiving the Investor Purchase Right Notice setting forth such Investor’s
election to exercise the Investor Purchase Right on the terms and conditions
of
this Agreement including, but not limited to Section 4.2 (the “Investor
Purchase Right Exercise Notice”)
and
specifying the number of Shares as to which the Investor Purchase Right is
being
exercised.
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2.7. The
Investor Option Shares and the Xethanol Option Shares shall collectively be
referred to herein as the “Option
Shares.”
The
Investor Option Exercise Notice, the Xethanol Option Exercise Notice, the
Extended Option Purchase Right Notice, the Xethanol Purchase Right Exercise
Notice and the Investor Purchase Right Exercise Notice shall each be referred
to
herein as an “Option
Exercise Notice.”
2.8 The
parties hereby undertake and agree that even in the event that Xethanol is
a
holder of more than Fifty Percent (50%) of the Company’s issued and outstanding
share capital, Xethanol shall not be deemed to be in control of the
Company
3. Put
Right
3.1. During
the period commencing on the date hereof and expiring at the earlier of (i)
5:00
p.m. (EST) on the sixtieth (60th)
day
after receiving the Test Trial Notice and (ii) 5:00 p.m. (EST) on the ninetieth
(90th)
day
from the Closing, (the “Put
Exercise Period”),
each
of the Investors shall have the right (the “Put
Right”),
to
cause Xethanol to purchase all the Shares from each of the Investors and
Xethanol shall be obligated to purchase the Shares from such exercising
Investors (the “Exercising Investors”) on the terms and conditions hereof. The
Put Right may be exercised in whole only, and not in part, by each of the
Investors.
3.2. If
one or
more of the Investors exercises the Put Right, Xethanol shall issue and deliver
to each such Exercising Investor at the Put Closing as consideration for the
Shares (assuming all Shares are Put, and pro-rata if otherwise), certificates
representing Five Hundred Thousand (500,000) shares of Xethanol common stock(the
“Xethanol
Put Shares”).
3.3. Not
later
than sixty (60) days from the Closing, the Company shall provide written notice
to the Investors and Xethanol (the “Test
Trial Notice”),
within three (3) business days after receiving the final results of a laboratory
selected by the Company and approved by Xethanol (the
“Laboratory”),
of
the
trial testing of the Technology with regard to brake specific fuel consumption;
engine performance; calorimetric energy yields and standard emissions controls
(the “Trial”),
based
upon testing specifications and procedures approved by the Company . The
Test
Trial Notice shall include a description of the results of the Trial and a
copy
of the report provided by the Laboratory.
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3.4. The
Put
Right may be exercised during the Put Exercise Period by the Exercising
Investors by providing written notice (the “Put
Notice”),
to
Xethanol and the Company setting forth the Exercising Investor’s election to
exercise the Put Right and sell the Shares to Xethanol pursuant to the terms
and
conditions of this Agreement, including but not limited to Section 4.3.
3.5. In
consideration of the Put Right, and subject to the terms and conditions of
this
Agreement, the Company hereby grants Xethanol a right of first refusal (the
“Right of First Refusal”) for any and all rights to Product sublicenses that may
be granted by the Company from time to time in the U.S. pursuant to the terms
and conditions of the License Agreement.
3.6. Pursuant
to such Right of First Refusal, for each new sublicense considered for grant
by
the Company in the U.S., the Company shall provide written notice to Xethanol
describing such possible sublicense grant and the terms thereof contemplated
by
the Company (the “ROFR Notice”). Xethanol shall have a period of fifteen (15)
days from receipt of the ROFR Notice (the “ROFR Acceptance Period”) to notify
the Company in writing of its firm commitment to become a sublicensee in
accordance with the terms of the ROFR Notice (the “ROFR Acceptance”). If the
Company does not receive a ROFR Acceptance within the ROFR Acceptance Period,
then the Company may grant such sublicense to the sublicensee of is choice
on
the same terms as those offered to Xethanol; provided, that if no such
sublicense is granted within one hundred twenty (120) days of the expiration
of
the ROFR Acceptance Period, then any proposed sublicense shall be again subject
to the rights of Xethanol (including the notice rights) contained in this
Section 3.6.
3.7. Upon
the
Exercising Investor’s exercise of the Put Right pursuant to this Section 3, the
Exercising Investor’s right to exercise : (a) the Investor Options; (b) the
Investor Purchase Right, and (c) the Extended Option Purchase Right, shall
immediately terminate.
3.8 Until
the
expiration of fourteen (14) days from the delivery of the Xethanol Option
Exercise Notice (the “Xethanol Option Standstill Period”), the Investors shall
be entitled to purchase up to Five Hundred Thousand (500,000) of the Xethanol
Option Shares (the “25% Xethanol Option “) in accordance with the procedures set
forth in Section 2.6, as follows: Crestview shall be entitled to purchase up
to
350,000 of the Xethanol Option Shares; and TOIBB shall be entitled to purchase
up to 150,000 of the Xethanol Option Shares.
4. Closing
4.1. Closing.
The
closing of the purchase and sale of the Shares (the “Closing”)
is
taking place simultaneously with the execution and delivery of this Agreement
at
the New York office of Xxxxxxxxx Xxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 a.m. local time, or at such other place and time as is
mutually agreeable to the Company, the Investor and Xethanol. At the Closing,
simultaneously with the execution and delivery of this Agreement, the following
deliveries will be made:
(a) The
Investors shall deliver to the Company the Purchase Price, to be paid to the
Company by bank cashier’s check or wire transfer, at the Company’s discretion,
in immediately available funds.
5
(b) The
Company shall deliver to Crestview a certificate representing the Crestview
Shares.
(c)
The
Company shall deliver to TOIBB a certificate representing the TOIBB
Shares.
(d) The
Company shall deliver to Xethanol a certificate representing the Xethanol
Management Shares.
(e) The
Company shall deliver to Xethanol a certificate representing the Xethanol
Shares.
(f) Xethanol
and the Investors shall have entered into, executed and delivered a Registration
Rights Agreement (the ”Registration
Rights Agreement”)
in the
form of Exhibit 4.1(f).
(g) Xethanol
and the Company shall have shall have entered into, executed and delivered
a
Management Services Agreement (the “Management Services Agreement “) in the form
of Exhibit 4.1(g).
(h) Xethanol
and the Company shall have shall have entered into, executed and delivered
a
Sublicense Agreement (the “Sublicense
Agreement”)
in the
form of Exhibit 4.1(h).
(i) Xethanol
shall deliver to the Company and the Investors certified copies of the
resolutions of Xethanol’s board of directors authorizing the execution, delivery
and performance of this Agreement and the issuance of the Xethanol Shares
pursuant to this Agreement.
(j) The
Company shall deliver an opinion of counsel providing that the investment
transaction hereunder has been duly authorized by the Company; and that the
Company’s share capitalization is consistent with the representations
herein.
(k) Xethanol
shall deliver an opinion of counsel providing that the investment transaction
hereunder has been duly authorized by the Xethanol; and that the Xethanol Put
Shares have been duly reserved for issuance hereunder.
4.2. Option
Closings. Subject
to the terms and conditions of this Agreement, the closing of the purchase
and
sale of any of the Option Shares (the “Option
Closing”)
shall
take place at the New York office of Xxxxxxxxx Xxxxxxx, LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. local time on the third (3rd)
business day following receipt by the Company of an Option Exercise Notice.
At
an Option Closing, the following deliveries will be made:
(a) The
Company shall deliver certificates to either the Investor or Xethanol, as the
case may be, representing the Option Shares.
(b) The
Company shall deliver the Company Option Closing Certificate to either the
Investor or Xethanol, as the case may be.
6
(c) If
applicable, the Investor shall deliver the Investor Option Closing Certificate
to the Company.
(d) If
applicable, Xethanol shall deliver the Xethanol Option Closing Certificate
to
the Company.
4.3. Put
Closing.
Subject
to the terms and conditions of this Agreement, the closing of the purchase
and
sale of the Xethanol Put Shares (the “Put
Closing”)
shall
take place at the New York office of Xxxxxxxxx Traurig, LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, at 10:00 a.m. local time on the third (3rd)
business day following receipt by Xethanol and the Company of the Put Notice.
At
the
Put Closing, the following deliveries will be made:
(a) Xethanol
shall deliver to the Exercising Investors a certificate representing the
Xethanol Put Shares;
(b) The
Exercising Investors shall deliver to Xethanol the certificate(s) representing
the Shares, duly endorsed in blank or accompanied by duly executed stock powers,
with appropriate transfer stamps (if any) thereto; and
(c) The
Exercising Investors shall deliver the Investor Put Closing Certificate to
Xethanol.
(d) Xethanol
shall deliver the Xethanol Put Closing Certificate to the Exercising Investors.
The Exercising Investors shall execute and deliver the Registration Rights
Agreement attached hereto as Exhibit
4.1(f).
(e) Xethanol
shall execute and deliver the Registration Rights Agreement attached hereto
as
Exhibit
4.1(f).
5. Representations
and Warranties of the Company. The
Company hereby represents and warrants to the Investors and Xethanol that the
following representations are true and complete as of the date of the
Closing:
5.1. Organization;
Good Standing; 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 presently 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.
5.2. Capitalization.
The
authorized capital of the Company immediately following the Closing consists
of:
(a) Common
Stock.
25,000,000 shares of Common Stock, of which 13,000,000 shares will be issued
and
outstanding.
5.3. Authorization.
All
corporate action required to be taken by the Company’s Board of Directors and
stockholders in order to authorize the Company to enter into this Agreement,
the
Management Services Agreement and the Sublicense Agreement (together, the
“Transaction
Agreements”)
and to
issue the Shares, the Xethanol Shares, the Xethanol Management Shares and the
Option Shares, has been taken. This Agreement and each of the other Transaction
Agreements, when executed and delivered by the Company, shall constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their respective terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or other laws of general application relating to or affecting the
enforcement of creditors’ rights generally, or (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
7
5.4. Valid
Issuance of Shares.
The
Shares, the Xethanol Shares, the Xethanol Management Shares and the Option
Shares, if and when issued, sold and delivered in accordance with the terms
and
for the consideration set forth in this Agreement, will be validly issued,
fully
paid and non-assessable and free of restrictions on transfer other than
restrictions on transfer under this Agreement and under applicable state and
federal securities laws.
5.5. Disclosure.
The
Company has made available to each of the Investor and Xethanol all the
information reasonably available to the Company that the Investor or Xethanol
have requested for deciding whether to acquire the Company’s securities.
5.6. Litigation. There
are
no (and, since the Company’s incorporation, there have not been any) actions,
suits, proceedings (including any arbitration proceedings), orders,
investigations or claims pending or, to the Company’s knowledge, threatened
against or affecting the Company, or pending or threatened by the Company
against any person, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality (including
any
actions, suits, proceedings or investigations with respect to the transactions
contemplated by this Agreement). The Company is not subject to any arbitration
proceedings or any governmental investigations or inquiries; and, to the
Company’s knowledge, there is no reasonable basis for any of the foregoing. The
Company is not subject to any judgment, order or decree of any court or other
governmental agency.
5.7. License.
The License is valid and legally binding upon the Company, enforceable in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, or other laws
of
general application relating to or affecting the enforcement of creditors’
rights generally, or (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies. The
Company is authorized under the License to grant the sublicense rights under
the
Sublicense Agreement.
6. Representations
and Warranties of each Investor. Each
Investor hereby represents and warrants that the following representations
and
warranties are true and complete as of the date of the Closing:
6.1. Authorization. The
Investor has full power and authority to enter into this Agreement, and this
Agreement constitutes the Investor’s valid and legally binding obligation,
enforceable in accordance with its terms.
6.2. Purchase
Entirely for Own Account.
This
Agreement is made with the Investor in reliance upon the Investor’s
representations to the Company, which by the Investor’s execution of this
Agreement, the Investor hereby confirms, that the Shares, the Option Shares
and
the Xethanol Put Shares, if and when they are acquired by the Investor pursuant
to this Agreement will be acquired for investment for the 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 the Investor has no present intention
of selling, granting any participation in, or otherwise distributing the same.
8
6.3. Disclosure
of Information.
(a) The
Investor believes that it has received all the information it considers
necessary or appropriate for deciding whether to purchase the Company’s
securities. The 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 being made pursuant to this Agreement and the
business, properties, prospects and financial condition of the Company.
(b) The
Investor believes that it has received all the information it considers
necessary or appropriate for deciding whether to acquire the Xethanol Put
Shares. The Investor further represents that it has had an opportunity to ask
questions and receive answers from Xethanol regarding the terms and conditions
of this Agreement and Xethanol’s business, properties, prospects and financial
condition.
6.4. Investment
Experience.
The
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, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks in ownership
of
the Shares, the Option Shares and the Xethanol Put Shares.
6.5. Accredited
Investor.
The
Investor is an “accredited investor” within the meaning of Rule 501 of
Regulation D, as promulgated under the Securities Act, and the Company and
Xethanol can each rely upon the information provided to it by the Investor,
including in the “Accredited Investor Questionnaire” set forth in Annex
A.
6.6. Restricted
Securities.
The
Investor understands that the Shares, the Option Shares and the Xethanol Put
Shares have not been, and will not be, registered under the Securities Act,
and
are being issued or will be issued, by reason of a specific exemption from
the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Investor’s representations as expressed herein. The Investor understands that
the Shares are, and the Option Shares and the Xethanol Put Shares, if and when
issued, will be “restricted securities” under applicable federal and state
securities laws and that, pursuant to these laws, the Investor must hold the
Shares, the Option Shares and the Xethanol Put Shares, if and when issued,
indefinitely unless they are registered with the Securities and Exchange
Commission (“SEC”), and qualified by state authorities, or an exemption from
such registration and qualification requirements is available. The Investor
acknowledges that the Company has no obligation to register or qualify the
Shares, or the Option Shares, if and when issued, for resale. The Investor
acknowledges that the Company has no obligation to register or qualify the
Xethanol Put Shares for resale, except in accordance with Section 4 of this
Agreement. The Investor further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale, the
holding period, and on requirements relating to the Company or Xethanol, as
the
case may be, which are outside of the Investor’s control, and which the Company
or Xethanol, as the case may be, is under no obligation and
may
not be able to satisfy.
9
6.7. No
Public Market.
The
Investor understands that no public market now exists for the Common Stock,
and
that the Company has made no assurances that a public market will ever exist
for
the Common Stock.
6.8. Legends. The
Investor understands that the Shares, the Option Shares and the Xethanol Put
Shares, if and when issued, may bear the following legend or a legend
substantially similar to:
(a) “THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH
A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT
SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.”
(b) Any
legend required by the securities laws of any state to the extent such laws
are
applicable to the securities represented by the certificate so
legended.
6.9. No
Operating History. The
Investor acknowledges that the Company is a recently incorporated development
stage company with no operating history, revenues or employees. The Investor
further acknowledges that the Company has not made any representations to the
Investor regarding its business prospects or the Company’s ability to generate
revenues in the future. The Investor acknowledges that an investment in the
Company is highly speculative and may result in a complete loss of the
Investor’s investment.
7. Representations
and Warranties of Xethanol. Xethanol
hereby represents and warrants to the Company and to the Investors that the
following representations and warranties are true and complete as of the date
of
the Closing:
7.1. Organization;
Good Standing; Qualification.
Xethanol 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 presently conducted and is proposed
to
be conducted. Xethanol 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.
7.2. Authorization. All
corporate action required to be taken by Xethanol’s Board of Directors and
stockholders, if any, in order to authorize Xethanol to enter into this
Agreement has been taken. All corporate action required to be taken by
Xethanol’s Board of Directors and stockholders has been taken to reserve for
issuance and to issue the Xethanol Put Shares in accordance with this Agreement.
All action on the part of the officers of Xethanol necessary for the execution
and delivery of the Transaction Agreements, the performance of all obligations
of Xethanol under, the Transaction Agreements, and the issuance and delivery
of
the Xethanol Put Shares, if necessary, has been taken. the Transaction
Agreements, when executed and delivered by Xethanol, shall constitute valid
and
legally binding obligations of Xethanol, enforceable against Xethanol in
accordance with their respective terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance,
or
other laws of general application relating to or affecting the enforcement
of
creditors’ rights generally, or (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
10
7.3. Valid
Issuance of Xethanol Put Shares.
The
Xethanol Put Shares, if and when issued, sold and delivered in accordance with
the terms and for the consideration set forth in this Agreement, will be validly
issued, fully paid and non-assessable and free of restrictions on transfer
other
than restrictions on transfer under this Agreement and under applicable state
and federal securities laws.
7.4. No
Violation.
The
execution, delivery or performance of this Agreement by Xethanol (including,
but
not limited to the reservation and issuance of the Xethanol Put Shares), does
not violate, conflict with or result in any breach of any provision of (i)
Xethanol’s organizational documents, (ii) any material contract, note,
indenture, mortgage, lease, or agreement to which Xethanol is a party, or (iii)
any instrument, judgment, writ, order or decree to which Xethanol is subject.
7.5. SEC
Filings. As
of
their respective dates, all of Xethanol’s quarterly and annual reports, proxy
statements and the information and documents and other reports required to
be
filed or furnished pursuant to Sections 13, 14 or 15(d) of the Exchange Act
(the
“SEC Filings”) complied in all material respects with all of the rules and
regulations promulgated by the SEC and did not contain an untrue statement
of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Xethanol’s financial
statements included in the SEC Filings comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in accordance
with generally accepted accounting principles (“GAAP”),
consistently applied during the periods presented (except, in the case of the
unaudited statements, as permitted by Form 10-Q of the SEC), and fairly present
the financial position of Xethanol as of the date thereof and the results of
their operations and their cash flows for the periods then ended.
7.6. Purchase
Entirely for Own Account. This
Agreement is made with Xethanol in reliance upon Xethanol’s representations to
the Company, which by Xethanol’s execution of this Agreement, Xethanol hereby
confirms, that all shares of the Company’s Common Stock that will be or may be
acquired by Xethanol pursuant to this Agreement (i.e., the Xethanol Shares,
the
Xethanol Management Shares, the Shares and the Option Shares) will be acquired
for investment for Xethanol’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 Xethanol
has no present intention of selling, granting any participation in, or otherwise
distributing the same.
7.7. Accredited
Investor.
Xethanol
is an “accredited investor” within the meaning of Rule 501 of Regulation D, as
promulgated under the Securities Act.
7.8. Disclosure
of Information. Subject
to the truth and accuracy of the representations of the Company in Section
5.5
of this Agreement, Xethanol believes that it has received all the information
it
considers necessary or appropriate for deciding whether to acquire the Company’s
securities pursuant to this Agreement. Xethanol 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 being made pursuant to this
Agreement and the business, properties, prospects and financial condition of
the
Company.
11
7.9. Restricted
Securities. Xethanol
understands that the Xethanol Shares, the Xethanol Management Shares, the Shares
and the Option Shares have not been, and will not be, registered under the
Securities Act, and are being issued or will be issued by reason of a specific
exemption from the registration provisions of the Securities Act which depends
upon, among other things, the bona fide nature of the investment intent and
the
accuracy of Xethanol’s representations as expressed herein. Xethanol understands
that the Xethanol Shares and the Xethanol Management Shares are “restricted
securities,” and if Xethanol acquires the Shares and/or the Option Shares
pursuant to this Agreement, such shares will also be “restricted securities”
under applicable U.S. federal and state securities laws and that, pursuant
to
these laws, Xethanol must hold them indefinitely unless they are registered
with
the SEC and qualified by state authorities, or an exemption from such
registration and qualification requirements is available. Xethanol acknowledges
that the Company has no obligation to register or qualify the Xethanol Shares
or
the Xethanol Management Shares (or the Shares if the Put Right is exercised
or
the Option Shares, if acquired), for resale. Xethanol further acknowledges
that
if an exemption from registration or qualification is available, it may be
conditioned on various requirements including, but not limited to, the time
and
manner of sale, the holding period, and on requirements relating to the Company
which are outside of Xethanol’s control, and which the Company is under no
obligation and
may
not be able to satisfy.
7.10. No
Public Market.
Xethanol
understands that no public market now exists for the Common Stock, and that
the
Company has made no assurances that a public market will ever exist for the
Common Stock.
7.11. Legends.
Xethanol
understands that any shares of Common Stock acquired pursuant to this Agreement
may bear the following legend or a legend substantially similar to:
(a) “THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH
A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT
SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.”
(b) Any
legend required by the securities laws of any state to the extent such laws
are
applicable to the securities represented by the certificate so
legended.
7.12. No
Operating History. Xethanol
acknowledges that the Company is a recently incorporated development stage
company with no operating history, revenues or employees. Xethanol further
acknowledges that the Company has not made any representations to Xethanol
regarding the Company’s business prospects or its ability to generate revenues
in the future. Xethanol acknowledges that an investment in the Company is highly
speculative and may result in a complete loss of Xethanol’s investment.
7.13. Other
Agreements. The
Xethanol Management Shares and the Xethanol Shares and the Shares that are
subject to the Put Right represent the only Company securities to be received
by
Xethanol in connection with this Agreement. Xethanol acknowledges that no other
contract, agreement or understanding exists between the Company, Xethanol or
any
other person/entity that grants Xethanol any shares of Common Stock or any
right
to acquire shares of Common Stock or other Company securities. The only
consideration to be given to Xethanol for its agreement to manage the day to
day
affairs of the Company pursuant to the Management Agreement is the Xethanol
Management Shares.
12
8. Covenants
8.1. Confidentiality. Each
of
the parties agrees to maintain the terms of this Agreement, including the
consideration being paid for shares of the Common Stock, in strict confidence
and shall not disclose such terms to any third party without the prior written
consent of all of the parties to this Agreement. Despite the previous statement,
each party has the right to disclose any information required by any applicable
law or regulation, including the rules and regulations promulgated by the
applicable securities regulators and markets on which their shares are listed.
8.2. Development
and Care of the Company’s Technology. Xethanol
hereby agrees that as long as it owns any shares of Common Stock, or has a
right
to purchase Common Stock at a future date, it will use its best efforts to
promote the development of and protect any and all Company technologies.
8.3. Restrictions
on Corporate Action. The
parties hereby agree that the Company shall not take any corporate action
without the approval by vote or written consent of the holders of more than
seventy-five percent (75%) of the then outstanding shares of Common Stock if
such action would sell assets, merge or reorganize with another company in
which
the Company will not be the surviving entity, or participate in any transaction
or series of transactions in which all or substantially all of the assets of
the
Company are sold, transferred or exclusively licensed.
8.4. Management
of the Company. Xethanol
hereby covenants and agrees that during the time that Xethanol provides
management services to the Company, Xethanol shall utilize the same degree
of
skill, care and attention that it uses with respect managing its own business
and operations.
9. Conditions
to Obligations at Future Closings
9.1. Conditions
to Obligations of the Investor. The
obligation of the Investor to effect the transactions at each closing other
than
the Initial Closing provided for in this Agreement is subject to the
satisfaction of the following conditions, unless waived by the
Investor
(a) The
Company shall have executed and delivered a closing certificate to the Investor
at the Option Closing in which it is participating, representing and warranting
to the Investor that each of the Company’s representations and warranties
hereunder was accurate in all material respects as of the date of this Agreement
and is accurate in all material respects as of the Option Closing (the
“Company’s
Option Closing Certificate”).
(b) Xethanol
shall have executed and delivered a closing certificate to the Investor at
the
Put Closing representing and warranting to the Investor that each of Xethanol’s
representations and warranties hereunder was accurate in all material respects
as of the date of this Agreement and is accurate in all material respects as
of
the Put Closing (the “Xethanol
Put Closing Certificate”).
13
9.2. Conditions
to Obligations of Xethanol.
The
obligation of Xethanol to effect the transactions in this Agreement at each
closing other than the Initial Closing is subject to the satisfaction of the
following conditions, unless waived by Xethanol:
(a) The
Company shall have executed and delivered a closing certificate to Xethanol
at
the Option Closing in which it is participating, representing and warranting
to
Xethanol that each of the Company’s representations and warranties hereunder was
accurate in all material respects as of the date of this Agreement and is
accurate in all material respects as of the Option Closing (the “Company’s
Option Closing Certificate”).
(b) The
Investor shall have executed and delivered a closing certificate to Xethanol
at
the Put Closing representing and warranting to Xethanol that each of the
Investor’s representations and warranties hereunder was accurate in all material
respects as of the date of this Agreement and is accurate in all material
respects as of the Put Closing (the “Investor
Put Closing Certificate”)
9.3. Conditions
to Obligations of the Company
The
obligation of the Company to effect the transactions for in this Agreement
is
subject to the satisfaction of the following conditions, unless waived by the
Company:
(a) The
Investor shall have executed and delivered a closing certificate to the Company
on each Option Closing in which it is participating, representing and warranting
to the Company that each of the Investor’s representations and warranties
hereunder was accurate in all material respects as of the date of this Agreement
and is accurate in all material respects as of the date of the applicable Option
Closing (the “Investor
Option Closing Certificate”).
(b) Xethanol
shall have executed and delivered a closing certificate to the Company on each
Option Closing in which it is participating, representing and warranting to
the
Company that each of Xethanol’s representations and warranties hereunder was
accurate in all material respects as of the date of this Agreement and is
accurate in all material respects as of the date of the respective Option
Closing Second Closing Date (the “Xethanol
Option Closing Certificate”).
10. Miscellaneous
10.1. Amendment
and Waiver
.
This
Agreement may be amended and any provision of this Agreement may be waived,
provided that any such amendment or waiver shall be binding upon a party only
if
such amendment or waiver is set forth in a writing executed by the parties.
No
course of dealing between or among any party having any interest in this
Agreement shall be deemed effective to modify, amend or discharge any part
of
this Agreement or any rights or obligations of any Person under or by reason
of
this Agreement. No waiver of any of the provisions of this Agreement shall
be
deemed or shall constitute a waiver of any other provisions, whether or not
similar, nor shall any waiver constitute a continuing waiver.
10.2. Notices
.
All
notices, demands and other communications to be given or delivered under or
by
reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given (i) when personally delivered or sent by telecopy
(with hard copy to follow), (ii) one business day following the day when
deposited with a reputable and established overnight express courier (charges
prepaid), or (iii) five days following mailing by certified or registered mail,
postage prepaid and return receipt requested. Unless another address is
specified in writing, notices, demands and communications to Sellers, the
Company and Buyer shall be sent to the addresses indicated below:
14
Notices
to the Company:
H2Diesel,
Inc.
00000
Xxxxxxxxxx Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Attention:
Xxx Xxxxx, CEO
with
a
copy to (which shall not constitute notice to the Company):
Xxxxxxxxx
Traurig, P.A.
0000
Xxxxxxxx Xxxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxx Xxxxxxx, Esq.
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Notices
to the Investors:
Crestview
c/o
Crestview Capital Advisors, LLC
00
Xxxxxx
Xxxxx, Xxxxx X
Xxxxxxxxxx,
XX
Telephone:
000-000-0000
Telecopy:
000-000-0000
XXXXX
Xxxxx
Investment LLC
0000
Xxxxxxx Xxxxxx Xxxx #000
Xxxxxxxx
Xxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Notices
to Xethanol:
Xethanol
Corporation
1185
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:Xxxxxxxxxxx
x'Xxxxxx-Xxxxxx, CEO
Telephone:
(000) 000-0000
Facsimile:
(000)
000-0000
with
a
copy to (which shall not constitute notice to Xethanol):
Boylan,
Brown, Code, Xxxxxx & Xxxxxx, LLP
0000
Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
15
10.3. Successors
and Assigns
.
This
Agreement and all of the covenants and agreements contained herein and rights,
interests or obligations hereunder, by or on behalf of any of the parties
hereto, shall bind and inure to the benefit of the respective heirs, successors
and assigns of the parties hereto whether so expressed or not. No party may
assign its rights and obligations hereunder, in whole or in part, to any of
its
affiliates without the consent of any of the other parties hereto.
10.4. Severability
.
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition
or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
10.5. Interpretation
.
The
headings and captions used in this Agreement are for convenience of reference
only and do not constitute a part of this Agreement and shall not be deemed
to
limit, characterize or in any way affect any provision of this Agreement, and
all provisions of this Agreement shall be enforced and construed as if no
caption or heading had been used herein or therein. Each defined term used
in
this Agreement shall have a comparable meaning when used in its plural or
singular form. The use of the word “including” herein shall mean “including
without limitation.” The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
10.6. No
Third-Party Beneficiaries
.
Nothing
herein expressed or implied is intended or shall be construed to confer upon
or
give to any person or entity other than the parties hereto and their respective
permitted successors and assigns any rights or remedies under or by reason
of
this Agreement.
10.7. Complete
Agreement
.
This
Agreement contains the entire agreement and understanding among the parties
with
respect to the subject matter hereof and supersedes all prior agreements and
understandings whether written or oral, relating to such subject matter in
any
way.
10.8. Counterparts
.
This
Agreement may be executed in one or more counterparts (including by means of
telecopied signature pages), all of which taken together shall constitute one
and the same instrument.
10.9. Governing
Law
.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal law of the State of Delaware
without giving effect to any choice of law or conflict of law provision or
rule
that would cause the application of the laws of any jurisdictions other than
the
State of Delaware.
[the
remainder of this page was intentionally left blank]
16
IN
WITNESS WHEREOF, the
undersigned have duly executed this Agreement as of the day and year first
written above.
| H2DIESEL, INC. | ||
| |
|
|
| By: | /s/ Xxx Xxxxx | |
|
|
||
|
Name: Xxx
Xxxxx
Title: CEO
|
||
| CRESTVIEW CAPITAL MASTER, LLC | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxx | |
|
|
||
|
Name:
Xxxxxx X. Xxxx
Title:
Managing Partner
|
||
| TOIBB INVESTMENT LLC | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxx | |
|
|
||
|
Name:
Xxxxxx Xxxxxxxx
Title:
CFO
|
||
| XETHANOL CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxxxxxxxx x’Xxxxxx-Xxxxxx | |
|
|
||
|
Name:
Xxxxxxxxxxx x’Xxxxxx-Xxxxxx
Title:
President & CEO
|
||
ANNEX
A
Accredited
Investor Questionnaire
Instructions:
US
investors should fill out Part I immediately below. Non-US investors should
fill
in the blank in Part II below, and put his/her/its initials next to the filled
in blank. All
investors should fill out Part III.
Part
I
For
US Investors: Status as an Accredited Investor
By
initialing the appropriate space(s) below, the Investor represents and warrants
that he/she/it is an “accredited investor” within the meaning of Regulation D.
Specifically, the Investor represents and warrants that he/she/it qualifies
under the following sub-category or sub-categories of “accredited investor”
(INVESTOR
MUST INDICATE THE APPLICABLE SUB-CATEGORY OR SUB-CATEGORIES BY INITIALING EACH
APPLICABLE SPACE BELOW; IF JOINT INVESTORS, BOTH PARTIES MUST
INITIAL);
|
_____
|
(a)
|
Investor
is a director or executive officer of the Company;
|
|
_____
|
(b)
|
Investor
is a natural person whose individual income exceeded $200,000 in
each of
the previous two years, or whose joint income with spouse exceeded
$300,000 in each of those years, and who reasonably expects to receive
at
least the same level of income in this year;
|
|
_____
|
(c)
|
Investor
is a natural person whose individual net worth, or joint net worth
with
his or her spouse, exceeds $1,000,000;
|
|
_____
|
(d)
|
Investor
is an organization or entity consisting solely of persons who meet
the
requirements specified in (a), (b) or (c) above;
|
|
_____
|
(e)
|
Investor
is a trust, corporation or partnership with total assets in excess
of
$5,000,000 not formed for the specific purpose of acquiring the
Securities;
|
|
_____
|
(f)
|
Investor
is another type of “accredited investor” as that term is defined in
Regulation D, namely
___________________.
|
The
Investor is a resident of the State of ____________.
Part
II
For
Non-US Investors: Status as a Foreign Investor
By
signing on the applicable space(s) below, the Investor represents and warrants
that he/she/it is a
non-US
person (within the meaning of Rule 902(k) of Regulation S under the Securities
Act), and he, she or it hereby represents that:
(a) It
was
not organized under the laws of any United States jurisdiction, will not hold
the shares it acquires hereunder (the "Foreign Stock") for the benefit of any
U.S. Person, and was not formed for the purpose of investing in securities
not
registered under the Securities Act.
(b) At
the
time this transaction was originated, it was outside the United States. All
subsequent offers and sales of the securities constituting the Foreign Stock,
will be made (i) outside the United States in compliance with Rule 903 or Rule
904 of Regulation S, or (ii) pursuant to registration of the Foreign Stock
under
the Securities Act, or (iii) pursuant to an exemption from such registration.
It
understands the conditions of the exemption from registration afforded by
Section 4(1) of the Securities Act and acknowledges that there can be no
assurance that it will be able to rely on such exemption. Absent registration
or
another exemption from registration, it will not resell the securities
constituting the Foreign Stock to U.S. Persons or within the United
States.
Such
investor further represents that he, she or it has not been offered the Foreign
Stock in the United States and at the time of execution of this Agreement is
physically outside the United States.
The
Investor is a resident of ____________.
Part
III
____________________________________________
Name
as
you would like it to appear on Stock Certificate
Indicate
ownership as:
|
_____
(a)
|
Individual
|
||
|
_____
(b)
|
Community
Property
|
||
|
_____
(c)
|
Joint
Tenants with Right of Survivorship
|
)
|
All
parties
must
sign
|
|
_____
(d)
|
Tenants
in Common
|
)
|
|
|
_____
(e)
|
Corporate
|
||
|
_____
(f)
|
Partnership
|
||
|
_____
(g)
|
Trust
|
||
|
_____
(h)
|
Limited
Liability Company
|
|
_________________________
Residential
(or Business, if not an individual) Address
|
_______________________________
Address
for Sending
Notices
(if different)
|
|
__________________________
City,
State and Zip Code
|
__________________________
City,
State and Zip Code
|
|
___________________________
Telephone
Number
|
___________________________
Telephone
Number
|
|
Investor’s
Taxpayer ID or
Social
Security No.:
___________________________
|
Citizen
of:
____________________________
|
AGREED
AND ACCEPTED as of April 14, 2006.
H2Diesel,
Inc.
/s/
Xxx
Xxxxx
By:
Xxx
Xxxxx
Its:
Chief Executive Officer
Exhibit
4.1(f)
Registration
Rights Agreement.
Intentionally
Omitted. Please See Exhibit 1.2 to this Form 8-K
Exhibit
4.1(g)
Management
Agreement
Intentionally
Omitted. Please See Exhibit 1.3 to this Form 8-K
Exhibit
4.1(h)
Sublicense
Agreement
Intentionally
Omitted. Please See Exhibit 1.4 to this Form 8-K
