EXHIBIT 10.16
Visteon Corporation Stock
Purchase Agreement
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is executed on this
30th day of June, 2000, by and between HYDROGEN BURNER TECHNOLOGY, INC., a
California corporation (the "Company"), and VISTEON CORPORATION, a Delaware
corporation ("Investor").
RECITAL
The Company desires hereby to issue and sell to Investor, and Investor
desires hereby to purchase and acquire from the Company, an aggregate of Four
Hundred Thousand (400,000) shares of Common Stock of the Company for an
aggregate purchase price of Two Million Dollars ($2,000,000), under the terms
and provisions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in accordance with the foregoing recital, and AS
CONSIDERATION FOR the mutual covenants and agreements contained herein and
for other good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the Company and Investor hereby agree as
follows:
1. ISSUANCE AND SALE OF COMMON STOCK. Under the terms and provisions
and subject to the conditions set forth in this Agreement, the Company hereby
agrees to issue and sell to Investor, and Investor hereby agrees to purchase
and acquire from the Company, an aggregate of Four Hundred Thousand (400,000)
shares of Common Stock of the Company (collectively, the "Shares").
2. PURCHASE PRICE. Investor shall purchase the Shares from the Company
under this Agreement at a price per Share equal to Five Dollars ($5.00) for
an aggregate purchase price of Two Million Dollars ($2,000,000.00) (the
"Purchase Price"). Investor shall pay the Purchase Price by check, wire
transfer or such other form of payment that the Company and Investor may
agree on mutually.
3. CLOSING OF PURCHASE AND SALE OF THE SHARES; DELIVERIES.
3.1 THE CLOSING. The purchase and sale of the Shares contemplated by
this Agreement shall take place at a closing (the "Closing"), which shall
occur concurrently with the execution and delivery of this Agreement or on
such other date and at such other time as may be mutually agreed on by the
Company and Investor (the "Closing Date").
3.2 DELIVERIES.
(a) THE COMPANY'S DELIVERIES. At the request of Investor, which
Investor hereby repeats, a stock certificate shall be issued to "Visteon
Corporation, a Delaware corporation." Under the terms and subject to the
conditions of this Agreement, as soon as practicable after the Closing (but
in no event ten (10) business days after the Closing) and after confirmation
of receipt of the Purchase Price, the Company shall issue and deliver to
Investor:
(i) a certificate evidencing Investor's ownership of the
Shares against payment of the Purchase Price;
(ii) A Voting Agreement ("Voting Agreement") by and between the
Company and certain shareholders of the Company, on the one hand, and
Investor, on the other hand, in the form attached to this Agreement as
EXHIBIT A (the "Voting Agreement");
(iii) a Compliance Certificate of the Company, executed by its
President or other executive officer dated the date of Closing,
certifying that each of the representations and warranties made by the
Company (if any) in Section 4 of this Agreement and in the Voting
Agreement are true and correct in all respects when made and at the
Closing, and that all covenants, agreements and conditions contained in
this Agreement and in the Voting Agreement to be performed or complied
with by the Company at or before the Closing (if any) have been
performed or complied with in all respects;
(iv) a Secretary's Certificate attaching true and correct
copies of the following documents on the date of Closing: (a) the
Articles of Incorporation of the Company certified by the Secretary of
State of California on a date not more than ten (10) days before the
Closing; (b) a good standing certificate with respect to the Company
certified by the Secretary of State of California on a date not more
than ten (10) days before the Closing; (c) the Bylaws of the Company;
and (d) resolutions of the Board of Directors of the Company, and, if
necessary, the shareholders of the Company, authorizing the execution,
delivery and performance of this Agreement and the Voting Agreement, and
the transactions contemplated hereby and thereby, including the issuance
and sale of the Shares to Investor, including (without limitation) the
election of a nominee of Investor to the Board of Directors of the
Company in accordance with the Voting Agreement, all in form and
substance satisfactory to Investor;
(v) copies of all necessary governmental and third party
consents to the transactions described in this Agreement and the Voting
Agreement, certified by the President or other executive officer dated
the date of the Closing, in form and substance satisfactory to Investor;
and
(vi) copies of all documents and agreements executed (if any)
with Sofinov Societe financiere d'innovation Inc. ("Sofinov"), Gaz de
France ("GDF") and any other investor that is investing in the same
round of financing with Investor.
(b) INVESTOR'S DELIVERIES. Under the terms and subject to the
conditions of this Agreement, at the Closing, Investor shall deliver to the
Company an amount equal to the Purchase Price by wire transfer (in
immediately available funds) to an account designated by the Company. Under
the terms and subject to the conditions of this Agreement, as soon as
practicable after the Closing, Investor shall deliver to the Company the
Voting Agreement in the form attached hereto.
3.3 OTHER CLOSING CONDITIONS OF INVESTOR. The obligations of Investor
under this Agreement and the Voting Agreement shall further be subject to the
following conditions precedent:
(a) LEGAL INVESTMENT. At the Closing, the purchase of
Shares by Investor shall be legally permitted by all laws and regulations to
which Investor and the Company are subject.
(b) PROCEEDINGS AND DOCUMENTS. At the Closing, all
corporate and other proceedings in connection with the transactions
contemplated by this Agreement and the Voting Agreement (as specifically
contemplated herein and therein), and all documents and instruments incident
to such transactions that the Company is required to deliver to Investor
under this Agreement or the Voting Agreement, shall be satisfactory in form
and substance to Investor, and Investor shall have received at the times
specified herein all such documents.
(c) QUALIFICATIONS. Effective 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 the Shares
shall have been duly obtained by the Company, other than the filing of a
Notice of Sale of Securities on Form D, which may be filed within fifteen
(15) days after Closing.
(d) MATERIAL ADVERSE CHANGE. In Investor's reasonable
opinion, no change, occurrence, condition or development occurring after the
date hereof that has materially and adversely affected, or is likely to
materially and adversely affect, the Company's and its Subsidiaries' (defined
below) business, prospects, operations or condition (financial or otherwise),
taken as a whole, or the Company's ability to perform its obligations under
this Agreement or the Voting Agreement (a "Material Adverse Change") shall
have occurred with regard to the Company before the Closing.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY TO INVESTOR. Except
as set forth on a Schedule of Exceptions furnished to Investor and attached
hereto as EXHIBIT B, the Company hereby represents and warrants to Investor
all of the following.
4.1 CORPORATE ORGANIZATION AND STANDING. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of California.
4.2 CORPORATE POWER; CORPORATE AUTHORITY. The Company has all
requisite corporate power to enter into this Agreement and the Voting
Agreement and to perform all obligations of the Company under this Agreement
and the Voting Agreement. The execution and delivery of this Agreement and
the performance of all obligations of the Company under this Agreement and
the Voting Agreement have been duly authorized by all necessary corporate
action on the part of the Company.
4.3 VALID ISSUANCE OF THE SHARES. The Shares, when issued, sold
and delivered in accordance with the terms and provisions of this Agreement
for the consideration expressed in this Agreement, will be duly and validly
issued, fully-paid and nonassessable.
4.4 ENFORCEABILITY. This Agreement and the Voting Agreement is a
valid and binding obligation of the Company, enforceable in accordance with
its respective terms, except as such terms may be limited or otherwise
affected by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, and
subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
4.5 NO CONFLICT, BREACH OR DEFAULT. The consummation by the
Company of the transactions contemplated by this Agreement and the Voting
Agreement, including the execution and delivery of this Agreement and the
Voting Agreement, will not conflict with or result in a breach of any of the
terms of its Articles of Incorporation or Bylaws, or result in a material
breach of any agreement or instrument to which the Company or any of its
assets is bound, or violate the provisions of any law, rule or regulation
binding on the Company or any of its assets.
4.6 SUBSIDIARIES. The Company has no Subsidiaries (defined as any
corporation, association or other business entity of which securities or
other ownership interests representing more than fifty percent (50%) of the
ordinary voting power or the right to elect a majority of the board of
directors or similar governing body are, at the times as of which any
determination is being made, owned or controlled by the Company or one or
more Subsidiaries of the Company or by the Company and one or more
Subsidiaries of the Company).
4.7 CAPITALIZATION. After giving effect to the Closing, the
Company's authorized capital stock will consist of Thirty Million
(30,000,000) shares of Common Stock. Through the date of the Closing, there
shall be no declared but unpaid dividends or undeclared dividend arrearages
on any share of capital stock of the Company. Immediately after giving effect
to the consummation of the transactions contemplated by this Agreement, the
only shares of capital stock issued and outstanding, reserved for issuance or
committed to be issued are as described on the Capitalization Table attached
hereto as EXHIBIT C. At the Closing, there are no outstanding preemptive,
conversion or other rights, options, warrants or agreements granted or issued
by or binding upon the Company for the purchase or acquisition of any shares
of its capital stock, other than those described above or issued, reserved or
committed to be issued under this Agreement or as described on the
Capitalization Table.
4.8 FINANCIAL STATEMENTS. The Company has furnished to Investor
(a) an audited balance sheet of the Company for the fiscal year ended
December 31, 1999 (the "Balance Sheet"), together with audited statements of
operations and cash flows for the fiscal year than ended (collectively,
including the Balance Sheet, the "Financial Statements"), and (b) the
unaudited balance sheet of the Company for the four months ended April 30,
2000, together with the unaudited statements of income and cash flows for the
four months then ended (the "Interim Balance Sheet" and "Interim Financial
Statements," respectively). True and correct copies of the Financial
Statements and the Interim Financial Statements are attached hereto as
EXHIBIT D to this Agreement. The Financial Statements and Interim Financial
Statements are complete and accurate in all material respects and fairly and
accurately present the financial position of the Company at December 31,
1999, and April 30, 2000, respectively, and the results of its operations for
such periods. The Financial Statements were prepared in accordance with
generally accepted accounting principles ("GAAP"), applied on a basis
consistent throughout the periods indicated and consistent with each other.
4.9 ABSENCE OF UNDISCLOSED LIABILITIES. Through the date of the
Closing, the Company will not have any material debt, liability or obligation
of any nature arising out of transactions or events entered into or
occurring, or conditions existing on or before the Closing, except (a) as and
to the extent reflected and accrued for or reserved against in the Balance
Sheet, (b) for liabilities specifically disclosed on Schedule 4.9, and (c)
for liabilities and obligations arising after December 31, 1999, in the
ordinary course of business consistent with past customs and
practice, which are not reasonably expected to exceed One Hundred Thousand
Dollars ($100,000) in the aggregate.
4.10 ABSENCE OF CERTAIN CHANGES. Except for this Agreement,
the Voting Agreement and the transactions contemplated hereby and thereby,
and as set forth on Section 4.10 of the Schedule of Exceptions attached
hereto, since December 31, 1999, there has not been (a) a Material Adverse
Change involving the Company, (b) any dividend or other distribution, or any
recapitalization, combination or subdivision with respect to, or any purchase
or redemption by the Company of, any share of its capital stock, (c) any
indebtedness incurred by the Company out of the ordinary course of business,
(d) any sale, transfer, lease, mortgage or pledge of, grant of security
interest in or other lien against any of the Company's assets or cancellation
of any claim or, of indebtedness or obligation owing to, the Company except
in the ordinary course of business, (e) any physical damage, destruction or
loss (whether or not covered by insurance) materially and adversely affecting
the properties or business of the Company, (f) any change in the accounting
principles, methods or practices followed by the Company or depreciation or
amortization policies or rates theretofore adopted, or (g) any commitment
made or action taken by the Company, its directors or officers or its
stockholder to authorize any of the actions contemplated by clauses (a)-(f)
above.
4.11 ARRANGEMENTS WITH OFFICERS, DIRECTORS AND OTHERS. Except
for this Agreement, the Voting Agreement and the transactions anticipated
hereby and thereby, and as set forth on Section 4.11 of the Schedule of
Exceptions attached hereto, there are no material existing contracts or
arrangements or proposed transactions between the Company and officer,
director or affiliate (defined as any person directly or indirectly
controlling, controlled by, or under common control with, the Company, with
"control" meaning the direct or indirect ownership interest of ten percent
(10%) or more of the Company or power to vote ten percent (10%) or more of
the voting stock of the Company, or otherwise to direct or cause the
direction of the management and policies of the Company, whether through the
ownership of voting stock or other ownership interest, by contract or
otherwise) of the Company.
4.12 LITIGATION. There are no actions, suits, proceedings or
investigations pending or, to the Company's knowledge, threatened against or
affecting the Company at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission, board, agency
or instrumentality, domestic or foreign, or has any such action, suit,
proceeding or investigation been pending during the last two (2) years. No
such action, suit, proceeding or investigation reasonably could be expected
to, alone or in the aggregate, have a material adverse effect on the
business, assets, prospects, operations, employee relations, rights or
condition, financial or otherwise, of the Company or the Company's ability to
carry out the transactions contemplated by this Agreement or the voting
Agreement. The Company is not operating under or subject to, nor in default
with respect to, any order, writ, injunction or decree of any court or
federal, state, municipal or other governmental department, commission,
board, agency or instrumentality, foreign or domestic, and the Company has
not been charged or threatened with a charge of violation, or under
investigation with respect to possible violation, of any provision of any
federal, state or local law or administrative ruling or regulation relating
to them or their business, affairs, assets, prospects, operations, employee
relations or condition, financial or otherwise.
4.13 CONSENTS. Assuming the accuracy of Investor's
representations and warranties contained herein, all consents, approvals,
qualifications, orders or authorizations of, or filings with,
any third party or any governmental authority, including state securities or
"Blue Sky" laws, required in connection with the Company's valid execution,
delivery or performance of this Agreement and the Voting Agreement, the
offer, sale and issuance of the Shares, and the consummation of any other
transaction contemplated on the part of the Company herein have been obtained
or made or will be made within fifteen (15) days following Closing.
4.14 PROPRIETARY RIGHTS. The Company has sufficient title and
ownership of all patents, trademarks, service marks, trade names, copyrights,
trade secrets, information, proprietary rights and processes necessary for
the Company's business as currently conducted and as proposed to be conducted
(collectively, "Proprietary Rights"), to the best of the Company's knowledge,
without any conflict with or infringement of the rights of others. There are
on outstanding options, licenses or agreements of any kind relating to the
foregoing, nor is the Company bound by or a party to any option, license or
agreement of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information, proprietary
rights and processes of any other person or entity. The Company has not
received any communication alleging that the Company has violated or, by
conducting the Company's business as proposed, would violate any of the
patents, trademarks, servicemarks, trade names, copyrights or trade secrets
or other proprietary rights of any other person or entity, and the Company has
no knowledge of any reasonable basis for any such claim that has not been
asserted. The Company is not aware that any of the Company's employees is
obligated under any contract (including licenses, covenants or commitments of
any nature) or other agreement, or subject to any judgment, decree or order
of any court or administrative agency, that would interfere with the use of
such employee's best efforts to promote the interests of the Company or that
would conflict with the Company's business as proposed to be conducted.
4.15 COMPLIANCE WITH LAW AND OTHER INSTRUMENTS. The Company is
not in violation of any term of its Articles of Incorporation or Bylaws or any
of the material provisions of any mortgage, indenture, contract, agreement,
instrument, judgment, decree, order, statute, rule or regulation to which it
is subject and a violation of which could have a material adverse effect on
the Company. The Company has all franchises, permits, licenses and approvals,
necessary to conduct its business as presently conducted. The Company has no
knowledge of or reason to expect any change to any law, statute, rule or
regulation that could adversely affect the ability of the Company to conduct
its business as presently conducted.
4.16 AGREEMENT BETWEEN STOCKHOLDERS. Other than the Voting
Agreement and as set forth on Section 4.16 of the Schedule of Exceptions
attached hereto, and except as referenced elsewhere in this Agreement, no
agreement exists between any of the stockholders of the Company or between
any of the stockholders and the Company related to the Company or its capital
stock or other securities.
4.17 REGISTRATION RIGHTS. The Company is not under any
obligation to register under the Securities Act of 1933 or any applicable
state securities laws any of its currently outstanding securities or any of
its securities that may hereafter be issued.
4.18 FEES AND COMMISSIONS. The Company has retained no finder,
broker, agent, financial advisor or other intermediary (collectively
"Intermediary") in connection with the transactions contemplated by this
Agreement and the Company agrees to indemnify and hold harmless
Investor from liability for any compensation to any Intermediary retained by
the Company and the fees and expenses of defending against such liability or
alleged liability.
4.19 DISCLOSURE. No representation, warranty or statement by the
Company in this Agreement, or in any exhibit, schedule, instrument or
certificate furnished to Investor under this Agreement, when read as a whole,
contains any untrue statement of material fact or omits to state a material
fact necessary to make the statements made in this Agreement, in light of the
circumstances under which they were made, not misleading. There is no fact
known to the Company that could reasonably be expected to have a material
adverse effect on the Company that has not been disclosed to Investor.
5. REPRESENTATIONS AND WARRANTIES OF INVESTOR TO THE COMPANY.
Investor hereby represents and warrants to the Company all of the following:
5.1 CORPORATE POWER; CORPORATE AUTHORITY. Investor has all
requisite corporate power to enter into this Agreement and the Voting
Agreement and to perform all obligations of Investor under this Agreement and
the Voting Agreement. The execution and delivery of this Agreement and the
performance of all obligations of Investor under this Agreement and the
Voting agreement have been duly authorized by all necessary corporate action on
the part of Investor.
5.2 ENFORCEABILITY. This Agreement and the Voting Agreement each
is a valid and binding obligation of Investor, enforceable in accordance with
its terms, except as such terms may be limited or otherwise affected by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally, and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
5.3 NO CONFLICT, BREACH OR DEFAULT. The consummation by Investor
of the transactions contemplated by this Agreement and the Voting Agreement,
including the execution and delivery of this Agreement and the Voting
Agreement, will not conflict with or result in a breach of any of the
unwaived terms of any agreement or instrument to which Investor is bound or
constitute a default thereunder.
6. SECURITIES LAWS. Investor hereby acknowledges, represents and
warrants to the Company, and hereby covenants and agrees to, all of the
following:
6.1 INVESTMENT INTENT: PURCHASE FOR INVESTOR'S ACCOUNT. Investor
is purchasing the Shares solely for Investor's own account for investment and
not with a view to or for sale in connection with any distribution of the
Shares, or any portion thereof, and not with any present intention of
selling, offering to sell, granting any participation in or otherwise
disposing of or distributing the Shares, or any portion thereof, in any
transaction other than a transaction exempt from the registration
requirements of the Securities Act (defined below). By executing this
Agreement, Investor further represents that Investor does not have any
contract, undertaking, agreement or arrangement with any entity to sell,
transfer or grant any participation to such entity or to any third party,
with respect to any of the Shares. The entire legal and beneficial interest
in the Shares is being purchased by Investor and shall be held only for
Investor's account and neither in whole nor in part for any other entity.
6.2 NO REGISTRATION OR QUALIFICATION. Investor understands and
acknowledges to have been advised by the Company that the Shares will be
issued by the Company without registration under the Securities Act of 1933,
s amended (the "Securities Act"), and without qualification or registration
under applicable state securities laws (the "Blue Sky Laws") pursuant to
exemptions from the registration and/or qualification requirements contained
in the Securities Act and in the Blue Sky Laws. Investor understands that the
Shares must be held indefinitely by Investor unless (a) the Shares
subsequently are registered or qualified under the Securities Act and under
the Blue Sky Laws or (b) one or more exemptions from the registration or
qualification requirements under the Securities Act and under the Blue Sky
Laws are available in connection with any proposed transfer of the Shares by
Investor. Unless the Company grants registration rights to Investor under the
terms of this Agreement, Investor understands and acknowledges to have been
advised by the Company that the Company has no obligation as any time to
register or qualify any of the Shares under the Securities Act and/or any
Blue Sky Law.
6.3 RESTRICTION ON TRANSFER: LIMITATIONS ON DISPOSITION. Without
in any way limiting investor's representations and warranties set forth in
this Agreement, Investor covenants and agrees that Investor shall not sell or
otherwise transfer all or any portion of the Shares, or any interest in all
or any portion of the Shares, without registration or qualification under the
Securities Act and the Blue Sky Laws or pursuant to an exemption from such
registration or qualification requirements with respect to the proposed
transfer and provides to the Company an opinion of legal counsel satisfactory
to the Company that the proposed transfer may be made without violation of
the Securities Act and the Blue Sky Laws and will not adversely affect the
exemptions relied on by the Company in connection with the original issuance
and sale to Investor of the Shares. Without in any way limiting the
representations set forth above, Investor further agrees that Investor shall
in no event make any disposition of all or any portion of the Shares unless
and until:
(a) (i) There is then in effect a Registration Statement
under the Securities Act covering such proposed disposition, and such
disposition is made in accordance with such Registration Statement; (ii)
the resale provisions of Rule 144 are available and the proposed disposition
would comply with the requirements of Rule 144 in the opinion of legal
counsel satisfactory to the Company; or (iii)(A) Investor shall have notified
the Company of the circumstances surrounding the proposed disposition; (B)
Investor shall have furnished the Company with an opinion of Investor's
counsel to the effect that such disposition will not require registration of
any of such Shares under the Securities ct, (C) the proposed disposition
would comply with all applicable requirements of Rule 144, and (D)
counsel for the Company shall have concurred with such opinion of Investor's
counsel, and the Company shall have advised Investor of such concurrence; and
(b) Investor shall have complied with the terms of the Rights
of First Refusal set forth in Section 7 of this Agreement, and each
transferee of the Shares agrees in writing to be bound by all terms of this
Agreement, including, without limitation, the "lock-up" provisions set forth
in Section 8 of this Agreement.
6.4 NO PUBLIC MARKET. Investor understands and acknowledges that
no public market for the Shares exist, that such a public market may never
exist and that Investor may never be able to sell or dispose of the Shares
even if such a public market develops, meaning that Investor may have to bear
the risk of Investor's investment in the Shares for substantial period of
time or forever.
6.5 INVESTOR SOPHISTICATION: "ACCREDITED INVESTOR" STATUS:
ACKNOWLEDGMENT OF RECEIPT OF NECESSARY INFORMATION. Investor is an
experienced and sophisticated investor and is able to fend for Investor with
respect to investor's purchase of the Shares. In particular, Investor is
experienced in making investments in he unregistered and restricted
securities of development stage and emerging growth companies such as the
Company. Investor has such knowledge and experience in financial and business
matters that the Investor is capable of evaluating the merits and risks of the
investment in the Company represented by the Shares and, by reason of
investor's financial business experience and its pre-existing and ongoing
business relationship with the Company and its management, investor has the
capacity to protect Investor's interests in connection with the Shares.
INVESTOR IS AN "ACCREDITED INVESTOR" as defined in Rule (501)(a) of the
REGULATION D UNDER THE SECURITIES ACT. All statements and representations made
in the "Accredited Investor" Questionnaire attached to provide such additional
information as reasonably may be required by the Company for compliance with
the securities laws of the state in which Investor is located.
6.6 INFORMATION CONCERNING THE COMPANY. Without limiting the
terms of the investment representations set forth herein, Investor represents
that Investor:
(a) has had an opportunity to ask questions and receive
answers from the Company and its officers and directors regarding matters
relevant to the Company and an investment therein (e.g., as represented by
the Shares), including, without limitation, (1) the terms and conditions
of the Shares, (2) the Company's intended business plan, (3) the
Company's capitalization and charter documents, (4) the status and nature
of the Company's assets, (5) the status and nature of the Company's
liabilities (including amounts and other obligations owed to third parties),
(6) the Company's current third party arrangements, (7) the early
- -stage, developing and/or emerging nature of the Company's business, (8)
the business prospects and financial affairs of the Company, (9) the
competitive environment that the Company and its proposed products and
services face and (10) the Company's imminent need for substantial amounts
of additional financing:
(b) has further had the opportunity to obtain any and all
information that Investor deemed or deems necessary to evaluation the company
and Investor's acquisition of the Shares, as well as to verify the accuracy of
the information provided to Investor;
(c) received and has reviewed the Diligence Materials
(defined below): and
(d) has otherwise received all such information Investor
deems necessary and appropriate to evaluate the financial risks inherent in,
and the merits of, an investment in the Shares.
6.7 SPECULATIVE INVESTMENT. Investor represents and warrants that
the nature and amount of the Shares being purchased by Investor are
consistent with Investor's investment objectives, abilities and resources.
INVESTOR RECOGNIZES THAT THE SHARES ARE A SPECULATIVE INVESTMENT INVOLVING A
HIGH DEGREE OR RISK OF LOSS BY INVESTOR AND THAT INVESTOR COULD LOSE THE
ENTIRE AMOUNT OF INVESTOR'S INVESTMENT IN THE SHARES. INVESTOR IS ABLE TO
BEAR THE ECONOMIC RISK OF
INVESTOR'S INVESTMENT IN THE SHARES AND AT THE PRESENT TIME CAN AFFORD A
COMPLETE LOSS OF THAT INVESTMENT.
6.8 "RESTRICTED SECURITIES"; UNAVAILABILITY OF RULE 144. Investor
understands and acknowledges that the Shares constitute "restricted
securities" for the purposes of Rule 144 promulgated under the Securities
Act. Investor understands and acknowledges that the Shares may not be sold by
investor pursuant to Rule 144 unless certain conditions have been satisfied.
Investor understands and acknowledges that among the conditions for the
application of Rule 144 is the availability of current information to the
public about the Company, and Investor understands and acknowledges that the
Company has not made such information available to the public, has not plans
to do so and has no obligation to do so. Investor understands and
acknowledges that Rule 144 under the Securities Act does not presently apply
and may never apply to the Company's securities because the company does not
now, and may never, file reports required by the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and has not made, and may never make,
available to the public the information required by the Securities Act to be
made available to the public in order to Rule 144 to apply. Investor
understands and acknowledges that, if Rule 144 were available, sales of the
Company's securities made in reliance thereon could be made only in certain
limited amounts, after the expiration of certain holding periods and only if
specified current information about the Company and the Company's securities
is available to the public, all in accordance with the terms and ins
satisfaction of the conditions of Rule 144. Investor understands and
acknowledges that, in the case of unregistered Company's securities to which
Rule 144 is not applicable, non[ub]-issuer transactions involving such
securities must comply with some other exemption from the registration
requirements of the Securities Act.
6.9 NO VIEW TO SALE OR DISTRIBUTION: NO ADVERTISING OR GENERAL
SOLICITATION. Investor represents and warrants to the Company all of the
following:[nk]
(a) that the Shares are being acquired by Investor for
private investment purposes only and solely for Investor's own account, in
Investor's own name, and not with a view to or for sale in connection with
any distribution of the Shares to others.
(b) that Investor has no present intention to distribute,
sell or otherside disposal of Shares;
(c) that the sale of the Shares to Investor was not
accomplished by the publication of any written or printed conversation, any
pre-recorded telephone communication or any communication spoken on radio,
television and similar communication media; and
(d) that Investor has no been or received any advertisement
or general solicitation with respect to the sale of Company securities of any
kind, including, without limitation the Shares.
6.10 LEGENDS. Investor acknowledges that each stock certificate
issued by the Company evidencing the Shares have been placed thereon the
following legends:
(a) a legend containing the following or substantially
similar language:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE HOLDER
FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT AS MAY BE AUTHORIZED UNDER THE
SECURITIES ACT OF 1933 AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER.
(b) a legend containing the following or substantially
similar language:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE STOCK PURCHASE AGREEMENT DATED
JUNE 30, 2000, BETWEEN THE COMPANY AND THE INITIAL HOLDER HEREOF.
SUCH AGREEMENT PROVIDES FOR CERTAIN TRANSFER RESTRICTIONS,
INCLUDING RIGHTS OF FIRST REFUSAL UPON AN ATTEMPTED TRANSFER OF
THE SECURITIES. THE SECRETARY OF THE COMPANY WILL UPON WRITTEN
REQUEST FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF
WITHOUT CHARGE.
(c) a legend containing the following or substantially
similar language:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A 180-DAY
MARKET STANDOFF PROVISION AS SET FORTH IN THE STOCK PURCHASE
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES,
A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER.
SUCH MARKET STANDOFF PROVISION IS BINDING ON TRANSFEREES OF THESE SHARES.
(d) any legend required to be placed thereon by applicable
state securities law authorities; and
(e) any legend required to be placed thereon by any
Stockholders' Agreement or Buy-Sell Agreement to which Investor becomes a
party.
6.11 RELIANCE ON INVESTOR REPRESENTATIONS, WARRANTIES, ETC.
Investor understands and acknowledges that the Shares will not be registered
under the Securities Act, on the ground that the sale provided for in this
Agreement is exempt from registration under the Securities Act, and that the
Company's reliance on such exemption (or exemptions) is predicated on
Investor's representations that are set forth in this Agreement and the
"Accredited Investor" Questionnaire. Investor understands that the basis for
such exemption may not be present if, notwithstanding such representations,
Investor intends to acquire any of the Shares for a fixed or determinable
time in the future, or for a market rise, or for sale if the market does not
rise. Investor has not such intention and intends to acquire the Shares for
the purposes of investment, as set forth under Section 6.1 of this Agreement.
6.12 COMPANY RIGHTS. The Company shall not be required (a) to
transfer on the Company's books any of the Shares that are or have been sold
or transferred in violation of any of the terms or provisions set forth in
this Agreement or (b) to treat as owner of such Shares, or to accord voting
rights associated with the ownership of such Shares or to pay dividends to,
any transferee to whom such Shares have been so transferred.
6.13 RELIANCE ON OWN INVESTIGATION. Investor has performed a
thorough independent due diligence review of the Company, its business
enterprise and operations. In connection with its due diligence review of the
Company, Investor received and has reviewed documents and information
relating to the Company's operations, facilities, finances, management,
employees and other aspects of the Company's business enterprise, including
(without limitation) the documents and information generally described on the
List of Diligence Materials attached to this Agreement as EXHIBIT F (the
"Diligence Materials") on behalf of the Company. The Diligence Materials were
contained in twenty-one (21) individual binders and furnished to Investor at
Investor's request. Notwithstanding anything contained in this Agreement to
the contrary and notwithstanding the representations set forth under Section
6.6 of this Agreement, in purchasing the Shares and the Warrant Securities
under this Agreement, Investor is relying entirely on its own investigation
and review of the Company and its business and has not based any investment
decision on statements from the Company or any of its officers, directors,
employees, agents or other representatives except as set forth in the
representations and warranties in this Agreement and the Voting Agreement (if
any).
7. RIGHTS OF FIRST REFUSAL.
7.1 GENERAL. Before any of the Shares held by Investor or any
permitted transferee of Investor (either being sometimes referred to in this
Agreement as the "Selling Shareholder") may be sold or otherwise transferred,
the Company or its assignee(s) shall have rights of first refusal to purchase
the Shares under the terms and conditions set forth in this Section 7 (the
"Rights of First Refusal").
7.2 NOTICE OF PROPOSED TRANSFER. The Selling Shareholder of the
Shares shall deliver to the Company a written notice (the "Notice") stating:
(a) the Selling Shareholder's BONA FIDE intention to sell or otherwise
transfer such Shares (the "Offered Shares"); (b) the name of each proposed
purchaser or other transferee (the "Proposed Transferee"); (c) the number of
Offered Shares to be transferred to each Proposed Transferee; and (d) the
BONA FIDE cash price or other consideration for which the Selling Shareholder
proposes to transfer the Offered Shares (the "Offered Price"), and the
Selling Shareholder shall offer the Offered Shares at the Offered Price to
the Company or its assignee(s).
7.3 EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within fifteen
(15) days after receipt of the Notice, the Company or its assignee(s) may, by
giving written notice to the Selling Shareholder, elect to purchase all (but
not less than all) of the Offered Shares, for the purchase price determined
in accordance with Section 7.4 below.
7.4 PURCHASE PRICE. The purchase price (the "Purchase Price") for
the Offered Shares purchased by the Company or its assignee(s) under this
Section 7.4 shall be the Offered Price.
If the Offered Price includes consideration other than cash, then the cash
equivalent value of the non-cash consideration shall be determined by the
Board of Directors of the Company in good faith.
7.5 PAYMENT. Payment of the Purchase Price shall be made, at the
option of the Company or its assignee(s), in cash (by check), by cancellation
of all or a portion of any outstanding indebtedness of the Selling
Shareholder to the Company (or, in the case of purchase by an assignee, to
the assignee), or by any combination thereof within twenty (20) days after
receipt of the Notice or in the manner and at the times set forth in the
Notice. The sale shall constitute a representation and warranty by the
Selling Shareholder that the Shares being sold are free and clear of all
liens, claims and encumbrances, and the Selling Shareholder shall not be
required to make any further representations and warranties.
7.6 SELLING SHAREHOLDER'S RIGHT TO TRANSFER. If all of the Offered
Shares proposed in the Notice to be transferred to a given Proposed
Transferee are not purchased by the Company or its assignee(s) as provided in
this Section 7, then none of the Offered Shares shall be purchased under this
Section 7, and the Selling Shareholder may sell or otherwise transfer the
Offered Shares to that Proposed Transferee at the Offered Price or at a
higher price, provided that such sale or other transfer (a) is consummated
within ninety (90) days after the date of the Notice, (b) is in accordance
with all of the terms of this Agreement and all other agreements between the
Selling Shareholder and the Company and (c) is effected in accordance with
all applicable securities laws, and the Proposed Transferee agrees in writing
that the provisions of this Agreement shall continue to apply to the Offered
Shares in the hands of such Proposed Transferee. If the Offered Shares
described in the Notice are not transferred to the Proposed Transferee within
such period, then a new Notice shall be given to the Company, and the Company
or its assignees again shall be offered the Rights of First Refusal before
any of the Offered Shares held by the Selling Shareholder may be sold or
otherwise transferred.
7.7 TERMINATION OF RIGHTS OF FIRST REFUSAL. The Rights of First
Refusal under this Section 7 shall not apply to and shall terminate
immediately before the closing of any initial public offering of the
Company's Common Stock pursuant to a registration statement filed with and
declared effective by the Securities and Exchange Commission under the
Securities Act and shall be reinstated if such closing does not occur.
8. MARKET STANDOFF AGREEMENT. Investor hereby agrees, if so requested
of Investor and each other holder of more than ten percent (10%) of the
outstanding stock of the Company, by the Company or the managing underwriters
in a public offering of the Company's capital stock, that, without the prior
written consent of the Company or such managing underwriters, Investor shall
not offer, sell, contract to sell, grant any option to purchase, make any
short sale or otherwise dispose of, reduce Investor's market risk with
respect to or make a distribution of any capital stock of the Company held by
or on behalf of Investor or beneficially owned by Investor in accordance with
the rules and regulations of the Securities and Exchange Commission for a
period of up to 180 days after the date of the final prospectus relating to
any initial public offering by the Company.
9. CALIFORNIA CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES
THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, AND THE ISSUANCE OF
SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF
THE CONSIDERATION FOR SUCH SECURITIES BEFORE SUCH QUALIFICATION IS UNLAWFUL,
UNLESS THE SALE OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100,
25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES
TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
10. COVENANTS OF THE COMPANY TO INVESTOR. The Company hereby covenants
for the benefit of all Purchaser as follows:
10.1 OTHER INFORMATION. Until the date of the initial underwritten
public offering by the Company, the Company will deliver to Investor such
additional information as the Company is required to deliver to Sofinov of
GDF.
10.2 ACCOUNTING. The Company will maintain and will cause each of
its Subsidiaries (if any) to maintain accounting system(s) and controls
adequate to comply with the financial reporting requirements set forth herein.
10.3 INSURANCE. The Company agrees to maintain or cause to be
maintained with financially sound and reputable insurers rated A or above by
A.M. Best, insurance with respect to its assets and business and the assets
and business of its Subsidiaries against loss or damage of the kinds
customarily insured against by similarly situated corporations of established
reputation engaged in the same or similar businesses, in adequate amounts,
and at the request of Investors shall furnish Investors with evidence of the
same. The Company shall furnish to Purchasers complete, certified copies of
all policies and endorsements required by this section. At the option of
Purchasers, certificates of insurance signed by persons authorized by that
insurer will be acceptable in lieu of certified copies of the policies.
Should any of the policies be cancelled or non-renewed, Company shall give
thirty (30) days written notice to Purchasers. Any directors and officers
insurance purchased under this Section 10.3 will continue to be maintained
for a period of seven (7) years following the date that such Purchaser ceases
to elect a director.
10.4 PAYMENT OF TAXES. The Company agrees to pay or cause to be
paid all taxes, assessments and other governmental charges levied upon any of
its assets or those of its Subsidiaries (if any) or in respect of its or
their respective franchises, businesses, income or profits, all trade
accounts payable in accordance with usual and customary business terms, and
all claims for work, labor or materials, which if unpaid might become a lien,
upon any material asset of the Company or any of its Subsidiaries before the
same become delinquent, except that (unless and until foreclosure, sale or
other similar proceedings shall have been commenced) no such taxes,
assessments or charges need be paid if being contested in good faith and by
appropriate measures promptly initiated and diligently conducted if (a) such
reserve or other appropriate provision, if any, as shall be required by sound
accounting practice consistent with GAAP shall have been made therefor, and
(b) such contest does not have a material adverse effect on the financial
condition of the Company.
10.5 COMPLIANCE WITH LAWS. The Company agrees to use its best
efforts to comply, and shall use its best efforts to cause each of the
Company's Subsidiaries (if any) to comply in all material respects with all
laws, rules, regulations, judgments, orders and decrees of any governmental
or regulatory authority applicable to it and its respective assets, and with
all contracts, and agreements to which it is a party or shall become a party.
Neither the Company nor anyone
acting on its behalf will take any action hereafter that would cause (i) the
issuance of securities except in accordance with all applicable securities laws
or (ii) the loss of any exemption form the registration requirements of the
Securities Act with regard to any sales of securities.
10.6 PRESERVATION OF CORPORATE EXISTENCE AND PROPERTY;
OPERATIONS. The Company agrees to preserve, protect, and maintain, and cause
each of its Subsidiaries (if any) to preserve, protect, and maintain, (a) its
corporate existence, and (b) all rights, franchises, accreditations, privileges,
and properties the failure of which to preserve, protect, and maintain could
create a Material Adverse Change with regard to the Company and its Subsidiaries
taken as a whole. The Company and its Subsidiaries will comply with all material
agreements and contracts, including, without limitation, all leases and loan
agreements.
10.7 USE OF PROCEEDS. The Company will use the proceeds from
the sale of Shares hereunder exclusively for working capital and general
corporate purposes.
10.8 CONVERSION TO PREFERRED STOCK. Subject to the conditions
hereof, if the Company (i) issues or authorizes the issuance of any share of
preferred stock in connection with the proposed "rollup" or merger of its
Subsidiaries with the Company, or (ii) issues or authorizes the issuance of any
share of preferred stock to Investor, Investor may by written notice cause the
Company to convert all (but not less than all) of the Shares on a one-for-one
basis to shares of any Company to convert all (but not less than all) of the
Shares on a one-for-one basis to shares of any one of the above-described series
or classes of preferred stock, on the same terms and conditions applicable to
such preferred stock; PROVIDED, HOWEVER, that Investor's rights under this
Section 10.8 (including, without limitation, the right to convert the Shares
into shares of the Company's preferred stock) shall expire no later than the
earlier of the following two events: (i) twelve (12) months after the first
issuance or authorization for issuance of any such series or class of preferred
stock (unless the parties agree to different terms in writing), or (ii) the date
on which the Company files a registration statement under the Securities Act
relating to the initial public offering of the Company's Common Stock.
10.9 REGISTRATION RIGHTS. If the Company grants registration
rights or other investor rights to any other person, it shall be a condition
precedent to granting any such rights that the Company grant the same rights to
Investor, on terms and subject to written agreements in form and substance
satisfactory to Investor.
10.10 RIGHT OF FIRST OFFER. To the extent that, at any time
after the date of this Agreement, the Company grants to any shareholder of the
Company with a right of first offer to purchase up to such shareholder's PRO
RATA share or proportional percentage of any equity securities of the Company,
Investor shall be entitled to the same right of first offer (subject to the same
terms and conditions) as that granted to such shareholder.
10.11 INDEMNIFICATION. Each of the parties hereto (in each
case, the "Indemnifying Party") agrees to indemnify, pay and hold the other
party, and the other party's shareholders, members, officers, directors,
employees, representatives and agents and their respective Affiliates
(collectively called the "Indemnitees"), harmless from and against, any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever including, without limitation, the fees and disbursements of
counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding (whether
or not such Indemnitees shall be designated a party thereto), which may be
imposed on or incurred by, such Indemnitee, as a result of the violation or
breach of any representative, warranty or covenant of the Indemnifying Party
under this Agreement or the Voting Agreement (a "Claim"). If any indemnity
provided for in the preceding sentence is not available solely because it is
found to be contrary to public policy or otherwise unlawful, then the
Indemnifying Party and the Indemnities shall contribute to the amount payable
in such proportion as is appropriate to reflect the relative faults and
benefits and any other relevant equitable considerations. If any Claim or
alleged Claim shall be brought against any Indemnitee in respect of which
such Indemnitee may be indemnified under this Section 10.11 by the Company,
such Indemnitee shall promptly notify the Indemnifying Party in writing. The
Indemnifying Party at its option may assume the defense of any action in
respect of which it has acknowledged its obligation to indemnify such
Indemnitee under this Section 10.11. If the Indemnifying Party assumes the
defense of any action, such Indemnitee shall not be liable for any settlement
thereof without its consent (but such consent will not be unreasonably
withheld). If the Indemnifying Party assumes the defense of any such action,
such Indemnitee shall have the right to employ separate counsel in such
action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be paid by such Indemnitee unless in the reasonable
opinion of such Indemnitee there may be an actual conflict between the
positions of the Indemnifying Party and of such Indemnitee in conducting the
defense of such action or that there may be legal defenses available to such
Indemnitee different from or in addition to those which counsel to the
Indemnifying Party would be entitled to raise, in which event the fees and
expenses of such counsel shall be paid by the Indemnifying Party.
11. MISCELLANEOUS.
11.1 NOTICES. Any notice or other communication required or
permitted under this Agreement shall be given in writing and shall be sent by
registered or certified mail with postage and fees prepaid, addressed to the
other party hereto at the address set forth below or at such other address as
such party may designate by ten (10) days' advance written notice to the other
party hereto.
If to the Company: HYDROGEN BURNER TECHNOLOGY, INC.
Attn: President
3925 E. Vernon Street
Long Beach, CA 90815-1727
If to Investor: VISTEON CORPORATION
Attn: Wade E. Johnson
5500 Auto Club Drive
Dearborn, MI 48126
11.2 GOVERNING LAW. The validity, construction,
interpretation and enforceability of this Agreement shall determined and
governed by the laws of the State of California. Notwithstanding the
foregoing, if any law or set of laws in the State of California requires or
otherwise dictates that the laws of another state or jurisdiction must be
applied in any proceeding involving this Agreement, then such California law
or set of laws shall be superseded by this subsection, and the remaining laws
of the State of California nonetheless shall be applied in such proceeding.
11.3 CHOICE OF FORUM. Any judicial proceeding brought by any party
hereto as a result of a dispute or controversy arising out of or related to this
Agreement shall be commenced in courts located within Los Angeles County,
California. All parties hereto agree to submit to the jurisdiction of the
federal and state courts located within such county in the event of such a
dispute or controversy.
11.4 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. The representations, warranties, covenants and agreements contained
in this Agreement shall not be discharged or dissolved upon the Closing but
shall survive and remain in full force and effect after the Closing.
11.5 SEVERABILITY. If any sentence, paragraph, clause or
combination of the same in this Agreement is held by a court of competent
jurisdiction to be unenforceable in any jurisdiction, then such sentence,
paragraph, clause or combination shall be unenforceable in the jurisdiction
where it is so held invalid, and the remainder of this Agreement shall remain
binding on the parties hereto in such jurisdiction as if such unenforceable
provision had not been contained herein. The enforceability of such sentence,
paragraph, clause or combination of the same in this Agreement otherwise shall
be unaffected and shall remain enforceable in all other jurisdictions.
11.6 NO WAIVER. The failure of any party hereto at any time to
require performance by the other party hereto of any term or provision of this
Agreement shall not affect the right of such party to require performance of
that term or provision, and any waiver by any party hereto of any breach of any
term or provision of this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such term or provision, a waiver of the term
or provision itself or a waiver of any right under this Agreement.
11.7 WRITTEN AMENDMENTS. This Agreement may not be modified,
amended, altered or changed in any respect whatsoever except by further
agreement in writing, duly executed by all parties hereto. No oral statements or
representations made after the date of this Agreement by either party hereto are
binding on such party, and neither party hereto shall have the right to rely on
such oral statements or representations.
11.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations of either party hereto arising under this Agreement may
be assigned by either party hereto without the prior written consent of the
other party hereto. Notwithstanding the foregoing, Investor may assign its
rights and obligations under this Agreement to its affiliates and any successor
to substantially all of its business, by merger, asset sale or otherwise, unless
such assignment would be in violation of applicable laws (including, without
limitation, federal and state securities laws).
11.9 SUCCESSORS. This Agreement shall be binding on and shall inure
to the benefit of the parties hereto and their respective heirs, successors,
subcontractors, personal representatives and permitted assigns.
11.10 HEADINGS AND CAPTIONS. The headings and captions appearing at
the beginning of each Section and subsection of this Agreement are included
herein for the convenience of reference only, do not constitute a part of this
Agreement and shall not be deemed to limit, characterize or in
any way affect any term or provision of this Agreement or its interpretation.
This Agreement shall be enforced and construed as if no headings or captions
appeared herein.
11.11 ATTORNEYS' FEES. If a dispute with respect to this Agreement,
then the party prevailing in such dispute shall be entitled to recover all
expenses, including, without limitation, reasonable attorneys' fees and
expenses. Incurred in ascertaining such party's rights and in preparing to
enforce and in enforcing such party's rights under this Agreement, whether or
not it was necessary for such party to institute suit.
11.12 ENTIRE AGREEMENT. This Agreement and the Voting Agreement
constitute and shall be deemed to contain the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior oral and written agreements or representations with respect to the subject
matter hereof that are not expressly set forth herein.
11.13 COUNTERPART EXECUTION. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same original.
11.14 FACSIMILE TRANSMISSION. The facsimile transmission by one
party hereto of a signed copy of the signature page of this Agreement to the
other party hereto or such party's agent, followed by a facsimile transmission
of an acknowledgement of receipt thereof, shall constitute the delivery of this
Agreement. Each party hereto agrees to confirm such delivery by mailing or
personally delivering to the other party hereto or such party's agent an
executed original of this Agreement in its entirety.
IN WITNESS WHEREOF, the Company and Investor have executed this
Agreement to be effective as of the date first written above.
The "Company": "Investor":
HYDROGEN BURNER TECHNOLOGY, VISTEON CORPORATION, a Delaware
INC., a California corporation corporation
By: /s/ David Moard 6/30/00 By: /s/ Wade E. Johnson
--------------------------- ---------------------------
David Moard Wade E. Johnson
President Its: Manager, Bus. Development