FORM OF WARRANT
EXHIBIT
10.84
Ìý
FORM
OF WARRANT
Ìý
THIS
WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAW OR
PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
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Date
of Issuance
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Ìý |
Void
after
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November
7, 2007
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Ìý |
November
7, 2008
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TRULITE,
INC.
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
Ìý
This
Warrant is issued to _____________,
a
___________, or its assigns (the �Holder�)
by
Trulite, Inc., a Delaware corporation (the �Company�).
1.ÌýPurchase
of Shares.
Ìý
(a)ÌýNumber
of Shares.
Subject
to the terms and conditions set forth herein, the Holder is entitled, upon
surrender of this Warrant at the principal office of the Company (or at such
other place as the Company shall notify the Holder in writing), to purchase
from
the Company up to ___________
[in
25,000 share units] fully paid and nonassessable shares of the Company’s common
stock, par value $0.0001 per share (the �Common
Stock�).
Ìý
(b)ÌýExercise
Price.
The
exercise price for the shares of Common Stock issuable pursuant to this Section
1 (the �Shares�)
shall
be Fifty Cents ($0.50) per share (the �Exercise
Price�).
Ìý
2.ÌýExercise
Period.
This
Warrant shall be exercisable, in whole or in part, during the term commencing
on
the date hereof and ending at 5:00 p.m. CDT on November 7, 2008 (the
�Exercise
Period�);
provided, however, that this Warrant shall no longer be exercisable and become
null and void upon the consummation of any �Termination
Event�
defined
as (a)Ìýthe closing of the sale, transfer or other disposition of all or
substantially all of the Company’s assets, (b)Ìýthe consummation of the
merger or consolidation of the Company with or into another entity (except
a
merger or consolidation in which the holders of Company� Common Stock
immediately prior to such merger or consolidation continue to hold at least
50%
of the equity interest of the Company or the surviving or acquiring entity),
(c)Ìýthe closing of the transfer by a shareholder or group of shareholders
(whether by merger, consolidation or otherwise), in one transaction or a series
of related transactions, to a person or group of affiliated persons (other
than
an underwriter of the Company’s securities), of the Company’s securities if,
after such closing, such person or group of affiliated persons would hold more
than 50% of the outstanding Common Stock of the Company, or (d) a liquidation,
dissolution or winding up of the Company; provided, however, that a transaction
shall not constitute a Termination Event if its sole purpose is to change the
state of the Company’s organization or to create a holding company that will be
owned in substantially the same proportions by the persons who held the
Company’s securities immediately prior to such transaction.
Ìý
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Trulite,
Inc.
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Ìý
Ìý
3.ÌýMethod
of Exercise.
Ìý
(a)ÌýWhile
this Warrant remains outstanding and exercisable in accordance with
SectionÌý2 above, the Holder may exercise, in whole or in part, the purchase
rights evidenced hereby. Such exercise shall be effected by:
Ìý
(i)Ìýthe
surrender of the Warrant, together with a duly executed copy of the Notice
of
Exercise attached hereto, to the Secretary of the Company at its principal
office (or at such other place as the Company shall notify the Holder in
writing); and
Ìý
(ii)Ìýthe
payment of the Exercise Price, which shall be payable in cash, or by certified
or official bank check.
Ìý
(b)ÌýEach
exercise of this Warrant shall be deemed to have been effected immediately
prior
to the close of business on the day on which this Warrant is surrendered to
the
Company as provided in Section 3(a) above. At such time, the person or persons
in whose name or names any certificate for the Shares shall be issuable upon
such exercise as provided in Section 3(c) below shall be deemed to have become
the holder or holders of record of the Shares represented by such
certificate.
Ìý
(c)ÌýAs
soon
as practicable after the exercise of this Warrant in whole or in part the
Company at its expense will cause to be issued in the name of, and delivered
to,
the Holder, or as such Holder (upon payment by such Holder of any applicable
transfer taxes) may direct:
Ìý
(i)Ìýa
certificate or certificates for the number of Shares to which such Holder shall
be entitled, and
Ìý
(ii)Ìýin
case
such exercise is in part only, a new warrant or warrants (dated the date hereof)
of like tenor, calling in the aggregate on the face or faces thereof for the
number of Shares equal to the number of such Shares described in this Warrant
minus the number of such Shares purchased by the Holder upon all exercises
made
in accordance with Section 3(a) above.
Ìý
4.ÌýRepresentations
and Warranties of the Company.
In
connection with the transactions provided for herein, the Company hereby
represents and warrants to the Holder that:
Ìý
(a)ÌýOrganization,
Good Standing, and Qualification.
The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the StateÌýof
Delaware and has all requisite corporate power and authority to carry on its
business as now conducted. The Company is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business or properties.
Ìý
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Trulite,
Inc.
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(b)ÌýAuthorization.
Except
as may be limited by applicable bankruptcy, insolvency, reorganization or
similar laws relating to or affecting the enforcement of creditors� rights, all
corporate action has been taken on the part of the Company, its officers,
directors, and stockholders necessary for the authorization, execution and
delivery of this Warrant. The Company has taken all corporate action required
to
make all the obligations of the Company reflected in the provisions of this
Warrant the valid and enforceable obligations they purport to be. The issuance
of this Warrant will not be subject to preemptive rights of any stockholders
of
the Company. The Company has authorized sufficient shares of Common Stock to
allow for the exercise of this Warrant.
Ìý
(c)ÌýValid
Issuance of Common Stock.
The
Shares, when issued, sold, and delivered in accordance with the terms of the
Warrants for the consideration expressed therein, will be duly and validly
issued, fully paid and nonassessable and, based in part upon the representations
and warranties of the Holders in this Warrant, will be issued in compliance
with
all applicable federal and state securities laws.
Ìý
5.ÌýRepresentations
and Warranties of the Holder.
In
connection with the transactions provided for herein, the Holder hereby
represents and warrants to the Company that:
Ìý
(a)ÌýAuthorization.
Holder
represents that it has full power and authority to enter into this Warrant.
This
Warrant constitutes the ±á´Ç±ô»å±ð°ù’s valid and legally binding obligation,
enforceable in accordance with its terms, except as may be limited by (i)
applicable bankruptcy, insolvency, reorganization, or similar laws relating
to
or affecting the enforcement of creditors� rights and (ii) laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
Ìý
(b)ÌýPurchase
Entirely for Own Account.
The
Holder acknowledges that this Warrant is entered into by the Holder in reliance
upon such ▇▇▇▇▇▇’s representation to the Company that the Warrant and the Shares
(collectively, the �Securities�)
will
be acquired for investment for the ±á´Ç±ô»å±ð°ù’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 Holder has no present intention of selling, granting any
participation in or otherwise distributing the same. By acknowledging this
Warrant, the Holder further represents that the Holder does not have any
contract, undertaking, agreement, or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to the Securities.
Ìý
(c)ÌýDisclosure
of Information.
The
Holder acknowledges that it has received all the information it considers
necessary or appropriate for deciding whether to acquire the Securities. The
Holder further represents that it has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Securities.
Ìý
(d)ÌýInvestment
Experience.
The
Holder 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 of the investment
in the Securities and recognizes that it may realize a loss of its entire
investment in the Securities. If other than an individual, the Holder also
represents it has not been organized solely for the purpose of acquiring the
Securities.
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Trulite,
Inc.
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Ìý
Ìý
(e)ÌýAccredited
Investor.
The
Holder is an “accredited investor� within the meaning of Rule 501 of Regulation
D, as presently in effect, as promulgated by the Securities and Exchange
Commission (the �SEC�)
under
the Act.
Ìý
(f)ÌýRestricted
Securities.
The
Holder understands that the Securities are characterized as “restricted
securities� under the federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering
and
that under such laws and applicable regulations such securities may be resold
without registration under the Act, only in certain limited circumstances.
In
this connection, each Lender represents that it is familiar with Rule 144,
as
presently in effect, as promulgated by the SEC under the Act (�Rule
144�),
and
understands the resale limitations imposed thereby and by the Act.
Ìý
(g)ÌýFurther
Limitations on Disposition.
Without
in any way limiting the representations set forth above, the Holder further
agrees not to make any disposition of all or any portion of the Shares unless
and until the transferee has agreed in writing for the benefit of the Company
to
be bound by the terms of this Warrant, including, without limitation, this
Section 5 and:
Ìý
(i)Ìýthere
is
then in effect a registration statement under the Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement; or
Ìý
(ii)Ìýthe
Holder shall have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and if reasonably requested by the
Company, the Holder shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of such shares under the Act. It is agreed that the Company will
not require opinions of counsel for transactions made pursuant to Rule 144
except in extraordinary circumstances; or
Ìý
(iii)Ìýif
other
than an individual, the Holder shall not make any disposition to any of the
Company’s competitors as such is reasonablyÌýin
good
faith determined by the Company.
Ìý
(h)ÌýLegends.
It is
understood that the Securities may bear the following legend:
Ìý
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT
OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.�
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Inc.
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6.ÌýCovenants
of the Company.
Ìý
(a)ÌýNotices
of Record Date.
In the
event of any taking by the Company of a record of the holders of any class
of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than a cash dividend which is the same as cash
dividends paid in previous quarters and stock dividends) or other distribution,
the Company shall mail to the Holder, at least ten (10)Ìýdays
prior to such record date, a notice specifying the date on which any such record
is to be taken for the purpose of such dividend or distribution.
Ìý
(b)ÌýCovenants
as to Exercise Shares.
The
Company covenants and agrees that all Shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance in
accordance with the terms hereof, be validly issued and outstanding, fully
paid
and nonassessable, and free from all taxes, liens and charges with respect
to
the issuance thereof. The Company further covenants and agrees that the Company
will at all times during the Exercise Period, have authorized and reserved,
free
from preemptive rights, a sufficient number of shares of Common Stock to provide
for the exercise of the rights represented by this Warrant. If at any time
during the Exercise Period the number of authorized but unissued shares of
Common Stock shall not be sufficient to permit exercise of this Warrant, the
Company will take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued shares of Common Stock
to
such number of shares as shall be sufficient for such purposes.
Ìý
7.ÌýAdjustment
of Exercise Price and Number of Shares.
The
number and kind of Shares purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as
follows:
Ìý
(a)ÌýSubdivisions,
Combinations and Other Issuances.
If the
Company shall at any time after the issuance but prior to the expiration of
this
Warrant subdivide its Common Stock, by split-up or otherwise, or combine its
Common Stock, or issue additional shares of its Common Stock as a dividend
with
respect to any shares of its Common Stock, the number of Shares issuable on
the
exercise of this Warrant shall forthwith be proportionately increased in the
case of a subdivision or stock dividend, or proportionately decreased in the
case of a combination. Appropriate adjustments shall also be made to the
Exercise Price payable per share, but the aggregate Exercise Price payable
for
the total number of Shares purchasable under this Warrant (as adjusted) shall
remain the same. Any adjustment under this SectionÌý7(a) shall become
effective at the close of business on the date the subdivision or combination
becomes effective, or as of the record date of such dividend, or in the event
that no record date is fixed, upon the making of such dividend.
Ìý
(b)ÌýReclassification,
Reorganization and Consolidation.
In case
of any reclassification, capital reorganization or change in the capital stock
of the Company (other than as a result of a subdivision, combination or stock
dividend provided for in SectionÌý7(a) above), then, as a condition of such
reclassification, reorganization or change, lawful provision shall be made,
and
duly executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall have the right at
any
time prior to the expiration of this Warrant to purchase, at a total price
equal
to that payable upon the exercise of this Warrant, the kind and amount of shares
of stock and other securities or property receivable in connection with such
reclassification, reorganization or change by a holder of the same number and
type of securities as were purchasable as Shares by the Holder immediately
prior
to such reclassification, reorganization or change. In any such case appropriate
provisions shall be made with respect to the rights and interest of the Holder
so that the provisions hereof shall thereafter be applicable with respect to
any
shares of stock or other securities or property deliverable upon exercise
hereof, and appropriate adjustments shall be made to the Exercise Price per
Share payable hereunder, provided the aggregate Exercise Price shall remain
the
same.
Ìý
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Inc.
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(c)ÌýNotice
of Adjustment.
When
any adjustment is required to be made in the number or kind of shares
purchasable upon exercise of the Warrant, or in the Exercise Price, the Company
shall promptly notify the Holder of such event and of the number of Shares
or
other securities or property thereafter purchasable upon exercise of this
Warrant.
Ìý
8.ÌýChoice
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 ▇▇▇▇▇▇ County, Texas, and shall be brought in the State District Courts
of
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ County, Texas, and specifically consent to the
jurisdiction of the State District Courts of ▇▇▇▇▇▇ County and the United States
District Court for the Southern District of Texas, Houston
Division.
Ìý
9.ÌýSuccessors
and Assigns.
The
terms and provisions of this Warrant and the Purchase Agreement shall inure
to
the benefit of, and be binding upon, the Company and the holders hereof and
their respective successors and assigns.
Ìý
10.ÌýTitles
and Subtitles.
The
titles and subtitles used in this Warrant are used for convenience only and
are
not to be considered in construing or interpreting this Warrant.
Ìý
11.ÌýNotices.
All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to
the
party to be notified, (b) when sent by confirmed electronic mail or facsimile
if
sent during normal business hours of the recipient, and if not so confirmed,
then on the next business day, (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or
(d)
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 following
addresses (or at such other addresses as shall be specified by notice given
in
accordance with this Section 11):
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Trulite,
Inc.
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If
to the
Company:
Ìý
Trulite,
Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇� ▇▇�
Houston,
Texas 77010
Attention:
President
Ìý
If
to
Holder:
________________________
________________________
________________________
________________________
12.ÌýFinder’s
Fee.
The
Holder agrees to indemnify and to hold harmless the Company from any liability
for any commission or compensation in the nature of a finder’s fee (and the
costs and expenses of defending against such liability or asserted liability)
for which the Holder or any of its officers, partners, employees or
representatives is responsible. The Company agrees to indemnify and hold
harmless the Holder from any liability for any commission or compensation in
the
nature of a finder’s fee (and the costs and expenses of defending against such
liability or asserted liability) for which the Company or any of its officers,
employees or representatives is responsible.
Ìý
13.ÌýExpenses.
If any
action at law or in equity is necessary to enforce or interpret the terms of
this Warrant, the prevailing party shall be entitled to reasonable attorneys�
fees, costs and necessary disbursements in addition to any other relief to
which
such party may be entitled.
Ìý
14.ÌýEntire
Agreement; Amendments and Waivers.
This
Warrant and any other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. Nonetheless, any term of this Warrant 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), with the written consent of the Company and the Holder; or
if
this Warrant has been assigned in part, by the holders or rights to purchase
a
majority of the shares originally issuable pursuant to this
Warrant.
Ìý
15.ÌýSeverability.
If any
provision of this Warrant is held to be unenforceable under applicable law,
such
provision shall be excluded from this Warrant and the balance of the Warrant
shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
Ìý
[Signature
Page Follows]
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Inc.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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COMPANY:
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Trulite,
Inc.
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(a
Delaware corporation)
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| Ìý | Ìý |
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By:
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/s/
�. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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| Title:Ìý |
Chief
Financial Officer
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Address:
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▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇� ▇▇�
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| Ìý |
Houston,
Texas 77010
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Ìý
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ACKNOWLEDGED
AND AGREED:
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HOLDER:
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| Ìý |
| Ìý |
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By:
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Ìý
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Warrant
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Signature
Page
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Trulite,
Inc.
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NOTICE
OF EXERCISE
Ìý
Trulite,
Inc.
Attention:
Corporate Secretary
Ìý
The
undersigned hereby elects to purchase, pursuant to the provisions of the
Warrant, as follows:
_____________
shares of Common Stock pursuant to the terms of the attached Warrant, and
[(a)
tenders herewith payment in cash of the Exercise Price of such Shares in full,
or (b) elects to make a “cashless� exercise in accordance with the provisions of
Section 3(a) of the attached warrant],
together with all applicable transfer taxes, if any.
Ìý
The
undersigned hereby represents and warrants that Representations and Warranties
in SectionÌý5 hereof are true and correct as of the date
hereof.
Ìý
| Ìý | Ìý |
HOLDER:
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| Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý |
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Date:
___________________
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By:
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_______________________________________
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| Ìý | Ìý | Ìý |
| Ìý |
Address:
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ÌýÌýÌýÌýÌý_______________________________________
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| Ìý | Ìý |
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
____________________________________
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| Ìý | Ìý |
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
____________________________________Ìý
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Ìý
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Name
in which shares should be registered:
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| ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý |
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Trulite,
Inc.
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ASSIGNMENT
FORM
Ìý
(To
assign the foregoing Warrant, execute this form and supply required information.
Do not use this form to purchase shares.)
Ìý
For
Value Received,
the
foregoing Warrant and all rights evidenced thereby are hereby assigned
to
Ìý
Name:
_____________________________________________________________________________________________
(Please
Print)
Ìý
Address:
__________________________________________________________________________________________
(Please
Print)
Ìý
Dated:
_________________
Ìý
±á´Ç±ô»å±ð°ù’s
Signature:
_______________________________________________________
Ìý
±á´Ç±ô»å±ð°ù’s
Address:
________________________________________________________
Ìý
NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant. Officers of corporations and those acting in a
fiduciary or other representative capacity should provide proper evidence of
authority to assign the foregoing Warrant.
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Trulite,
Inc.
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