Unassociated Document
Filed
Pursuant to Rule 424(b)(3)
File
Number 333-134849
PROSPECTUS
SUPPLEMENT NO. 1
to
Prospectus declared
effective
on April 10, 2007
(Registration
No. 333-134849)
Trulite,
Inc.
This
Prospectus Supplement No. 1 supplements our Prospectus, dated April 10,
2007. The shares of common stock and the shares of common stock issuable on
the
exercise of warrants that are covered by the Prospectus have been registered
to
permit their resale to the public by the selling stockholders named in the
Prospectus. We are not selling any shares of common stock in this offering
and
therefore will not receive any proceeds from this offering. You should read
this
Prospectus Supplement No. 1 together with the Prospectus.
This
Prospectus Supplement includes the attached Amendment No. 1, dated April 30,
2007, to the Annual Report on Form 10-KSB of Trulite, Inc. as filed by us with
the Securities and Exchange Commission.
Our
common stock is quoted on the OTC Electronic Bulletin Board of the National
Association of Securities Dealers, Inc. under the symbol “TRUL.OB.”
Neither
the securities and exchange commission nor any state securities commission
has
approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus supplement. Any representation to the contrary
is a
criminal offense.
The
date
of this Prospectus Supplement is April 30, 2007
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
10-KSB
(Amendment
No. 1)
(Mark
One)
x ANNUAL
REPORT
UNDER SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934
For
the fiscal year ended December 31, 2006
o TRANSITION
REPORT
UNDER SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934
For
the
transition period from ______________ to ______________
Commission
File Number 0-51696
Trulite,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware
|
20-1372858
|
(State
or Other Jurisdiction of
|
(IRS
Employer
|
Incorporation)
|
Identification
No.)
|
Securities
registered under Section 12(b) of the Exchange Act:
None.
Securities
registered under Section 12(g) of the Exchange Act:
Common
Stock, $0.0001 par value per share
(Title
of
Class)
Check
whether issuer is not required to file reports pursuant to Section 13 or 15(d)
of the Exchange Act .
o
Check
whether the issuer (1) filed all reports required to be filed by Section 13
or
15(d) of the Exchange Act during the past 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. Yes x Noo.
Check
if
there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B contained in this form, and no disclosure will be contained,
to
the best of the registrant’s knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB o.
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes o
No
x
The
issuer’s revenues for its most recent fiscal year. $8,333
The
aggregate market value of the voting and non-voting common equity held by
non-affiliates computed by reference to the price at which the common equity
was
sold, or the average bid and asked price of such common equity, as of March
26,
2007, was $3,142,614.
As
of
April 27, 2007, there were 11,785,491 shares of common stock outstanding.
DOCUMENTS
INCORPORATED BY REFERENCE: None
This
Amendment No. 1 on Form 10-KSB, or Amended Report, amends the original
Annual Report on Form 10-KSB of Trulite, Inc. for the fiscal year ended
December 31, 2006, filed with the Securities and Exchange Commission, or
the SEC, on April 2, 2007, or Original Report, to add certain information
required by Items 9 through 14 of Part III of the Form 10-KSB. We hereby amend
Items 9, 10, 11, 12, 13 and 14 of Part III of our Original Report by
deleting the text of such Items 9, 10, 11, 12, 13 and 14 in their entirety
and replacing them with the information provided below under the respective
headings. The Amended Report does not affect any other items in our Original
Report. As a result of this amendment, we are also filing the certifications
pursuant to Section 302 and Section 906 of the Sarbanes-Oxley Act of
2002 as exhibits to this Amended Report.
Except
as
otherwise expressly stated for the items amended in this Amended Report, this
Amended Report continues to speak as of the date of the Original Report and
we
have not updated the disclosure contained herein to reflect events that have
occurred since the filing of the Original Report. Accordingly, this Amended
Report should be read in conjunction with our Original Report and our other
filings made with the SEC subsequent to the filing of the Original Report.
Part
III
Item
9. Directors,
Executive Officers, Promoters, Control Persons and Corporate Governance;
Compliance with Section 16(a) of the Exchange Act.
The
following table sets forth the names, ages, and positions of our executive
officers, directors and director nominee for election at our 2007 annual meeting
of stockholders. The only current director not a nominee for reelection at
our
2007 annual meeting of stockholders is Eric Melvin.
Name
|
|
Age
|
|
Position
|
|
|
|
|
|
Jonathan
Godshall
|
|
58
|
|
President,
Chief Executive Officer, and Director
|
William
Jackson Berger
|
|
33
|
|
Chairman
of the Board of Directors
|
Richard
Hoesterey
|
|
64
|
|
Director
|
General
Randolph House
|
|
61
|
|
Director
|
Eric
Melvin
|
|
43
|
|
Director
|
John
Sifonis
|
|
66
|
|
Director
|
John
White
|
|
58
|
|
Director
|
W.
Kyle Willis
|
|
59
|
|
Director
Nominee
|
Kenneth
Pearson
|
|
52
|
|
Chief
Operating Officer and Vice President of Product
Development
|
Wade
Stubblefield
|
|
40
|
|
Chief
Financial Officer
|
Jonathan
Godshall, President, Chief Executive Officer and Director.
Jonathan
Godshall joined our company in June 2006 as a management consultant. On
August 11, 2006, Mr. Godshall became the President and Chief Executive
Officer of our company. Effective October 16, 2006, Mr. Godshall was elected
a
director of our company. From 1973 through 1986, Mr. Godshall held various
positions with Anderson Clayton & Co., a diversified food, agribusiness, and
consumer products company. This included responsibility for businesses up to
$350 million in revenue as vice president and general manager of Anderson
Clayton foods (Edible Oils). Next, as President and CEO of Igloo Corporation,
Mr. Godshall led a successful LBO of the company in 1987, and continued as
CEO
there for 15 years until 2001 when he participated in the sale of Igloo. During
Mr. Godshall’s tenure there, Igloo’s revenues tripled. Mr. Godshall served as
the President and Chief Executive Officer of Home Fragrance Holdings, a private
equity owned candle manufacturer from 2002 to 2004, and has also held various
consulting and Board assignments during that time. Mr. Godshall is currently
the
President and Chief Executive Officer of NewPoint Energy Solutions, LP, our
largest stockholder, and the President Power and Efficiency Division of Standard
Renewable Energy Group, LLC, or SREG, which owns NewPoint Energy Solutions,
LP.
Mr. Godshall holds a B.A. in International Studies form the University of North
Carolina (Morehead Scholar, Phi Beta Kappa) and an M.B.A. from Harvard Business
School.
William
Jackson Berger, Chairman of the Board of Directors.
William
Jackson Berger has more than nine years of experience in the energy industry
and
has served as Chairman of the Board of Directors of Trulite since
July 22, 2004. Mr. Berger is Chairman of the Board and Chief Executive
Officer of SREG and Chief Executive Officer of Standard Renewable Energy, LP,
one of our affiliates. Mr. Berger also serves as Chairman of the Board of
NewPoint Energy Solutions, LP and Chairman of the Board of Directors of
Galveston Bay Biodiesel, LP. During 1996-2001, Mr. Berger worked as a trader
at
Enron Corp., an energy trading entity. From January 2002 through December 2003,
Mr. Berger was employed by the Federal Energy Regulatory Commission, advising
on
trading activities in the natural gas and power markets. In addition, he
assisted the FERC with regard to how a commercial trading operation is set
up
with information services and models to predict power loads of utilities. He
also helped analyze regulatory issues with distributed generation and
interconnection into the power grid. Mr. Berger graduated cum laude from Texas
A&M University with a B.S. in civil engineering in 1996. In 2003, Mr. Berger
graduated from Harvard Business School with an MBA.
Richard
K. Hoesterey, Director.
Richard
(Dick) Hoesterey has served as a director of Trulite since May 2006 and is
an
experienced executive with over thirty-five years in general management and
manufacturing operations management in a variety of industries including
electronics, industrial goods, and power regulation. His management experience
includes roles as officer and board member of private and public companies.
Mr.
Hoesterey joined Components Corporation of America (“CCA”) in 1997, and has
served as CCA’s President and Chief Executive Officer since 2000. CCA operates
as a holding company and currently has three wholly-owned subsidiary companies,
which function as self-contained, stand-alone companies. These businesses are
focused on design, manufacture and sale of electrical control technology
components and subsystems for industrial, commercial, military, and government
markets. Prior to becoming the CEO of Components Corporation, Mr. Hoesterey
was
a Senior Partner with Thomas Group, Inc. from 1990 to 1997. In this capacity,
he
was a Program Results Manager and Change Agent for several clients. From 1986
to
1990, Mr. Hoesterey was an Executive Vice President for EPI Technologies. In
the
capacity of Executive Vice President, he directed the growth and development
of
the Component Processing Division. He also directed the corporate level
functions of Human Resources, Facilities and Sales. From 1984 to 1986, Mr.
Hoesterey was a Director, Material Services with Compaq Telecommunications
Corporation, a start-up company in the computer telephone industry. He was
responsible for Purchasing, Production Planning & Control, and Material
Services. From 1978 to 1986, Mr. Hoesterey was employed by Harris Corporation
in
a number of management positions including Director/Plant Manager, Equipment
Refurbishment; Director, Manufacturing Systems Implementation; and, Director,
Materials. From 1969 to 1976, Mr. Hoesterey worked for the Xerox Corporation
in
a number of management positions in the areas of operations, logistics, new
product introductions, business improvement programs, and several MRP
implementations. From 1966 to 1969, Mr. Hoesterey was a 1st Lieutenant in the
U.S. Army. Mr. Hoesterey received a BBA in Industrial Management from Clarkson
University in 1965 and has completed additional post graduate studies in
business at Rochester Institute of Technology. He also has an APICS
Certification in Production and Inventory management.
General
Randolph House, Director.
General
House, a Director of our company, is a retired U.S. Army Lieutenant General.
Prior to his retirement in 2003, General House served the Army for thirty-three
years. Notably, General House was Deputy Commandant, U.S. Army Command and
General Staff College at Fort Leavenworth, Kansas. In 1996, General House was
assigned to the Pentagon as Senior Military Assistant to the Secretary of
Defense, Dr. William Perry. In 1997, General House was assigned as the Assistant
Chief of Staff for Installation Management, Department of the Army. Later that
year, he assumed command of the Eighth United States Army and Chief of Staff,
United Nations Command/Combined Forces Command/United States Forces in Seoul,
Korea. In 1998, General House received his second three star assignment as
the
Deputy Commander-in-Chief and Chief of Staff, United States Pacific Command.
General House earned a Bachelor’s Degree in 1968 from Texas A&M University.
He also received a Master’s Degree from Clemson University.
Eric
Melvin, Director.
Eric
Melvin, a director of our company, is the founder, President, and Chief
Executive Officer of Mobius Risk Group, a provider of energy risk management
outsourcing and advisory services. Prior to forming Mobius Risk Group, from
2000
to 2001, Mr. Melvin worked as the VP, New Business Ventures at Enron Energy
Services, a subsidiary of Enron Corp. Mr. Melvin received his BGS from the
University of Michigan, Ann Arbor in 1985. He also earned a JD from the
University of Detroit, School of Law in 1990.
John
Sifonis, Director.
John
Sifonis joined our company as its President and Chief Executive Officer and
as a
director in October 2004. Mr. Sifonis resigned as President and Chief Executive
Officer of our company August 11, 2006, but remains a director of our
company. From July 1998 to October 2004 Mr. Sifonis was the Managing Director
of
the Internet Business Solutions Group at Cisco Systems, Inc. From December
1991
to July 1998, Mr. Sifonis was the Chief Executive Officer of SAI International,
LLC. From January 1976 to August 1989 Mr. Sifonis was a Senior Partner in the
Management Consulting Group of Ernst & Young. While at Ernst & Young,
Mr. Sifonis also served as the National Director of the Strategic Management
Consulting Group. He received a Bachelor of Science Degree in Management Science
from Case Institute of Technology in 1963 and has completed additional post
graduate studies at Case Institute in Operations Research.
John
White, Director.
John
White was named a director of our company effective October 16, 2006. Since
July
1, 2006, Mr. White has served as General Counsel and Senior Vice President
of
Government/Investor Relations of Standard Renewable Energy Group, LLC. From
March 1, 2003 to June 30, 2006, Mr. White was a partner in the Houston, Texas
office of Jones, Walker, Waechter, Poitevent, Carrere & Denegre LLP and from
January 1, 2004 until June 30, 2006 was Managing Partner of that office. Mr.
White was a partner in the law firm of Winstead Sechrest and Minick PC from
February 1, 2002 until February 28, 2003. Mr. White is Chairman of the Texas
A&M University System Board of Regents.
W.
Kyle Willis, Director Nominee.
W.
Kyle
Willis is currently Vice President and Chief Financial Officer of Ridgeway
Petroleum Corp., an enhanced oil recovery company and producer of helium and
CO2
gases in Arizona and New Mexico. From April 2005 to November 2006, Mr. Willis
was Vice President Finance for two years with Gulf Energy Management Company,
a
subsidiary of Harken Energy Corp. engaged in oil and gas exploration in the
United States. From 2001 through 2004, he was Vice President and Chief Financial
Officer of TransAtlantic Petroleum Corp., an oil and gas exploration company
with operations in the US, Nigeria and Egypt. He served as Vice President of
DrillTube International, Inc., a drill pipe manufacturing company and subsidiary
of Weatherford International from 1997 until 2002. From 1992 through 1996,
Mr.
Willis was Executive Vice President, Chief Financial Officer and Director of
Buttes Gas & Oil Co., with exploration activities in the US and Canada,
agriculture activities in California and providing offshore drilling services
in
the Gulf of Mexico. From 1983 through 1991, Mr. Willis was engaged by four
national venture capital firms where he conducted financial restructurings
and
operational workouts of technology investments and assisted emerging technology
business startups. During this period, he served as President of TCS Software,
Inc., a software developer, Vice President of Image Data Corporation, a video
imaging communications manufacturer, and Southwest Network Services, a wide-area
data network services provider. Following initial positions engaged in public
accounting with Deloitte, his career includes over 30 years of financial
executive experience with companies engaged in oil and gas exploration, oilfield
service and oilfield equipment manufacturing, principally in the US and Canada.
Mr. Willis has served as chief financial officer of four public companies with
securities listed on exchanges in the US and Canada. Mr. Willis holds a degree
in Accounting from Texas A&M University and is a Certified Public
Accountant.
Kenneth
Pearson, Chief Operating Officer.
Kenneth
Pearson became the Chief Operating Officer and Vice President of Product
Development of our company effective January 1, 2007. From November 2005 until
January 2007, Mr. Pearson was an independent consultant. From 2001 until 2005,
he was the Chief Operating Officer of Jadoo Power Systems Inc., where he
launched the company and its products. Jadoo’s primary product lines are
portable fuel cell power, metal hydride storage and refilling products. During
his tenure, he created and managed Jadoo’s infrastructure, product development
team and strategy, intellectual property strategy, supply chain relationships
and a state of the art fuel cell development and manufacturing facility. Over
the past 28 years Mr. Pearson has developed a track record in the management
of
technology companies in a broad range of industries from fuel cells, medical
devices, electronics and aerospace. Mr. Pearson holds a BSME degree and has
over
four additional years of formal management training. He also is certified in
operations by the Association for Operations Management. Mr.
Pearson held a position on Jadoo Power Systems Board of Directors for three
years and was elected to the National Hydrogen Associations Board of Directors
in 2004.
Wade
Stubblefield, Chief Financial Officer.
Wade
Stubblefield has served our company as Chief Financial Officer since December
14, 2006, and since October 2006 has served as Chief Financial Officer of
Standard Renewable Energy Group, LLC. From April 2004 to October 2006, Mr.
Stubblefield served as Vice President and Corporate Controller of Group 1
Automotive, Inc., a Fortune 500 automotive retailer. At the time, Group 1
Automotive’s operations encompassed 95 auto dealerships concentrated in 14
geographic locations. From December 2001 to April 2004, Mr. Stubblefield served
as Managing Director of Enron’s Wholesale and Retail Estate, where he was
responsible for financial and accounting matters during post-bankruptcy
operations. This organization consisted of 35 subsidiaries with 100 divisions
and a net asset value of approximately $6.0 billion. From August 1999 to
December 2001, Mr. Stubblefield served as Vice President of Financial Operations
for Enron Energy Services, a division of Enron Corp. with total annual sales
of
commodity and services approaching $6.0 billion, total assets of approximately
$4.5 billion, and approximately 7,000 employees.
CORPORATE
GOVERNANCE
Board
of Directors
We
are
managed under the direction of our Board of Directors. Our directors generally
serve one-year terms from the time of their election until the next annual
meeting of stockholders or until their successors are duly elected and
qualified. The size of our Board of Directors is currently set at seven members,
and we currently have seven directors including four non-employee
directors.
Committees
of the Board of Directors
Compensation
Committee
Messrs.
House, Hoesterey, and Berger have been acting as the compensation committee.
Mr.
Hoesterey has
been
serving as the chairman of the compensation committee. The compensation
committee has not finalized the compensation committee charter but intends
to
adopt one in 2007 and intends to make the charter, once approved, available
on
our website at www.trulitetech.com.
The
compensation committee has responsibility for all aspects of the compensation
program for our executive officers, including those who have attained the title
of Vice President or above, and those who report directly to the Chief Executive
Officer. The compensation committee has the power to retain outside counsel,
compensation consultants, or other experts and will receive adequate funding
from us to engage such advisors. The compensation committee has the sole
authority to retain, compensate, terminate, and oversee executive compensation
consultants, who are accountable ultimately to the compensation
committee.
The
compensation committee sets performance goals and objectives for the chief
executive officer and the other executive officers, evaluates their performance
with respect to those goals and sets their compensation based upon the
evaluation of their performance. In evaluating executive officer pay, the
compensation committee may retain the services of a compensation consultant
and
consider recommendations from our chief executive officer with respect to goals
and compensation of the other executive officers. The compensation committee
assesses the information it receives in accordance with its business judgment.
The compensation committee also periodically reviews director compensation.
All
decisions with respect to executive and director compensation are approved
by
the compensation committee and recommended to the full Board of Directors for
ratification.
The
compensation committee is responsible for administering all of our equity-based
plans. The Board of Directors, however, expects to authorize our chief executive
officer to grant individual stock awards to non-executive employees between
scheduled meetings of the compensation committee. The compensation committee
also periodically reviews compensation and equity-based plans and makes its
recommendation to the Board of Directors with respect to these
areas.
Nominating
Committee
Our
Board
of Directors does not have a standing nominating committee. The entire Board
of
Directors participates in the consideration of director nominees. Our Board
of
Directors does not consider it necessary to establish a nominating committee
because our Board of Directors is relatively small in size and believes it
can
operate more effectively in concert.
Audit
Committee
Our
Board
of Directors does not currently have a standing audit committee. The entire
Board of Directors currently acts as our audit committee. The Board of Directors
anticipates forming a separate audit committee and adopting an audit committee
charter in 2007. A copy of the audit committee charter, once adopted, will
be
made available in its entirety on our website.
Board
Independence
Under
the
AMEX independence standards, Messrs. House, Hoesterey and Willis are independent
directors. In making this determination, the Board of Directors considered
Mr.
Hoesterey’s role as a member of the Advisory Board of Standard Renewable Energy
Group, LLC and Mr. House’s role as a member of the Board of Directors of
Standard Renewable Energy Group, LLC. Standard Renewable Energy Group, LLC
is
the general partner of NewPoint Energy Solutions, LP, our largest stockholder.
Messrs. Godshall, Berger, Melvin, Sifonis and White are not independent under
the AMEX general independence rules and under the independence rules applicable
to audit committees, nominating committees and compensation committees. Each
member of our compensation committee other than Mr. Berger is a “non-employee
director” as defined by Rule 16b-3 promulgated under the Securities Exchange Act
of 1934, as amended, an “outside director” as defined by Section 162(m) of
the Internal Revenue Code, and “independent” under the AMEX independence
standards.
Code
of Ethics
In
2007,
the Board of Directors adopted a Code of Ethics for our company. This Code
is a
statement of our standards for ethical behavior, legal compliance, and financial
disclosure, and is applicable to all directors, officers, and employees. A
copy
of the Code of Ethics is available on our website at www.trulitetech.com.
Additionally, should there be any changes to, or waivers from, our Code of
Ethics, those changes or waivers will be posted on our website.
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Exchange Act requires our directors and executive officers and
persons who own more than 10% of a registered class of our equity securities
to
file with the Securities and Exchange Commission initial reports of ownership
and reports of changes in ownership of our common stock. Officers, directors
and
greater than 10% stockholders are required by SEC regulation to furnish us
with
copies of all such forms they file. Based solely on a review of the copies
of
such reports furnished to us and written representations that no other reports
were required, we believe that all of its directors and executive officers
during 2006 complied on a timely basis with all applicable filing requirements
under Section 16(a) of the Exchange Act, with the following exceptions:
· |
William
Jackson Berger received stock options to purchase 176,278 shares
of our
common stock pursuant to Trulite’s stock option plan on April 3, 2006,
became the beneficial owner of warrants to purchase of 592,500 shares
of
common stock on April 13, 2006, and became the beneficial owner of
an
additional 5,332,414 shares of common stock on September 19, 2006.
These
changes were inadvertently not reported on Form 4s until February
20,
2007.
|
· |
General
Randolph House became a director of the company effective February
21,
2006, but the Form 3 reporting his vested options to purchase of
3,423
shares of common stock was not filed until March 7,
2006.
|
· |
John
White became one of our directors effective October 16, 2006, but
his
beneficial ownership of 792 shares of our common stock, warrants
for the
purchase of 592,500 shares of our common stock, and options for the
purchase of 176,278 shares of our common stock were not reported
on Form 3
until February 20, 2007.
|
Item
10. Executive Compensation.
Summary
Compensation
The
following table contains summary information concerning the total compensation
earned during 2006 by our chief executive officer and our two other most highly
compensated executive officers serving in this capacity as of December 31,
2006,
whose total compensation exceeded $100,000 for the fiscal year ended December
31, 2006 and up to two additional persons who would have been among our three
most highly compensated officers other than the chief executive officer and
the
chief financial officer, but for the fact that he or she was not serving as
an
executive officer at the end of the fiscal year ended December 31, 2006. We
refer to the listed executive officers as the named executive
officers.
Summary
Compensation Table for the Fiscal Year Ended December 31,
2006
Name
and Principal Position
|
|
Year
|
|
Salary
($)
|
|
Bonus
($)
|
|
Option
Awards
($)
(1)
|
|
All
Other Compensation
($)
|
|
Total
($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jonathan
Godshall (2)
|
|
|
2006
|
|
$
|
40,769
|
|
|
--
|
|
$
|
44,172
|
(3)
|
$
|
20,000
|
|
$
|
104,941
|
|
President
and Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wade
Stubblefield (4)
|
|
|
2006
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
Chief
Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kenneth
Pearson
|
|
|
2006
|
|
|
--
|
|
$
|
15,000(5
|
)
|
$
|
27,178
|
(6)
|
$
|
123,132
|
(7)
|
$
|
165,310
|
|
Chief
Operating Officer and
Vice
President of Product Development
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
Sifonis (8)
|
|
|
2006
|
|
|
--
|
|
|
--
|
|
$
|
48,129
|
(9)
|
$
|
54,000
|
|
$
|
102,387
|
|
Former
President and Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jim
Longaker (10)
|
|
|
2006
|
|
$
|
60,500
|
|
$
|
10,000
|
|
$
|
2,628
|
|
|
--
|
|
$
|
73,128
|
|
Former
Chief Financial Officer and Secretary
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
These
amounts represent the dollar amount of compensation cost we recognized
during 2006 for awards granted during 2006 based on the grant date
fair
value of the named executive officer’s option awards in accordance with
SFAS 123(R). See Note 3 to our December 31, 2006 financial statements
for
assumptions used in determining compensation expense on options granted
in
accordance with SFAS 123(R).
|
(2) |
Mr.
Godshall’s employment as our President and Chief Executive Officer
commenced in August 2006. His 2006 annual base salary was $120,000
(of
which he earned $40,769 during 2006) increasing to $200,000 as of
November
30, 2006. Prior
to Mr. Godshall’s employment with us, we paid Mr. Godshall consulting fees
of approximately $20,000. A portion of Mr. Godshall’s base salary was paid
by NewPoint Energy Solutions in
2006.
|
(3) |
All
listed options vest over a four year period beginning in 2006 with
25%
vesting each year.
|
(4) |
Mr.
Stubblefield’s base salary is paid by SREG Manager, LLC, the manager of
SREG, and we pay SREG Manager, LLC a services fee for a portion of
his
base salary and other services and office space provided to us. See
“Certain Relationships and Related
Transactions.”
|
(5) |
Amount
represents bonus earned by Mr. Pearson during 2006 but not paid until
2007.
|
(6) |
Except
for an option to purchase 15,000 shares of our common stock with
immediate
vesting granted to Mr. Pearson, all options granted to Mr. Pearson
in 2006
vest over a four year period from the date of grant with 25% vesting
in
each of the four years.
|
(7) |
Amount
consists of $57,098 paid to Mr. Pearson for services rendered to
us under
a consulting agreement we entered into with Mr. Pearson on June 1,
2006
and $66,034 paid to Ascend Renewable Technologies, LLC, an entity
controlled by Mr. Pearson, for consulting
services.
|
(8) |
Mr.
Sifonis’ employment as our President and Chief Executive Officer
terminated in August 2006, and we ceased making salary payments to
Mr.
Sifonis at that time. Actual salary paid to Mr. Sifonis in 2006 was
$54,000.
|
(9) |
All
of the options granted to John Sifonis were to vest over a four year
period in 18.5%, 22.5%, 26.5%, and 32.5% increments. On December
14, 2006,
our Board of Directors approved accelerated vesting of 69,283
shares.
|
(10) |
Mr.
Longaker’s employment as our Chief Financial Officer and Secretary
terminated in October 2006, and we ceased making salary payments
to Mr.
Langaker at that time. All listed options were to vest over a four-year
period in 18.5%, 22.5%, 26.5%, and 32.5% increments. Vesting ceased
upon
termination of employment.
|
Employment
Agreements
We
are
currently a party to employment agreements with Jonathan Godshall, our
President; Eric Ladd; Dr. Kevin Shurtleff; Christopher Brydon; and John Patton.
Additionally, portions of the employment agreement between John Sifonis and
us
survive Mr. Sifonis’ resignation as our President and Chief Executive
Officer.
John
Sifonis entered into an employment agreement with us as of October 20, 2004
(the
“Sifonis Agreement”). The Sifonis Agreement contains customary confidentiality
and non-disclosure provisions that survive the termination of Mr. Sifonis’
employment with us, as well as a worldwide non-compete provision with respect
to
any business that competes in whole or in part with our services, products
or
activities of relating to our hydrogen fuel technology that survives the
termination of Mr. Sifonis’ employment with us for a period of two years.
In
August
2006, we entered into an employment agreement with
Jonathan Godshall, pursuant to which Mr. Godshall is employed as our President
and Chief Executive Officer for a one-year term. Under the employment agreement,
Mr. Godshall received an annual base salary of $120,000, that was scheduled
to
increase to $200,000 per year upon the earlier of (i) November 30, 2006 and
(ii) the completion of a financing round. Effective January 1, 2007, Mr.
Godshall accepted a decrease in his annual salary to $100,000. The employment
agreement provides that if Mr. Godshall is terminated without cause or he
terminates for good reason (as such terms are defined in the employment
agreement), then he will be entitled to receive his base salary for six months
following such termination and his unexercised stock options will continue
to
vest for twelve months following such termination. In addition, if we do not
renew the employment agreement at the end of the one-year term, Mr. Godshall
will be entitled to receive his base salary for four months.
On
August
7, 2006, the Board of Directors granted Mr. Godshall a stock option to acquire
676,626 shares of our common stock, at an exercise price of $1.00 per share
and
which vests 25% on each of June 15, 2007, June 15, 2008, June 15,
2009, and June 15, 2010. The stock option expires on August 7, 2013.
In addition, Mr. Godshall’s employment agreement provides that the Board of
Directors will grant him additional stock options to acquire a number of shares
equal to 5% of any new stock issued and any new stock options granted after
August 7, 2006, such grant to occur on the earlier of (i) December 31,
2006 or (ii) the completion of a financing round. As
of
December 31, 2006, neither of these events had occurred, and therefore no
additional options will be granted under this arrangement. The exercise price
of
Mr. Godshall’s stock options are based on the fair market value on the date of
grant and have vesting terms consistent with other stock options we grant.
All
of such stock options will automatically vest upon a change in control, merger,
or buyout of our company.
Eric
Ladd
entered into an amended employment agreement with us as of
March 26, 2006 (the “Ladd Agreement”). Mr. Ladd’s position with us is
a Control and Systems Engineer. The Ladd Agreement continued until January
31,
2007, whereupon the employment of Mr. Ladd became a month-to-month, at will
employment, but otherwise still subject to the Ladd Agreement. Mr. Ladd agrees
to work full time in service to us and receives an annual salary of $80,000.
In
addition, Mr. Ladd received an $11,000 sign-on bonus and a one-time bonus of
$5,000 on December 7, 2006. The Ladd Agreement contains customary
confidentiality and non-disclosure provisions, as well as a one year, worldwide
non-compete provision with respect to any business that competes in whole or
in
part with our services, products, or activities relating to its hydrogen fuel
technology and fuel cell system technology.
Ken
Pearson entered into an employment agreement (the “Pearson Employment
Agreement”) on January 1, 2007. Mr. Pearson is employed as our Chief Operating
Officer. The initial term of employment ends May 31, 2007 and if we elect
not to renew the Pearson Employment Agreement at the end of this initial term,
we are obligated to pay Mr. Pearson his salary for an additional 120 days as
severance. The Pearson Employment Agreement provides for an annual base salary
of $155,000. The Pearson Employment Agreement includes confidentiality and
non-competition provisions.
Effective
June 1, 2006, we entered into a consulting agreement with Ken Pearson (the
“Pearson Consulting Agreement”), pursuant to which Mr. Pearson performed certain
services. Mr. Pearson’s roles and responsibilities included: product
development, regulatory and government regulations, strategic product and
technology alliances and acquisitions, advanced supply chain agreements and
alliances, research and development, intellectual property management and
strategy formulation, and operational responsibilities. In exchange for his
services, we paid Mr. Pearson compensation equal to a prorated fee of $115,000
per year ($9,583 per month). Additionally, we paid Mr. Pearson a $15,000 signing
bonus. In December 2006, the Board of Directors also awarded Mr. Pearson a
$15,000 performance bonus based on agreed upon performance goals. Pursuant
to
the Pearson Consulting Agreement, Mr. Pearson received an option on August
7,
2006 to purchase 15,000 shares of our common stock, at an option price of $1.00
per share, which option is fully vested. Mr. Pearson also received an option
to
purchase 300,000 shares of our common stock at an option share price of $1.00
effective August 7, 2006. The grant of the options is subject to the terms
and
conditions set forth in our Amended and Restated Stock Option Plan. In December
2006, the Board of Directors also awarded Mr. Pearson options to purchase an
additional 40,000 shares of our common stock. The term of this agreement was
for
seven months beginning June 1, 2006 and ending on December 31, 2006. This
agreement contained customary confidentiality and non-disclosure provisions
to
be in effect during and following the termination of the agreement, as well
as a
one-year non-compete provision with respect to any business that competes in
whole or in part with our services, products, or activities relating to its
hydrogen fuel technology and hydrogen fuel cell technology.
Prior
to
entering into the Pearson Consulting Agreement, we were party to an oral
consulting arrangement with Ascend Technologies, LLC, an entity controlled
by
Mr. Pearson. Pursuant to the arrangement, Ascend performed the following
services to us: assessment of the technology based on current design, including
product reliability and testing procedures, product life testing assessment,
product certification and regulatory compliance strategy, facilities and
manufacturing review, supply chain management strategies and future technology
and integration development. In exchange for these services, we paid Ascend
an
hourly fee equal to $68.00 per hour, granted Ascend an option to purchase 6,000
shares of our common stock and reimbursed Ascend for its out-of-pocket expenses.
This arrangement terminated upon our entry into the Pearson Consulting
Agreement.
Outstanding
Equity Awards
The
following table sets forth certain information concerning unexercised options,
stock that has not vested and equity incentive plan awards for each named
executive officer outstanding as of December 31, 2006.
Outstanding
Equity Awards at December 31, 2006 Table
|
|
Option
Awards
|
|
Name
|
|
Number
of Securities Underlying Unexercised Options
(#)
Exercisable
|
|
Number
of Securities Underlying Unexercised Options
(#)
Unexercisable
|
|
Option
Exercise Price
($)
|
|
Option
Expiration Date
|
|
|
|
|
|
|
|
|
|
|
|
Jonathan
Godshall (1)
|
|
|
--
|
|
|
676,626
|
|
$
|
1.00
|
|
|
8/7/2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wade
Stubblefield
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ken
Pearson (1)
|
|
|
15,000
|
|
|
--
|
|
$
|
1.00
|
|
|
8/7/2013
|
|
|
|
|
|
|
|
300,000
40,000
|
|
$
$
|
1.00
1.00
|
|
|
8/7/2013
12/14/2013
|
|
John
Sifonis (2)
|
|
|
17,309
|
|
|
24,909
|
|
$
|
0.88
|
|
|
10/17/2012
|
|
|
|
|
102,197
3,700
|
|
|
--
16,300
|
|
$
$
|
0.88
1.00
|
|
|
4/11/2012
5/6/2013
|
|
Jim
Longaker
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
(1) |
All
listed options vest over a four year period beginning in 2006 with
25%
vesting each year.
|
(2) |
All
listed options were to vest over a four-year period in 18.5%, 22.5%,
26.5%, and 32.5% increments.
Mr. Sifonis forfeited options to purchase 147,064 shares of our common
stock after his employment with us was terminated. Mr. Sifonis was
also
granted an option to purchase 102,197 shares of our common stock
with an
exercise price of $0.88 per share.
This grant was made outside of our Amended and Restated Stock Option
Plan.
|
Director
Compensation
The
following table sets forth certain information concerning the compensation
of
our directors for year ended December 21, 2006.
Director
Compensation Table for the Fiscal Year Ended December 31,
2006
Name
|
|
Option
Awards
($)(1)
|
|
Total
($)
|
|
|
|
|
|
|
|
William
Jackson Berger
|
|
$
|
1,493
|
|
$
|
1,493
|
|
Richard
Hoesterey
|
|
$
|
1,493
|
|
$
|
1,493
|
|
General
Randolph House
|
|
|
--
|
|
|
--
|
|
Eric
Melvin
|
|
$
|
1,493
|
|
$
|
1,493
|
|
John
Sifonis
|
|
$
|
1,990
|
|
$
|
1,990
|
|
John
White
|
|
|
--
|
|
|
--
|
|
William
Flores (2)
|
|
$
|
1,493
|
|
$
|
1,493
|
|
(1) |
These
amounts represent the dollar amount of compensation cost we recognized
during 2006 for awards granted during 2006 based on the grant date
fair
value of the named executive officer’s option awards in accordance with
SFAS 123(R). See Note 3 to our December 31, 2006 financial statements
for
assumptions used in determining compensation expense on options granted
in
accordance with SFAS 123(R).
|
(2) |
Mr.
Flores was granted options to purchase 20,000 shares of our common
stock
at an exercise price of $1.00 per share at the time that he joined
our
Board of Directors in 2006, and the dollar amount of compensation
cost
recognized is shown for this grant. Mr. Flores subsequently resigned
from
the Board and forfeited all of these options at that
time.
|
We
do not
sponsor a pension benefits plan, a non-qualified deferred compensation plan
or a
non-equity incentive plan for our directors; therefore, these columns have
been
omitted from the above table. In the past we have not had a standard
compensation policy for our outside directors although we intend to develop
one
in the future. Generally, our Chairman of the Board of Directors and members
of
the board who are also our employees do not receive compensation for their
services as directors. In 2005 and 2006 we granted our non-employee directors
options to purchase an aggregate of 103,633 shares of our common stock at a
weighted exercise price of $0.97 per share. Except for options grants,
reimbursement of travel expenses to attend board and committee meetings, no
other or additional compensation for services were paid to any of the
directors.
Item
11. Security
Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters.
The
following table sets forth certain information regarding the beneficial
ownership of our common stock as of April 27, 2007 by (1) each director and
nominee, (2) each current executive officer, (3) each person known or believed
by us to own beneficially five percent or more of our common stock, and (4)
all
directors, nominees and executive officers as a group.
Name
and Address
|
|
|
Amount
and Nature of Beneficial Ownership(1)
|
|
|
|
|
|
Percentage
of Class(1)
|
|
|
|
|
NewPoint
Energy Solutions, LP (a)
5
Houston Center
1401
McKinney Street, Suite 900
Houston,
Texas 77010-4035
|
|
|
5,331,622
|
|
|
|
|
|
45.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kevin
Shurtleff (b)
573
East 950 North
Orem,
UT 84097
|
|
|
2,734,763
|
|
|
(c
|
)
|
|
21.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew
J. Nielson
340
South 800 West
Orem,
UT 84058
|
|
|
1,120,745
|
|
|
(d
|
)
|
|
9.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eric
Ladd
4987
West Woodbend Road
West
Jordan, UT 84084
|
|
|
648,794
|
|
|
(e
|
)
|
|
5.22
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
William
Jackson Berger (f)
5
Houston Center
1401
McKinney Street, Suite 900
Houston,
Texas 77010-4035
|
|
|
6,104,892
|
|
|
(g
|
)
|
|
48.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contango
Capital Partners, LP (h)
5
Houston Center
1401
McKinney Street, Suite 900
Houston,
Texas 77010-4035
|
|
|
768,778
|
|
|
(i
|
)
|
|
6.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
Sifonis (j)
P.O.
Box 201887
Arlington,
TX 76006-1887
|
|
|
123,206
|
|
|
(k
|
)
|
|
1.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
General
Randolph House (l)
905
Carmel Place
College
Station, TX 77845
|
|
|
8,165
|
|
|
(m
|
)
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eric
Melvin (n)
Three
Riverway
Suite
1700
Houston,
TX 77056
|
|
|
849,620
|
|
|
(o
|
)
|
|
6.8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
White (p)
5
Houston Center
1401
McKinney Street, Suite 900
Houston,
Texas 77010-4035
|
|
|
769,570
|
|
|
(q
|
)
|
|
6.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contango
Venture Capital Corporation (r)
3700
Buffalo Speedway, Suite 960
Houston,
TX 77098
|
|
|
2,001,014
|
|
|
(s
|
)
|
|
16.98
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard
Hoesterey (t)
7852
La Cosa Drive
Dallas,
TX 75248
|
|
|
3,700
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jonathan
H. Godshall (u)
5
Houston Center
1401
McKinney Street, Suite 900
Houston,
Texas 77010-4035
|
|
|
0
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Wade
Stubblefield (v)
5
Houston Center
1401
McKinney Street, Suite 900
Houston,
Texas 77010-4035
|
|
|
0
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kenneth
Pearson (w)
5
Houston Center
1401
McKinney Street, Suite 900
Houston,
Texas 77010-4035
|
|
|
15,000
|
|
|
(x
|
)
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
W.
Kyle Willis
510
Bering Dr., Suite 510
Houston,
Texas 77057
|
|
|
0
|
|
|
|
|
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All
Directors, Nominees and Executive Officers as a Group (10
individuals)
|
|
|
6,335,013
|
|
|
(y
|
)
|
|
49.8
|
%
|
|
|
|
* Less
than
one percent.
(1) |
Beneficial
ownership is determined in accordance with SEC rules. In computing
percentage ownership of each person, shares of common stock subject
to
options or warrants held by that person that are exercisable as of
April
27, 2007, or exercisable within 60 days of April 27, 2007, are deemed
to
be beneficially owned. These shares, however, are not deemed outstanding
for the purpose of computing the percentage ownership of each other
person. We have calculated the percentage of issued and outstanding
shares
of common stock held by each individual and group based on 11,785,491
shares of common stock issued and outstanding as of April 27, 2007.
Unless
otherwise indicated, all amounts exclude shares issuable upon the
exercise
of outstanding options and warrants that are not exercisable as of
April
27, 2007 or exercisable within 60 days of April 27,
2007.
|
(a) |
Standard
Renewable Energy Services, GP LLC is the general partner of NewPoint
Energy Solutions, LP. William Jackson Berger is the sole member and
manager of Standard Renewable Energy Services, GP LLC and in that
capacity
has voting and dispositive power over these
shares.
|
(b) |
Dr.
Shurtleff resigned from his position as member of our Board of Directors
and Vice President of Technology on March 24, 2006. Dr. Shurtleff
resigned
from our company effective April 20,
2007.
|
(c) |
Represents
2,035,460 shares of our common stock and currently exercisable options to
purchase up to 699,303 shares of our common stock at a price of $.88
per
share.
|
(d) |
Effective
March 2, 2005, Mr. Nielson gave an option to Eric Ladd to purchase
up to
473,968 shares of his common stock for an aggregate purchase price
of
$48,000, exercisable at any time until March 2,
2014.
|
(e) |
Represents
currently exercisable options to purchase 174,826 shares of our common
stock at a price of $0.88 per share from us and a currently exercisable
option to purchase up to 473,968 shares of our common stock from
Andrew
Nielson for an aggregate purchase price of $48,000. This option to
purchase Mr. Nielson’s common stock expires March 2, 2014.
|
(f) |
Mr.
Berger is the Chairman of the Board of Directors of our company and
the
managing partner of Contango Capital Partners, LP, or CCP.
|
(g) |
Includes
currently exercisable options to purchase 3,700 shares
of our common stock at a price of $1.00 per share owned by Mr. Berger,
warrants to purchase 592,500 shares of our common stock owned by
CCP,
options granted to CCP to purchase 176,278 shares of our common stock,
and
792 shares owned by Contango Capital Partnership Management LLC,
or CCPM,
which is the general partner of CCP. Although he does not have sole
voting
or dispositive power over the warrants and options owned by CCP,
as a
manager of the general partner of CCP he may be deemed to be the
beneficial owner thereof. Includes 5,331,622 shares owned by NewPoint
Energy Solutions, LP. Mr. Berger is the sole member and manager of
Standard Renewable Energy Services, GP LLC, the general partner of
NewPoint Energy Solutions, LP, and in that capacity has voting and
dispositive power over these
shares.
|
(h) |
The
general partner of CCP is CCPM. William Jackson Berger, Kenneth R.
Peak,
Todd Sullivan, Gerald Sullivan, Eric Melvin, and John D. White are
the
managers of CCPM and collectively exercise voting and investment
power on
behalf of CCP.
|
(i) |
Represents
currently exercisable options to purchase up to 176,278 shares of
our
common stock at a price of $.88 per share and warrants to purchase
592,500
shares of our common stock at a strike price of $1.50 per
share.
|
(j) |
Mr.
Sifonis a director of our company. Mr. Sifonis resigned as President
and
CEO effective August 11, 2006.
|
(k) |
Represents
options to purchase up to 119,506 shares of our common stock at a
price of
$.88 per share and 3,700 shares of our common stock at a price of
$1.00
per share that are currently exercisable or exercisable within 60
days of
April 27, 2007.
|
(l) |
General
Randolph House is a director of our
company.
|
(m) |
Represents
options to purchase up to 8,165 shares of our common stock at a price
of
$.88 per share that are currently exercisable or exercisable within
60
days of April 27, 2007.
|
(n) |
Mr.
Melvin is a director of our company, and Mr. Melvin is a manager
of CCPM
(see note (h) above).
|
(o) |
Includes
currently exercisable options to purchase 3,700 shares of our common
stock
at a price of $1.00 per share, warrants to purchase 592,500 shares
of our
common stock owned by CCP, options to purchase 176,278 shares of
our
common stock owned by CCP and 792 shares owned by CCPM. Although
Mr.
Melvin does not have sole voting or dispositive power over the shares
owned by CCP, as a manager of the general partner of CCP he may be
deemed
a beneficial owner thereof. The amount also includes 76, 350 shares
of our
common stock owned by Mobius Risk Group. Mr. Melvin is the founder,
President, and Chief Executive Officer of Mobius Risk Group and may
be
deemed to beneficially own the shares of our common stock owned by
Mobius.
|
(p) |
Mr.
White is a director of our company, and Mr. White is a manager of
CCPM
(see note (h) above)..
|
(q) |
Consists
of warrants to purchase 592,500 shares of our common stock owned
by CCP
and options to purchase 176,278 shares of our common stock owned
by CCP,
and 792 shares owned by CCPM. Although Mr. White does not have sole
voting
or dispositive power over the shares owned by CCP, as a manager of
the
general partner of CCP he may be deemed a beneficial owner
thereof.
|
(r) |
Contango
Venture Capital Corporation is owned by Contango Oil & Gas Company.
Kenneth R. Peak, Lesia Bautina, Sergio Castro and Marc Duncan are
the
executive officers of Contango Oil & Gas Company. The Board of
Directors of Contango Oil & Gas Company consists of Kenneth R. Peak,
Jay D. Brehmer, Darrell W. Williams, Charles M. Reimer and Steven
L.
Schoonover.
|
(s) |
Represents
2,001,014 shares of our common stock owned by Contango Venture Capital
Corporation.
|
(t) |
Mr.
Hoesterey was appointed to our Board of Directors on May 5, 2006
and owns
currently exercisable options to purchase 3,700 shares of our common
stock
at a price of $1.00 per share.
|
(u) |
Mr.
Godshall was appointed President and Chief Operating Officer on August
7,
2006 and became a director effective October 16,
2006.
|
(v) |
Mr.
Stubblefield is the Chief Financial Officer of our
company.
|
(w) |
Mr.
Pearson is the Chief Operating Officer of our
company.
|
(x) |
Represents
currently exercisable options to purchase 15,000 shares of our common
stock at a price of $1.00 per share.
|
(y) |
Consists
of 5,408,764 shares (5,331,622 shares owned by NewPoint Energy Solutions,
LP, 792 shares owned by CCPM and 76,350 shares owned by Mobius) of
our
common stock, warrants to purchase 592,500 shares of our common stock
owned by CCP; options to purchase 176,278 shares of our common stock
owned
by CCP; and options to purchase 157,471 shares of our common stock
owned
by Messrs. Sifonis, Berger, House, Pearson, Melvin and
Hoesterey.
|
Securities
authorized for issuance under equity compensation plans as of December 31,
2006.
Plan
Category
|
|
Number
of securities to be issued upon exercise of outstanding options and
rights
(a)
|
|
Weighted-average
exercise price of outstanding options and rights
(b)
|
|
Number
of securities remaining available for future issuance under equity
compensation plans (excluding securities reflected in column
(a))
(c)
|
|
Equity
compensation plans approved by security holders
|
|
|
0
|
|
|
0
|
|
|
0
|
|
Equity
compensation plans not approved by security holders (1)(2)
|
|
|
2,344,764
|
|
$
|
0.94
|
|
|
765,841
|
|
Total
|
|
|
2,344,764
|
|
$
|
0.94
|
|
|
765,841
|
|
(1)
|
The
Trulite, Inc. Stock Option Plan was originally approved by the Board
of
Directors in April 2005. In April 2006, the Board of Directors took
action
which effectively amended the Stock Option Plan to increase the maximum
number of shares issuable under the plan from 1,721,665 shares of
common
stock to 3,110,805 shares of common stock. In addition, later in
April
2006, the Board of Directors amended and restated the Stock Option
Plan to
clarify the terms and conditions of the plan. The
number of options, option price, vesting and exercise schedules and
the
duration of all options shall all be determined by our Board of Directors
at the time of grant; provided, however, that the option price of
any
options granted under the plan may not be less than fair market value
at
the time of grant. Incentive stock options expire no later than seven
years after the date of grant.
|
(2) |
Does
not include outstanding warrants to purchase an aggregate of 1,400,000
shares of common stock.
|
Item
12. Certain
Relationships and Related Transactions, and Director
Independence.
Certain
Relationships and Related Transactions
The
initial investor in our company was Trulite Energy Partners, L.P., which
invested $100,000 and received 100,000 shares of Preferred Stock on July 28,
2004. Trulite Energy Partners, L.P. merged with and into CCP. William Jackson
Berger, the Chairman of the Board of Directors of Trulite, is the Chairman
of
the Board of Directors of CCP and the managing partner of Contango Capital
Partnership Management LLC, or CCPM, an entity which is the general partner
of
CCP. We had a management agreement with CCPM, which was transferred to CCP.
In
exchange for managing our day-to-day operations, CCP received 68,770 shares
of
our common stock (343,850 shares of our common stock, post stock split) on
July
28, 2004, and six months later received an additional 65,070 shares of our
common stock (325,350 shares of our common stock, post stock split). The
management agreement with CCP ended on January 28, 2005, and no further payments
are due or owing from us.
Our
revenue has totaled $1,750, $16,667 and $8,333 for 2004, 2005 and 2006,
respectively. All of the revenue was obtained from Protonex. CCP owns
approximately 6.4% of Protonex’s stock and Mr. Berger, our Chairman and a
partner with CCP, was a member of the Board of Directors of Protonex until
May
2006. The revenues derived from Protonex were from military contracts obtained
by Protonex and we were chosen through a competitive bidding process as the
sub-contractor on the projects.
On
March
31, 2006, we entered into lock-up agreements, or Lock-Up Agreements, with each
of CCP (which is binding on transferees of CCP), Dr. Kevin Shurtleff, John
Sifonis, and Eric Ladd (for purposes of this paragraph only, the
“Stockholders”). Pursuant to the Lock-Up Agreements, the Stockholders shall not,
without our prior written consent or the managing underwriter, if any, during
the period commencing on the date of the final prospectus relating to a public
offering of our equity securities and ending on the date specified by us or
the
managing underwriter, if any, enter into certain transactions with respect
to
our equity securities.
On
August
9, 2006, we incurred indebtedness pursuant to the terms of a $125,000 promissory
note payable to Contango Venture Capital Corporation, LLC, the owner of
approximately 17% of our common stock. The note bears interest at a rate of
11.25% per annum until February 8, 2007, at which time the rate will become
the
prime rate plus 3%. The note matures on May 1, 2007 and may be prepaid without
penalty.
On
August
9, 2006, we incurred indebtedness pursuant to the terms of a $125,000 promissory
note payable to Standard Renewable Energy, LP, a subsidiary of SREG. Mr. Berger,
the Chairman of our Board of Directors, is the Chief Executive Officer of SREG.
SREG owns NewPoint Energy Solutions, LP, which is the owner of approximately
45%
of our common stock. The note bears interest at a rate of 11.25% per annum
until
February 8, 2007, at which time the rate will become the prime rate plus 3%.
The
note matures on May 1, 2007 and may be prepaid without penalty.
On
September 21, 2006, we incurred indebtedness of $250,000 pursuant to the terms
of a promissory note payable to SREG. The note bears interest at a rate of
11.25% until May 21, 2007 at which time the rate will become prime plus 3%.
The
note matures June 18, 2007 and may be prepaid at any time without penalty.
On
October 26, 2006, we incurred indebtedness of $250,000 pursuant to the terms
of
a promissory note with SREG. The note bears interest at a rate of 11.25% until
April 24, 2007, at which time the rate will become the prime rate plus 3%.
The
note matures on July 22, 2007 and may be prepaid at any time without
penalty.
On
November 22, 2006, we incurred indebtedness of $400,000 pursuant to the terms
of
a promissory note with Contango Venture Capital Corporation, LLC. The note
bears
interest at a rate of 11.25% until April 24, 2007, at which time the rate will
become the prime rate plus 3%. The note matures on July 22, 2007 and may be
prepaid at any time without penalty.
On
November 28, 2006, we incurred indebtedness of $100,000 pursuant to the terms
of
a promissory note with SREG. The note bears interest at a rate of 11.25% until
April 24, 2007, at which time the rate will become the prime rate plus 3%.
The
note matures on July 22, 2007 and may be prepaid by us at any time without
penalty.
On
February 6, 2007, we executed two promissory notes, pursuant to which we are
obligated to repay a total of $600,000, together with accrued interest: $360,000
to SREG, and $240,000 to Contango Venture Capital Corporation. The notes carry
an interest rate of 11.25% through August 5, 2007, after which date they will
carry an interest rate equal to the prime rate plus 3%. Both notes mature on
October 31, 2007 and may be prepaid by us at any time without
penalty.
On
April
5, 2007, we entered into agreements with the holders of our outstanding
promissory notes aggregating $1,850,000 in principal amount, including SREG
and
Contango Venture Capital Corporation, with respect to the exchange of such
promissory notes for shares of our common stock. Under each of these agreements,
we and the holder of the note agreed that on the third business day following
the last of the first ten trading days on which our common stock has been traded
on the Over the Counter Bulletin Board, all principal and accrued but unpaid
interest on the note(s) would be canceled, and in consideration of cancellation
we would issue to the holder of the note(s) in a private transaction a number
of
shares of our common stock determined by multiplying 2 times the quotient of
(x)
the aggregate principal balance of and accrued but unpaid interest on the
note(s) as of the close of business on the day before such issuance divided
by
(y) the average closing sale price for our common stock as quoted on the Over
the Counter Bulletin Board for the first ten trading days on which our common
stock actually trades. At
March
31, 2007 accrued but unpaid interest on the notes aggregated $45,469. We relied
on the exemption from registration afforded by Section 4(2) of the Securities
Act of 1933 in entering into these agreements. On April 24, 2007, we amended
these agreements to provide that the conversion and related issuance of shares
of our common stock will not occur until the later of (1) the first business
day
following the filing of an amendment to our Certificate of Incorporation
increasing the total number of authorized shares of common stock we are
authorized to issue to 50,000,000, (2) the first business day following the
date
on which there are 13,785,491 shares of our common stock outstanding or (3)
the
third business day following the last of the first ten trading days on which
our
common stock has traded on the over the counter bulletin board.
We
receive certain administrative and management services from SREG Manager, LLC,
the manager of SREG. In addition, we use a small amount of space in an office
building where SREG Manager, LLC is the tenant. We reimburse SREG Manager,
LLC
for its employee time dedicated to us, for a pro-rata portion of office space,
and for general and administrative costs based on an allocation of how much
of
those services were estimated to have been used by us. We are charged monthly
for the services provided to us during the previous month. In 2005 and 2006,
we
made payments for such services totaling approximately $0 and $73,100,
respectively.
In
April
2007, we entered into a lock-up agreement with Andrew J. Nielson, a beneficial
owner of approximately 9.5% of our outstanding common stock. Pursuant to the
lock-up agreement, Mr. Nielson agreed not to enter into certain transactions
with respect to our equity securities without our prior written consent. These
restrictions are subject to certain exceptions and do not restrict the sale
by
Mr. Nielson of 473,968 shares of our common stock upon the exercise of an option
granted by Mr. Nielson to Eric Ladd. The term of the lock-up agreement expires
on April 19, 2008. In connection with this lock-up agreement, we issued Mr.
Nielson a warrant to purchase 120,000 shares of our common stock at $1.50 per
share. The warrant is exercisable, in whole or in part, at any time prior to
the
second anniversary of the issuance of the warrant. In addition, we granted
Mr.
Nielson certain piggy-back registration rights with respect to the shares of
our
common stock issuable upon exercise of the warrant.
Director
Independence
See
“Item
9. - Corporate Governance - Board Independence” for a discussion related to the
independence of the members of our Board of Directors.
Item
13. Exhibits.
Index
to
Exhibits
Number
|
|
Description
|
3.1
(1)
|
|
Certificate
of Incorporation
|
|
|
|
3.2
(1)
|
|
Certificate
of Amendment to the Certificate of Incorporation
|
|
|
|
3.3
(1)
|
|
Bylaws
|
|
|
|
3.4
(1)
|
|
Application
of Certificate of Authority (Texas)
|
|
|
|
3.5
(13)
|
|
Amendment
to Bylaws
|
|
|
|
4.1
(1)
|
|
Certificate
of Designation of the 8% Cumulative Convertible Preferred Stock,
Series
A
|
|
|
|
4.2
(1)
|
|
Certificate
of Amendment to the Certificate of Designation of the 8% Cumulative
Convertible Preferred Stock, Series A
|
|
|
|
10.1
(1)
**
|
|
Employment
Agreement of John Sifonis
|
|
|
|
10.2
(1)
**
|
|
April
2005 Option Agreement of John Sifonis
|
|
|
|
10.3
(1)
**
|
|
October
2005 Option Agreement of John Sifonis
|
|
|
|
10.4
(1)
**
|
|
Employment
Agreement of Kevin Shurtleff
|
|
|
|
10.5
(1)
**
|
|
Employment
Agreement of Jerry Metz
|
|
|
|
10.6
(1)
**
|
|
April
2005 Option Agreement of Jerry Metz
|
|
|
|
10.7
(1)
**
|
|
October
2005 Option Agreement of Jerry Metz
|
|
|
|
10.8
(1)
**
|
|
Employment
Agreement of James A. Longaker
|
|
|
|
10.9
(1)
**
|
|
July
2005 Option Agreement of James A. Longaker
|
|
|
|
10.10
(1)
**
|
|
Employment
Agreement of Eric Ladd
|
|
|
|
10.11
(1)
**
|
|
Trulite,
Inc. Stock Option Plan
|
|
|
|
10.12
(1)
|
|
Contribution
Agreement
|
|
|
|
10.13
(1)
|
|
Waiver
Agreement
|
|
|
|
10.14
(1)
|
|
Preferred
Stock Purchase Agreement
|
|
|
|
10.15
(1)
|
|
Addendum
to Preferred Stock Purchase Agreement
|
|
|
|
10.16
(1)
|
|
Investor’s
Rights Agreement
|
|
|
|
10.17
(1)
|
|
Right
of First Refusal and Co-Sale Agreement
|
|
|
|
10.18
(4)
|
|
Option
Agreement with Synexus Energy, Inc.
|
|
|
|
10.19
(5)
|
|
Stockholder
Lock-Up Agreement with Contango Capital Partners, LP
|
|
|
|
10.20
(5)
|
|
Consulting
Agreement with Boru Enterprises, Inc.
|
|
|
|
10.21
(5)
|
|
Memorandum
of Understanding with Synexus Energy, Inc.
|
|
|
|
10.22
(5)
|
|
Grant
Documents from The Defense Threat Reduction Agency and the United
States
Air Force
|
|
|
|
10.23
(6)
|
|
Consulting
Agreement with Jelco, Inc.
|
|
|
|
10.24
(6)
|
|
Consulting
Agreement with Ascend Renewable Technologies, LLC
|
|
|
|
10.25
(6)
**
|
|
Employment
Agreement of Christopher Brydon
|
10.26
(6)
**
|
|
Employment
Agreement of Eric Ladd
|
|
|
|
10.27
(6)
**
|
|
Employment
Agreement of John Patton
|
|
|
|
10.28
(6)
**
|
|
Employment
Agreement of Kevin Shurtleff
|
|
|
|
10.29
(6)
|
|
Stockholder
Lock-Up Agreement with James Longaker
|
|
|
|
10.30
(6)
|
|
Stockholder
Lock-Up Agreement with John Sifonis
|
|
|
|
10.31
(6)
|
|
Stockholder
Lock-Up Agreement with Kevin Shurtleff
|
|
|
|
10.32
(6)
|
|
Stockholder
Lock-Up Agreement with Eric Ladd
|
|
|
|
10.33
(6)
**
|
|
Amended
Stock Option Plan
|
|
|
|
10.34
(6)
**
|
|
Stock
Option Agreement with John Berger
|
|
|
|
10.35
(6)
**
|
|
Stock
Option Agreement with Christopher Brydon
|
|
|
|
10.36
(6)
**
|
|
Stock
Option Agreement with William Flores
|
|
|
|
10.37
(6)
**
|
|
Stock
Option Agreement with Richard Hoesterey
|
|
|
|
10.38
(6)
**
|
|
Stock
Option Agreement with Evan Hughes
|
|
|
|
10.39
(6)
**
|
|
Stock
Option Agreement with Eric Ladd
|
|
|
|
10.40
(6)
**
|
|
Stock
Option Agreement with Jenny Ligums
|
|
|
|
10.41
(6)
**
|
|
Stock
Option Agreement with James Longaker
|
|
|
|
10.42
(6)
**
|
|
Stock
Option Agreement with Eric Melvin
|
|
|
|
10.43
(6)
**
|
|
Stock
Option Agreement with John Patton
|
|
|
|
10.44
(6)
**
|
|
Stock
Option Agreement with Kevin Shurtleff
|
|
|
|
10.45
(7)
|
|
Consulting
Agreement with Ken Pearson
|
|
|
|
10.46
(7)
|
|
Consulting
Agreement with Jonathan Godshall
|
|
|
|
10.47
(8)
|
|
Form
of Warrant Agreement for the April 13, 2006 private
offering
|
|
|
|
10.48
(8)
|
|
Form
of Warrant Agreement for the Boru and Jelco issuances
|
|
|
|
10.49
(8)
|
|
Resignation
Letter of Thomas Samson
|
|
|
|
10.50
(9)
|
|
Revised
Consulting Agreement with Boru Enterprises, Inc.
|
|
|
|
10.51
(10)
**
|
|
Employment
Agreement dated August 7, 2006 with Jonathan Godshall.
|
|
|
|
10.52
(10)
|
|
Promissory
Note dated August 9, 2006 made by Trulite in favor of Contango Venture
Capital Corporation, LLC
|
|
|
|
10.53
(10)
|
|
Promissory
Note dated August 9, 2006 made by Trulite in favor of Standard Renewable
Energy Group, L.P.
|
|
|
|
10.54
(14)
|
|
Stock
Option Agreement with Contango Capital Partners, LP
|
|
|
|
10.55
(14)
**
|
|
Stock
Option Agreement with John Berger (May 2006)
|
|
|
|
10.56
(11)
|
|
Promissory
Note dated September 21, 2006 made by Trulite in favor of Standard
Renewable Energy Group, LLC
|
|
|
|
10.57
(3)
**
|
|
Employment
Agreement dated January 1, 2007 with Kenneth Pearson.
|
|
|
|
10.58
(12)
|
|
Promissory
Note, dated October 26, 2006, made by Trulite, Inc., in favor of
Standard
Renewable Energy Group, LLC
|
|
|
|
10.59
(12)
|
|
Promissory
Note, dated November 28, 2006, made by Trulite, Inc., in favor of
Standard
Renewable Energy Group, LLC
|
|
|
|
10.60
(12)
|
|
Promissory
Note, dated November 22, 2006, made by Trulite, Inc., in favor of
Contango
Venture Capital Corporation
|
|
|
|
10.61
(15)
|
|
Promissory
Note dated February 6, 2007, made by Trulite in favor of Standard
Renewable Energy Group, LLC
|
|
|
|
10.62
(15)
|
|
Promissory
Note dated February 6, 2007, made by Trulite in favor of Contango
Venture
Capital Corporation
|
|
|
|
10.63
(16)
|
|
Consulting
Agreement, dated April 4, 2007, by and between Trulite and Fenway
Advisory
Group.
|
|
|
|
10.64
(16)
|
|
Form
of Warrant Agreement issued to Fenway Advisory Group
|
|
|
|
10.65
(16)
|
|
Subscription
Agreement, dated April 5, 2006, by and between Trulite, Inc. and
Standard
Renewable Energy Group, LP
|
|
|
|
10.66
(16)
|
|
Subscription
Agreement, dated April 5, 2006, by and between Trulite, Inc. and
Standard
Renewable Energy Group, LLC
|
|
|
|
10.67
(16)
|
|
Subscription
Agreement, dated April 5, 2006, by and between Trulite, Inc. and
Contango
Venture Capital Corporation
|
|
|
|
10.68
(16)
|
|
Form
of Amendment to Warrant
|
|
|
|
10.69
(17)
|
|
Amendment
to Subscription Agreement, dated April 24, 2006, by and between Trulite,
Inc. and Standard Renewable Energy Group, LP
|
|
|
|
10.70
(17)
|
|
Amendment
to Subscription Agreement, dated April 24, 2006, by and between Trulite,
Inc. and Standard Renewable Energy Group,
LLC
|
10.71
(17)
|
|
Amendment
to Subscription Agreement, dated April 24, 2006, by and between Trulite,
Inc. and Contango Venture Capital Corporation
|
|
|
|
10.72
(17)
|
|
Stockholder
Lock-Up Agreement with Andrew J. Nielsen
|
|
|
|
31.1
(17)
|
|
Certification
of Chief Executive Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a)
as
adopted pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
|
|
|
|
31.2
(17)
|
|
Certification
of Chief Financial Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a)
as
adopted pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
|
|
|
|
32.1
(17)
|
|
Certification
of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as
adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of
2002
|
|
|
|
32.2
(17)
|
|
Certification
of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as
adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of
2002
|
**
|
Management
contract, compensatory plan or arrangement.
|
|
|
(1)
|
Previously
filed as an exhibit to Form 10-SB, filed December 23,
2005
|
|
|
(2)
|
Previously
filed as an exhibit to Form SB-2, filed June 6, 2006
|
|
|
(3)
|
Previously
filed as an exhibit to Form SB-2/A, filed January
30,2007
|
|
|
(4)
|
Previously
filed as an exhibit to Form 10-SB/A, filed February 23,
2006
|
|
|
(5)
|
Previously
filed as an exhibit to Form 10-SB/A, filed April 21,
2006
|
|
|
(6)
|
Previously
filed as an exhibit to Form 10-SB/A, filed June 8, 2006
|
|
|
(7)
|
Previously
filed as an exhibit to Form 10-SB/A, filed July 7, 2006
|
|
|
(8)
|
Previously
filed as an exhibit to Form 10-SB/A, filed July 28,
2006
|
|
|
(9)
|
Previously
filed as an exhibit to Form 10-SB/A, filed October 6,
2006
|
|
|
(10)
|
Previously
filed as an exhibit to the Company’s Form 8-K dated August 7, 2006
and incorporated herein by reference
|
|
|
(11)
|
Previously
filed as an exhibit to the Company’s Form 8-K dated September 19, 2006 and
incorporated herein by reference
|
|
|
(12)
|
Previously
filed as an exhibit to the Company’s Form 8-K dated October 26, 2006 and
incorporated herein by reference
|
|
|
(13)
|
Previously
filed as an exhibit to the Company’s Form 8-K dated October 31, 2006 and
incorporated herein by reference
|
|
|
|
Previously
filed as an exhibit to Form 10-SB/A, filed December 22,
2006
|
|
|
(15)
|
Previously
filed as an exhibit to the Company’s Form 8-K dated January 1, 2007 and
incorporated herein by reference
|
|
|
(16)
|
Previously
filed as an exhibit to the Company’s Post-Effective Amendment No. 1 to its
Registration Statement on Form SB-2, File No. 333-134849, filed with
the
SEC on April 9, 2007
|
|
|
(17)
|
Filed
herewith.
|
Item
14. Principal
Accounting Fees and Services
Audit
Fees.
The
aggregate fees billed for professional services rendered by UHY Mann Frankfort
Stein & Lipp CPAs, LLP, for the audit of our annual financial statements for
the year ended December 31, 2005, and the reviews of the condensed financial
statements included in our quarterly reports on Form 10-QSB for the years ended
December 31, 2006 and December 31, 2005, were approximately $157,000 and
$53,000, respectively.
The
aggregate fees billed for professional services rendered by UHY LLP, for the
audit of our annual financial statements for the year ended December 31, 2006,
were approximately $46,000.
Audit-Related
Fees.
The
aggregate fees billed by UHY Mann Frankfort Stein & Lipp CPAs, LLP, for
assurance and related services that were reasonably related to the performance
of the audit or review of our financial statements and are not reported in
“audit fees” above, for the years ended December 31, 2006 and December 31, 2005,
were approximately $49,000 and $54,000, respectively. These fees were for
services provided by UHY Mann Frankfort Stein & Lipp CPAs, LLP, related to
consulting services associated with determining the appropriate accounting
treatment of various transactions.
Tax
Fees.
The
aggregate fees billed by UHY
Mann
Frankfort Stein & Lipp CPAs, LLP for
tax
compliance, tax advice, and tax planning for
the
years ended December 31, 2006 and December 31, 2005, were approximately $0
and
$6,000, respectively.
All
Other Fees.
There
were no fees billed for other services, exclusive of the fees disclosed above
relating to services, rendered by UHY LLP or UHY Mann Frankfort Stein & Lipp
CPAs, LLP, during the years ended December 31, 2006 or December 31,
2005.
The
firm
of UHY LLP acts as our principal independent registered public accounting firm.
UHY has a continuing relationship with UHY Advisors, Inc., or Advisors, from
which it leased auditing staff who were full time, permanent employees of
Advisors and through which UHY's partners provide non-audit services. UHY has
only a few full time employees. Therefore, few, if any, of the audit services
performed were provided by permanent full-time employees of UHY. UHY manages
and
supervises the audit services and audit staff, and is exclusively responsible
for the opinion rendered in connection with its examination.
Consideration
of Non-audit Services Provided by the Independent Auditors.
The
Board of Directors has considered whether the services provided for non-audit
services were compatible with maintaining the independence of UHY LLP and UHY
Mann Frankfort Stein & Lipp CPAs, LLP, and has concluded that the
independence of each firm has been maintained.
Although
the Board of Directors had not pre-approved all of the fees noted above for
2006, the Board of Directors intends to do so in the future. The Board of
Directors’ policy is to meet with the independent auditors and our financial
management to review and pre-approve the scope of the proposed audit services,
permissible non-audit services and timely quarterly reviews for the current
year, the procedures to be utilized, and the adequacy of the independent
auditor’s compensation, and at the conclusion thereof, to review such audit or
review, including any comments or recommendations of the independent
auditors.
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by
the undersigned, thereunto duly authorized.
|
|
|
|
TRULITE,
INC.
|
|
|
|
Dated:
April 30, 2007
|
By:
|
/s/
JONATHAN
GODHSALL
|
|
Jonathan
Godshall
President
and Chief Executive Officer
|
AMENDMENT
TO SUBSCRIPTION AGREEMENT
This
Amendment to Subscription Agreement (this “Amendment”)
is
made and entered into as of the 24th
day of
April 2007 by and between Trulite, Inc., a Delaware corporation (“Trulite”)
and
Standard Renewable Energy Group, LP (“SREG,
LP”).
RECITALS
A. Trulite
and SREG, LP entered into that certain Subscription Agreement dated April 5,
2007 (the “Subscription
Agreement”),
and
desire to amend the Subscription Agreement as further set forth
herein.
B. Capitalized
terms used but not otherwise defined in this Amendment shall have the meanings
assigned to such terms in the Subscription Agreement.
NOW,
THEREFORE, for and consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which is hereby acknowledged, Trulite
and
SREG, LP agree as follows:
1. Section
1
of the Subscription Agreement is hereby amended to read in its entirety as
follows:
“1. On
the
last to occur of:
(i)
the
first business day following the filing by Trulite with the State of Delaware
of
a Certificate of Amendment to the Certificate of Incorporation of Trulite to
reflect an increase in the number of authorized shares of Common Stock to
50,000,000 (the “Certificate”);
(ii)
the
third business day following the last of the first ten (10) trading days on
which Trulite Common Stock has traded on the Over the Counter Bulletin Board
(the “Initial
Ten Trading Days”);
or
(iii)
the
first business day following the date on which Trulite first has outstanding
13,785,491 shares of Company (such first or third business day being referred
to
herein as the “Effective
Date”),
Trulite
shall issue to SREG, LP a number of shares of Common Stock determined by
multiplying 2.0 times the quotient of (x) the aggregate principal balance of
and
accrued but unpaid interest on the Note as of the close of business on the
day
immediately preceding the Effective Date divided by (y) the average closing
sale
price for the Common Stock as quoted on the Over the Counter Bulletin Board
for
the Initial Ten Trading Days (collectively, the “Shares”).
Notwithstanding the foregoing, if the Certificate shall not have been filed
with
the State of Delaware on or before June 30, 2007 or if Trulite does not have
outstanding 13,785,491 shares of Common Stock on or before June 30, 2007, this
Agreement shall be of no further force and effect.”
2. Except
as
amended hereby, the Subscription Agreement shall remain unchanged.
Executed
as of the date first set forth above.
|
TRULITE,
INC.
|
|
|
|
By:
|
/s/
Jonathan H. Godshall |
|
Name:
|
Jonathan
H. Godshall |
|
Title:
|
President
& CEO |
|
|
|
|
STANDARD
RENEWABLE ENERGY
|
|
GROUP,
LP
|
|
|
|
|
|
/s/
William J. Berger |
|
Name:
|
William
J. Berger |
|
Title:
|
Chairman
& CEO |
AMENDMENT
TO SUBSCRIPTION AGREEMENT
This
Amendment to Subscription Agreement (this “Amendment”)
is
made and entered into as of the 24th
day of
April 2007 by and between Trulite, Inc., a Delaware corporation (“Trulite”)
and
Standard Renewable Energy Group, LLC (“SREG,
LLC”).
RECITALS
A. Trulite
and SREG, LLC entered into that certain Subscription Agreement dated April
5,
2007 (the “Subscription
Agreement”),
and
desire to amend the Subscription Agreement as further set forth
herein.
B. Capitalized
terms used but not otherwise defined in this Amendment shall have the meanings
assigned to such terms in the Subscription Agreement.
NOW,
THEREFORE, for and consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which is hereby acknowledged, Trulite
and
SREG, LLC agree as follows:
1. Section
1
of the Subscription Agreement is hereby amended to read in its entirety as
follows:
“1. On
the
last to occur of:
(i)
the
first business day following the filing by Trulite with the State of Delaware
of
a Certificate of Amendment to the Certificate of Incorporation of Trulite to
reflect an increase in the number of authorized shares of Common Stock to
50,000,000 (the “Certificate”);
(ii)
the
third business day following the last of the first ten (10) trading days on
which Trulite Common Stock has traded on the Over the Counter Bulletin Board
(the “Initial
Ten Trading Days”);
or
(iii)
the
first business day following the date on which Trulite first has outstanding
13,785,491 shares of Company (such first or third business day being referred
to
herein as the “Effective
Date”),
Trulite
shall issue to SREG, LLC a number of shares of Common Stock determined by
multiplying 2.0 times the quotient of (x) the aggregate principal balance of
and
accrued but unpaid interest on the Notes as of the close of business on the
day
immediately preceding the Effective Date divided by (y) the average closing
sale
price for the Common Stock as quoted on the Over the Counter Bulletin Board
for
the Initial Ten Trading Days (collectively, the “Shares”).
Notwithstanding the foregoing, if the Certificate shall not have been filed
with
the State of Delaware on or before June 30, 2007 or if Trulite does not have
outstanding 13,785,491 shares of Common Stock on or before June 30, 2007, this
Agreement shall be of no further force and effect.”
2. Except
as
amended hereby, the Subscription Agreement shall remain unchanged.
Executed
as of the date first set forth above.
|
TRULITE,
INC.
|
|
|
|
By:
|
/s/
Jonathan H. Godshall |
|
Name:
|
Jonathan
H. Godshall |
|
Title:
|
President
& CEO |
|
|
|
|
STANDARD
RENEWABLE ENERGY
|
|
GROUP,
LLC
|
|
|
|
|
|
/s/
William J. Berger |
|
Name:
|
William
J. Berger |
|
Title:
|
Chairman
& CEO |
AMENDMENT
TO SUBSCRIPTION AGREEMENT
This
Amendment to Subscription Agreement (this “Amendment”)
is
made and entered into as of the 24th
day of
April 2007 by and between Trulite, Inc., a Delaware corporation (“Trulite”)
and
Contango Venture Capital Corporation (“CVCC”).
RECITALS
A. Trulite
and CVCC entered into that certain Subscription Agreement dated April 5, 2007
(the “Subscription
Agreement”),
and
desire to amend the Subscription Agreement as further set forth
herein.
B. Capitalized
terms used but not otherwise defined in this Amendment shall have the meanings
assigned to such terms in the Subscription Agreement.
NOW,
THEREFORE, for and consideration of the mutual promises and covenants contained
herein, the receipt and sufficiency of which is hereby acknowledged, Trulite
and
CVCC agree as follows:
1. Section
1
of the Subscription Agreement is hereby amended to read in its entirety as
follows:
“1. On
the
last to occur of:
(i)
the
first business day following the filing by Trulite with the State of Delaware
of
a Certificate of Amendment to the Certificate of Incorporation of Trulite to
reflect an increase in the number of authorized shares of Common Stock to
50,000,000 (the “Certificate”);
(ii)
the
third business day following the last of the first ten (10) trading days on
which Trulite Common Stock has traded on the Over the Counter Bulletin Board
(the “Initial
Ten Trading Days”);
or
(iii)
the
first business day following the date on which Trulite first has outstanding
13,785,491 shares of Company (such first or third business day being referred
to
herein as the “Effective
Date”),
Trulite
shall issue to CVCC a number of shares of Common Stock determined by multiplying
2.0 times the quotient of (x) the aggregate principal balance of and accrued
but
unpaid interest on the Notes as of the close of business on the day immediately
preceding the Effective Date divided by (y) the average closing sale price
for
the Common Stock as quoted on the Over the Counter Bulletin Board for the
Initial Ten Trading Days (collectively, the “Shares”).
Notwithstanding the foregoing, if the Certificate shall not have been filed
with
the State of Delaware on or before June 30, 2007 or if Trulite does not have
outstanding 13,785,491 shares of Common Stock on or before June 30, 2007, this
Agreement shall be of no further force and effect.”
2. Except
as
amended hereby, the Subscription Agreement shall remain unchanged.
Executed
as of the date first set forth above.
|
TRULITE,
INC.
|
|
|
|
By:
|
/s/
Jonathan H. Godshall |
|
Name:
|
Jonathan
H. Godshall |
|
Title:
|
President
& CEO |
|
|
|
|
CONTANGO
VENTURE CAPITAL CORPORATION
|
|
|
|
|
|
/s/
Kenneth R. Peak |
|
Name:
|
Kenneth
R. Peak |
|
Title:
|
President |
STOCKHOLDER
LOCK-UP AGREEMENT
This
Stockholder Lock-Up Agreement (the “Agreement”)
is
made effective as of the 19th day of April, 2007, by and among Trulite, Inc.,
a
Delaware corporation (the “Company”),
and
Andrew J. Nielson (the “Stockholder”).
R
E C
I T A L S
WHEREAS,
the Stockholder owns 1,120,745 shares of the Company’s Common Stock, $0.0001 par
value (“Common
Stock”),
which
represents a substantial equity interest in the Company; and
WHEREAS,
the Company anticipates 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 Stockholder and the Company hereby agree that
this Agreement shall govern the rights of the Stockholder 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:
T
E R
M S
1. Lock-Up
Agreement.
(a) The
Stockholder may sell up to 100,000 shares of Common Stock during the period
ending April 25, 2007.
(b) The
Stockholder hereby agrees that it will not except as specifically provided
herein, without the prior written consent of the Company, during the period
commencing on the date hereof and ending on April 19, 2008 (the “Term”),
(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 hereafter 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 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. The Stockholder further agrees to execute
such
agreements as may be reasonably requested by the Company, that are consistent
with this Section 1
or that
are necessary to give further effect thereto.
(c) In
order
to enforce the covenant set forth in Section 1(b),
the
Company may impose stop-transfer instructions with respect to the Common Stock
of the Stockholder until the end of such period.
(d) The
Stockholder agrees that a legend reading substantially as follows shall be
placed on all certificates representing all equity securities of the Stockholder
other than shares of Common Stock to be sold pursuant to Section 1(a):
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD
ENDING APRIL 19, 2008, 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.”
(e) Notwithstanding
the foregoing:
(i) The
Stockholder may during the Term sell to Eric Ladd up to 473,968 shares of Common
Stock in connection with exercise of the option held by Eric Ladd to purchase
such shares (the “Option”);
(ii) During
each 30 day period during the Term beginning on the 19th day of each month
beginning July 19, 2007 (each a “30
Day
Window Period”),
the
Stockholder may sell up to 20,000 shares of Common Stock. Additionally, if
the
Stockholder sells less than 20,000 shares of Common Stock during a 30 Day Window
Period he may sell up to (and no more than ) 20,000 of such unsold shares of
Common Stock during the remainder of the Term (even to the extent such sales
would cause total sales of Common Stock in a 30 Day Window Period to exceed
20,000 shares. The maximum number of shares of Common Stock that may be sold
by
the Stockholder during any 30 Day Window Period is 40,000;
(iii) Except
for (A) the Company’s agreement to permit Eric Ladd to sell up to 5% of the
shares of the Company’s Common Stock purchased by him upon exercise of the
Option, or (B) the Company’s agreement with its stockholders, including Kevin
Shurtleff, to sell Common Stock covered by the Company’s Registration Statement
on Form SB-2 that was declared effective February 9, 2007, if after the date
hereof, the Company releases any other stockholder of the Company from the
restrictions contained in Section 1 of the Lock-Up Agreement dated as of March
31, 2006 between such stockholder and the Company, the restrictions contained
in
this Section 1 shall lapse immediately.
2. Warrant.
Concurrently with approval by the Company’s Board of Directors of the issuance
of the Warrant (hereafter defined), the Company will execute and deliver to
the
Stockholder a Warrant in the form of Exhibit
A
attached
hereto (the “Warrant”).
If
during the Term, the Company files with the Securities and Exchange Commission
a
registration statement registering the resale of securities purchased by
Investors from the Company, the Company will provide the Stockholder the
opportunity to include in such registration statement the resale of the shares
of Common Stock underlying the Warrant, provided that the Stockholder agrees
to
provide such documentation in connection therewith as may be reasonably
requested by the Company.
3. Financing.
During
the Term, the Company will provide the Stockholder with five (5) days advance
written notice of a proposed issuance by the Company to Investors of equity
securities for cash, which notice shall include a description of the terms
under
which such equity securities will be issued, and will afford the Stockholder
the
opportunity to purchase such equity securities in an amount up to 50% of the
number of equity securities offered to such Investors on the same terms provided
to the Investors at the same closing at which Investors purchase the equity
securities purchased by them.
4. Rule
144.
During
the Term, at the request of the Stockholder the Company will cooperate with
the
Stockholder and the Company’s transfer agent to assist the Stockholder in making
sales of Common Stock that are permitted under this Agreement so that such
sales
qualify under Rule 144 under the Securities Act.
5. 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 Harris County, Texas, and shall be brought in the State District Courts
of
Harris 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 Harris County, Texas, and specifically consent to the
jurisdiction of the State District Courts of Harris 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 5(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 the Stockholder.
(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.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Stockholder Lock-Up Agreement
effective as of the date first above written.
|
|
|
|
COMPANY:
|
|
|
|
Trulite,
Inc.
(a
Delaware corporation)
|
|
|
|
|
By: |
/s/ Jonathan Godshall |
|
Jonathan
Godshall, President
|
|
Address: 5
Houston Center
1401
McKinney Street, Suite 900
Houston,
TX 77010-4035
|
|
|
|
|
|
|
|
STOCKHOLDER:
|
Date: |
|
/s/ Andrew
Nielson |
|
Andrew
Nielson
|
|
Address:
|
EXHIBIT
A
WARRANT
THIS
WARRANT AND THE SECURITIES 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 PARTNERSHIP
THAT SUCH REGISTRATION IS NOT REQUIRED.
Date
of Issuance
|
|
Void
after
|
April
__, 2007
|
|
April
__, 2009
|
TRULITE,
INC.
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
This
Warrant is issued to Andrew J. Nielson or his assigns (the “Holder”)
by
Trulite, Inc., a Delaware corporation (the “Company”).
1. Purchase
of Shares.
(a) Number
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 one hundred twenty thousand (120,000) fully paid and
nonassessable shares of the Company’s common stock, par value $0.0001 per share
(the “Common
Stock”).
(b) Exercise
Price.
The
exercise price for the shares of Common Stock issuable pursuant to this Section
1
(the
“Shares”)
shall
be One Dollar and Fifty Cents ($1.50) per share (the “Exercise
Price”).
The
Shares and the Exercise Price shall be subject to adjustment pursuant to
Section 9
hereof.
2. Exercise
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 April __, 2009 (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) the closing of the sale, transfer or other disposition of all or
substantially all of the Company’s assets, (b) the 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) the closing of the transfer (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.
3. Method
of Exercise.
(a) While
this Warrant remains outstanding and exercisable in accordance with
Section 2
above,
the Holder may exercise, in whole or in part, the purchase rights evidenced
hereby. Such exercise shall be effected by:
(i) the
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
(ii) the
payment to the Company of an amount equal to the aggregate Exercise Price
for
the number of Shares being purchased.
(b) Each
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.
(c) As
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:
(i) a
certificate or certificates for the number of Shares to which such Holder
shall
be entitled, and
(ii) in
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 or
Section 4
below.
4. Representations
and Warranties of the Company.
In
connection with the transactions provided for herein, the Company hereby
represents and warrants to the Holder that:
(a) Organization,
Good Standing, and 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 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.
(b) Authorization.
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.
(c) Valid
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.
5. Representations
and Warranties of the Holder.
In
connection with the transactions provided for herein, the Holder hereby
represents and warrants to the Company that:
(a) Authorization.
Holder
represents that he has full power and authority to enter into this Warrant.
This
Warrant constitutes the Holder’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.
(b) Purchase
Entirely for Own Account.
The
Holder acknowledges that this Warrant is entered into by the Holder in reliance
upon such Holder’s representation to the Company that the Warrant and the Shares
(collectively, the “Securities”)
will
be acquired for investment for the Holder’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.
(c) Disclosure
of Information.
The
Holder acknowledges that he has received all the information he considers
necessary or appropriate for deciding whether to acquire the Securities.
The
Holder further represents that he has had an opportunity to ask questions
and
receive answers from the Company regarding the terms and conditions of the
offering of the Securities.
(d) Investment
Experience.
The
Holder is an investor in securities of companies in the development stage
and
acknowledges that he is able to fend for himself, can bear the economic risk
of
his investment, and has such knowledge and experience in financial or business
matters that he is capable of evaluating the merits and risks of the investment
in the Securities.
(e) Accredited
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.
(f) Restricted
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, the Holder represents that he 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.
(g) Further
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:
(i) there
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
(ii) the
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
(iii) if
other
than an individual, the Holder shall not make any disposition to any of the
Company’s competitors as such is reasonably in
good
faith determined by the Company.
(h) Legends.
It is
understood that the Securities may bear the following legend:
“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.”
6. Covenants
of the Company.
(a) Notices
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) days
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.
(b) Covenants
as to Exercise of 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.
7. Adjustment
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:
(a) Subdivisions,
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 Section 7(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.
(b) Reclassification,
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 Section 7(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.
(c) Notice
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.
8. 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 Harris County, Texas, and shall be brought in the State District Courts
of
Harris 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 Harris County, Texas, and specifically consent to the
jurisdiction of the State District Courts of Harris County and the United
States
District Court for the Southern District of Texas, Houston
Division.
9. Successors
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 Holder hereof and their
respective successors and assigns.
10. Titles
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.
11. Notices.
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):
If
to the
Company:
Trulite,
Inc.
5
Houston
Center
1401
McKinney Street, Suite 900
Houston,
TX 77010-4035
Attention:
Jonathan Godshall
If
to
Holder:
Andrew
Nielson
___________________________
___________________________
Attention:
__________________
12. Finder’s
Fee.
Each
party represents that it neither is or will be obligated for any finder’s fee or
commission in connection with this transaction. 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
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.
13. Expenses.
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.
14. Entire
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 of rights to purchase
a
majority of the Shares originally issuable pursuant to this
Warrant.
15. Severability.
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.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
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COMPANY:
Trulite,
Inc.
(a
Delaware corporation)
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By: |
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Jonathan Godshall, President |
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Address: 5
Houston Center
1401
McKinney Street, Suite 900
Houston,
TX 77010-4035
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ACKNOWLEDGED
AND AGREED:
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HOLDER:
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________________________________ |
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Andrew
Nielson |
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Address: _______________________
_______________________
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EXHIBIT
A
NOTICE
OF EXERCISE
Trulite,
Inc.
Attention:
Corporate Secretary
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
tenders herewith payment in cash of the Exercise Price of such Shares in
full,
together with all applicable transfer taxes, if any.
The
undersigned hereby represents and warrants that Representations and Warranties
in Section 5
hereof
are true and correct as of the date hereof.
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HOLDER:
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Date: ___________________ |
By: |
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Address: ________________________________________________
________________________________________________
________________________________________________
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Name
in
which Shares should be registered:
________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information.
Do not use this form to purchase shares.)
For
Value Received,
the
foregoing Warrant and all rights evidenced thereby are hereby assigned
to
Name:
___________________________________________________________________________________
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(Please
Print)
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Address:
_________________________________________________________________________________
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(Please
Print)
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Dated: ________________________ |
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Holder’s
Signature:
________________________
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Holder’s
Address:
________________________
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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.
Exhibit
31.1
Certification
of Principal Executive Officer
Pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002
and
Securities and Exchange Commission Release 34-46427
I,
Jonathan Godshall, certify that:
1.
I have
reviewed this annual report on Form 10-KSB of Trulite, Inc.;
2.
Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made,
in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3.
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the small business issuer
as
of, and for, the periods presented in this report;
4.
The
small business issuer’s other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the small business issuer and
have:
a)
designed such disclosure controls and procedures or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that
material information relating to the small business issuer, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being
prepared;
b)
evaluated the effectiveness of the small business issuer’s disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
c)
disclosed in this report any change in the small business issuer’s internal
control over financial reporting that occurred during the small business
issuer’s most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the small business issuer’s internal
control over financial reporting; and
5.
The
small business issuer’s other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the
small business issuer’s auditors and the audit committee of the small business
issuer’s board of directors (or persons performing the equivalent
functions):
a)
all
significant deficiencies and material weaknesses in the design or operation
of
internal control over financial reporting which are reasonably likely to
adversely affect the small business issuer’s ability to record, process,
summarize and report financial information; and
b)
any
fraud, whether or not material, that involves management or other employees
who
have a significant role in the small business issuer’s internal control over
financial reporting.
Date:
April 30, 2007
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/s/
JONATHAN GODSHALL
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Jonathan
Godshall
Principal
Executive Officer
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Exhibit
31.2
Certification
of Principal Financial Officer
Pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002
and
Securities and Exchange Commission Release 34-46427
I,
G.
Wade Stubblefield, certify that:
1.
I have
reviewed this annual report on Form 10-KSB of Trulite, Inc.;
2.
Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made,
in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3.
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the small business issuer
as
of, and for, the periods presented in this report;
4.
The
small business issuer’s other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined
in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the small business issuer and
have:
a)
designed such disclosure controls and procedures or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that
material information relating to the small business issuer, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being
prepared;
b)
evaluated the effectiveness of the small business issuer’s disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and
c)
disclosed in this report any change in the small business issuer’s internal
control over financial reporting that occurred during the small business
issuer’s most recent fiscal quarter that has materially affected, or is
reasonably likely to materially affect, the small business issuer’s internal
control over financial reporting; and
5.
The
small business issuer’s other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to
the
small business issuer’s auditors and the audit committee of the small business
issuer’s board of directors (or persons performing the equivalent
functions):
a)
all
significant deficiencies and material weaknesses in the design or operation
of
internal control over financial reporting which are reasonably likely to
adversely affect the small business issuer’s ability to record, process,
summarize and report financial information; and
b)
any
fraud, whether or not material, that involves management or other employees
who
have a significant role in the small business issuer’s internal control over
financial reporting.
Date:
April 30, 2007
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/s/
G. WADE STUBBLEFIELD
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G.
Wade Stubblefield
Principal
Financial Officer
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Exhibit
32.1
CERTIFICATION
PURSUANT TO
18
U.S.C. SECTION 1350,
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Annual Report of Trulite, Inc. (the "Company") on Form
10-KSB for the period ending December 31, 2006 as filed with the Securities
and
Exchange Commission on the date hereof (the "Report"), I, Jonathan Godshall,
certify, pursuant to 18 U.S.C. ss. 1350, as adopted pursuant to ss. 906 of
the
Sarbanes-Oxley Act of 2002, that to my knowledge:
(1)
The
Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and
(2)
The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operations of the Company.
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By:
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/s/
JONATHAN GODSHALL |
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Jonathan
Godshall
Principal
Executive Officer
April
30, 2007
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Exhibit
32.2
CERTIFICATION
PURSUANT TO
18
U.S.C. SECTION 1350,
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
(1)
The
Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and
(2)
The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operations of the Company.
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By:
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/s/
G.WADE STUBBLEFIELD
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G.
Wade Stubblefield
Principal
Financial Officer
April
30, 2007
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