SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT Between TRULITE, INC. and KEVIN SHURTLEFF dated as of March 27, 2006
Exhibit
10.28
SECOND
AMENDED AND RESTATED
Between
TRULITE,
INC.
and
XXXXX
XXXXXXXXX
dated
as
of March 27, 2006
AMENDED
AND RESTATED
This
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this
“Agreement”) is made effective as of the 27th day of March, 2006 by and between
Trulite, Inc., a Delaware corporation (the “Company”), and Xxxxx Xxxxxxxxx
(“Executive”).
WITNESSETH:
WHEREAS,
Executive entered into that certain Employment Agreement, dated as of July
28,
2004, with the Company (the “Original Agreement”), and agreed to serve as an
employee of the Company according to the terms of the Original Agreement;
and
WHEREAS,
Executive entered into that certain Amended and Restated Employment Agreement
dated February 4, 2005, with the Company (the “Second Agreement”);
and
WHEREAS,
Executive and the Company now wish to further amend the Second Agreement to
set
forth the terms under which Executive shall be employed on a one-half time
basis
by the Company, along with other amendments as set forth herein below, and
to
restate in their entirety the terms of Executive’s employment by the
Company.
NOW,
THEREFORE, in consideration of the continued employment of Executive by the
Company and the payment of salary and other compensation to Executive by the
Company, the parties hereto agree as follows:
1.
Employment.
The
Company hereby agrees to continue to employ Executive, and Executive hereby
agrees to continue to serve the Company, on the terms and conditions set forth
herein.
2.
Term.
Executive shall continue to be employed by the Company as provided in Section
1
and such employment shall continue until January 1, 2007, unless sooner
terminated as hereinafter provided. Should Executive serve until January 1,
2007, and remain employed by the Company thereafter, such employment
shall convert to a month-to-month relationship otherwise subject to the terms
of
this Agreement and terminable for any reason whatsoever by either the Company
or
Executive upon thirty (30) days prior written notice to the other party, except
that the Company may terminate this Agreement immediately for Cause, as defined
herein below.
3.
Position and Duties.
The
Company agrees to continue to employ Executive, and Executive agrees to continue
to be so employed, in such capacity and having such duties as are assigned
to
Executive from time to time by the Company’s Board of Directors or such officer
of the Company that the Board of Directors designates as Executive’s
supervisor.
Executive
agrees to devote 20 hours per week of his business time and attention to the
business and affairs of the Company and will use his best efforts in performing
faithfully his duties under this Agreement.
Executive
shall use his reasonable best efforts to perform faithfully and efficiently
his
duties under this Agreement, and shall not engage in or be employed by any
other
business that competes with the Company; provided, however, that nothing
contained herein shall prohibit Executive from (i) serving as a member of the
board of directors, board of trustees or the like of any for-profit entity
that
does not compete with the Company, or performing services of any type for any
civic or community entity, whether or not Executive receives compensation
therefor, (ii) investing his assets in such form or manner as shall not require
any significant services on his part in the operation of the business of or
property in which such investment is made as long as such business does not
compete with the Company, or (iii) serving in various capacities with, and
attending meetings of, industry or trade groups and associations, as long as
Executive’s engaging in any activities permitted by virtue of clauses (i), (ii)
and (iii) above does not materially interfere with the ability of Executive
to
perform the services and discharge the responsibilities required of him under
this Agreement.
4.
Compensation and Related Matters.
| (a) |
Salary.
During the term of this Agreement, the Company shall pay to Executive
an
annual salary of $65,000 in substantially equal installments in accordance
with the Company’s payroll policies.
|
| (b) |
Option.
Subject to the approval of the Company’s Board of Directors or its
Compensation Committee, you will be granted an option to purchase 699,302
shares of the Company’s common stock. The exercise price per share will be
equal to the fair market value per share on the date the option is
granted. The option will be subject to the terms and conditions applicable
to options granted under the Company’s Stock Option Plan (the “Plan”), as
described in the Plan and the applicable Stock Option Agreement in
substantially the form attached hereto as Exhibit “A” (the “Option
Agreement”). The option shall vest immediately and the purchased shares
will be subject to repurchase by the Company at fair market value in
the
event that your service terminates for any reason. The Option Agreement
shall contain such other terms as shall be determined by the Board
of
Directors of the Company.
|
| (c) |
Expenses.
During the term of Executive’s employment hereunder, Executive shall be
entitled to receive prompt reimbursement for all reasonable and necessary
expenses incurred by Executive in performing services hereunder, including
all travel and living expenses while away from home on business or
at the
request of and in the service of the Company, cell phone expenses and
entertainment expenses incurred by Executive at the request of and
in the
service of the Company, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established
by the Company, as may be amended from time to
time.
|
| (d) |
Benefits.
Executive shall be entitled to participate in or receive benefits under
any group health or other employee benefit plan or arrangement made
available by the Company to its other similarly situated employees
who
perform the same or similar duties as Executive in the same location,
subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and
arrangements.
|
| (e) |
Sick
Leave.
Executive shall be entitled to sick and emergency leave in accordance
with
the regular policies and procedures established by the Company. Any
additional sick or emergency leave over and above paid leave provided
by
the Company, if any, shall be unpaid and shall be granted at the sole
discretion of the Board of Directors of the
Company.
|
| (f) |
Vacations.
Executive shall be excused from rendering his services during reasonable
vacation periods for 5 business days per year plus any additional vacation
days that may be approved by the Company’s Board of Directors or such
officer of the Company that the Company’s Board of Directors designates as
Executive’s supervisor. Executive shall also be entitled to all paid
holidays given by the Company to its employees
generally.
|
5.
Termination.
Executive’s employment hereunder may be terminated under the following
circumstances:
| (a) |
Termination
of Employment for Cause.
The Company may terminate the employment of the Executive if the Executive
engages in any of the following conduct (termination for
“Cause”):
|
| i. |
Breaching
any material provision of this Agreement;
|
| ii. |
Misappropriating
funds or property of the Company;
|
| iii. |
Securing
any personal profit not thoroughly disclosed to and approved by the
Company in connection with any transaction entered into on behalf of
the
Company;
|
| iv. |
Engaging
in conduct, even if not in connection with the performance of his duties
hereunder, which might be reasonably expected to result in any effect
materially adverse to the interests of the Company, such as fraud,
dishonesty, conviction of a felony, or other acts of moral
turpitude;
|
| v. |
Failing
to fulfill and perform the duties assigned to the Executive in accordance
with the terms hereof; or
|
| vi. |
Failing
to comply with corporate policies of the Company that are promulgated
from
time to time by the Company’s Board of Directors.
|
| (b) |
Termination
in the Event of Death or Disability.
|
The
Employer may terminate this Agreement in the event Executive becomes and remains
“Disabled” (as hereinafter defined), either physically, mentally, or otherwise,
for a period of ninety (90) days during any consecutive period. As used herein,
“Disabled” shall mean the continuous inability, whether mental or physical, of
the Executive to perform his normal job functions as determined by at least
two
(2) of three medical physicians. For purposes of such determination, the
Executive or his designee shall be entitled to appoint one physician, the
Company shall be entitled to appoint one physician, and the two (2) physicians
shall mutually appoint a third physician. Notwithstanding the foregoing, the
Executive or his designee and the Company may mutually agree that the Executive
is Disabled within the meaning of this Agreement.
This
Agreement shall immediately terminate upon the death of Executive.
| (c) |
Termination
Without Cause.
Either party may terminate the employment of Executive without Cause
at
any time upon written notice to the other
party.
|
6.
Effect of Termination of Employment.
| (a) |
Termination
for Cause.
In the event of termination for Cause, the Executive shall be entitled
to
receive his compensation, as determined in Section 4 of this Agreement,
due or accrued on a pro rata basis to the date of termination less
the
amount of actual damages, if any, caused to the Company by such breach
of
this Agreement.
|
| (b) |
Termination
upon death or Disability.
In the event of termination for death or Disability of the Executive,
the
Executive or his estate shall be entitled to receive his compensation,
as
determined in Section 4 of this Agreement, due or accrued on a pro
rata
basis to the effective date of
termination.
|
| (c) |
Termination
Without Cause.
In the event the Company terminates Executive’s employment without Cause,
the Company shall continue making payments to Executive in an amount
equal
to the compensation of the Executive set forth in Section 4(a) of this
Agreement, as if he were still employed for six (6) months, which shall
constitute the full and total amount of liquidated damages that the
Executive shall be entitled to receive from the Company and its Affiliates
and their officers, directors, and employees whether arising out of
contract, tort or other claims arising out of his employment relationship
with the Company.
|
| (d) |
Company’s
Right to Repurchase Shares.
In the event that Executive’s employment is terminated by the Company for
Cause or by Executive’s voluntary departure, the Company shall have the
right to repurchase all Common Stock owned by Executive at fair market
value, as defined below. In the event that Executive’s employment is
terminated by the Company without Cause, the Executive shall be entitled
to retain the stock he owns. The Company shall have the right to
repurchase any unvested portion of the stock subject to the Option
at fair
market value, as defined below. “Fair market value,” for the purposes of
this Section 6, shall be determined by a qualified business valuation
or
appraisal expert chosen jointly by the Executive and the Company’s Board
of Directors.
|
7.
Confidentiality,
Non-Solicitation, and Non-Competition.
| (a) |
Confidential
Information.
Executive acknowledges that (i) upon execution of this Agreement and
during the term of this Agreement and as a part of his employment with
the
Company and any subsidiaries, whether pursuant to this Agreement or
otherwise, Executive has been and will be afforded access to “Confidential
Information” as hereinafter defined; (ii) public disclosure of such
Confidential Information could have a material adverse impact on the
Company and its business; and (iii) as a result of his access to such
Confidential Information, Executive will attain substantial technical
expertise, skill and knowledge with respect to the Company’s business.
Executive acknowledges that the provisions of this Section 7(a) are
reasonable and necessary with respect to the improper use or disclosure
of
Confidential Information. As used in this Agreement, “Confidential
Information” means any information, knowledge or data of any nature and in
any form (including information that is electronically transmitted
or
stored on any form of magnetic or electronic storage media) relating
to
the past, current or prospective business or operations of the Company
and
its Affiliates, that at the time or times concerned is not generally
known
to persons engaged in businesses similar to those conducted or
contemplated by the Company and its Affiliates (other than information
known by such persons through a violation of an obligation of
confidentiality to the Company), whether produced by the Company and
its
Affiliates or any of their consultants, agents or independent contractors
or by Executive, and whether or not marked confidential, including
without
limitation information relating to the Company’s or its Affiliates’
products and services, business plans, business acquisitions, processes,
product or service research and development methods or techniques,
inventions and improvements, training methods and other operational
methods or techniques, quality assurance procedures or standards,
operating procedures, files, plans, specifications, proposals, drawings,
charts, graphs, support data, trade secrets, supplier lists, supplier
information, purchasing methods or practices, distribution and selling
activities, consultants’ reports, marketing and engineering or other
technical studies, maintenance records, employment or personnel data,
marketing data, strategies or techniques, financial reports, budgets,
projections, cost analyses, price lists and analyses, employee lists,
customer lists, customer source lists, proprietary computer software,
and
internal notes and memoranda relating to any of the foregoing.
|
| (b) |
Non-Disclosure
of Confidential Information.
In consideration of the foregoing and of continued employment by the
Company and the compensation and benefits paid or provided and to be
paid
or provided to Executive by the Company pursuant to this Agreement,
Executive hereby covenants and agrees that during the term of this
Agreement and for a period of one (1) year thereafter, Executive shall
not, without the Company’s prior written consent or as may be required by
law or legal process, disclose, communicate, divulge or make available
to
any person or entity (other than the Company), or use for any purpose
other than for the exclusive benefit of the Company, any Confidential
Information, whether Executive has such information in his memory or
embodied in writing or other physical form. Upon termination of
Executive’s employment hereunder, Executive shall deliver promptly to the
Company any Confidential Information in his possession, including any
duplicates thereof and any notes or other records Executive has prepared
with respect thereto. In the event that the provisions of any applicable
law or the order of any court would require Executive to disclose or
otherwise make available any Confidential Information then Executive
shall
give the Company prompt prior written notice of such required disclosure
and an opportunity to contest the requirement of such disclosure or
apply
for a protective order with respect to such Confidential Information
by
appropriate proceedings. Executive agrees that disclosures made by
the
Company or its affiliates to governmental authorities, to its customers
or
potential customers, to its suppliers or potential suppliers, to its
employees or potential employees, to its consultants or potential
consultants or disclosures made by the Company or its affiliates in
any
litigation or administrative or governmental proceedings shall not
mean
that the matters so disclosed are available to the general public.
The
foregoing, however, shall not limit the Company’s authority to determine
whether or not any such information has been so
disclosed.
|
| (c) |
Protection
of Information.
|
| i. |
The
Company shall disclose to Executive, or place Executive in a position
to
have access to or develop, trade secrets or confidential information
of
the Company; and/or shall entrust Executive with business opportunities
of
the Company; and/or shall place Executive in a position to develop
business good will on behalf of the
Company.
|
| ii. |
Executive
agrees not to disclose or utilize, for Executive’s personal benefit or for
the direct or indirect benefit of any other person or entity, or for
any
other reason, whether for consideration or otherwise, during the term
of
his employment hereunder or for a period of one (1) year thereafter,
any
information, ideas, concepts, improvements, discoveries or inventions,
whether patentable or not, which are conceived, made, developed, or
acquired by Executive, individually or in conjunction with others,
during
Executive’s employment by the Company (whether during business hours or
otherwise and whether on the Company’s premises or otherwise) which relate
to the business, products, or services of the Company (including, without
limitation, all such business ideas, prospects, proposals or other
opportunities which are developed by Executive during his employment
hereunder, or originated by any third party and brought to the attention
of Executive during his employment hereunder, together with information
relating thereto (including, without limitation, data, memoranda, opinions
or other written, electronic or charted means, or any other trade secrets
or other confidential or proprietary information of or concerning the
Company)) (collectively, “Business Information”). Moreover, all documents,
drawings, notes, files, data, records, correspondence, manuals, models,
specifications, computer programs, E-mail, voice mail, electronic
databases, maps, and all other writings or materials of any type embodying
any such Business Information are and shall be the sole and exclusive
property of the Company. Upon termination of Executive’s employment
hereunder, for any reason, Executive promptly shall deliver all Business
Information, and all copies thereof, to the Company. As a result of
knowledge of confidential Business Information of third parties, such
as
customers, suppliers, partners, joint ventures, and the like, of the
Company, Executive also agrees to preserve and protect the confidentiality
of such third party Business Information to the same extent, and on
the
same basis, as the Company’s Business
Information.
|
| iii. |
Executive
agrees that, during his employment, any inventions (whether or not
patentable), concepts, ideas, expressions, discoveries, or improvements,
including, without limitation, products, processes, methods, publications,
works of authorship, software programs, designs, trade secrets, technical
specifications, algorithms, technical data, know-how, internal reports
and
memoranda, marketing plans and any other patent or proprietary rights
conceived, devised, developed, or reduced to practice, in whole or
in
part, by Executive during the term of his employment by the Company
that
pertain to hydrogen fuel technology and hydrogen fuel cell system
technology (the “Developments”) are the sole and exclusive property of the
Company on a worldwide basis as works made for hire or otherwise, and
further that any revenue or other consideration obtained from the sale,
license or other transfer or conveyance of any such Development, or
a
product or service incorporating such Development, is solely for the
benefit of and becomes the property of the Company. To the extent a
Development may not be considered work made by Executive for hire for
the
Company, Executive agrees to assign, and automatically assigns at the
time
of creation of the Development, without any requirement of further
consideration, any and all right, title and interest he may have in
such
Development. Executive shall preserve each such Development as
confidential and proprietary information of the Company. Executive
shall
promptly disclose each such Development and shall, upon demand, at
the
Company’s expense, execute and deliver to the Company such documents,
instruments, deeds, acts and things as the Company may request to evidence
or maintain the Company’s ownership of the Development, in any and all
countries of the world, or to effect enforcement thereof, and to assign
all rights, if any, of Executive in and to each of such Developments.
In
addition, Executive agrees not to publish or seek to publish any
information whatsoever concerning any Development without the prior
written consent of the Company, which may be withheld in its sole and
absolute discretion.
|
| iv. |
Any
inventions relating to the business of the Company that pertain to
hydrogen fuel technology and hydrogen fuel cell system technology
conceived or reduced to practice after Executive leaves the employ
of the
Company shall be conclusively deemed to have been conceived and/or
reduced
to practice during the period of the employment if conceived and/or
reduced to practice within six months from termination of employment,
and
shall be subject to the terms of this Section
7(c).
|
| (d) |
Non-Recruitment
of Other Company Employees.
During the term of Executive’s employment under this Agreement and for a
period of one (1) year thereafter, Executive will not directly or
indirectly (i) recruit, solicit, encourage or induce any employee of
the
Company or any of its Affiliates to terminate such employment, (ii)
otherwise disrupt any such employee’s relationship with the Company or its
Affiliates, or (iii) whether individually or as owner, agent, employee,
consultant or otherwise, hire, employ or offer employment to any person
who is or was employed by the Company or an Affiliate thereof, whether
or
not such engagement is solicited by
Executive.
|
| (e) |
Non-Solicitation
of Customers or Other Persons.
|
| i. |
During
the term of Executive’s employment under this Agreement and for a period
of one (1) year thereafter, Executive shall not solicit, induce, or
attempt to induce any past, current or potential customer of the Company
or its Affiliates to (A) cease doing business in whole or in part with
or
through the Company or its Affiliates or otherwise disrupt any previously
established relationship existing between such customer and the Company
or
its Affiliates, or (B) do business with any other person or entity
which
performs services materially similar to or competitive with those provided
by the Company or its Affiliates.
|
| ii. |
During
the term of Executive’s employment under this Agreement and for a period
of two (2) years thereafter, Executive shall not solicit, induce, or
attempt to induce any supplier, lessor, licensor, or other person who
has
a business relationship with the Company or its Affiliates, or who
on the
date Executive’s employment hereunder is terminated is engaged in
discussions or negotiations to enter into a business relationship with
the
Company or its Affiliates, to discontinue or reduce the extent of such
relationship with the Company or its
Affiliates.
|
| (f) |
Non-Competition
with the Company.
Executive acknowledges and agrees that the services which have been
and
will be performed by Executive for the Company or its Affiliates, whether
during his employment with the Company or any Affiliates otherwise
than
pursuant to this Agreement, include services of a special, unique,
unusual, extraordinary and intellectual character. Executive further
acknowledges that the business of the Company and its subsidiaries
is
worldwide in scope, that Executive has been and will be an integral
part
of conceiving, developing, marketing and selling such products and
services on a worldwide basis, and that the Company and its subsidiaries
compete with other organizations that are or could be located in any
part
of the world. Executive further acknowledges that, by virtue of the
character of his services, Executive will be deemed to have worked
for the
Company or its subsidiaries at any and every location and geographic
area
in which Executive’s services have been or will be applied on behalf of
the Company or any subsidiary during his employment by the Company
or any
subsidiary whether pursuant to this Agreement or otherwise, irrespective
of whether or not Executive was physically present at such location
or
geographic area. Therefore, Executive hereby covenants and agrees that
during the term of Executive’s employment hereunder and for a period of
one (1) year thereafter, Executive will not directly or indirectly
engage
or invest in, own, manage, operate, control or participate in the
ownership, management, operation or control of, be employed by, associated
or connected with, or render services or advice to, any other business
whose services, products or activities compete in whole or in part
with
the services, products or activities of the Company relating to Company’s
hydrogen fuel technology and hydrogen fuel cell system technology or
its
subsidiaries, within all geographic areas worldwide in which Executive’s
services were applied by the Company or its subsidiaries at any time
during Executive’s employment by the Company or its subsidiaries otherwise
than pursuant to this Agreement.
|
| (g) |
Reasonableness
of Covenants.
It
is understood and agreed by the parties hereto that the covenants by
Executive set forth in this Section 7 are essential elements of this
Agreement and that but for Executive’s agreement to comply with such
covenants, the Company would not have entered into this Agreement.
The
parties also acknowledge that the time, scope, geographic area and
other
provisions of Section 7(b) through 7(f) have been specifically negotiated
at arm’s length by sophisticated commercial parties with peculiar
knowledge of the Company’s business. It is further agreed that all such
provisions are reasonable under the circumstances pertaining to the
Company’s business and Executive’s key role therein, and necessary for the
protection of the Company’s legitimate business interests. The Company and
Executive have independently consulted their respective legal counsel
and
have been advised in all respects concerning the reasonableness and
propriety of such covenants, with specific regard to the nature of
the
businesses conducted by the Company and its
subsidiaries.
|
| (h) |
Injunctive
Relief and Other Remedies with Respect to Covenants.
Executive acknowledges and agrees that the covenants and obligations
of
Executive as set forth in this Section 7 relate to special, unique
and
extraordinary matters and that a violation of any of the terms of such
covenants and obligations will cause the Company irreparable injury
for
which adequate remedies are not available at law. Executive further
agrees
that if, at any time, despite express agreement of the parties hereto,
a
court of competent jurisdiction holds that any portion of Section 7(b)
through 7(f) of this Agreement is unenforceable for any reason, the
maximum permissible restrictions of time, scope or geographic area
as
determined by such court, will be substituted for any such restrictions
held unenforceable. In the event Executive’s breach (or threatened breach
in the case of clause (i) below) of any of the covenants and obligations
set forth in this Section 7, Executive agrees that the Company will
(i) be
entitled to an injunction, restraining order or such other equitable
relief restraining Executive from violating such covenants and obligations
contained in this Section 7, without requiring the Company to post
any
bond or surety therefor, and (ii) have no further obligation to make
any
payments to Executive hereunder. These remedies are cumulative and
are in
addition to any other rights and remedies the Company may have at law
or
in equity, including, but not limited to, recovery of costs and expenses
such as reasonable attorneys’ fees by reason of any such breach, actual
damages sustained by the Company as a result of any such breach, and
cancellation of any unpaid salary, bonus, commissions or reimbursements
otherwise outstanding at such time.
|
| (i) |
Applicability
of Certain Sections.
Notwithstanding the foregoing, the parties agree that Sections 7(d),
7(e)
and 7(f) shall be binding upon Executive only in the event that Executive
voluntarily terminates his employment hereunder during the term of
this
Agreement without the consent of the Company and in the event that
Executive is discharged by the Company for Disability or
Cause.
|
8.
Successors;
Binding Agreement.
The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any rights, interests or obligations
hereunder may be assigned by any party hereto without the prior written consent
of the other parties hereto; provided that the Company may assign any rights,
interests or obligations hereunder to any successor (whether direct or indirect,
by merger, purchase, consolidation or otherwise) to all or substantially all
of
the business and/or assets of the Company.
9.
Notice.
All
notices hereunder must be in writing and shall be deemed to have given upon
receipt of delivery by: (a) personal delivery to the designated individual,
(b)
certified or registered mail, postage prepaid, return receipt requested, (c)
a
nationally recognized overnight courier service with confirmation of receipt
or
(d) facsimile transmission with confirmation of receipt. All such notices must
be addressed as follows or such other address as to which any party hereto
may
have notified the other in writing. For the purpose of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be
in
writing and shall be deemed to have been duly given when delivered or (unless
otherwise specified) mailed by United States certified or registered mail,
return receipt requested, postage prepared, addressed as follows:
To
the
Company:
0
Xxxxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxx Xxxxxxx
To
Executive:
Xxxxx
Xxxxxxxxx
000
Xxxx
000 Xxxxx
Xxxx,
Xxxx 00000
or
to
such other address as any party may have furnished to the others in writing
in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
10.
Miscellaneous.
No
provisions of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by Executive
and such officer of the Company as may be specifically designated by the Chief
Executive Officer of the Company. No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition
or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any
prior or subsequent time. No agreements or representations, oral or otherwise
express or implied, with respect to the subject matter hereof have been made
by
either party which are not set forth expressly in this Agreement.
11.
Validity.
The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
12.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together shall constitute one and
the
same instrument.
13.
Entire Agreement.
This
Agreement sets forth the entire agreement of the parties hereto in respect
of
the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto; and any prior agreement of the parties hereto in respect
of
the subject matter contained herein is hereby terminated and
canceled.
14.
Governing Law.
This
Agreement , the entire relationship of the parties hereto, and any litigation
between the parties (whether grounded in contract, tort, statute, law or equity)
shall be governed by, construed in accordance with, and interpreted pursuant
to
the laws of the State of Texas, without giving effect to its choice of laws
principles. Exclusive venue for any litigation between the parties hereto shall
be in Xxxxxx County, Texas, and shall be brought in the State District Courts
of
Xxxxxx County, Texas, or in the United States District Court for the Southern
District of Texas, Houston Division. The parties hereto waive any challenge
to
personal jurisdiction or venue (including without limitation a challenge based
on inconvenience) in Xxxxxx County, Texas, and specifically consent to the
jurisdiction of the State District Courts of Xxxxxx County and the United States
District Court for the Southern District of Texas, Houston
Division.
[signatures
appear on the following page]
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date and year
first above written.
|
COMPANY:
TRULITE,
INC.
By:
 Name:
Xxxx Xxxxxxx
Title:
President
EXECUTIVE:
 Xxxxx
Xxxxxxxxx
|
