AMENDED AND RESTATED EMPLOYMENT AGREEMENT Between TRULITE, INC. and KEVIN SHURTLEFF Dated as of February 4, 2005
Exhibit
10.4
AMENDED
AND RESTATED
Between
TRULITE,
INC.
and
XXXXX
XXXXXXXXX
Dated
as
of February 4, 2005
AMENDED
AND RESTATED
This
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this
“Agreement”) is made effective as of the 4th day of February, 2005 by and
between Trulite, Inc., a Delaware corporation (the “Company”), and Xxxxx
Xxxxxxxxx (“Executive”). All capitalized terms used but not defined herein shall
have the meaning set forth in the Purchase Agreement, as defined
below.
W
I T
N E S S E T H:
WHEREAS,
pursuant to that certain Preferred Stock Purchase Agreement, dated July 26,
2004
(the “Purchase Agreement”), by and among the Company, Trulite Energy Partners,
L.P. (“Trulite Energy Partners”) and the principal stockholders of the Company
named therein, Executive entered into that certain Employment Agreement,
dated
as of July 28, 2004, with the Company (the “Original Agreement”), and agreed to
serve as an employee of the Company according to the terms of the Original
Agreement;
WHEREAS,
on February 1, 2005 Trulite Energy Partners was merged with and into Contango
Capital Partners, L.P. (“Contango”); and
WHEREAS,
pursuant to that certain Preferred Stock Purchase Agreement, dated January
26,
2005 (the “Synexus Purchase Agreement”), by and among Synexus Energy, Inc.
(“Synexus”), Contango, and the principal stockholders of Synexus, Contango has
agreed to purchase shares of preferred stock of Synexus provided that Executive
amends the Original Agreement pursuant to this Agreement to permit Executive
to
be an employee of both the Company and Synexus.
NOW,
THEREFORE, in consideration of the continued employment of Executive by the
Company and the payment of salary and other compensation to Executive by
the
Company, the parties hereto agree as follows:
Employment.
The
Company hereby agrees to continue to employ Executive, and Executive hereby
agrees to continue to serve the Company, on the terms and conditions set
forth
herein.
Term.
Executive shall continue to be employed by the Company as provided in Section
1
and such employment shall continue until January, 2007 unless sooner terminated
as hereinafter provided. Should
Executive serve until January, 2007, and remain employed by the Company
thereafter, such employment shall convert to a month-to-month, at-will
relationship otherwise subject to the terms of this Agreement and terminable
for
any reason whatsoever by either the Company or Executive upon 30 days prior
written notice to the other party.
Position
and Duties.
The
Company agrees to continue to employ Executive,
and
Executive
agrees
to continue to be so employed, in such capacity and having such duties as
are
assigned to Executive
from
time to time by the Company’s Board of Directors or such officer of the Company
that the Board of Directors designates as Executive’s
supervisor.
Executive
agrees
to devote approximately one-half of his full business time and attention
to the
business and affairs of the Company and will use his best efforts in performing
faithfully his duties under this Agreement. The Company acknowledges and
agrees
that (i) Executive shall devote the balance of his business time and attention
to the business and affairs of Synexus and (ii) the Company shall cooperate
with
Synexus to ensure that Executive devotes his business time and attention
to the
respective businesses and affairs of Synexus and the Company as contemplated
herein.
Executive
shall
use his reasonable best efforts to perform faithfully and efficiently his
duties
under this Agreement, and shall not engage in or be employed by any other
business; provided, however, that nothing contained herein shall prohibit
Executive
from (i)
being employed by Synexus as provided in Section 3(b) hereof, (ii) serving
as a
member of the board of directors, board of trustees or the like of any
for-profit entity that does not compete with the Company, or performing services
of any type for any civic or community entity, whether or not Executive
receives
compensation therefore, (iii) investing his assets in such form or manner
as
shall not require any significant services on his part in the operation of
the
business of or property in which such investment is made as long as such
business does not compete with the Company, or (iv) serving in various
capacities with, and attending meetings of, industry or trade groups and
associations, as long as Executive’s
engaging in any activities permitted by virtue of clauses (i), (ii), (iii)
and
(iv) above does not materially interfere with the ability of Executive
to
perform the services and discharge the responsibilities required of him under
this Agreement.
Compensation
and Related Matters.
Salary.
During
the term of this Agreement, the Company shall pay to Executive an annual
salary
of $42,500 in substantially equal installments in accordance with the Company’s
payroll policies.
Option.
If the
Board of Directors of the Company determines in its sole discretion in good
faith that (i) the C2DR hydrogen technology that is being developed by the
Company has become commercially viable based on the Board’s evaluation of the
technical questions set forth on Exhibit
A,
and
(ii) a market exists in which such technology may be sold that is capable
of
generating at least $1 billion in annual sales for the Company, the Company
shall enter into and execute with Executive an option agreement (the “Option
Agreement”) pursuant to which the Board of Directors of the Company shall grant
to Executive a non-qualified option to purchase 242,718 shares of Common
Stock
at an exercise price of $1.03 per share (the “Option”). The Option shall vest
immediately and have an exercise period of four years from the date of the
grant
thereof. The Option Agreement shall contain such other terms as shall be
determined by the Board of Directors of the Company.
Expenses.
During
the term of Executive’s
employment hereunder, Executive
shall be
entitled to receive prompt reimbursement for all reasonable and necessary
expenses incurred by Executive
in
performing services hereunder, including all travel and living expenses while
away from home on business or at the request of and in the service of the
Company, cell phone expenses and entertainment expenses incurred by Executive
at
the request of and in the service of the Company, provided that such expenses
are incurred and accounted for in accordance with the policies and procedures
established by the Company.
Benefits.
Executive
shall be
entitled to participate in or receive benefits under any group health or
other
employee benefit plan or arrangement made available by the Company to its
other
similarly situated employees who perform the same or similar duties as
Executive
in the
same location, subject to and on a basis consistent with the terms, conditions
and overall administration of such plans and arrangements.
Sick
Leave.
Executive shall be entitled to sick and emergency leave in accordance with
the
regular policies and procedures established by the Company. Any additional
sick
or emergency leave over and above paid leave provided by the Company, if
any,
shall be unpaid and shall be granted at the sole discretion of the Board
of
Directors of the Company.
Vacations.
In
addition to being excused from rendering his services to the Company while
doing
so for Synexus as contemplated by this Agreement, Executive
shall be
excused from rendering his services during reasonable vacation periods for
10
business days per year plus any additional vacation days that may be approved
by
the Chief Executive Officer of the Company or such other officer of the Company
that the Company’s Board of Directors designates as Executive’s
supervisor. Executive
shall
also be entitled to all paid holidays given by the Company to its employees
generally.
Termination.
Executive’s
employment hereunder may be terminated under the following
circumstances:
Termination
of Employment for Cause.
The
Company may terminate the employment of the Executive if the Executive engages
in any of the following conduct (termination “For Cause”):
Breaching
any material provision of this Agreement;
Misappropriating
funds or property of the Company;
Securing
any personal profit not thoroughly disclosed to and approved by the Company
in
connection with any transaction entered into on behalf of the
Company;
Engaging
in conduct, even if not in connection with the performance of his duties
hereunder, which might be reasonably expected to result in any effect materially
adverse to the interests of the Company, such as fraud, dishonesty, conviction
of a felony, or other acts of moral turpitude;
Failing
to fulfill and perform the duties assigned to the Executive in accordance
with
the terms hereof; or
Failing
to comply with corporate policies of the Company that are promulgated from
time
to time by the Company’s Board of Directors.
Termination
in the Event of Death or Disability.
The
Employer may terminate this Agreement in the event Executive becomes and
remains
“Disabled” (as hereinafter defined), either physically, mentally, or otherwise,
for a period of ninety (90) days during any consecutive period. As used herein,
“Disabled” shall mean the continuous inability, whether mental or physical, of
the Executive to perform his normal job functions as determined by at least
two
of three medical physicians. For purposes of such determination, the Executive
or his designee shall be entitled to appoint one physician, the Company shall
be
entitled to appoint one physician, and the two physicians shall mutually
appoint
a third physician. Notwithstanding the foregoing, the Executive or his designee
and the Company may mutually agree that the Executive is Disabled within
the
meaning of this Agreement.
This
Agreement shall immediately terminate upon the death of Executive. Employer
may terminate the employment of Executive without Cause at any time upon
written
notice to Executive.
Effect
of Termination of Employment.
Termination
for Cause.
In the
event of termination For Cause, the Executive shall be entitled to receive
his
compensation, as determined in Section 4 of this Agreement, due or accrued
on a
pro rata basis to the date of termination less the amount of actual damages,
if
any, caused to the Company by such breach of this Agreement.
Termination
upon death or Disability.
In the
event of termination for death or Disability of the Executive, the Executive
or
his estate shall be entitled to receive his compensation, as determined in
Section 4 of this Agreement, due or accrued on a pro rata basis to the effective
date of termination.
Termination
Without Cause.
In the
event of a termination without Cause, the Company shall continue making payments
to Executive in an amount equal to the compensation of the Executive set
forth
in Section 4(a) of this Agreement, as if he was still employed for the lesser
of: (i) the then remaining existing Term of this Agreement, or (ii) six (6)
months which shall constitute the full and total amount of liquidated damages
that the Executive shall be entitled to receive from the Company and its
Affiliates and their officers, directors, and employees whether arising out
of
contract, tort or other claims arising out of his employment relationship
with
the Company.
Company’s
Right to Repurchase Shares.
In the
event that Executive’s employment is terminated, whether by the Company, for
Cause, or by Executive’s voluntary departure, the Company shall have the right
to repurchase all vested Common Stock owned by Executive at fair market value,
as defined below. Notwithstanding the above, in the event that Executive
is
terminated without Cause, the Executive shall be entitled to retain his vested
stock. The Company shall have the right to repurchase his unvested stock
at fair
market value, as defined below. Fair market value, for the purposes of this
Section 6, shall be determined by a qualified business valuation or appraisal
expert chosen jointly by the Executive and the Company’s Board of
Directors.
Confidentiality,
Non-Solicitation, and Non-Competition.
Confidential
Information.
Executive
acknowledges that (i) upon execution of this Agreement and during the term
of
this Agreement and as a part of his employment with the Company and any
subsidiaries, whether pursuant to this Agreement or otherwise, Executive
has been
and will be afforded access to “Confidential Information” as hereinafter
defined; (ii) public disclosure of such Confidential Information could have
a
material adverse impact on the Company and its business; and (iii) as a result
of his access to such Confidential Information, Executive
will
attain substantial technical expertise, skill and knowledge with respect
to the
Company’s business. Executive
acknowledges that the provisions of this Section 7(a) are reasonable and
necessary with respect to the improper use or disclosure of Confidential
Information. As used in this Agreement, “Confidential Information” means any
information, knowledge or data of any nature and in any form (including
information that is electronically transmitted or stored on any form of magnetic
or electronic storage media) relating to the past, current or prospective
business or operations of the Company and its Affiliates, that at the time
or
times concerned is not generally known to persons engaged in businesses similar
to those conducted or contemplated by the Company and its Affiliates (other
than
information known by such persons through a violation of an obligation of
confidentiality to the Company), whether produced by the Company and its
Affiliates or any of their consultants, agents or independent contractors
or by
Executive,
and
whether or not marked confidential, including without limitation information
relating to the Company’s or its Affiliates’ products and services, business
plans, business acquisitions, processes, product or service research and
development methods or techniques, inventions and improvements, training
methods
and other operational methods or techniques, quality assurance procedures
or
standards, operating procedures, files, plans, specifications, proposals,
drawings, charts, graphs, support data, trade secrets, supplier lists, supplier
information, purchasing methods or practices, distribution and selling
activities, consultants’ reports, marketing and engineering or other technical
studies, maintenance records, employment or personnel data, marketing data,
strategies or techniques, financial reports, budgets, projections, cost
analyses, price lists and analyses, employee lists, customer lists, customer
source lists, proprietary computer software, and internal notes and memoranda
relating to any of the foregoing.
Non-Disclosure
of Confidential Information.
In
consideration of the foregoing and of continued employment by the Company
and
the compensation and benefits paid or provided and to be paid or provided
to
Executive
by the
Company pursuant to this Agreement, Executive
hereby
covenants and agrees that during the term of this Agreement and for a period
of
two years thereafter, Executive
shall
not, without the Company’s prior written consent or as may be required by law or
legal process, disclose, communicate, divulge or make available to any person
or
entity (other than the Company), or use for any purpose other than for the
exclusive benefit of the Company, any Confidential Information, whether
Executive
has such
information in his memory or embodied in writing or other physical form.
Upon
termination of Executive’s
employment hereunder, Executive
shall
deliver promptly to the Company any Confidential Information in his possession,
including any duplicates thereof and any notes or other records Executive
has
prepared with respect thereto. In the event that the provisions of any
applicable law or the order of any court would require Executive
to
disclose or otherwise make available any Confidential Information then
Executive
shall
give the Company prompt prior written notice of such required disclosure
and an
opportunity to contest the requirement of such disclosure or apply for a
protective order with respect to such Confidential Information by appropriate
proceedings. Executive
agrees
that disclosures made by the Company or its affiliates to governmental
authorities, to its customers or potential customers, to its suppliers or
potential suppliers, to its employees or potential employees, to its consultants
or potential consultants or disclosures made by the Company or its affiliates
in
any litigation or administrative or governmental proceedings shall not mean
that
the matters so disclosed are available to the general public. The foregoing,
however, shall not limit the Company’s authority to determine whether or not any
such information has been so disclosed.
Protection
of Information.
The
Company shall disclose to Executive,
or
place Executive
in a
position to have access to or develop, trade secrets or confidential information
of the Company; and/or shall entrust Executive
with
business opportunities of the Company; and/or shall place Executive
in a
position to develop business good will on behalf of the Company.
Executive
agrees
not to disclose or utilize, for Executive’s
personal benefit or for the direct or indirect benefit of any other person
or
entity, or for any other reason, whether for consideration or otherwise,
during
the term of his employment hereunder or at any time thereafter, any information,
ideas, concepts, improvements, discoveries or inventions, whether patentable
or
not, which are conceived, made, developed, or acquired by Executive,
individually or in conjunction with others, during Executive’s
employment by the Company (whether during business hours or otherwise and
whether on the Company’s premises or otherwise) which relate to the business,
products, or services of the Company (including, without limitation, all
such
business ideas, prospects, proposals or other opportunities which are developed
by Executive
during
his employment hereunder, or originated by any third party and brought to
the
attention of Executive
during
his employment hereunder, together with information relating thereto (including,
without limitation, data, memoranda, opinions or other written, electronic
or
charted means, or any other trade secrets or other confidential or proprietary
information of or concerning the Company)) (collectively, “Business
Information”). Moreover, all documents, drawings, notes, files, data, records,
correspondence, manuals, models, specifications, computer programs, E-mail,
voice mail, electronic databases, maps, and all other writings or materials
of
any type embodying any such Business Information are and shall be the sole
and
exclusive property of the Company. Upon termination of Executive’s
employment hereunder, for any reason, Executive
promptly
shall deliver all Business Information, and all copies thereof, to the Company.
As a result of knowledge of confidential Business Information of third parties,
such as customers, suppliers, partners, joint ventures, and the like, of
the
Company, Executive
also
agrees to preserve and protect the confidentiality of such third party Business
Information to the same extent, and on the same basis, as the Company’s Business
Information.
Executive
agrees
that, during his employment, any inventions (whether or not patentable),
concepts, ideas, expressions, discoveries, or improvements, including, without
limitation, products, processes, methods, publications, works of authorship,
software programs, designs, trade secrets, technical specifications, algorithms,
technical data, know-how, internal reports and memoranda, marketing plans
and
any other patent or proprietary rights conceived, devised, developed, or
reduced
to practice, in whole or in part, by Executive
during
the term of his employment by the Company that pertain to hydrogen fuel
technology (the “Developments”) are the sole and exclusive property of the
Company on a worldwide basis as works made for hire or otherwise, and further
that any revenue or other consideration obtained from the sale, license or
other
transfer or conveyance of any such Development, or a product or service
incorporating such Development, is solely for the benefit of and becomes
the
property of the Company. To the extent a Development may not be considered
work
made by Executive
for hire
for the Company, Executive
agrees
to assign, and automatically assigns at the time of creation of the Development,
without any requirement of further consideration, any and all right, title
and
interest he may have in such Development. Executive
shall
preserve each such Development as confidential and proprietary information
of
the Company. Executive
shall
promptly disclose each such Development and shall, upon demand, at the Company’s
expense, execute and deliver to the Company such documents, instruments,
deeds,
acts and things as the Company may request to evidence or maintain the Company’s
ownership of the Development, in any and all countries of the world, or to
effect enforcement thereof, and to assign all rights, if any, of Executive
in and
to each of such Developments. In addition, Executive
agrees
not to publish or seek to publish any information whatsoever concerning any
Development without the prior written consent of the Company, which may be
withheld in its sole and absolute discretion.
Any
inventions relating to the business of the Company that pertain to hydrogen
fuel
technology conceived or reduced to practice after Executive
leaves
the employ of the Company shall be conclusively deemed to have been conceived
and/or reduced to practice during the period of the employment if conceived
and/or reduced to practice within six months from termination of employment,
and
shall be subject to the terms of this Section 7(c).
Non-Recruitment
of Other Company Employees.
During
the term of Executive’s
employment under this Agreement and for a period of two years thereafter,
Executive
will not
directly or indirectly (i) recruit, solicit, encourage or induce any employee
of
the Company or any of its Affiliates to terminate such employment, (ii)
otherwise disrupt any such employee’s relationship with the Company or its
Affiliates, or (iii) whether individually or as owner, agent, employee,
consultant or otherwise, hire, employ or offer employment to any person who
is
or was employed by the Company or an Affiliate thereof, whether or not such
engagement is solicited by Executive.
Non-Solicitation
of Customers or Other Persons.
During
the term of Executive’s
employment under this Agreement and for a period of two years thereafter,
Executive
shall
not solicit, induce, or attempt to induce any past, current or potential
customer of the Company or its Affiliates to (A) cease doing business in
whole
or in part with or through the Company or its Affiliates or otherwise disrupt
any previously established relationship existing between such customer and
the
Company or its Affiliates, or (B) do business with any other person or entity
which performs services materially similar to or competitive with those provided
by the Company or its Affiliates.
During
the term of Executive’s
employment under this Agreement and for a period of two years thereafter,
Executive
shall
not solicit, induce, or attempt to induce any supplier, lessor, licensor,
or
other person who has a business relationship with the Company or its Affiliates,
or who on the date Executive’s
employment hereunder is terminated is engaged in discussions or negotiations
to
enter into a business relationship with the Company or its Affiliates, to
discontinue or reduce the extent of such relationship with the Company or
its
Affiliates.
Non-Competition
with the Company.
Executive
acknowledges and agrees that the services which have been and will be performed
by Executive
for the
Company or its Affiliates, whether during his employment with the Company
or any
Affiliates otherwise than pursuant to this Agreement, include services of
a
special, unique, unusual, extraordinary and intellectual character. Executive
further
acknowledges that the business of the Company and its subsidiaries is worldwide
in scope, that Executive
has been
and will be an integral part of conceiving, developing, marketing and selling
such products and services on a worldwide basis, and that the Company and
its
subsidiaries compete with other organizations that are or could be located
in
any part of the world. Executive
further
acknowledges that, by virtue of the character of his services, Executive
will be
deemed to have worked for the Company or its subsidiaries at any and every
location and geographic area in which Executive’s
services have been or will be applied on behalf of the Company or any subsidiary
during his employment by the Company or any subsidiary whether pursuant to
this
Agreement or otherwise, irrespective of whether or not Executive
was
physically present at such location or geographic area. Therefore, Executive
hereby
covenants and agrees that during the term of Executive’s
employment hereunder and for a period of two years thereafter, Executive
will not
directly or indirectly engage or invest in, own, manage, operate, control
or
participate in the ownership, management, operation or control of, be employed
by, associated or connected with, or render services or advice to, any other
business whose services, products or activities compete in whole or in part
with
the services, products or activities of the Company relating to Company’s
hydrogen fuel technology or its subsidiaries, within all geographic areas
worldwide in which Executive’s
services were applied by the Company or its subsidiaries at any time during
Executive’s
employment by the Company or its subsidiaries otherwise than pursuant to
this
Agreement (except with respect to Synexus as provided herein).
Reasonableness
of Covenants.
It is
understood and agreed by the parties hereto that the covenants by Executive
set
forth in this Section 7 are essential elements of this Agreement and that
but
for Executive’s
agreement to comply with such covenants, the Company would not have entered
into
this Agreement. The parties also acknowledge that the time, scope, geographic
area and other provisions of Section 7(b) through 7(f) have been specifically
negotiated at arm’s length by sophisticated commercial parties with peculiar
knowledge of the Company’s business. It is further agreed that all such
provisions are reasonable under the circumstances pertaining to the Company’s
business and Executive’s
key
role therein, and necessary for the protection of the Company’s legitimate
business interests. The Company and Executive
have
independently consulted their respective legal counsel and have been advised
in
all respects concerning the reasonableness and propriety of such covenants,
with
specific regard to the nature of the businesses conducted by the Company
and its
subsidiaries.
Injunctive
Relief and Other Remedies with Respect to Covenants.
Executive
acknowledges and agrees that the covenants and obligations of Executive
as set
forth in this Section 7 relate to special, unique and extraordinary matters
and
that a violation of any of the terms of such covenants and obligations will
cause the Company irreparable injury for which adequate remedies are not
available at law. Executive
further
agrees that if, at any time, despite express agreement of the parties hereto,
a
court of competent jurisdiction holds that any portion of Section 7(b) through
7(f) of this Agreement is unenforceable for any reason, the maximum permissible
restrictions of time, scope or geographic area as determined by such court,
will
be substituted for any such restrictions held unenforceable. In the event
Executive’s
breach
(or threatened breach in the case of clause (i) below) of any of the covenants
and obligations set forth in this Section 7, Executive
agrees
that the Company will (i) be entitled to an injunction, restraining order
or
such other equitable relief restraining Executive
from
violating such covenants and obligations contained in this Section 7, without
requiring the Company to post any bond or surety therefor, and (ii) have
no
further obligation to make any payments to Executive
hereunder. These remedies are cumulative and are in addition to any other
rights
and remedies the Company may have at law or in equity, including, but not
limited to, recovery of costs and expenses such as reasonable attorneys’ fees by
reason of any such breach, actual damages sustained by the Company as a result
of any such breach, and cancellation of any unpaid salary, bonus, commissions
or
reimbursements otherwise outstanding at such time.
Applicability
of Certain Sections.
Notwithstanding the foregoing, the parties agree that Sections 7(d), 7(e)
and
7(f) shall be binding upon Executive
only in
the event that Executive
voluntarily terminates his employment hereunder during the term of this
Agreement without the consent of the Company and in the event that Executive
is
discharged by the Company for Disability or Cause.
Successors;
Binding Agreement.
The
terms and conditions of this Agreement shall inure to the benefit of and
be
binding upon the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any rights, interests or obligations
hereunder may be assigned by any party hereto without the prior written consent
of the other parties hereto; provided that the Company may assign any rights,
interests or obligations hereunder to any successor (whether direct or indirect,
by merger, purchase, consolidation or otherwise) to all or substantially
all of
the business and/or assets of the Company.
Notice.
All
notices hereunder must be in writing and shall be deemed to have given upon
receipt of delivery by: (a) personal delivery to the designated individual,
(b)
certified
or
registered mail, postage prepaid, return receipt requested, (c) a nationally
recognized overnight courier service with confirmation of receipt or (d)
facsimile transmission with confirmation of receipt. All such notices must
be
addressed as follows or such other address as to which any party hereto may
have
notified the other in writing. For the purpose of this Agreement, notices,
demands and all other communications provided for in this Agreement shall
be in
writing and shall be deemed to have been duly given when delivered or (unless
otherwise specified) mailed by United States certified or registered mail,
return receipt requested, postage prepared, addressed as follows:
To
the
Company:
000
Xxxx
Xxx Xxxx
Xxxxx
000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx X. Xxxxxx
To
Executive:
Xxxxx
Xxxxxxxxx
000
Xxxx
000 Xxxxx
Xxxx,
Xxxx 00000
or
to
such other address as any party may have furnished to the others in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
Miscellaneous.
No
provisions of this Agreement may be modified, waived or discharged unless
such
waiver, modification or discharge is agreed to in writing signed by Executive
and such
officer of the Company as may be specifically designated by the Chief Executive
Officer of the Company. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be
deemed
a waiver of similar or dissimilar provisions or conditions at the same or
at any
prior or subsequent time. No agreements or representations, oral or otherwise
express or implied, with respect to the subject matter hereof have been made
by
either party which are not set forth expressly in this Agreement.
Validity.
The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of
this
Agreement, which shall remain in full force and effect.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same instrument.
Entire
Agreement.
This
Agreement sets forth the entire agreement of the parties hereto in respect
of
the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto; and any prior agreement of the parties hereto in respect
of
the subject matter contained herein is hereby terminated and
canceled.
Governing
Law.
This
Agreement shall be construed and enforced in accordance with and governed
by the
internal laws of
the
State of Texas without regard to principles of conflict of laws.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date and
year
first above written.
| COMPANY: | |||||
| TRULITE, INC. | |||||
| By: |
/s/ Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Chief Executive Officer and President
|
|
|||
 |
|||||
Exhibit
A
Technical
Questions
| 1. |
What
is the purity of the hydrogen stream exiting the
reformer?
|
| 2. |
How
quickly does the catalyst saturate with carbon? Does this stop
the
decomposition?
|
| 3. |
What
is the optimum decomposition
temperature?
|
| 4. |
Does
the oxidation stage generate enough heat to power the decomposition
stage?
|
| 5. |
Is
sulfur removed from the fuel by the decomposition
process?
|
| 6. |
How
much CO, NOx, SOx does the oxidation cycle
produce?
|
| 7. |
Do
the heat recuperators effectively vaporize liquid
fuels?
|
| 8. |
What
is the overall conversion efficiency of the
C2DR?
|
| 9. |
How
expensive will the C2DR system be to
manufacture?
|
