SUBSCRIPTION AGREEMENT
THIS
SUBSCRIPTION AGREEMENT (the “Agreement”) is made as of this ___ day of December
2004, by and between MRU HOLDINGS, INC., a Delaware corporation (the “Company”),
and the investor identified on the signature page to this Agreement (the
“Investor”).
W I T N E S S E T H:
WHEREAS,
the Investor desires to subscribe for, purchase and acquire from the Company and
the Company desires to sell and issue to the Investor the number of shares (the
“Shares”) of the Company’s Series A Convertible Preferred Stock, $0.001 par
value per share (the “Preferred Stock”), set forth on the signature page of this
Agreement, upon the terms and conditions and subject to the provisions
hereinafter set forth.
NOW,
THEREFORE, for and in consideration of the mutual premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Purchase
and Sale of the Shares. Subject
to the terms and conditions of this Agreement, the Investor subscribes for and
agrees to purchase and acquire from the Company and the Company agrees to sell
and issue to the Investor the Shares, in the manner set forth in Section
2 hereof,
at the purchase price set forth on the signature page of this Agreement (the
“Purchase Price”).
2. Terms
of Purchase and Sale of the Shares. The
closing of the transactions contemplated hereby (the “Closing”) shall take place
on or before the fifth full business day after the Notice Date (as such term is
defined in the Placement Agent Agreement dated as of November [__], 2004 (the
“Placement Agent Agreement”), between the Company, Xxxxxxx Xxxxxx Xxxxxx Inc.
and Xxxxx Xxxxxx & Co., Inc. (collectively, the "Placement Agents”)), at the
offices of McGuireWoods LLP, counsel to the Company, or at such other time and
place as the Company and the Placement Agents may agree upon. Contemporaneously
with the delivery of this Agreement, the Investor shall deliver to Sterling Bank
(the “Escrow Agent”) the Purchase Price by wire transfer of immediately
available funds pursuant to wire transfer instructions given to the Investor by
the Company. At the Closing, the Escrow Agent shall deliver to the Company the
Purchase Price by wire transfer of immediately available funds pursuant to wire
transfer instructions given to the Escrow Agent by the Company, and the Company
shall deliver to the Investor a certificate, registered in the name of the
Investor, representing the Shares. Notwithstanding the foregoing, the
obligations of the Company and the Investor hereunder are subject to the
Company’s receipt of aggregate subscriptions for a minimum of
$9,625,000 in
aggregate proceeds for shares of Preferred Stock on or prior to December 31,
2004 (or such later closing date as may be agreed by the Company and the
Placement Agents), which date may be extended by the Company and the Placement
Agents pursuant to the terms of the Placement Agent Agreement (the “Closing
Date”).
3. Representations
and Warranties of the Company. In order
to induce the Investor to enter into this Agreement, the Company represents and
warrants to the Investor the following:
(a) Authority. The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, and has all requisite right, power, and
authority to execute, deliver and perform this Agreement.
(b) Subsidiaries. The
Company has no direct or indirect Subsidiaries other than those set forth in set
forth in the Exchange Act Documents (as defined in Section 3(f)
below). Except as
disclosed in the Exchange Act Documents, the Company owns, directly or
indirectly, all of the capital stock of each Subsidiary free and clear of any
and all liens, and all the issued and outstanding shares of capital stock of
each Subsidiary are validly issued and are fully paid, non-assessable and free
of preemptive and similar rights.
(c) Enforceability.
The
execution, delivery, and performance of this Agreement by the Company have been
duly authorized by all requisite corporate action. This Agreement has been duly
executed and delivered by the Company, and, upon its execution by the Investor,
shall constitute the legal, valid, and binding obligation of the Company,
enforceable in accordance with its terms, except to the extent that its
enforceability is limited by bankruptcy, insolvency, reorganization, or other
laws relating to or affecting the enforcement of creditors’ rights generally and
by general principles of equity.
(d) No
Violations.
The
execution, delivery, and performance of this Agreement by the Company does not,
and will not, violate or conflict with any provision of the Company’s
Certificate of Incorporation or Bylaws and does not and will not, with or
without the passage of time or the giving of notice, result in the breach of, or
constitute a default, cause the acceleration of performance, or require any
consent under (except such consents as have been obtained as of the date
hereof), or result in the creation of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, any material instrument or
agreement to which the Company is a party or by which the Company or its
properties are bound, except such consents as have been obtained as of the date
hereof.
(e) Capitalization. The
authorized capital stock of the Company consists of: 50,000,000
shares of Common Stock, $0.001
par value per share (“Common Stock”), of which
13,586,202 were issued and outstanding as of November 19, 2004, and 5,000,000
shares of preferred stock, of which no shares are issued and
outstanding. As of
November 19, 2004, the Company has outstanding options and warrants to purchase
4,025,757 shares of Common Stock. Upon issuance in accordance with the terms of
this Agreement against payment of the Purchase Price therefore, the Shares will
be duly and validly issued, fully paid, and nonassessable and free and clear of
all liens imposed by or through the Company, and, assuming the accuracy of the
representations and warranties of the Investor and all other purchasers of
shares of Preferred Stock in the offering contemplated by the Placement Agent
Agreement, will be issued in accordance with a valid exemption from the
registration or qualification provisions of the Securities Act of 1933, as
amended (the “Securities Act”), and any applicable state securities laws (the
“State Acts”). The shares (the “Conversion Shares”) of Common Stock issuable
upon conversion of the Shares have been duly authorized, and upon issuance of
the Conversion Shares upon proper conversion of the Shares, in accordance with
the terms thereof, the Conversion Shares will be validly issued, fully paid, and
non-assessable.
(f) Exchange
Act Filing. During
the twelve (12) calendar months immediately preceding the date of this
Agreement, all reports and statements required to be filed by the Company with
the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and the rules and regulations
thereunder, have been timely filed. Such filings, together with all documents
incorporated by reference therein, are referred to as “Exchange Act Documents.”
Each Exchange Act Document, as amended, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations thereunder,
and no Exchange Act Document, as amended, at the time each such document was
filed, included any untrue statement of a material fact or omitted to state any
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.
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(g) Company
Financial Statements. The
audited financial statements, together with the related notes of the Company at
December 31, 2002 and December 31, 2003, and for the years then ended, included
in the Company’s Definitive Information Statement on Schedule 14c dated June 14,
2004 and filed June 15, 2004, and the unaudited financial statements of the
Company at September 30, 2004, and for the nine months then ended,
(collectively, the “Company Financial Statements”) included in the Company’s
Quarterly Report on Form 10-QSB for the quarter ended September 30, 2004,
respectively, fairly present in all material respects, on the basis stated
therein and on the date thereof, the financial position of the Company at the
respective dates therein specified and its results of operations and cash flows
for the periods then ended (provided that the unaudited financial statements are
subject to normal year-end audit adjustments and lack footnotes and other
presentation items). Such statements and related notes have been prepared in
accord-ance with general-ly accepted accounting principles in the United States
applied on a consistent basis except as expressly noted therein.
(h) No
Material Liabilities. Except
for liabilities or obligations not individually in excess of $100,000, and as
set forth in the Exchange Act Documents, since September 30, 2004, the Company
has not incurred any material liabilities or obligations, direct or contingent,
except in the ordinary course of business and except for liabilities or
obligations reflected or reserved against on the Company’s balance sheet as of
September 30, 2004, and there has not been any change, or to the knowledge of
the Company, development or effect (individually or in the aggregate) that is or
is reasonably likely to be, materially adverse to the condition (financial or
otherwise), business, prospects, or results of operations of the Company and the
Subsidiaries considered as a whole (a “Material Adverse Effect”) or any change
in the capital or material increase in the long-term debt of the Company, nor
has the Company declared, paid, or made any dividend or distribution of any kind
on its capital stock.
(i) No
Disputes Against Company. There is
no material pending or, to the knowledge of the Company, threatened (a) action,
suit, claim, proceeding, or investigation against the Company, at law or in
equity, or before or by any Federal, state, municipal, or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, (b) arbitration proceeding against the Company, (c) governmental
inquiry against the Company, or (d) any action or suit by or on behalf of the
Company pending or threatened against others.
(j) Approvals. Other
than the filing of the Certificate of Designation of Preferences, Rights and
Limitations of the Series A Preferred Stock, which the Company undertakes to
file with the Delaware Secretary of State prior to the Closing, (i) the
execution, delivery, and performance by the Company of this Agreement and the
Registration Rights Agreement (as hereinafter defined), (ii) the offer and sale
of the Shares, and (iii) the issuance of the Conversion Shares upon due
conversion of the Shares require no consent of, action by or in respect of, or
filing with, any person, governmental body, agency, or official other than those
consents that have been obtained and filings that have been made pursuant to the
Securities Act and any State Act which the Company undertakes to file within the
applicable time period.
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(k) Compliance. Neither
the Company nor any Subsidiary (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit
agreement, or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator, or governmental body, or (iii) is or has been in violation of any
statute, rule, or regulation of any governmental authority, including without
limitation all foreign, federal, state, and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as could not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect. The Company is in compliance with the applicable
requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and
regulations thereunder, except where such noncompliance could not have or
reasonably be expected to result in a Material Adverse Effect.
(l) Patents
and Trademarks. The
Company and the Subsidiaries have, or have rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, licenses, and other similar rights that are necessary or material
for use in connection with their respective businesses as described in the
Exchange Act Documents and which the failure to so have could, individually or
in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect (collectively, the “Intellectual Property Rights”). Neither the Company
nor any Subsidiary has received a written notice that the Intellectual Property
Rights used by the Company or any Subsidiary violates or infringes upon the
rights of any person. Except as set forth in the Exchange Act Documents, to the
knowledge of the Company, all such Intellectual Property Rights are enforceable
and there is no existing infringement by another person of any of the
Intellectual Property Rights, except where such infringement could not have or
reasonably be expected to result in a Material Adverse Effect.
(m) Transactions
With Affiliates and Employees. Except
as set forth in the Exchange Act Documents, none of the officers or directors of
the Company and, to the knowledge of the Company, none of the employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers, and directors),
including any contract, agreement, or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director, or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee, or partner.
(n) Internal
Accounting Controls. The
Company and the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles 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 has established disclosure controls and procedures (as
defined in Exchange Act rules 13a-14 and 15d-14) for the Company and designed
such disclosure controls and procedures to ensure that material information
relating to the Company, including its Subsidiaries, is made known to the
certifying officers by others within those entities, particularly during the
period in which the Company’s Form 10-KSB or 10-QSB, as the case may be, is
being prepared. The Company’s certifying officers have evaluated the
effectiveness of the Company’s controls and procedures as of a date within 90
days prior to the filing date of the Form 10-QSB for the Company’s most recently
ended fiscal quarter (such date, the “Evaluation Date”). The Company presented
in its most recently filed Form 10-KSB or Form 10-QSB the conclusions of the
certifying officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the Evaluation Date. Since the
Evaluation Date, there have been no significant changes in the Company’s
internal controls (as such term is defined in Item 307(b) of Regulation S-K
under the Exchange Act) or, to the Company’s knowledge, in other factors that
could significantly affect the Company’s internal controls.
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(o) Solvency. Based
on the financial condition of the Company as of the Closing Date (and assuming
that the Closing shall have occurred), (i) the Company’s fair saleable value of
its assets exceeds the amount that will be required to be paid on or in respect
of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature; (ii) the Company’s assets do not
constitute unreasonably small capital to carry on its business for the current
fiscal year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of the
business conducted by the Company, and projected capital requirements and
capital availability thereof; and (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would
be sufficient to pay all amounts on or in respect of its debt when such amounts
are required to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt).
(p) Certain
Fees. Except
as may be due to the Placement Agents from the Company, no brokerage or finder’s
fees or commissions are or will be payable by the Company to any broker,
financial advisor or consultant, finder, placement agent, investment banker,
bank, or other person with respect to the transactions contemplated by this
Agreement. The Investor shall have no obligation with respect to any Placement
Agent fees or with respect to any claims (other than such fees or commissions
owed by an Investor pursuant to written agreements executed by the Investor
which fees or commissions shall be the sole responsibility of such Investor)
made by or on behalf of other persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by this
Agreement.
(q) Certain
Registration Matters.
Assuming the accuracy of the Investor’s representations and warranties set forth
in Section 4, no registration under the Securities Act is required for the offer
and sale of the Shares by the Company to the Investor hereunder.
(r) Listing
and Maintenance Requirements. Except
as specified in the Exchange Act Documents, the Company has not, in the two
years preceding the date hereof, received notice from any automated dealer
quotation system to the effect that the Company is not in compliance with the
listing or maintenance requirements thereof. The Company is, and has no reason
to believe that it will not in the foreseeable future continue to be, in
compliance with the listing and maintenance requirements for continued listing
of the Common Stock on the OTC Bulletin Board.
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(s) Investment
Company. The
Company is not, and is not an “affiliate” of, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
(t) No
Additional Agreements. The
Company does not have any agreement or understanding with any Investor with
respect to the transactions contemplated by this Agreement and the Registration
Rights Agreement on terms that differ from those set forth in this Agreement and
the Registration Rights Agreement.
(u) Disclosure. The
Company confirms that neither it nor any person acting on its behalf has
provided the Investor or its agents or counsel with any information that the
Company believes would constitute material, non-public information following the
announcement of the Closing and the transactions contemplated thereby. The
Company understands and confirms that the Investor will rely on the foregoing
representations and covenants in effecting transactions in securities of the
Company. All disclosure provided to the Investor regarding the Company, its
business and the transactions contemplated hereby, furnished by or on behalf of
the Company (including the Company’s representations and warranties set forth in
this Agreement) are true and correct and do not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements made therein, in light of the circumstances under which they were
made, not misleading.
4. Representations
and Warranties of the Investor. In order
to induce the Company to enter into this Agreement, the Investor represents and
warrants to the Company the following:
(a) Authority. If a
corporation, partnership, limited partnership, limited liability company, or
other form of entity, the Investor is duly organized or formed, as the case may
be, validly existing, and in good standing under the laws of its jurisdiction of
organization or formation, as the case may be. The Investor has all requisite
individual or entity right, power, and authority to execute, deliver, and
perform this Agreement.
(b) Enforceability. The
execution, delivery, and performance of this Agreement by the Investor have been
duly authorized by all requisite partnership or corporate action, as the case
may be. This Agreement has been duly executed and delivered by the Investor,
and, upon its execution by the Company, shall constitute the legal, valid, and
binding obligation of the Investor, enforceable in accordance with its terms,
except to the extent that its enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium, or other laws relating to or affecting
the enforcement of creditors’ rights generally and by general principles of
equity.
(c) No
Violations.
The
execution, delivery, and performance of this Agreement by the Investor do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance, or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of the Investor pursuant
to, any material instrument or agreement to which the Investor is a party or by
which the Investor or its properties may be bound or affected, and, do not or
will not violate or conflict with any provision of the articles of incorporation
or bylaws, partnership agreement, operating agreement, trust agreement, or
similar organizational or governing document of the Investor, as applicable.
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(d) Knowledge
of Investment and its Risks. The
Investor has knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of Investor’s investment in the
Shares. The Investor understands that an investment in the Company represents a
high degree of risk and there is no assurance that the Company’s business or
operations will be successful. The Investor has considered carefully the risks
attendant to an investment in the Company, and that, as a consequence of such
risks, the Investor could lose Investor’s entire investment in the
Company.
(e) Investment
Intent. The
Investor hereby represents and warrants that (i) the Shares are being acquired
for investment for the Investor’s own account, and not as a nominee or agent and
not with a view to the resale or distribution of all or any part of the Shares,
and the Investor has no present intention of selling, granting any participation
in, or otherwise distributing any of the Shares within the meaning of the
Securities Act, (ii) the Shares are being acquired in the ordinary course of the
Investor’s business, and (iii) the Investor does not have any contracts,
understandings, agreements, or arrangements, directly or indirectly, with any
person and/or entity to distribute, sell, transfer, or grant participations to
such person and/or entity with respect to, any of the Shares. The Investor is
not purchasing the Shares as a result of any advertisement, article, notice or
other communication regarding the Shares published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
(f) Investor
Status.
The
Investor is an “Accredited Investor” as that term is defined by Rule 501 of
Regulation D promulgated under the Securities Act and the information provided
by the Investor in the Investor’s Questionnaire, a copy of which is attached
hereto as Exhibit A, is truthful, accurate, and complete. The Investor is not
registered as a broker-dealer under Section 15 of the Exchange Act.
(g) Disclosure. The
Investor has reviewed information provided by the Company in connection with the
decision to purchase the Shares, consisting of the Company’s publicly available
filings with the SEC and the information contained therein. The Company has
provided the Investor with all the information that the Investor has requested
in connection with the decision to purchase the Shares. The Investor further
represents that the Investor has had an opportunity to ask questions and receive
answers from the Company regarding the business, properties, prospects, and
financial condition of the Company. All such questions have been answered to the
full satisfaction of the Investor. Neither such inquiries nor any other
investigation conducted by or on behalf of the Investor or its representatives
or counsel shall modify, amend, or affect the Investor’s right to rely on the
truth, accuracy, and completeness of the disclosure materials and the Company’s
representations and warranties contained herein.
(h) No
Registration.
The
Investor understands that Investor may be required to bear the economic risk of
Investor’s investment in the Company for an indefinite period of time. The
Investor further understands that (i) neither the offering nor the sale of
the Shares has been registered under the Securities Act or any applicable State
Acts in reliance upon exemptions from the registration requirements of such
laws, (ii) the Shares and the Conversion Shares must be held by he, she or
it indefinitely unless the sale or transfer thereof is subsequently registered
under the Securities Act and any applicable State Acts, or an exemption from
such registration requirements is available, (iii) except as set forth in the
Registration Rights Agreement between the Company and the Investor, the
Company is under no obligation to register any of the Shares or the Conversion
Shares on the Investor’s behalf or to assist the Investor in complying with any
exemption from registration, and (iv) the Company will rely upon the
representations and warranties made by the Investor in this Subscription
Agreement in order to establish such exemptions from the registration
requirements of the Securities Act and any applicable State Acts.
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(i) Transfer
Restrictions.
The
Investor will not transfer any of the Shares or the Conversion Shares unless
such transfer is registered or exempt from registration under the Securities Act
and such State Acts, and, if requested by the Company in the case of an exempt
transaction, the Investor has furnished an opinion of counsel reasonably
satisfactory to the Company that such transfer is so exempt. The Investor
understands and agrees that (i) the certificates evidencing the Shares and the
Conversion Shares will bear appropriate legends indicating such transfer
restrictions placed upon the Shares and the Conversion Shares, (ii) the Company
shall have no obligation to honor transfers of any of the Shares or the
Conversion Shares in violation of such transfer restrictions, and (iii) the
Company shall be entitled to instruct any transfer agent or agents for the
securities of the Company to refuse to honor such transfers.
(j) Principal
Address. The
Investor’s principal residence, if an individual, or principal executive office,
if an entity, is set forth on the signature page of this Subscription
Agreement.
5. Independent
Nature of Investor’s Obligations and Rights. The
obligations of the Investor under this Agreement, the Registration Rights
Agreement, and any other documents delivered in connection herewith and
therewith (collectively, the “Transaction Documents”) are several and not joint
with the obligations of any other purchaser of Shares, and the Investor shall
not be responsible in any way for the performance of the obligations of any
other purchaser of Shares under any Transaction Document. The decision of the
Investor to purchase Shares pursuant to the Transaction Documents has been made
by the Investor independently of any other purchaser of Shares. Nothing
contained herein or in any Transaction Document, and no action taken by any
purchaser of Shares pursuant thereto, shall be deemed to constitute such
purchasers as a partnership, an association, a joint venture, or any other kind
of entity, or create a presumption that the purchasers of Shares are in any way
acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Document. The Investor acknowledges
that no other purchaser of Shares has acted as agent for the Investor in
connection with making its investment hereunder and that no other purchaser of
Shares will be acting as agent of the Investor in connection with monitoring its
investment in the Shares or enforcing its rights under the Transaction
Documents. The Investor shall be entitled to independently protect and enforce
its rights, including without limitation the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other purchaser of Shares to be joined as an additional party
in any proceeding for such purpose.
6. Prospectus
Delivery Requirement. The
Investor hereby covenants with the Company not to make any sale of the Shares or
the Conversion Shares without complying with the provisions hereof and of the
Registration Rights Agreement, and without effectively causing the prospectus
delivery requirement under the Securities Act to be satisfied (unless the
Investor is selling such Shares or the Conversion Shares in a transaction not
subject to the prospectus delivery requirement).
7. Shareholder
Approval. The
Company represents and warrants to the Investor that the vote of the Company’s
Stockholders will not be required to approve the issuance of the Shares or the
Conversion Shares.
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8. Indemnification
of Investor. In
addition to the indemnity provided in the Registration Rights Agreement, the
Company will indemnify and hold the Investor and its directors, officers,
shareholders, members, managers, partners, employees and agents (each, an
“Investor Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs, and reasonable attorneys’ fees and
costs of investigation (collectively, “Losses”) that any such Investor Party may
suffer or incur as a result of or relating to any misrepresentation, breach, or
inaccuracy of any representation, warranty, covenant, or agreement made by the
Company in any Transaction Document. In addition to the indemnity contained
herein, the Company will reimburse each Investor Party for its reasonable legal
and other expenses (including the cost of any investigation, preparation, and
travel in connection therewith) incurred in connection therewith, as such
expenses are incurred.
9. Non-Public
Information.
Subsequent to the Closing, the Company covenants and agrees that neither it nor
any other person acting on its behalf will provide Investor or its agents or
counsel with any information that the Company believes constitutes material
non-public information, unless prior thereto Investor shall have executed a
written agreement regarding the confidentiality and use of such information. The
Company understands and confirms that Investor shall be relying on the foregoing
representations in effecting transactions in securities of the
Company.
10. Further
Assurances. The
parties hereto will, upon reasonable request, execute and deliver all such
further assignments, endorsements and other documents as may be necessary in
order to perfect the purchase by the Investor of the Shares.
11. Entire
Agreement; No Oral Modification. This
Agreement contains the entire agreement among the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings
with respect thereto and may not be amended or modified except in a writing
signed by both of the parties hereto.
12. Binding
Effect; Benefits. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors and assigns; however, nothing in this
Agreement, expressed or implied, is intended to confer on any other person other
than the parties hereto, or their respective heirs, successors or assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
13. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and
the same instrument.
14. Governing
Law. This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the United States of America and the State of Delaware, both
substantive and remedial. Any
judicial proceeding brought against either of the parties to this agreement or
any dispute arising out of this Agreement or any matter related hereto shall be
brought in the courts of the State of New York, New York County, or in the
United States District Court for the Southern District of New York and, by its
execution and delivery of this agreement, each party to this Agreement accepts
the jurisdiction of such courts.
15. Prevailing
Parties. In any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the prevailing
party shall be entitled to receive and the nonprevailing party shall pay upon
demand reasonable attorneys’ fees in addition to any other remedy.
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16. Notices. All
communication hereunder shall be in writing and, if sent to you shall be mailed,
delivered, telegraphed or sent by facsimile or electronic mail, and confirmed to
an Investor at the address set forth on the signature page of this Agreement, or
if sent to the Company, shall be mailed, delivered, telegraphed or sent by
facsimile or electronic mail and confirmed to the Company at 000 Xxxxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000; Attention: Xxxxx XxXxxxx, Chief Executive
Officer, telephone number (000) 000-0000 and facsimile number (000) 000-0000,
with a copy to McGuireWoods LLP as 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxx X. Xxxxx, telephone number (000) 000-0000 and facsimile
number (000) 000-0000.
17. Headings. The
section headings herein are included for convenience only and are not to be
deemed a part of this Agreement.
[Signature
on following page]
10
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
MRU
HOLDINGS, INC., a Delaware corporation
By:
Name:
Xxxxx XxXxxxx
Its:
Chief Executive Officer
INVESTOR
____________________________________
By:
____________________________________
Print
Name and Title
____________________________________
____________________________________
____________________________________
Principal
Residence or Executive Office
___________________________________________
IRS Tax
Identification No.
____________________________________
Telephone
Number
____________________________________
Fax
Number
____________________________________
E-mail
Address
________________ X
$3.50 = ________________
Number of
Shares Price per
Share Purchase
Price
11
