STOCKHOLDER LOCK-UP AGREEMENT
Exhibit
10.32
This
Stockholder Lock-Up Agreement (the “Agreement”)
is
made effective as of the 31st
day of
March, 2006, by and among Trulite, Inc., a Delaware corporation (the
“Company”),
and
the holders of shares of the Company’s common stock (“Common
Stock”)
listed
on Schedule “A” hereto
(each, a “Stockholder”
and
collectively, the “Stockholders”).
RECITALS
WHEREAS,
the Company and the Stockholders anticipate raising additional equity
investments in the Company in the future; and
WHEREAS,
in order to induce future investors in the Company (“Investors”)
to
invest funds in the Company, the Stockholders and the Company hereby agree
that
this Agreement shall govern the rights of the Stockholders to enter into
transactions with respect to the equity securities of the Company as set forth
herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties hereto further agree as follows:
TERMS
1.
Lock-Up
Agreement.
(a)
Each
Stockholder hereby agrees that it will not, without the prior written consent
of
the Company or the managing underwriter, if any, during the period commencing
on
the date of the final prospectus relating to a public offering of the Company’s
equity securities and ending on the date specified by the Company or the
managing underwriter, if any (such period not to exceed three hundred sixty-five
(365) days), (i) lend, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose
of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock (whether such shares or
any
such securities are then owned by the Stockholder or are thereafter acquired),
or (ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or other securities, in cash or
otherwise. The underwriters, if any, in connection with any such offering of
the
Company’s equity securities and the Investors are intended third-party
beneficiaries of this Section 1 and shall have the right, power and
authority to enforce the provisions hereof as though they were a party hereto.
Each Stockholder further agrees to execute such agreements as may be reasonably
requested by the Company or such underwriters, if any, that are consistent
with
this Section 1 or that are necessary to give further effect thereto.
(b)
In
order to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Common Stock of each Stockholder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
(c)
Each
Stockholder agrees that a legend reading substantially as follows shall
be
placed
on all certificates representing all equity securities of each
Stockholder:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD
AFTER
THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE ACT,
AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE ORIGINAL
HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S
PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE
SHARES.”
2.
Miscellaneous.
(a)
Successors
and Assigns.
Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any shares of Common Stock).
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.
(b)
Choice
of Law, Venue and Forum.
This
Agreement, the entire relationship of the parties hereto, and any litigation
between the parties (whether grounded in contract, tort, statute, law or equity)
shall be governed by, construed in accordance with, and interpreted pursuant
to
the laws of the State of Texas, without giving effect to its choice of laws
principles. Exclusive venue for any litigation between the parties hereto shall
be in Xxxxxx County, Texas, and shall be brought in the State District Courts
of
Xxxxxx County, Texas, or in the United States District Court for the Southern
District of Texas, Houston Division. The parties hereto waive any challenge
to
personal jurisdiction or venue (including without limitation a challenge based
on inconvenience) in Xxxxxx County, Texas, and specifically consent to the
jurisdiction of the State District Courts of Xxxxxx County and the United States
District Court for the Southern District of Texas, Houston
Division.
(c)
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
(d)
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.
(e)
Notices.
All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed effectively given: (i) upon personal delivery
to the party to be notified, (ii) when sent by confirmed electronic mail or
facsimile if sent during normal business hours of the recipient; if not, then
on
the next business day, (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or
(iv) one (1) day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt.
All
communications shall be sent to the respective parties at the addresses set
forth in the record books of the Company (or at such other addresses as shall
be
specified by notice given in accordance with this
Section 2(e)).
(f)
Entire
Agreement; Amendments and Waivers.
This
Agreement (including the Exhibits hereto, if any) constitutes the full and
entire understanding and agreement among the parties with regard to the subjects
hereof and thereof. 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 all of the Stockholders.
(g)
Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and
the
balance of the Agreement shall be interpreted as if such provision(s) were
so
excluded and shall be enforceable in accordance with its terms.
(h)
Additional
Stockholders.
Notwithstanding anything to the contrary contained herein, no consent shall
be
necessary to add additional Stockholders as signatories to this
Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Stockholder Lock-Up Agreement
effective as of the date first above written.
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COMPANY:
Trulite,
Inc.
(a
Delaware corporation)
By:
 Xxxx
Xxxxxxx, President
Address:
Xxxxx
Xxxxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxx 00000-0000
STOCKHOLDER:
 By: ___________________________
Name:
Xxxx
X. Xxxx
Address:
0000
Xxxx Xxxxxxxx Xx.
Xxxx
Xxxxxx, XX 00000
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