WARRANT PURCHASE AGREEMENT
EXHIBIT
10.1
This
Warrant
Purchase Agreement (this
“Agreement”)
is
made and entered into as of the 30th
day of
June, 2006, between Xxxxxxxxx Mobile Fueling, Inc., a Florida corporation (the
“Company”)
and the
investors listed on Exhibit
A
(each, a
“Purchaser”
and
collectively, the “Purchasers”
and,
together with the Company, the “Parties”)
and
is
delivered and executed in connection with the Company’s sale of Warrants (as
defined below).
(a) This
Agreement sets forth the terms and conditions under which each Purchaser will
purchase a warrant
to purchase that number of shares of
the
Company’s common stock, $.01 par value (“Common
Stock”),
as
set forth opposite such Purchaser’s name on Exhibit
A
(the
“Transaction”).
Each
warrant shall be in the form attached as Exhibit
B
(the
“Warrant”).
The
exercise price of each Warrant shall be a per share price equal to
$2.54.
(b) The
aggregate exercise price of each Warrant may be paid by the Purchaser to the
Company only by surrender and cancellation of the promissory notes issued by
the
Company to such Purchaser, or subsequently transferred to the Purchaser, that
are identified opposite such Purchaser’s name on Exhibit
A
(the
“Notes”),
including all or any portion of the principal, interest and any prepayment
penalty then owed upon payment of the Notes, with the tender by Purchaser of
any
portion of the principal as payment for the exercise of the Warrant being deemed
a payment of the Notes by the Company to the extent of such exercise.
(c) The
offer
and sale of Warrants by the Company is limited to “accredited investors” as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act
of
1933, as amended.
2. OFFER.
(a) Each
Purchaser, by signing this Agreement, (i) agrees to abide by, and be subject
to,
all applicable terms and conditions of the Warrant and (ii) offers to purchase
a
Warrant to purchase the aggregate number of shares of Common Stock as set forth
opposite such Purchaser’s name on Exhibit
A,
which
Warrant is being issued to Purchaser as consideration for the Purchaser waiving
all limitations on the prepayment of the Notes and waiving that portion of
the
penalty for prepayment of the Notes shown on Exhibit
A
(the
“Warrant
Consideration”)
as
identified opposite such Purchaser’s name on Exhibit
A.
(b) From
and
after the date of this Agreement and during the term of the Warrants, all
principal payments due and owing to each Purchaser on the Notes shall be
suspended. Upon expiration of any Warrant, if and to the extent that such
Warrant has not been exercised by Purchaser or any subsequent holder thereof,
any previously suspended principal payment shall be due and payable to the
holder of such Notes at the time that the next regularly scheduled payment
of
principal is due on such Notes, to be paid in the manner set forth in
such
Notes.
During the period of time that the Warrants are exercisable, interest shall
continue to accrue on the Notes in accordance with their terms, except that
any
penalties or increases in the interest rate that might otherwise be triggered
on
account of the failure to make any regularly scheduled payment of interest
on
account of the suspension of the obligation to make principal payments are
waived by Purchaser and any subsequent holders of the Warrants.
(c) The
Company shall have the right, in its sole and absolute discretion, to reject
or
accept any Purchaser’s offer to purchase Warrants pursuant to this Agreement. If
the Company accepts a Purchaser’s offer, the Company shall execute this
Agreement and return a copy of the Agreement, and issue an original Warrant,
to
such Purchaser. If the Company rejects a Purchaser’s offer, the Company shall
return to such Purchaser this Agreement, together with any payment made by
such
Purchaser to the Company, without interest or deduction.
3. RECEIPT
OF DOCUMENTS. Each
Purchaser acknowledges receipt of a copy of: (a) this Agreement; (b) the
Warrant; (c) the Company’s Annual Report on Form 10-K for the year ended June
30, 2005 (the “10-K”);
(d)
the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006
(the “10-Q”);
and
(e) the Company’s Proxy Statement for the Company’s 2005 Annual Meeting of
Shareholders filed with the SEC on October 28, 2005 (the “Proxy”);
(collectively, the “Documents”).
The
10-K, 10-Q and Proxy were furnished to the Purchasers via XXXXX.
4. REPRESENTATIONS
AND WARRANTIES OF PURCHASER.
Each
Purchaser represents and warrants to the Company as follows:
(a) Purchaser,
either alone or through Purchaser’s representative, as that term is defined
under Rule 501(h)
of
Regulation D
under
the
Securities Act (the
“Purchaser’s
Representative”),
if
any, has had an opportunity to ask questions of, and receive answers from,
duly
designated representatives
of
the
Company concerning the terms and conditions of this Agreement and has been
afforded an opportunity to examine such documents and other information which
Purchaser or Purchaser’s Representative, if any, has requested for the purpose
of answering any question Purchaser or Purchaser’s Representative, if any, may
have concerning the business and affairs of the Company.
(b) Purchaser’s
principal residence or domicile is located in the State set
forth
opposite such Purchaser’s name on Exhibit
A.
Purchaser has received and reviewed this Agreement and the Documents and
acknowledges the Company made available to Purchaser and Purchaser’s
Representative, if any, at a reasonable time prior to the execution of this
Agreement, the opportunity to ask questions and receive answers concerning
the
business and affairs of the Company and the terms and conditions of the sale
of
the Warrants
and the shares of Common Stock which may be obtained by exercise of the Warrants
(collectively, the “Securities”)
as
contemplated by this Agreement and to obtain any additional information (which
the Company possesses or can acquire without unreasonable effort or expense)
as
may be necessary to verify the accuracy of information furnished to Purchaser
or
Purchaser’s Representative, if any. Purchaser (i)
is
able
to bear the loss of its entire investment without any material adverse effect
on
its economic stability, and (ii)
has
such
knowledge and experience in financial and business matters that it is capable
of
evaluating the merits and risks of the investment to be made by Purchaser
pursuant to this Agreement.
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(c) Purchaser
and Purchaser’s Representative, if any, understand that the Securities are being
offered and sold only to “accredited investors” (as that term is defined under
Rule 501(a) of Regulation D), and Purchaser represents that Purchaser is an
accredited investor. Purchaser and Purchaser’s Representative, if any understand
the Company is relying on Purchaser with respect to the accuracy of this
representation. Purchaser has completed and returned a copy of Schedule
A
and
Purchaser represents that the statements made therein are complete and
accurate.
(d) Purchaser
and Purchaser’s Representative, if any, understand that this Agreement may not
comply with the information requirements of Regulation D
for
offers and sales to non-accredited investors (see Regulation D,
Rule
502(b)),
and,
consequently, Purchaser understands the significance of its representation
to
the Company that Purchaser is an accredited investor. Purchaser and Purchaser’s
Representative, if any, acknowledge that they were encouraged by the Company
to
request all additional information
which
might be material or important in order for Purchaser to make an informed
investment decision with respect to the Company.
(e) The
Securities
are
being purchased for investment purposes only for such Purchaser’s own account
and not with the view to, or for resale in connection with, any distribution
or
public offering. Purchaser and Purchaser’s Representative, if any, understand
that the Securities have not been registered under the Securities Act or any
state securities
laws
by
reason of their contemplated issuance in transactions exempt from the
registration requirements of the Securities
Act
and
applicable state securities laws, and that the reliance of the Company and
others upon these exemptions is predicated in part upon the representation
by
Purchaser. Purchaser and Purchaser’s Representative, if any, understands that
the Securities may not be transferred or resold without the prior approval
of
the Company.
(f) Purchaser
and Purchaser’s Representative, if any, have carefully read this Agreement, the
Documents and the other information furnished to Purchaser by the Company in
connection with this Agreement.
(g) Purchaser
was not solicited to purchase the Securities by any means of general
solicitation, including, but not limited to, the following: (i)
any
advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media, or broadcast over television or radio;
or
(ii)
any
meeting where attendees were invited by any general solicitation or general
advertising.
(h) Purchaser
and Purchaser’s Representative, if any, are aware that the Warrants and the
shares of Common Stock issuable
upon
exercise of the Warrants (the “Shares”),
are
and will be, when issued, “restricted securities,”
as that
term is defined in Rule 144 of the rules and regulations promulgated under
the
Securities Act. Purchaser and Purchaser’s
Representative,
if any, are aware of the applicable limitations on the resale of the Shares.
Rule 144 only permits sales of “restricted securities” held for at least one
year and in transactions which otherwise comply with the requirements of such
Rule. Purchaser and Purchaser’s Representative, if any, acknowledge that, if
Rule 144 is available to Purchaser for the sale of the Shares, Purchaser may
make only routine sales of the Shares in limited amounts in accordance with
the
terms and conditions of Rule 144. Purchaser and Purchaser’s Representative, if
any, are aware that while
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there
is
a trading market for the Common Stock on the Nasdaq Small Cap Market, the
trading price for the Common Stock has been highly volatile, the Common Stock
has sometimes been thinly traded and, while the Company currently meets the
public information requirements of Rule 144, there is no guarantee that it
will
do so at any time in the future.
(i) Purchaser
and Purchaser’s Representative, if any, understand that, in the absence of an
effective registration statement covering the shares at the time of issuance,
any and all certificates representing the Shares shall bear a legend
substantially as follows, which legend Purchaser has read and
understands:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “ACT”)
OR THE
SECURITIES LAWS OF ANY STATE AND ARE “RESTRICTED SECURITIES” AS THAT TERM IS
DEFINED IN RULE 144 UNDER THE ACT. SUCH SHARES MAY NOT BE OFFERED FOR SALE,
SOLD
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION THEREUNDER, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF COUNSEL TO THE ISSUER.
(j) Purchaser
and Purchaser’s Representative, if any, acknowledge and warrant that, in making
this investment decision, they have made their own independent assessment of
the
merits and risks of an investment in the Securities based on their examination
and evaluation of the Company, its business, operations, financial condition,
future prospects and the skills and qualifications of its officers, directors
and employees. Purchaser and Purchaser’s Representative, if any, have consulted
Purchaser’s own attorney, business or tax advisors for legal, business or tax
advice concerning an investment in the Securities and have not relied on the
Company.
(k) Purchaser
and Purchaser’s Representative, if any, represent and warrant that, except as
set forth in this Agreement and in the Documents, no representations or
warranties have been made to the Purchaser or Purchaser’s Representative, if
any, by the Company or any agent, employee, representative or affiliate of
the
Company and that, in entering into this transaction and subscribing for the
Warrants, neither the Purchaser nor the Purchaser’s Representative, if any, is
relying on any information other than that contained in this Agreement, the
Documents, and other written information obtained from the Company in the course
of the independent investigation by Purchaser or Purchaser’s Representative, if
any.
(l)
Purchaser and Purchaser’s Representative, if any, acknowledge that at such time,
if ever, as the Shares are registered with the Securities and Exchange
Commission, sales of such securities will still be subject to federal and state
securities laws which may require, among other things, Purchaser’s Shares to be
sold through a registered broker-dealer or in reliance upon an exemption from
state registration.
-4-
(m) Purchaser
and Purchaser’s Representative, if any, represent and warrant that Purchaser can
bear the economic risk of loss of Purchaser’s entire investment in the Company.
Purchaser and Purchaser’s Representative, if any, understand that an investment
in the Company involves substantial risks, including, without limitation, those
described in the Documents, including but not limited to the 10-K and the
10-Q.
5. INDEMNIFICATION
BY PURCHASERS.
Each
Purchaser agrees that it shall indemnify and hold harmless the Company and
its
officers, directors, employees, agents and professional advisors from and
against any and all loss, damage, liability, or expense, including costs and
reasonable attorneys’ fees, that any one or more of the foregoing may incur by
reason of, or in connection with, any (i) misrepresentation, inaccurate
statement or material omission or (ii) breach of any warranties or failure
to
fulfill any covenants, agreements or obligations, by such Purchaser or
Purchaser’s Representative, if any, in this Agreement.
6. AUTHORIZATION.
Each
Purchaser authorizes the Company and its officers, employees and agents to
investigate such Purchaser’s personal and business background including, without
limitation, communication with any employer, former employer, business
associate, government agency, bank or other credit reference. Each Purchaser
authorizes any person, organization or entity that may have any knowledge or
information concerning such Purchaser’s personal or business background to
provide such information to the Company as the Company may request.
7. NO
BROKERS OR FINDERS.
No
person, firm or corporation has or will have, as a result of any act or omission
by any Purchaser, any right, interest or valid claim against such Purchaser
or
the Company for any commission, fee or other compensation as a finder
or
broker, or in any similar capacity, in connection with the transactions
contemplated by this Agreement.
8. REGISTRATION
RIGHTS. Nothing
contained in this Section
8
shall be
construed as requiring the exercise of the Warrant prior to the initial filing
of any registration statement provided for in this Section
8
or the
effectiveness thereof.
(a) Registration.
The
Company shall make its reasonable best efforts to prepare and file with the
Securities and Exchange Commission, on or prior to July 31, 2006, a Registration
Statement covering the resale of the Shares (the “Registrable
Shares”)
for an
offering to be made on a continuous basis pursuant to Rule 415. The Registration
Statement shall be on Form S-3 (except if the Company is not then eligible
to
register for resale the Registrable Securities on Form S-3, in which case such
registration shall be on another appropriate form in accordance herewith).
Subject to the terms of this Agreement, the Company shall make its reasonable
best efforts to cause the Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing
thereof.
(b) Obligations
of the Company.
In
connection with the registration of the Shares, the Company shall:
(i) use
its
reasonable best efforts to keep the Registration Statement effective at all
times until the earlier of (A) two (2) years from the expiration date of the
Warrants or (B) the date on which all Registrable Shares have been sold by
the
holders
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thereof
(the “Registration
Period”);
and
make its reasonable best efforts to submit to the SEC, within three (3) Business
Days after the Company learns that no review of the Registration Statement
will
be made by the staff of the SEC or the staff of the SEC has no further comments
on the Registration Statement, as the case may be, a request for acceleration
of
the effectiveness of the Registration Statement to a time and date not later
than forty-eight (48) hours after the submission of such request; and make
its
reasonable best efforts to notify the Purchasers of the effectiveness of the
Registration Statement on the date the Registration Statement is declared
effective; and the Company represents and warrants to, and covenants and agrees
with the Purchasers that the Registration Statement (including any amendments
or
supplements thereto and prospectuses contained therein, at the time it is first
filed with the SEC, at the time it is ordered effective by the SEC and at all
times during which it is required to be effective hereunder) and each such
amendment and supplement at the time it is filed with the SEC and all times
during which it is available for use in connection with the offer and sale
of
Shares shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were made,
not
misleading;
(ii) make
its
reasonable best efforts to prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to keep the Registration Statement effective at all times
during the Registration Period, and during the Registration Period, comply
with
the provisions of the Securities Act with respect to the disposition of all
Shares covered by the Registration Statement until such time as all of such
Shares have been disposed of in accordance with the intended methods of
disposition by the Purchasers as set forth in the Registration
Statement;
(iii) furnish
to the Purchasers (1) promptly after the same is prepared and publicly
distributed, filed with the SEC or received by the Company, one copy of the
Registration Statement and any amendment thereto, each preliminary prospectus
and prospectus and each amendment or supplement thereto, each letter written by
or on behalf of the Company to the SEC or the staff of the SEC and each item
of
correspondence from the SEC or the staff of the SEC relating to such
Registration Statement (other than any portion of any thereof which contains
information for which the Company has sought confidential treatment) and (2)
such number of copies of a prospectus, including a preliminary prospectus and
all amendments and supplements thereto and such other documents, as such
Purchaser reasonably may request in order to facilitate the disposition of
the
Shares;
(iv) use
its
reasonable best efforts to register and qualify the Shares covered by the
Registration Statement under such securities or blue sky laws of such
jurisdictions as the Purchasers who hold at least sixty-six and two-thirds
percent (662/3%)
of the
Registrable Shares being offered reasonably request and use reasonable efforts
to (1) prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be
-6-
necessary
to maintain the effectiveness thereof at all times until the end of the
Registration Period, (2) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at all times during
the
Registration Period and (3) take all other actions reasonably necessary or
advisable to qualify the Shares for sale in such jurisdictions; provided,
however, that the Company shall not be required in connection therewith or
as a
condition thereto (1) to qualify to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section
8(b)(iv),
(2) to subject itself to general taxation in any such jurisdiction,
(3) to file a general consent to service of process in any such
jurisdiction or (4) to make any change in its Articles of Incorporation or
Bylaws which the Board of Directors of the Company determines to be contrary
to
the best interests of the Company and its shareholders;
(v) as
promptly as practicable after becoming aware of such event or circumstance,
notify the Purchasers of any event or circumstance of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were
made, not misleading, and use its reasonable best efforts promptly to prepare
a
supplement or amendment to the Registration Statement to correct such untrue
statement or omission, file such supplement or amendment with the SEC at such
time as shall permit the Purchasers to sell Shares pursuant to the Registration
Statement as promptly as practicable, and deliver a number of copies of such
supplement or amendment to the Purchasers as the Purchasers may reasonably
request;
(vi) as
promptly as practicable after becoming aware of such event, notify the
Purchasers (or, in the event of an underwritten offering the managing
underwriters) of the issuance by the SEC of any stop order or other suspension
of effectiveness of the Registration Statement at the earliest possible
time;
(vii) permit
one legal counsel designated by the Purchasers holding at least sixty-six and
two-thirds percent (662/3%)
of the
Registrable Shares being sold to review and comment on the Registration
Statement and all amendments and supplements thereto a reasonable period of
time
prior to their filing with the SEC;
(viii) use
its
reasonable best efforts to make generally available to its security holders
as
soon as practical, but not later than ninety (90) days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the Securities Act) covering a twelve (12) month
period beginning not later than the first day of the Company’s fiscal quarter
next following the effective date of the Registration Statement;
(ix) during
the period the Company is required to maintain effectiveness of the Registration
Statement pursuant to Section
8(b)(i),
the
Company shall not bid for or purchase any Common Stock or other securities
or
any right to purchase Common Stock or other securities or attempt to induce
any
person to purchase any such
-7-
security
or right if such bid, purchase or attempt would in any way limit the right
of
the Purchasers to sell Shares by reason of the limitations set forth in
Regulation M under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”);
and
(x) take
all
other reasonable actions necessary to expedite and facilitate disposition by
the
Purchasers of the Shares pursuant to the Registration Statement.
(c) Obligations
of the Purchasers.
In
connection with the registration of the Shares, each Purchaser shall have the
following obligations:
(i) it
shall
be a condition precedent to the obligations of the Company to complete the
registration pursuant hereto with respect to such Purchaser’s Shares that such
Purchaser shall furnish to the Company such information regarding Purchaser,
the
Warrants and/or Shares held by such Purchaser and the intended method of
disposition of the Shares held by such Purchaser as shall be reasonably required
to effect the registration of such Shares and shall execute such documents
in
connection with such registration as the Company may reasonably request. At
least five (5) days prior to the first anticipated filing date of the
Registration Statement, the Company shall notify the Purchaser of the
information the Company requires from the Purchaser (the “Requested
Information”)
if any
of such Purchaser’s Shares are eligible for inclusion in the Registration
Statement. If at least two (2) Business Days prior to the filing date the
Company has not received the Requested Information from such Purchaser (at
such
time such Purchaser becoming a “Non-Responsive
Purchaser”),
then
the Company may file the Registration Statement without including the Shares
of
the Non-Responsive Purchaser;
(ii) by
such
Purchaser’s acceptance of the Shares, such Purchaser agrees to cooperate with
the Company as reasonably requested by the Company in connection with the
preparation and filing of the Registration Statement hereunder, unless such
Purchaser has notified the Company in writing of such Purchaser’s election to
exclude all of such Purchaser’s Shares from the Registration
Statement;
(iii) in
the
event the Purchasers holding at least sixty-six and two-thirds percent
(662/3%)
of the
Registrable Shares being registered determine to engage the services of an
underwriter, the Purchasers agree to enter into and perform the Purchasers’
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such other
actions as are reasonably required in order to expedite or facilitate the
disposition of Shares, unless any Purchaser have notified the Company in writing
of such Purchaser’s election to exclude all of such Purchaser’s Shares from the
Registration Statement;
(iv) such
Purchaser agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section
8(b)(v),
such
-8-
Purchaser
will immediately discontinue disposition of Shares pursuant to the Registration
Statement covering such Shares until such Purchaser’s receipt of the copies of
the supplemented or amended prospectus contemplated by Section
8(b)(v)
and, if
so directed by the Company, such Purchaser shall deliver to the Company (at
the
expense of the Company) or destroy (and deliver to the Company a certificate
of
destruction) all copies in such Purchaser’s possession of the prospectus
covering such Shares current at the time of receipt of such notice;
(v) such
Purchaser may not participate in any underwritten registration hereunder unless
such Purchaser (1) agrees to sell such Purchaser’s Shares on the basis
provided in any underwriting arrangements approved by the Purchasers entitled
hereunder to approve such arrangements, (2) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and (3) agrees to pay its pro rata share of all underwriting
discounts and commissions and other fees and expenses of investment bankers
and
any manager or managers of such underwriting and legal expenses to the
underwriters applicable with respect to its Shares, in each case to the extent
not payable by the Company pursuant to the terms of this Agreement;
and
(vi) such
Purchaser agrees to take all reasonable actions necessary to comply with the
prospectus delivery requirements of the Securities Act applicable to its sales
of Shares.
(vii)
(d) Expenses
of Registration.
All
costs and expenses, other than underwriting or brokerage discounts, commissions
and other fees related to the distribution of the Registrable Shares, incurred
in connection with registrations, filings or qualifications pursuant to
Sections
8(a)
and
8(b),
including, without limitation, all registration, listing and qualifications
fees, printers and accounting fees and the fees and disbursement of counsel
for
the Company shall be borne by the Company, provided, however, that the
Purchasers shall bear the fees and out-of-pocket expenses of the one legal
counsel selected by the Purchasers pursuant to Section
8(b)(vii)
hereof.
(e) Indemnification.
In the
event any Shares are included in a Registration Statement under this
Agreement:
(i) To
the
extent permitted by law, the Company will indemnify and hold harmless each
Purchaser, the directors, if any, of each Purchaser, the officers, if any,
of
each Purchaser, each person, if any, who controls Purchaser within the meaning
of the Securities Act or the Exchange Act, any underwriter (as defined in the
Securities Act) for any Purchaser, the directors, if any, of such underwriter
and the officers, if any, of such underwriter, and each person, if any, who
controls any such underwriter within the meaning of the Securities Act or the
Exchange Act (each, an “Indemnified
Person”),
against any losses, claims, damages, liabilities or expenses (joint or several)
incurred (collectively, “Claims”)
to
which any of them may become subject under the Securities Act, the Exchange
Act
or otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any
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of
the
following statements, omissions or violations in the Registration Statement
or
any post-effective amendment thereof, or any prospectus included therein:
(1) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any post-effective amendment thereof
or the omission or alleged omission to state therein a material fact required
to
be stated therein or necessary to make the statements therein not misleading,
(2) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus if used prior to the effective date
of
such Registration Statement, or contained in the final prospectus (as amended
or
supplemented, if the Company files any amendment thereof or supplement thereto
with the SEC) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading
or
(3) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities law or any rule or regulation under
the Securities Act, the Exchange Act or any state securities law (the matters
in
the foregoing clauses (1) through (3) being, collectively, “Violations.”)
Subject to the restrictions set forth in Section
8(e)(iv)
with
respect to the number of legal counsel, the Company shall reimburse the
Purchasers and the other Indemnified Persons, promptly as such expenses are
incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such
Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section
8(e)(i):
(1) shall not apply to a Claim arising out of or based upon a Violation
which occurs in reliance upon and in conformity with information furnished
in
writing to the Company by any Indemnified Person or underwriter for such
Indemnified Person expressly for use in connection with the preparation of
the
Registration Statement, the prospectus or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by the Company
pursuant to Section
8(e)(iii)
hereof;
(2) with respect to any preliminary prospectus shall not inure to the
benefit of any Indemnified Person if the untrue statement or omission of
material fact contained in the preliminary prospectus was corrected in the
prospectus, as then amended or supplemented, if such prospectus was timely
made
available by the Company pursuant to Section
8(b)(iii)
hereof,
and (3) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. Such indemnity shall remain in
full
force and effect regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of the Shares by
Purchaser.
(ii) In
connection with any Registration Statement in which any Purchaser is
participating, such Purchasers agree to indemnify and hold harmless, to the
same
extent and in the same manner set forth in Section
8(e)(i),
the
Company, each of its directors, each of its officers, each person on, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act, any underwriter and any other stockholder selling securities
pursuant to the Registration Statement or any of its directors or officers
or
any person who controls such stockholder or underwriter within the meaning
of
the Securities Act or the Exchange Act (collectively and together with an
Indemnified Person, an “Indemnified
Party”),
against any Claim to which any of them
-10-
may
become subject, under the Securities Act, the Exchange Act or otherwise, insofar
as such Claim arises out of or is based upon any Violation, in each case to
the
extent (and only to the extent) that such Violation occurs in reliance upon
and
in conformity with written information furnished to the Company by such
Purchaser expressly for use in connection with such Registration Statement,
and
each Purchaser will reimburse any legal or other expenses reasonably incurred
by
any Indemnified Party, promptly as such expenses are incurred and are due and
payable, in connection with investigating or defending any such Claim; provided,
however, that the indemnity agreement contained in this Section
8(e)(ii)
shall
not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of such Purchaser, which consent
shall not be unreasonably withheld; provided further, however, that each
Purchaser shall be liable under this Section
8(e)(ii)
for only
that amount of a Claim as does not exceed the amount by which the net proceeds
to such Purchaser from the sale of Shares pursuant to such Registration
Statement exceeds the cost of such Shares to such Purchaser. Such indemnity
shall remain in full force and effect regardless of any investigation made
by or
an behalf of such Indemnified Party and shall survive the transfer of the Shares
by Purchaser. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section
8(e)(ii)
with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact contained
in the preliminary prospectus was corrected on a timely basis in the prospectus,
as then amended or supplemented.
(iii) The
Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in any distribution, to the same extent as provided above, with
respect to information so furnished in writing by such persons expressly for
inclusion in the Registration Statement.
(iv) Promptly
after receipt by an Indemnified Person or Indemnified Party under this
Section
8(e)
of
notice of the commencement of any action (including any governmental action),
such Indemnified Person or Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section
8(e),
deliver
to the indemnifying party a written notice of the commencement thereof and
the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
selected by the indemnifying party but reasonably acceptable to the Indemnified
Person or the Indemnified Party, as the case may be; provided, however, that
an
Indemnified Person or Indemnified Party shall have the right to retain its
own
counsel with the fees and expenses to be paid by the indemnifying party, if,
in
the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and
any
other party represented by such counsel in such proceeding. In such event,
the
Company shall pay for only one separate legal counsel for the Purchasers; such
legal counsel shall be selected by the Purchasers holding at least sixty-six
and
two-thirds
-11-
percent
(662/3%)
of the
Registrable Shares included in the Registration Statement to which the Claim
relates. The failure to deliver written notice to the indemnifying party within
a reasonable time of the commencement of any such action shall not relieve
such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section
8(e),
except
to the extent that the indemnifying party is prejudiced in its ability to defend
such action. The indemnification required by Section
8(e)
shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
(v) The
agreements, representations and warranties of the Company and the Purchasers
set
forth or provided in this Section
8
shall
survive any exercise of the Warrants and the delivery of and payment for the
Shares hereunder and shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company and any
Purchaser.
9. MISCELLANEOUS.
(a) This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Florida.
The
Parties submit to the exclusive jurisdiction of the courts located in Broward
County, Florida, with respect to any dispute arising under this Agreement and
the transactions contemplated hereby.
(c) The
headings of this Agreement are for convenience and reference only, and shall
not
limit or otherwise affect the interpretation of any term or provision hereof.
(d) This
Agreement and the rights, powers, and duties set forth herein shall, except
as
otherwise expressly provided, be binding upon and inure to the benefit of,
the
heirs, executors, administrators, legal representatives, successors, and assigns
of the Parties.
(e) This
Agreement and the rights and obligations hereunder shall not be assignable
or
transferable by any Purchaser or the Company without the prior written consent
of the other Parties, except (i) in the case of the Company, by operation
of law in connection with a merger, consolidation or sale of substantially
all
of its assets or (ii) in the case of a Purchaser, (1) to any Affiliates (as
defined below) of such Purchaser or (2) to partners, members, beneficiaries
or other equity interest holders of such Purchaser; provided,
that in
each case referred to in (1) and (2) above, the third party transferee
would have been eligible to be an original purchaser of Warrants pursuant to
this Agreement and executes a counterpart signature page hereto becoming a
“Purchaser” hereunder, subject to all of the rights and obligations of this
Agreement. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the Parties and their
respective successors and assigns. “Person”
means
an individual, corporation, partnership, association, trust or other entity
or
organization, including a government or political subdivision or agency or
instrumentality thereof. “Affiliate”
-12-
means,
with respect to any Person, any other Person who, directly or indirectly, owns
or controls, is under common ownership or control with, or is owned or
controlled by, such Person.
(f) This
Agreement is for the sole benefit of the Parties and their permitted assigns
and
nothing expressed or implied in this Agreement shall give or be construed to
give to any Person, other than the Parties and such assigns, any legal or
equitable rights hereunder.
(g) If
any
legal action or any arbitration or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties shall be entitled
to
recover reasonable attorneys’ fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
(h) This
Agreement shall be construed in accordance with its intent and without regard
to
any presumption or any other rule requiring construction against the party
causing the same to be drafted.
(i) If
any
provision of this Agreement, or any portion of any provision, shall be deemed
invalid
or
unenforceable for any reason whatsoever, such invalidity or unenforceability
shall
not
affect the enforceability and validity of the remaining
provisions.
(j) This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original but all of which taken together shall constitute
one agreement. Signatures to this Agreement may be transmitted by facsimile
and such transmission shall be deemed to be an original.
In
Witness Whereof,
the
Parties have caused this Agreement to be executed by their respective duly
authorized officers or persons as of the date first set forth
above.
XXXXXXXXX
MOBILE FUELING, INC.
By: ___________________________________
Xxxxxxx
X. Xxxxxxxxx,
President
and Chief Executive Officer
Purchasers:
-13-
Purchasers
(Continued)
_________________________________________
Print
Name: Triage
Capital Management, L.P.
Address:
______________________________
______________________________
Phone:
______________________________
Fax:
______________________________
SSN/EIN:
______________________________
_________________________________________
Print
Name: Triage
Capital Management B, L.P.
Address:
______________________________
______________________________
Phone:
______________________________
Fax:
______________________________
SSN/EIN:
______________________________
-14-
EXHIBIT
A
Schedule
of Purchasers
Name
|
State
of Primary Domicile
|
No.
of Shares
Covered
by Warrant
|
Aggregate
Value of Warrant
|
Promissory
Note for which ½ of Prepayment Penalty is Waived
|
Amount
of Prepayment Penalty Waived (Warrant
Consideration)
|
|||||
Triage
Capital
Management
L.P.
c/o
Triage Advisors
000
Xxxx Xxxxxx
Xxxxx
000
Xxxx
Xxxxxx, XX 00000
|
Penn.
|
323,157
125,421
|
$800,800
(Principal)
$20,020
(1/2 Prepay Penalty)
$310,800
(Principal)
$7,770
(1/2 Prepay Penalty)
|
August
29, 2003
January
25, 2005
|
$20,020
$7,770
|
|||||
Triage
Capital
Management
B, L.P.
c/o
Triage Advisors
000
Xxxx Xxxxxx
Xxxxx
000
Xxxx
Xxxxxx, XX 00000
|
Penn.
|
451,646
157,059
|
$1,119,200
(Principal)
$27,980
(1/2 Prepay Penalty)
$389,200
(Principal)
$9,730
(1/2 Prepay Penalty)
|
August
29, 2003
January
25, 2005
|
$27,980
$9,730
|
|||||
TOTAL:
|
1,057,283
|
$2,620,000
(Principal)
$65,500
(Prepay Penalty)
|
$65,500
|
EXHIBIT
B
Form
of Warrant
SCHEDULE
A
ACCREDITED
INVESTOR REPRESENTATION
As
provided by Rule 501(a) of Regulation D, my representation that I am or
represent an accredited investor is based upon one of the following grounds
that
I am or represent (please check one):
o |
A
private business development company as defined in Section 202(a)(22)
of
the Investment Advisors Act of
1940;
|
o |
An
organization described in Section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust, or partnership,
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of Five Million Dollars
($5,000,000);
|
o |
A
director or executive officer of the
Company;
|
o |
A
natural person whose individual net worth, or joint net worth with
that
person’s spouse, exceeds One Million Dollars
($1,000,000);
|
o |
A
natural person who has an individual income in excess of Two Hundred
Thousand Dollars ($200,000) in each of the two (2) most recent years
and
has a reasonable expectation of reaching the same income level in
the
current year;
|
o |
A
natural person who has a joint income with that person’s spouse in excess
of Three Hundred Thousand Dollars ($300,000) in each of the two (2)
most
recent years and has a reasonable expectation of reaching the same
income
level in the current year;
|
o |
A
trust, with total assets in excess of Five Million Dollars ($5,000,000),
not formed for the specific purpose of acquiring the securities offered,
whose purchase is directed by a sophisticated person as defined by
Rule
506(b)(2)(ii) of the Securities Act; or
|
An
entity
in which all of the equity owners are accredited investors.
INDIVIDUAL: ENTITY:
___________________________________
______________________________
Print
Name: _________________________ By:
___________________________
Date:
______________________________ Name:
__________________________
Title:
__________________________
Schedule
A to Securities Purchase Agreement
Page
1
of
3
MANNER
IN WHICH TITLE TO BE HELD
(Please
check one)
o Individual
Ownership
o Community
Property
o Joint
Tenant with
Right of Survivorship (both parties must sign)
o Partnership
o Tenants
in
Common
o Company
o Trust
o Other
Schedule
A to Securities Purchase Agreement
Page
2
of
3
AFFILIATION
WITH A U. S. REGISTERED BROKER-DEALER:
Are
you
associated with an NASD member firm? (Please check one)
YES
_______ NO
_______
(1)
The
NASD defines a “person associated with a member” or “associated person of a
member” as being every sole proprietor, general or limited partner, officer,
director or branch manager of any member, or any natural person occupying a
similar status or performing similar functions, or any natural person engaged
in
the investment banking or securities business who is directly or indirectly
controlling or controlled by such member (for example, any employee), whether
or
not any such person is registered or exempt from registration with the NASD.
Thus, “person associated with a member” or “associated person of a member”
includes a sole proprietor, general or limited partner, officer, director or
branch manager of an organization of any kind (whether a corporation,
partnership or other business entity) which itself is either a “member” or a
“person associated with a member” or “associated person of a member.” In
addition, an organization of any kind is a “person associated with a member” or
“associated person of a member” if its sole proprietor or any one of its general
or limited partners, officers, directors or branch managers is a “member,”
“person associated with a member” or “associated person of a
member.”
(2)
The
NASD defines a “member” as being any individual, partnership, corporation or
other legal entity that is a broker or dealer admitted to membership in the
NASD.
IF
SUBSCRIBER IS A REGISTERED REPRESENTATIVE WITH AN NASD MEMBER FIRM, THE
FOLLOWING ACKNOWLEDGMENT MUST BE SIGNED BY THE APPROPRIATE PARTY BEFORE
SUBSCRIBER’S OFFER TO PURCHASE SHARES WILL BE ACCEPTED BY THE
COMPANY:
The
undersigned NASD member firm acknowledges receipt of the notice required by
Rule
3050 of the NASD Conduct Rules or any successor rules or
regulations.
Date:____________________
_______________________________________
Name
of
NASD Member Firm
By:
_____________________________
Name:
_____________________________
Title:
_____________________________
Schedule
A to Securities Purchase Agreement
Page
3
of
3