CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT (“Agreement”) is entered into effective August 7, 2006 (the
“Effective Date”), by and between TRULITE, INC. (“the Company”)
and
Xxxx Enterprises, Inc. (“Consultant”). The Company and Consultant shall
collectively be referred to herein as “the Parties.”
WHEREAS,
the Company
desires to obtain the benefit of the knowledge and experience of Consultant
by
retaining Consultant on an independent contractor basis, and Consultant is
willing to render such services to the Company on the terms and conditions
set
forth herein.
NOW
THEREFORE, in consideration of the promises and mutual covenants contained
herein, the receipt and sufficiency of which is acknowledged, the Parties agree
as follows:
1. Consulting
Services.
The
Company hereby retains Consultant to perform certain services for the Company,
and Consultant hereby agrees to provide such services (the “Services”). The
Services will include, and be limited to, the following:
a.
The
Consultant will assist Trulite with identifying a NASD member firm to make
the
15c2-11 filing in a timely manner after the appropriate SEC filings by the
Company have been declared effective.
b.
The
consultant will coordinate with Trulite and its legal counsel in filing the
Form
SB-2 registration statement with the SEC.
c.
After
the SB-2 is declared effective, the Consultant will introduce the Company to
NASD Member Firms that might have an interest in helping the Company raise
capital in the public markets.
d.
The
Consultant will identify potential investors to the Company so that the Company
or the NASD member firms engaged by the Company can discuss any investment
in
the Company directly with the potential investors. The Consultant will not
directly solicit or negotiate an investment from these potential or current
investors.
e.
The
Consultant will provide general consulting advice regarding the process for
going public on an as-needed basis.
All
of
Consultant’s services will be subject to the Company’s final approval and will
be performed in accordance with the Company standards, but Consultant shall
direct the details and means by which the services are accomplished. Consultant
shall conform to the rules, regulations, instructions, practices and policies
of
the Company now in force or hereafter enacted which are applicable to
consultants or independent contractors engaged by the Company.
2. Location.
Consultant will work out of his office.
3. Compensation
for Services.
The
Company has compensated the Consultant by issuing 250,000 shares of Trulite’s
restricted common stock and 250,000 Five Year Warrants to purchase Trulite’s
common stock at a strike price of $3.00 per share to Consultant and Consultant’s
designees. The Company and the Consultant agree that the stock and the warrants
that have been issued are a full and complete compensation for the services
to
be provided under the terms of this contract. No compensation is contingent
on
performance of the services. The Consultant will be responsible for all of
its
own reasonable and customary expenses including but not limited to travel,
entertainment, lodging, office and communications expenses.
5. Term.
The
term of this Agreement for providing consulting services shall end on June
30,
2008 or until otherwise terminated.. Either Consultant or the Company may
terminate this Agreement at any time and for any reason during the term.
6. Independent
Contractor Relationship.
In
rendering Services hereunder it is expressly understood and agreed that
Consultant is not an employee of or controlled by the Company, but that
Consultant is, in all respects, an independent contractor, and as such
Consultant has no right or authority to make any disbursements or purchases
or
to incur any liabilities on behalf of the Company or to otherwise obligate
the
Company in any manner whatsoever, unless specifically authorized to do so by
the
Company. The Consultant may not act as an agent of the Company. The Consultant
may not solicit funds from investors and may not act as a broker or dealer
in
the securities of the Company.
The
Company will make no deductions from any of the payments in stock made to
Consultant hereunder for state or federal tax purposes. Consultant agrees that
he will be solely responsible for any and all taxes and other payments due
on
payments received by Consultant from the Company hereunder, including
withholding of state and federal income, sales or ad valorem taxes, unemployment
compensation, workers’ compensation, Federal Insurance Contributions Act,
Federal Unemployment Tax Act or other taxes, costs or expenses incurred in
the
performance of any engagement hereunder. Consultant expressly indemnifies and
holds the Company harmless from any such liabilities.
Consultant
understands and agrees that the Company is not responsible for paying any
retirement, worker’s compensation or unemployment benefits to Consultant.
7. Confidentiality.
Consultant will be required, as a condition of this Agreement, to strictly
maintain the confidentiality of any confidential business matters pertaining
to
the Company. Consultant agrees not to use any confidential information acquired
by Consultant’s in connection with performing the Services for Consultant’s own
personal benefit or for the benefit of persons other than the Company.
Consultant agrees that Consultant’s obligations under this paragraph shall
continue in effect for five years after termination of the Agreement, regardless
of the reason or reasons for termination, and whether such termination is
voluntary or involuntary on Consultant’s part.
8. No
Conflicting Agreements.
Consultant represents and warrants that he is not a party to, subject to, or
otherwise bound by any other agreement, arrangement, or understanding, written
or otherwise, which prohibits, restricts, or anyway whatsoever conflicts with
Consultant’s ability to enter into and fulfill his obligations under this
Agreement.
9. Choice
of Law, Venue and Forum.
This
Agreement, the entire relationship of the Parties hereto, and any litigation
between the Parties (whether grounded in contract, tort, statute, law or equity)
shall be governed by, construed in accordance with, and interpreted pursuant
to
the laws of the State of Texas, without giving effect to its choice of laws
principles. Exclusive venue for any litigation between the Parties hereto shall
be in Xxxxxx County, Texas, and shall be brought in the State District Courts
of
Xxxxxx County, Texas, or in the United States District Court for the Southern
District of Texas, Houston Division. The Parties hereto waive any challenge
to
personal jurisdiction or venue (including without limitation a challenge based
on inconvenience) in Xxxxxx County, Texas, and specifically consent to the
jurisdiction of the State District Courts of Xxxxxx County and the United States
District Court for the Southern District of Texas, Houston Division.
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10. Counterparts.
This
Agreement may be executed in multiple counterparts, all of which shall
constitute one agreement and each of which shall constitute an original of
this
Agreement.
11. Headings.
The
headings used in this Agreement have been included only in order to make it
easier to locate the subject covered by each provision and are not to be used
in
construing this Agreement.
12. Entire
Agreement.
This
Agreement supersedes and replaces any prior understandings or agreements,
whether oral, written or implied, between Consultant and the Company regarding
the matters described in this letter.
13. Invalid
Provisions.
Should
any portion of this Agreement be adjudged or held to be invalid, unenforceable
or void, such holding shall not have the effect or invalidating or voiding
the
remainder of this agreement and the parties hereby agree that the portion so
held invalid, unenforceable or void shall, if possible, be deemed amended or
reduced in scope, or otherwise be stricken from this letter to the extent
required for the purposes of validity and enforcement thereof.
[Signature
page follows.]
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IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as
of the Effective Date.
COMPANY:
TRULITE,
INC.
By:
Trulite, Inc.
Name:/s/
Xxxxxxxx
Xxxxxxxx
Title:
President
Date:
August 7, 2006
CONSULTANT:
/s/
Xxxx
Xxxxx
Xxxx
Enterprises
Date:
August 7, 2006