Exhibit 10.12
SUBSCRIPTION AGREEMENT
Chiste Corporation, a Nevada corporation ("Company"), and the investor
specified on the signature page hereto ("Investor"), together hereby agree as
follows:
1. Subscription for Securities. Investor hereby subscribes for and agrees to
purchase the number of shares of Series B Convertible Preferred Stock
("Preferred Stock") of the Company, as set forth on the signature page hereto,
upon the terms and conditions described in this Agreement. The price per-share
of Preferred Stock is $33.086191. Each share of Preferred Stock will be
convertible into 185.35215 shares of common stock of the Company, subject to
adjustment, including the proposed one-for-25 reverse split, after which each
share of Preferred Stock will convert into 7.4140860 shares of common stock of
the Company ("Common Stock").
The Preferred Stock is being offered in a private placement in accordance
with the terms set forth in this Agreement. For information about the Company
and its reorganization which includes the acquisition of HydroGen, LLC, an Ohio
limited liability company ("HydroGen"), the Investor is being provided a copy of
a Confidential Private Placement Memorandum dated May 13, 2005 ("Memorandum")
prepared by HydroGen, on which the Investor may rely. Battenkill Capital Inc.
("Battenkill") is acting as exclusive placement agent for the offering by the
Company, and HydroGen has agreed to pay Battenkill a fee for the investment by
the Investor, in an amount equal to the fee described in the Memorandum due in
respect of the units being sold in the HydroGen offering.
In connection with the offering of the units by HydroGen and as a
condition to the consummation of the HydroGen offering, HydroGen will be
acquired by the Company by an exchange ("Exchange") of the HydroGen membership
units for shares of the Preferred Stock, pursuant to an Exchange Agreement, a
form of which is included in the Memorandum and a copy of which the Investor
acknowledges receipt ("Exchange Agreement").
As a further condition to the consummation of the offering by HydroGen,
after the Exchange, there will be an investment in the Company by one or more
related institutional investors of not less than $7,000,000, of which the
investment by the Investor is a part, such that their aggregate investment
("Institutional Investment") combined with the minimum amount of the offering by
HydroGen will aggregate not less than $12,000,000 being invested, in cash, in
the Company and HydroGen (excluding any membership units sold upon conversion of
HydroGen debt). The investment by the institutional investors will be contingent
on subscriptions for the minimum offering amount for the HydroGen offering of
units as described in the Memorandum being received in escrow by HydroGen prior
to the Exchange. The subscriptions in the offering by HydroGen will be governed
by separate investment agreements which may have different terms than this
Agreement.
Officers and directors of the Company, HydroGen and Battenkill and any
dealers selected by Battenkill may purchase securities in the offering by
HydroGen. Such securities will count towards the minimum. HydroGen also will
permit holders of 6% Convertible Promissory Notes to convert their notes into
securities in the offering, but these will not count towards the minimum.
2. Investor Delivery of Documents and Payment. The Investor hereby tenders to
the Company (i) one manually executed copy of this Agreement with the
appropriate questionnaires therein completed, and (ii) the completed NASD
questionnaire attached to this Agreement and (iii) the aggregate purchase price
of $2,443,018.17 for the shares of Preferred Stock being purchased hereunder
("Purchase Price"). The date of the tender of the this Subscription Agreement
and the Purchase Price shall be referred to as the "Closing." The Closing of the
purchase of the shares of Preferred Stock will be deemed to occur at the offices
of Xxxxxxxx Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
3. Sale of the Preferred Stock
3.1. Sale of the Preferred Stock to the Investor. Subject in all respects
to the satisfaction of the terms and conditions herein set forth and in reliance
upon the respective representations and warranties of the parties set forth
herein or in any document delivered pursuant hereto, the Company agrees to sell
to the Investor the number of shares of Preferred Stock, free and clear of all
liens, at the Closing hereof, as set forth in the signature page attached
hereto. Subject in all respects to the satisfaction of the terms and conditions
to the Closing herein set forth and in reliance upon the respective
representations and warranties of the parties set forth herein or in any
document delivered pursuant hereto, the Investor agrees to purchase from the
Company, at the Closing, the number of shares of Preferred Stock set forth
opposite such Investor's name on the signature page hereto.
3.2. Delivery of the Shares of Preferred Stock. At the Closing, the
Company will deliver to the Investor one or more certificates, duly executed and
registered in such Investor's name, representing shares of Preferred Stock that
the Investor is purchasing hereunder, against payment by such Investor to the
Company, by wire transfer of funds, of the Purchase Price.
3.3. Payment. Payment for the Preferred Stock will be made by wire
transfer to the account of the wholly owned subsidiary of the Company, HydroGen
LLC, at the following:
National City Bank
ABA #000000000
For the Account of HydroGen LLC
A/C 657638180
4. Conditions to Issuance
4.1. Closing. The obligation of the Investor to purchase such Investor's
number of shares of Preferred Stock being purchased at the Closing is subject to
the fulfillment to the Investor's satisfaction of each of the following
conditions:
(a) Representations and Covenants. The representations and
warranties made by the Company in Section 7 hereof shall be true and correct in
all material respects, all covenants, agreements and conditions contained in
this Subscription Agreement to be performed or complied with by the Company
prior to the Closing shall have been performed or complied with (or waived by
the Investor), and the Company shall have obtained any approvals, consents and
qualifications necessary to perform its obligations hereunder.
(b) Compliance Certificate. The Company shall have delivered to the
Investor at the Closing a certificate signed on its behalf by its President
certifying that the conditions specified in Section 4.1 hereof have been
fulfilled.
(c) Secretary's Certificate. At the Closing, the Company shall have
delivered to the Investor copies of each of the following, in each case
certified by the Secretary of the Company to be in full force and effect on the
date of the Closing.
(i) The articles of incorporation of the Company as of the
Closing certified by the Secretary of State as of a date not more than five (5)
days prior to the Closing;
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(ii) A good standing certificate with respect to the Company
certified by the Secretary of State as of a date not more than ten (10) days
prior to the Closing;
(iii) The by-laws of the Company; and
(iv) Resolutions of the Board and, as necessary, the
shareholders of the Company, the form and substance of which are satisfactory to
the Investor, authorizing the adoption, approval, execution and filing of the
Articles, and authorizing the execution, delivery and performance of this
Agreement and the related agreements, and the transactions contemplated hereby
and thereby, including the issuance and sale of the shares of Preferred Stock
and the reservation of Common Stock for issuance upon conversion of the
Preferred Stock.
(d) Registration Rights Agreement. At or prior to the Closing, the
Company and the Investor shall have executed and delivered the Registration
Rights Agreement.
(e) Sale of Preferred Stock. At or prior to the Closing, HydroGen
shall have sold securities for not less than $5,000,000 that convert into
Preferred Stock at an equivalent price of not less than $33.086191 per share in
addition to the shares to be sold hereunder, which amount will be held in an
escrow account maintained by Battenkill Capital, Inc.
(f) Legal Opinion. The Company shall have delivered to the Investor
the opinion of Xxxxxxxx Xxxxxx, counsel to the Company, with respect to such
matters as the Investor may reasonably request, dated the date of the Closing,
in form and substance reasonably satisfactory to the Investor.
(g) Fees and Expenses. The Company shall pay an amount equal to 50%
of the total fees and expenses of the Investor's outside legal counsel;
provided, however, that the Company in no event shall be required to pay an
amount in excess of $25,000.
(h) Legal Investment. As of the Closing, the purchase of the
Preferred Stock by the Investor shall be legally permitted by all laws and
regulations to which each of the Investor and the Company is subject.
(i) Qualifications. As of the Closing, all authorizations, approvals
or permits of, or filings with any governmental authority, including state
securities or "Blue Sky" offices, that are required by law in connection with
the lawful sale and issuance of Preferred Stock shall have been duly obtained by
the Company, and shall be effective as of the Closing.
(j) Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated hereby and by the related
agreements, and all documents and instruments incident to such transactions,
shall be satisfactory in form and substance to the Investor.
5. Offering to Accredited Investors. The subscription represented by this
Agreement is limited to accredited investors as defined in Section 2(15) of the
Securities Act of 1933, as amended ("Securities Act"), and Rule 501 promulgated
thereunder, and is being made without registration under the Securities Act in
reliance upon the exemptions contained in Sections 3(b), 4(2) and/or 4(6) of the
Securities Act and applicable state securities laws. As indicated by the
responses on the signature page hereof, the Investor is an accredited investor
within the meaning of Section 2(15) of the Securities Act and Rule 501
promulgated thereunder.
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6. Investor Representations and Warranties.
6.1. Investor Representations. In order to induce the Company to issue and
sell the Preferred Stock to the Investor and thereafter issue to it the Common
Stock upon its conversion, it represents and warrants that the information
relating to it stated herein is true and complete as of the date hereof. If such
information is incorrect or incomplete, the Investor agrees to notify the
Company and supply the Company promptly with corrective information.
6.2. Information About the Company and HydroGen. The Investor has read
this Agreement, the Exchange Act Documents (as hereinafter defined), the
Memorandum relating to the HydroGen offering and all exhibits listed therein and
fully understands the Memorandum, including the "Risk Factors" contained
therein. The Investor understands the nature of the exchange transaction between
the Company and HydroGen and the prospective business of the Company after the
Exchange. The Investor has been given access to information regarding the
Company and HydroGen and has utilized such access to its satisfaction for the
purpose of making its investment decision, and the Investor has either met with
or been given reasonable opportunity to meet with officers of the Company for
the purpose of asking reasonable questions of such officers concerning the terms
and conditions of the offering of the Preferred Stock and the business and
operations of the Company and HydroGen. The Investor also has been given an
opportunity to obtain any additional relevant information to the extent
reasonably available to the Company and HydroGen. The Investor has received all
information and materials regarding the Company and HydroGen that has been
reasonably requested. After the Investor's reading of the materials about the
Company and HydroGen, it understands that there is no assurance as to the future
performance of the Company and HydroGen.
6.3. Speculative Investment. The Investor is aware that the Preferred
Stock and Common Stock into which the Preferred Stock is convertible represents
a speculative investment that involves a high degree of risk including, but not
limited to, the risk of losses from operations of the Company and the total loss
of the Investor's investment. The Investor has the knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Preferred Stock and Common Stock into which it may
be converted. The Investor has not utilized any person as the Investor's
purchaser representative (as defined in Regulation D) in connection with
evaluating such merits and risks and has relied solely upon its own
investigation in making a decision to invest in the Company. The Investor
believes that the investment in the Preferred Stock and subsequently the Common
Stock) is appropriate to the investment objectives of the Investor and complies
with the limitations of the investment strategies of the Investor.
6.4. Restrictions on Transfer. The Investor understands that (i) the
Preferred Stock and upon the conversion the Common Stock has not been registered
under the Securities Act or the securities laws of any state in reliance on
specific exemptions from registration, (ii) no securities administrator of any
state or the federal government has recommended or endorsed this offering or
made any finding or determination relating to the fairness of an investment in
the Company, and (iii) the Company is relying on the Investor representations
and agreements for the purpose of determining whether this transaction meets the
requirements of the exemptions afforded by the Securities Act and state
securities laws. Other than as set forth herein and in the Registration Rights
Agreement, the Investor acknowledges that there is no assurance that the Company
will file any registration statement for the securities being purchased, that
such registration statement, if filed, will be declared effective or, if
declared effective, that the Company will be able to keep it effective until the
securities registered thereon are sold.
6.5. Investment Representation. The Investor is purchasing the Preferred
Stock and will subsequently acquire the Common Stock for its own account for
investment and not with a view to, or for sale in connection with, any
subsequent distribution of the securities, nor with any present intention of
selling or otherwise disposing of all or any part of the securities. The
Investor understands that, although there is a public market for Common Stock of
the Company, there is no assurance that such market will continue. The Investor
understands and agrees that the Preferred Stock and Common Stock cannot be
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resold, pledged, assigned or otherwise disposed of unless they are subsequently
registered under the Securities Act and under applicable securities laws of
certain states, or an exemption from such registration is available. The
Investor understands that, except as set forth herein and in the Registration
Rights Agreement, the Company is under no obligation to register the securities
or to assist the Investor in complying with any exemption from such registration
under the Securities Act or any state securities laws. The Investor hereby
authorizes the Company to place a legend denoting the restrictions on the
certificates representing the Preferred Stock and Common Stock.
6.6. Entity Authority. The Investor represents that it is either a
corporation, partnership, company, trust, employee benefit plan, individual
retirement account, Xxxxx Plan or other tax-exempt entity, and pursuant to its
constituent documents it is authorized and qualified to become an investor in
the Company, and the person(s) signing this Agreement on behalf of such entity
has been duly authorized by such entity to do so.
6.7. For Florida Residents. None of the Units, Preferred Stock and
Common Stock have been registered under the Securities Act of 1933, as amended,
or the Florida Securities Act, by reason of specific exemptions thereunder
relating to the limited availability of the offering. The Units, Preferred Stock
and Common Stock cannot be sold, transferred or otherwise disposed of to any
person or entity unless subsequently registered under the Securities Act of
1933, as amended, or the Securities Act of Florida, if such registration is
required. Pursuant to Section 517.061(11) of the Florida Securities Act, when
sales are made to five (5) or more persons in Florida, any sale made pursuant to
Subsection 517.061(11) of the Florida Securities Act will be voidable by such
Florida purchaser either within three days after the first tender of
consideration is made by the purchaser to the issuer, an agent of the issuer, or
an escrow agent, or within three days after the availability of the privilege is
communicated to such purchaser, whichever occurs later. In addition, as required
by Section 517.061(11)(a)(3), Florida Statutes and by Rule 3-500.05(a)
thereunder, if I am a Florida resident I may have, at the offices of the
Company, at any reasonable hour, after reasonable notice, access to the
materials set forth in the Rule that the Company can obtain without unreasonable
effort or expense.
7. Company Representations. In order to induce the Investor to purchase the
Preferred Stock, the Company represents and warrants to the Investor the
representations and warranties set forth in this section.
7.1. Organization. The Company is duly organized and validly existing in
good standing under the laws of the State of Nevada. The Company has two wholly
owned subsidiaries, ICON Acquisition Inc., a Delaware corporation ("ICON"), and
HydroGen, each of which is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. Together ICON and HydroGen
are referred to as the Subsidiaries. Each of the Company and its Subsidiaries
has full power and authority to own, operate and occupy its properties and to
conduct its business as presently conducted and as described in the documents
filed by the Company under the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder (the "Exchange Act"), for the
12 months prior to the date hereof, including, without limitation, its most
recent report for the year ended March 31, 2005 on Form 10-KSB (the "Exchange
Act Documents") and is registered or qualified to do business and in good
standing in each jurisdiction in which the nature of the business conducted by
it or the location of the properties owned or leased by it requires such
qualification and where the failure to be so qualified would have a material
adverse effect upon the condition (financial or otherwise), earnings, business,
properties or operations of the Company and its Subsidiaries, considered as one
enterprise (a "Material Adverse Effect"), and no proceeding has been instituted
in any such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification.
7.2. Capitalization.
(a) The authorized capital stock of the Company consists of
65,000,000 shares of common stock, par value $0.001 per share ("Common Stock")
and 10,000,000 shares of preferred stock, par value $0.001 per share, of which
1,500,000 shares will be designated as Preferred Stock pursuant to the
Certificate of Designations of Series B Convertible Preferred Stock. At the
close of business on the business day prior to the date hereof, (i) 9,396,629
shares of Common Stock were issued and outstanding, all of which are validly
issued, fully paid and non-assessable; (ii) 953.827 shares of Preferred Stock
were issued and outstanding; (iii) 8,558,600 shares (pre-split) of Common Stock
were reserved for issuance upon the exercise of outstanding options to purchase
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Company Common Stock granted to certain employees of Company or other parties
("Company Stock Options"); (iv) 2,400,000 shares of Common Stock were reserved
for issuance upon the exercise of outstanding warrants to purchase Common Stock
("Chiste Warrants"); and (v) no shares of Common Stock were reserved for
issuance upon any outstanding convertible notes, debentures or securities
("Convertible Securities"). All shares of Common Stock subject to issuance as
aforesaid, upon issuance on the terms and conditions specified in the instrument
pursuant to which they are issuable, will be duly authorized, validly issued,
fully paid and non-assessable. All outstanding shares of Common Stock and all
outstanding Chiste Warrants have been issued and granted in compliance with (i)
all applicable securities laws and (in all material respects) other applicable
laws and regulations, and (ii) all requirements set forth in any applicable
contracts. The Preferred Stock, subject to the approval of Chiste's stockholders
which in any case shall be required to have occurred subsequent to the Closing
("Stockholder Approval"): (i) shall be convertible into 185.35215 shares of
Common Stock for each share of Preferred Stock, subject to adjustment for a
proposed reverse split at the rate of one for 25 shares of Common Stock, with
odd lot protection ("Conversion Shares"). Upon the issuance of the shares of the
Preferred Stock, and, subject to the Stockholder Approval, the Conversion Shares
issuable upon conversion thereof, when issued, will be validly issued, fully
paid and non-assessable.
(b) Except as contemplated by this Agreement and for the
registration rights held by investors in HydroGen before the Exchange and as
disclosed in the Exchange Act Documents and the Memorandum, there are no
registration rights, and there is no voting trust, proxy, rights plan,
antitakeover plan or other agreement or understanding to which Chiste, or any of
its shareholders known to Chiste, is a party or by which it is bound with
respect to any equity security of any class of Chiste.
7.3. Due Authorization and Valid Issuance. The Company has all requisite
power and authority to execute, deliver and perform its obligations under this
Agreement and the Registration Rights Agreement (together "Investor
Agreements"), and the Investor Agreements have been duly authorized and validly
executed and delivered by the Company and constitute legal, valid and binding
agreements of the Company enforceable against the Company in accordance with
their terms, except as rights to indemnity and contribution may be limited by
state or federal securities laws or the public policy underlying such laws,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and as they are subject to interpretation by
courts and governmental agencies, arbitration panels or authorities applicable
to the Company or its Subsidiaries. The Preferred Stock being purchased by the
Investor hereunder and the Conversion Shares issuable pursuant to the Preferred
Stock, upon issue pursuant to the terms thereof, will be duly authorized,
validly issued, fully-paid and non-assessable.
7.4. Non-Contravention. The execution and delivery of the Agreements, the
issuance and sale of the Preferred Stock under this Agreement and the Conversion
Shares pursuant to the Preferred Stock, the fulfillment of the terms of the
Investor Agreements and the consummation of the transactions contemplated
thereby will not (A) conflict with or constitute a violation of, or default
(with the passage of time or otherwise) under, (i) any material bond, debenture,
note or other evidence of indebtedness, lease, contract, indenture, mortgage,
deed of trust, loan agreement, joint venture or other agreement or instrument to
which the Company or any Subsidiary is a party or by which it or any of its
Subsidiaries or their respective properties are bound, (ii) the charter, by-laws
or other organizational documents of the Company or any Subsidiary, or (iii) any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary or their respective properties, except in the case of clauses (i) and
(iii) for any such conflicts, violations or defaults which are not reasonably
likely to have a Material Adverse Effect or (B) result in the creation or
imposition of any lien, encumbrance, claim, security interest or restriction
whatsoever upon any of the material properties or assets of the Company or any
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Subsidiary or an acceleration of indebtedness pursuant to any obligation,
agreement or condition contained in any material bond, debenture, note or any
other evidence of indebtedness or any material indenture, mortgage, deed of
trust or any other agreement or instrument to which the Company or any
Subsidiary is a party or by which any of them is bound or to which any of the
material property or assets of the Company or any Subsidiary is subject. Other
than and subject to shareholder consent for the reverse split of the Common
Stock and filings with the Securities and Exchange Commission and state
securities authorities and compliance with the requirements in respect thereof,
no consent, approval, authorization or other order of, or registration,
qualification or filing with, any regulatory body, administrative agency, or
other governmental body in the United States or any other person is required for
the execution and delivery of the Investor Agreements, and the valid issuance
and sale of the Preferred Stock to be sold pursuant to this Agreement, and the
valid issuance of the Conversion Shares under the Preferred Stock, other than
such as have been made or obtained.
7.5. Authorization of Shares. The Preferred Stock to be sold pursuant to
this Agreement, and the Conversion Shares to be issued pursuant to the Preferred
Stock, have been duly authorized, and when issued and paid for in accordance
with the terms of this Agreement and the terms of the Preferred Stock, as the
case may be, will be duly and validly issued, fully paid and non-assessable. The
outstanding shares of capital stock of the Company have been duly and validly
issued and are fully paid and non-assessable, have been issued in compliance
with all federal and state securities laws, and were not issued in violation of
any preemptive rights or similar rights to subscribe for or purchase securities.
Except as set forth in or contemplated by the Exchange Act Documents and
Schedule 1.1 to the Exchange Agreement, there are no outstanding rights
(including, without limitation, preemptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any un-issued
shares of capital stock or other equity interest in the Company or any
Subsidiary, or any contract, commitment, agreement, understanding or arrangement
of any kind to which the Company is a party or of which the Company has
knowledge and relating to the issuance or sale of any capital stock of the
Company or any Subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options. Without limiting the foregoing, no
preemptive right, co-sale right, right of first refusal, registration right, or
other similar right exists with respect to the Preferred Stock or the issuance
and sale thereof.
7.6. Ownership of Subsidiaries. The Company owns the entire equity
interest in each of its Subsidiaries as of the Closing, free and clear of any
pledge, lien, security interest, encumbrance, claim, assessment or equitable
interest, other than as described in the Exchange Act Documents and the
Memorandum. Except as disclosed in the Exchange Act Documents, the Memorandum
and this Agreement about various subscription agreements and voting agreements
with the former members of HydroGen and Xxxxxxx Reverse Merger Fund, LLC ("KRM")
, there are no stockholders agreements, voting agreements or other similar
agreements with respect to the Common Stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the Company's
stockholders.
7.7. Legal Proceedings. There is no material legal or governmental
proceeding pending or, to the knowledge of the Company, threatened to which the
Company or any Subsidiary is or may be a party or of which the business or
property of the Company or any Subsidiary is subject that is not disclosed in
the Exchange Act Documents and the Memorandum. There are no disagreements of any
kind presently existing, or reasonably anticipated by the Company to arise,
between the accountants and lawyers formerly or presently employed by the
Company or its Subsidiaries and the Company and its Subsidiaries is current with
respect to any fees owed to its accountants and lawyers.
7.8. No Violations. Neither the Company nor any Subsidiary is in violation
of its charter, bylaws, or other organizational document, or in violation of any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or any
Subsidiary, which violation, individually or in the aggregate, would be
reasonably likely to have a Material Adverse Effect, or is in default (and there
exists no condition which, with the passage of time or otherwise, would
constitute a default) in any material respect in the performance of any bond,
debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other material agreement or instrument to which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound or by which the properties of the Company or any Subsidiary
are bound, which would be reasonably likely to have a Material Adverse Effect.
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7.9. Governmental Permits, Etc. With the exception of the matters which
are dealt with separately in Sections 7.1, 7.2, 7.8, 7.10, 7.12, 7.15, 7.20 and
7.23, each of the Company and its Subsidiaries has all necessary franchises,
licenses, certificates and other authorizations from any foreign, federal, state
or local government or governmental agency, department, or body that are
currently necessary for the operation of the business of the Company and its
Subsidiaries as currently conducted and as described in the Exchange Act
Documents and the Memorandum, except where the failure to currently possess
could not reasonably be expected to have a Material Adverse Effect.
7.10. Intellectual Property. Except as specifically disclosed in the
Exchange Act Documents and the Memorandum, (i) to the Company's knowledge, each
of the Company and its Subsidiaries owns or possesses sufficient rights to
conduct its business in the ordinary course, including, without limitation,
rights to use all material patents, patent rights, industry standards,
trademarks, copyrights, licenses, inventions, trade secrets, trade names and
know-how (collectively, "Intellectual Property") described or referred to in the
Exchange Act Documents and the Memorandum as owned or possessed by it or that
are necessary for the conduct of its business as now conducted or as proposed to
be conducted except where the failure to currently own or possess would not have
a Material Adverse Effect, (ii) to the Company's knowledge, neither the Company
nor any of its Subsidiaries is infringing, or has received any notice of, or has
any knowledge of, any asserted infringement by the Company or any of its
Subsidiaries of, any rights of a third party with respect to any Intellectual
Property that, individually or in the aggregate, would have a Material Adverse
Effect, and (iii) neither the Company nor any of its Subsidiaries has received
any written notice of, or has any actual knowledge of, infringement by a third
party with respect to any Intellectual Property rights of the Company or of any
Subsidiary that, individually or in the aggregate, would have a Material Adverse
Effect.
7.11. Labor Matters. The Company and its Subsidiaries are not a party to
any collective bargaining agreement or other labor union contract applicable to
persons employed by the Company nor does the Company know of any activities or
proceedings of any labor union to organize any such employees.
7.12. Restrictions on Business Activities. Except as described in the
Exchange Act Documents and the Memorandum, there is no agreement, commitment,
judgment, injunction, order or decree binding upon the Company or its
Subsidiaries or to which the Company or its Subsidiaries is a party which has or
could reasonably be expected to have the effect of prohibiting or materially
impairing any business practice of Company and its Subsidiaries, any acquisition
of property by Company or its Subsidiaries or the conduct of business by Company
and its Subsidiaries as currently conducted other than such effects,
individually or in the aggregate, which have not had and could not reasonably be
expected to have a Material Adverse Effect on Company as a whole.
7.13. Title to Property.
(a) All leases of personal property held by Company and its
Subsidiaries and all personal property and other property and assets of Company
and its Subsidiaries (other than real property) owned, used or held for use in
connection with the business of Company as a whole (the "Personal Property")
obligating the Company and its Subsidiaries to make annual payments in excess of
$25,000 are shown or reflected on the financial statements of the Company and
HydroGen included in the Exchange Act Documents or the Memorandum. To its
knowledge, the Company and HydroGen own and have good and marketable title to
the Personal Property, and all such assets and properties are in each case held
free and clear of all liens, except for liens disclosed in the financial
statements of Company or HydroGen included in the Exchange Act Documents or the
Memorandum, none of which liens has or will have, individually or in the
aggregate, a Material Adverse Effect on such property or on the present or
contemplated use of such property in the businesses of Company as a whole.
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(b) The Company, through its subsidiary, HydroGen, has a
month-to-month lease for the premises at 0000 Xxxxx 00 Xxxxx, Xxxxxxxxx Xxxxx,
Xxxxxxxxxxxx, and no other leases for real property. To Company's and HydroGen's
knowledge, all leases pursuant to which Company or HydroGen leases from others
material real or personal property are valid and effective in accordance with
their respective terms, and there is not, under any of such leases, any existing
material default or event of default of the Company or HydroGen or, to Company's
or HydroGen's knowledge, any other party (or any event which with notice or
lapse of time, or both, would constitute a material default), except where the
lack of such validity and effectiveness or the existence of such default or
event of default could not reasonably be expected to have a Material Adverse
Effect on Company as a whole.
7.14. Environmental Matters. Except as disclosed in the Exchange Act
Documents and the Memorandum and except for such matters that, individually or
in the aggregate, are not reasonably likely to have a Material Adverse Effect,
to Company's knowledge: (i) Company and its Subsidiaries have complied with all
applicable Environmental Laws; (ii) the properties currently owned or operated
by Company (including soils, groundwater, surface water, buildings or other
structures) are not contaminated with any Hazardous Substances; (iii) the
properties formerly owned or operated by Company or its Subsidiaries were not
contaminated with Hazardous Substances during the period of ownership or
operation by Company and its Subsidiaries; (iv) Company and its Subsidiaries are
not subject to liability for any Hazardous Substance disposal or contamination
on any third party property; (v) Company and its Subsidiaries have not been
associated with any release or threat of release of any Hazardous Substance;
(vi) Company and its Subsidiaries have not received any notice, demand, letter,
claim or request for information alleging that Company and its Subsidiaries may
be in violation of or liable under any Environmental Law; and (vii) Company and
its Subsidiaries are not subject to any orders, decrees, injunctions or other
arrangements with any Governmental Entity or subject to any indemnity or other
agreement with any third party relating to liability under any Environmental Law
or relating to Hazardous Substances.
As used in this Subscription Agreement, the term "Environmental Law" means
any federal, state, local or foreign law, regulation, order, decree, permit,
authorization, opinion, common law or agency requirement relating to: (A) the
protection, investigation or restoration of the environment, health and safety,
or natural resources; (B) the handling, use, presence, disposal, release or
threatened release of any Hazardous Substance or (C) noise, odor, wetlands,
pollution, contamination or any injury or threat of injury to persons or
property.
As used in this Subscription Agreement, the term "Hazardous Substance"
means any substance that is: (i) listed, classified or regulated pursuant to any
Environmental Law; (ii) any petroleum product or by-product, asbestos-containing
material, lead-containing paint or plumbing, polychlorinated biphenyls,
radioactive materials or radon; or (iii) any other substance which is the
subject of regulatory action by any Governmental Entity pursuant to any
Environmental Law.
7.15. Financial Statements.
(a) The financial statements of the Company and the related notes
contained in the Exchange Act Documents present fairly, in accordance with
generally accepted accounting principles, the financial position of the Company
and its subsidiaries as of the dates indicated, and the results of its
operations and cash flows for the periods therein specified consistent with the
books and records of the Company and its subsidiaries except that any unaudited
interim financial statements were or are subject to normal and recurring
year-end adjustments which are not expected to be material in amount. The
financial statements of HydroGen and related notes contained in the Memorandum
present fairly, in accordance with generally accepted accounting principles, the
financial position of HydroGen as of the dates indicated and the results of
operations and cash flows for the periods therein specified consistent with the
books and records of HydroGen, except that any unaudited financial statements
9
were or are subject to normal and recurring year-end adjustments, which are not
expected to be material in amount. The Company and subsidiary financial
statements (including the related notes) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods therein specified, except as may be disclosed in the
notes to such financial statements, or in the case of unaudited statements, as
may be permitted by the Securities and Exchange Commission (the "SEC") on Form
10-QSB under the Exchange Act and except as disclosed in the Exchange Act
Documents. The HydroGen financial statements (including the related notes) have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods therein specified, except
as may be disclosed in the notes to such financial statements. The other
financial information contained in the Exchange Act Documents and Memorandum has
been prepared on a basis consistent with the financial statements of the Company
and HydroGen, respectively.
(b) Except as set forth in any Exchange Act Documents and
Memorandum, there are no obligations of the Company or HydroGen to officers,
directors, stockholders or employees of the Company or HydroGen other than (i)
for payment of salary for services rendered and for bonus payments; (ii)
reimbursements for reasonable expenses incurred on behalf of the Company or
HydroGen; (iii) for other standard employee benefits made generally available to
all employees (including stock option agreements outstanding under any stock
option plan approved by the Board of Directors of the Company); and (iv)
obligations listed in the Company's and HydroGen's financial statements. Except
as described above or in any Exchange Act Filings and the Memorandum, none of
the officers, directors or, to the best of the Company's or HydroGen's
knowledge, key employees or stockholders of the Company or of HydroGen or any
members of their immediate families, are indebted to the Company or HydroGen,
individually or in the aggregate, in excess of $60,000 or have any direct or
indirect ownership interest in any firm or corporation with which the Company or
HydroGen is affiliated or with which the Company or HydroGen has a business
relationship, or any firm or corporation which competes with the Company or
HydroGen, other than passive investments in publicly traded companies
(representing less than one percent (1%) of such company) which may compete with
the Company or HydroGen. Except as described above, no officer, director or
stockholder, or any member of their immediate families, is, directly or
indirectly, interested in any material contract with the Company or HydroGen and
no agreements, understandings or proposed transactions are contemplated between
the Company or HydroGen and any such person. Except as set forth in any Exchange
Act Documents and the Memorandum, the Company and HydroGen are not a guarantor
or indemnitor of any indebtedness of any other person, firm or corporation.
7.16. No Material Adverse Change. Except as disclosed in the Exchange Act
Documents and the Memorandum, since March 31, 2005 in respect of the Company and
since December 31, 2004 in respect of HydroGen, there has not been (i) any
material adverse change in the financial condition or earnings of the Company or
its Subsidiaries, (ii) any material adverse event affecting the Company or its
Subsidiaries, (iii) any obligation, direct or contingent, that is material to
the Company or its Subsidiaries, incurred by the Company or its subsidiaries,
except obligations incurred in the ordinary course of business, (iv) any
dividend or distribution of any kind declared, paid or made on the capital stock
of the Company or any of its Subsidiaries, or (v) any loss or damage (whether or
not insured) to the physical property of the Company or any of its Subsidiaries
which has been sustained which has a Material Adverse Effect.
7.17. Reporting Status. The Company has filed in a timely manner all
documents that the Company was required to file under the Exchange Act during
the 12 months preceding the date of this Agreement. The following documents
complied in all material respects with the SEC's requirements as of their
respective filing dates, and the information contained therein as of the date
thereof did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading:
(a) Annual Report on Form 10-KSB for the year ended March 31, 2005,
Quarterly Reports on Form 10-QSB for the quarters ended June 30, 2004, September
30, 2004, and December 31, 2004; and
10
(b) all other documents, if any, filed by the Company with the SEC
during the one-year period preceding the date of this Agreement pursuant to the
reporting requirements of the Exchange Act.
7.18. Contracts. The contracts described in the Exchange Act Documents and
Memorandum that are material to the Company and its Subsidiaries are in full
force and effect on the date hereof, and neither the Company nor, to the
Company's knowledge, any other party to such contracts is in breach of or
default under any of such contracts which would have a Material Adverse Effect.
The Company has filed with the SEC all contracts and agreements required to be
filed by the Exchange Act prior to the date of this Subscription Agreement.
7.19. Taxes. The Company and its Subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns when due (or
obtained appropriate extensions for filing) and has paid or accrued all taxes
shown as due thereon, and the Company has no knowledge of a tax deficiency which
has been or might be asserted or threatened against it or any Subsidiary which
would have a Material Adverse Effect.
7.20. Transfer Taxes. On the Closing Date, all stock transfer or other
taxes (other than income taxes) which are required to be paid in connection with
the sale and transfer of the Preferred Stock to be sold to the Investor
hereunder will be, or will have been, fully paid or provided for by they Company
and all laws imposing such taxes will be or will have been fully complied with.
Upon the issuance of the Conversion Shares pursuant to the terms of the
Preferred Stock all stock transfer or other taxes (other than income taxes)
which are required to be paid in connection therewith will be, or will have
been, fully paid or provided for by the Company and all laws imposing such taxes
will be or will have been fully complied with.
7.21. Private Offering. Assuming the correctness of the representations
and warranties of the Investor set forth in this Subscription Agreement, the
offer and sale of Preferred Stock hereunder is, and upon conversion of the
Preferred Stock, the issuance of the Conversion Shares will be, exempt from
registration under the Securities Act of 1933, as amended ("Securities Act").
The Company and HydroGen have not distributed and will not distribute prior to
the Closing any offering material in connection with this Subscription Agreement
and HydroGen offering described in the Memorandum other than the documents of
which this Subscription Agreement is a part or the Exchange Act Documents or
Memorandum. Neither the Company nor any person acting on behalf of the Company
or HydroGen has offered or sold any of the Shares by any form of general
solicitation or general advertising. Except for the members of HydroGen, the
Company has offered the Preferred Stock for sale only to the Investors and
certain other "accredited investors" within the meaning of Rule 501 under the
Securities Act.
7.22. Disclosure Controls and Procedures. The Company is in material
compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 which are
applicable to it as of the Closing Date. The Company maintains a system of
internal control over financial reporting (as such term is defined in the
Exchange Act ) sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management's general or specific authorization,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company's certifying officers are
responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act) for the Company and they have (a) designed such
disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under their supervision, to ensure that material
information relating to the Company, is made known to the certifying officers by
others within those entities, particularly during the periods in which the
Exchange Act Documents have been prepared; (b) evaluated the effectiveness of
the Company's disclosure controls and procedures and presented in the applicable
Exchange Act Documents their conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the periods covered by such
Exchange Act Documents based on such evaluation; and (c) since the last
evaluation date referred to in (b) above, there have been no material changes in
the Company's internal control over financial reporting (as such term is defined
in the Exchange Act) or, to the Company's knowledge, in other factors that could
significantly affect the Company's internal control over financial reporting.
11
7.23. Disclosure. The representations and warranties of the Company
contained in this Section 7 and the Memorandum as of the date hereof, do not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Company understands and confirms that Investor will rely on the foregoing
representations in effecting transactions in securities of the Company.
7.24. ERISA. Neither the Company nor any ERISA Affiliate maintains,
contributes to or has any liability or contingent liability with respect to any
employee benefit plan subject to ERISA.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"ERISA Affiliate" means any Person (including any trade or business,
whether or not incorporated) that would be deemed to be under "common control"
with, or a member of the same "controlled group" as, the Company or any
Subsidiary, within the meaning of Sections 414(b), (c), (m) or (o) of the Code
or Section 4001 of ERISA.
7.25. Regulated Industries. Neither the Company nor any Subsidiary is (i)
an "investment company," a company "controlled" by an "investment company," or
an "investment advisor," within the meaning of the Investment Company Act of
1940, as amended, or (ii) a "holding company," a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.26. Insurance. The assets, properties and business of the Company and
each of its Subsidiaries are insured against such hazards and liabilities, under
such coverages and in such amounts, as are customarily maintained by prudent
companies similarly situated and under policies issued by insurers of recognized
responsibility.
7.27. Foreign Assets Control Regulations and Anti-Money Laundering.
(a) OFAC. Neither the issuance of the Preferred Stock to the
Investor, nor the use of the respective proceeds thereof, shall cause the
Investors to violate the U.S. Bank Secrecy Act, as amended, and any applicable
regulations thereunder or any of the sanctions programs administered by the U.S.
Department of the Treasury's Office of Foreign Assets Control ("OFAC") of the
United States Department of Treasury, any regulations promulgated thereunder by
OFAC or under any affiliated or successor governmental or quasi-governmental
office, bureau or agency and any enabling legislation or executive order
relating thereto. Without limiting the foregoing, neither the Company nor any
Subsidiary (i) is a person whose property or interests in property are blocked
or subject to blocking pursuant to Section 1 of Executive Order 13224 of
September 23, 200l Blocking Property and Prohibiting Transactions With Persons
Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079
(2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of
such executive order, or is otherwise associated with any such person in any
manner violative of Section 2, or (iii) is a person on the list of Specially
Designated Nationals and Blocked Persons or subject to the limitations or
prohibitions under any other OFAC regulation or executive order.
12
(b) Patriot Act. Each of the Company and each of its Subsidiaries
are in compliance, in all material respects, with the Uniting and Strengthening
of America by Providing the Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001. No part of the proceeds of the Preferred Stock hereunder
will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.
8. Indemnification.
(a) The Company hereby agrees to indemnify and hold harmless the
Investor and any of its officers, directors, stockholders, employees, agents and
attorneys against any and all losses, claims, demand, liabilities, and expenses
(including reasonable legal or other expenses incurred by each such person in
connection with defending or investigating any such claims or liabilities,
whether or not resulting in any liability to such person or whether incurred by
the indemnified party in any action or proceeding between the indemnitor and
indemnified party or between the indemnified party and any third party) to which
any such indemnified party may become subject, insofar as such losses, claims,
demands, liabilities and expenses (a) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact made by the Company and
contained herein or (b) arise out of or are based upon any breach by the Company
of any representation, warranty or agreement made by them and contained herein.
(b) The Investor hereby agrees to indemnify and hold harmless the
Company, its officers, directors, stockholders, employees, agents and attorneys
against any and all losses, claims, demands, liabilities, and expenses
(including reasonable legal or other expenses incurred by each such person in
connection with defending or investigating any such claims or liabilities,
whether or not resulting in any liability to such person or whether incurred by
the indemnified party in any action or proceeding between the indemnitor and
indemnified party or between the indemnified party and any third party) to which
any such indemnified party may become subject, insofar as such losses, claims,
demands, liabilities and expenses (a) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact made by the Investor
and contained herein or (b) arise out of or are based upon any breach by the
Investor of any representation, warranty or agreement made by the Investor
contained herein.
9. Voting Agreement.
(a) During the period commencing on the Closing and terminating 90
days after the Closing, the Investor, in its capacity as a shareholder of the
Company, either by reason of the Preferred Stock or Common Stock acquired
hereunder(together the "Voting Shares"), agrees to vote or cause to be voted all
the Voting Shares directly or indirectly owned by the Investor or over which the
Investor has the beneficial ownership or the right to vote at any meeting of the
shareholders of the Company, and in any action by written consent of the
shareholders of the Company, in favor of a nominee of Xxxxxxx Reverse Merger
Fund, LLC ("KRM") to the board of directors of the Company, if such person is
agreed to and supported by the board of directors of the Company or nominated by
the board of directors of the Company. If the nominee of KRM is removed or
otherwise retires or resigns, then the Investor will act in accordance with the
above for any replacement nominee of KRM during such 90 day period. The Investor
agrees that the board of directors of the Company will consist of five persons
during the term of this provision and will not take any action to increase the
number of directors from five persons. Notwithstanding the foregoing, the
Investor will have no obligation to vote in favor of any nominee of KRM who has
been convicted of a felony or securities violation in the past five years.
13
(b) During the period commencing on the Closing and terminating on
the one year anniversary of the Closing, the Investor, in its capacity as a
shareholder of the Company, by reason of the Voting Shares, agrees to vote or
cause to be voted all the Voting Shares directly or indirectly owned by the
Investor or over which the Investor has the beneficial ownership or the right to
vote and acquired hereunder, at any meeting of the shareholders of the Company,
and in any action by written consent of the shareholders of the Company, (a) to
approve a 1 for 25 reverse stock split of the outstanding Common Stock of the
Company, which may include special treatment for certain of the Company
shareholders to preserve round lot stockholders ("Reverse Split"), (b) to
approve the change of the corporate name from Chiste Corporation to one
recommended by the board of directors to reflect the acquisition of HydroGen
("Name Change"), and (c) all other actions as shall be necessary in connection
with or related to the foregoing.
(c) The obligation of each Investor pursuant to paragraph (b) of
this Section 9, will terminate upon the consummation of the Reverse Split and
Name Change, including through the time of the filing of the amendment to the
articles of incorporation of the Company.
(d) If the Investor or any of its affiliates or nominee is a member
of the board of directors or an officer of the Company, nothing in this Section
9 will be deemed to limit or restrict the director or officer acting in its
capacity as a director or officer of the Company, as the case may be, and
exercising its fiduciary duties and responsibilities, it being agreed and
understood that this Section 9 shall apply to the Investor solely in its
capacity as a shareholder and not to his, her or its actions, judgments or
decisions as a director or officer of the Company.
10. Covenant Not to Xxx and Release.
(a) From and after the Closing, the Investor agrees, on behalf of
itself and its officers and directors that none of the Investor or its officers
and directors will assert, or assist in the assertion of, any claim or action
before any federal, state, local or foreign judicial, arbitration,
administrative, executive or other type of body or tribunal against the persons
serving immediately prior to the Exchange as officers and directors of the
Company, and their heirs, that is based in whole or in part on their actions as
an officer or director of the Company in connection with the sale of the
Preferred Stock, unless such claim or action is based on the gross negligence or
commission of fraud. The grants of immunity set forth in this section: (i) are
irrevocable and (ii) shall survive indefinitely, and (c) are binding on all
successors and assigns of the Investor.
(b) The Investor hereby agrees to unconditionally and irrevocably
release, exonerate, acquit and discharge the persons serving as officers and
directors of the Company in such positions immediately prior to the Exchange
(collectively, "Company Persons"), from any and all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, judgments, executions, claims, demands, counterclaims,
rights to damages and liabilities (collectively, "Claims"), that the Investor
ever had, now has, or hereafter might, can or shall have against the Company
Persons under statute, common law or otherwise, for or by reason of the sale of
the Preferred Stock, other than Claims that are for gross negligence or the
commission of fraud as an officer or director in their conduct of the business
of the Company.
11. Severability; Remedies. In the event any parts of this Agreement are found
to be void, the remaining provisions of this Agreement are nevertheless binding
with the same effect as though the void parts were deleted.
12. Governing Law and Jurisdiction. This Agreement will be deemed to have been
made and delivered in New York, New York and will be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
laws of the State of New York. Each of the Company and the Investor hereby (i)
agrees that any legal suit, action or proceeding arising out of or relating to
this Agreement will be instituted exclusively in the state courts of New York,
in the County of New York, or in the United States Southern District Court
located in New York City, New York, (ii) waives any objection to the venue of
14
any such suit, action or proceeding and the right to assert that such forum is
not a convenient forum for such suit, action or proceeding, (iii) irrevocably
consents to the jurisdiction of the above mentioned courts in any such suit,
action or proceeding, (iv) agrees to accept and acknowledge service of any and
all process that may be served in any such suit, action or proceeding in the
above mentioned courts, and (v) agrees that service of process upon it mailed by
certified mail to its address set forth on the Investor's signature page will be
deemed in every respect effective service of process upon it in any suit, action
or proceeding.
13. Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original but all of which together will
constitute one and the same instrument. The execution of this Agreement may be
by actual or facsimile signature.
14. Benefit. Except as otherwise set forth herein, this Agreement is binding
upon and inures to the benefit of the parties hereto (and KRM to the extent it
is a third-party beneficiary hereof) and their respective heirs, executors,
personal representatives, successors and assigns. KRM is a third-party
beneficiary with respect to sections 9 and 10 to the extent set forth therein.
15. Notices. All notices, offers, acceptance and any other acts under this
Agreement (except payment) must be in writing, and is sufficiently given if
delivered to the addressees in person, by overnight courier service, or, if
mailed, postage prepaid, by certified mail (return receipt requested), and will
be effective three days after being placed in the mail if mailed, or upon
receipt or refusal of receipt, if delivered personally or by courier or
confirmed telecopy, in each case addressed to a party. All communications to the
Investor should be sent to the Investor's preferred address on the signature
page hereto. All communications to the Company should be sent to:
Chiste Corporation
c/o HydroGen, LLC
0000 Xxxxx 00Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
16. Oral Evidence. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior oral
and written agreements between the parties hereto with respect to the subject
matter hereof. This Agreement may not be changed, waived, discharged, or
terminated orally, but rather, only by a statement in writing signed by the
party or parties against which enforcement or the change, waiver, discharge or
termination is sought.
17. Section Headings. Section headings herein have been inserted for reference
only and will not be deemed to limit or otherwise affect, in any matter, or be
deemed to interpret in whole or in part, any of the terms or provisions of this
Agreement.
18. Survival of Representations, Warranties and Agreements. The representations,
warranties and agreements contained herein will survive the delivery of, and the
payment for, the Preferred Stock and the exchange for the Common Stock.
15
SIGNATURE PAGE - COMPLETE ALL INFORMATION
Name of Entity:
-------------------------------------------------
Address of Principal Office:
-------------------------------------------------
Telephone: Fax:
----------------------------- ---------------------------------
Taxpayer Identification Number:
----------------------------------------------
Name in which the certificates are to be registered:
------------------------
Name of persons or persons with investment and voting authority:
------------
--------------------------------------------------------------------------------
Check type of Entity:
|_| Employee Benefit Plan |_| Limited Partnership |_| General |_| Individual Retirement
Trust Partnership Account
|_| Limited Liability |_| Revocable Trust |_| Corporation |_| Other
Company (please indicate)
|_| Irrevocable Trust (If the Investor is an Irrevocable Trust, a
supplemental questionnaire must be completed by the person directing
the decision for the trust to determine by accredited investor
status.)
Amount of Investment:
---------------------
Number of Shares:
------------------------------------------
Corresponding dollar amount ($________ multiplied by number of Shares): $
--------
Date of Formation or incorporation: State of Formation:
--------------- --------
Describe the business of the Entity:
--------------------------------------------
--------------------------------------------------------------------------------
16
List the names and positions of the executive officers, managing members,
partners or trustees authorized to act with respect to investments by the Entity
generally and specify who has the authority to act with respect to this
investment.
========================================================================================================================
Name Position Authority for this investment (yes
or no)
-------------------------------------------- ------------------------------------ --------------------------------------
-------------------------------------------- ------------------------------------ --------------------------------------
========================================================================================================================
================================================================================
INVESTOR: CHISTE CORPORATION
_________________________________________ By:______________________________
Signature of Authorized Signatory
Name:____________________________________ Name:____________________________
Title:___________________________________ Title:___________________________
Date:____________________________________ Date:____________________________
================================================================================
17
