SUBSCRIPTION AGREEMENT
Exhibit A
GreenHunter Energy, Inc.
0000 Xxxx Xxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
0000 Xxxx Xxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
Ladies and Gentlemen:
The undersigned subscriber (“Subscriber” or “Buyer”) hereby tenders this Subscription
Agreement (this “Agreement”) in accordance with and subject to the terms and conditions set forth
herein:
1. Subscription:
(a) Subscriber hereby subscribes for and agrees to purchase the aggregate amount of Units (the
“Units”) of GreenHunter Energy, Inc. (the “Company”), indicated on the signature page attached
hereto at the purchase price set forth on such signature page (the “Purchase Price”). Each Unit
consists of two shares of Common Stock, par value $.001 per share (the “Common Stock”) and one
Common Stock Purchase Warrant (the “Warrant”). The Common Stock and the Warrants are collectively
referred to as the “Securities”. Subscriber has made payment by check or wire transfer of funds in
accordance with instructions from the Company in the full amount of the Purchase Price of the
Common Stock for which Subscriber is subscribing (the “Payment”).
(b) Subscriber understands that it will not earn interest on any funds held by the Company
pursuant to this Agreement. The funds will be held pending the closing of the Offering. The Closing
shall occur on December 10, 2007. The closing shall be deemed to have occurred on the date the
conditions set forth in Sections 6 and 7 below are satisfied (the “Closing Date”).
(c) Subscriber hereby agrees to be bound hereby upon (i) execution and delivery to the Company
of the signature page to this Agreement and (ii) written acceptance by the Company of Subscriber’s
subscription, which shall be confirmed by faxing to the Subscriber the signature page to this
Agreement that has been executed by the Company (the “Subscription”).
2. BUYER’S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to the Company with respect to only itself that:
(a) No Public Sale or Distribution. Buyer is acquiring the Units for investment
purposes, as principal for its own account and not with a view towards, or for resale in connection
with, the public sale or distribution thereof, except pursuant to sales registered or exempted
under the Securities Act of 1933, as amended (the “1933 Act”); provided,
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however, that by making the representations herein, Buyer does not agree to hold any of the
Units for any minimum or other specific term and reserves the right to dispose of the Units at any
time in accordance with or pursuant to a registration statement or an exemption under the 1933 Act.
Buyer is acquiring the Units hereunder in the ordinary course of its business. Buyer does not
presently have any agreement or understanding, directly or indirectly, with any Person to
distribute any of the Units.
(b) Accredited Investor Status. At the time Buyer was offered the Units, it was, and
at the date hereof it is, an “accredited investor” as defined in Rule 501(a) of Regulation D under
the 1933 Act (“Regulation D”). Buyer is not a registered broker-dealer under Section 15 of the 1934
Act.
(c) Experience of Buyer. Buyer, either alone or together with its representatives, has
such knowledge, sophistication and experience in business and financial matters so as to be capable
of evaluating the merits and risks of the prospective investment in the Units, and has so evaluated
the merits and risks of such investment. Buyer is able to bear the economic risk of an investment
in the Units and, at the present time, is able to afford a complete loss of such investment.
(d) Reliance on Exemptions. Buyer understands that the Units are being offered and
sold to it in reliance on specific exemptions from the registration requirements of United States
federal and state securities laws and that the Company is relying in part upon the truth and
accuracy of, and Buyer’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of Buyer set forth herein in order to determine the availability
of such exemptions and the eligibility of Buyer to acquire the Units.
(e) Information. Buyer and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the Company and materials relating
to the offer and sale of the Units which have been requested by Buyer. Buyer and its advisors, if
any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor
any other due diligence investigations conducted by Buyer or its advisors, if any, or its
representatives shall modify, amend or affect Buyer’s right to rely on the Company’s
representations and warranties contained herein. Buyer understands that its investment in the Units
involves a high degree of risk. Buyer has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with respect to its acquisition of the
Units.
(f) No Governmental Review. Buyer understands that no United States federal or state
agency or any other government or governmental agency has passed on or made any recommendation or
endorsement of the Units or the fairness or suitability of the investment in the Units nor have
such authorities passed upon or endorsed the merits of the offering of the Units.
(g) Transfer or Resale. Buyer understands that: (i) the Securities have not been and
are not being registered under the 1933 Act or any state securities laws, and may not
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be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder,
(B) sold, assigned or transferred pursuant to an exemption from such registration, provided that
upon the request of the Company, Buyer delivers to the Company an opinion of counsel, in a form
reasonably acceptable to the Company, confirming the availability of such exemption, or (C) Buyer
provides the Company with reasonable assurance that such Securities can be sold, assigned or
transferred pursuant to Rule 144 or Rule 144A promulgated under the 1933 Act, as amended, (or a
successor rule thereto) (collectively, “Rule 144”); (ii) any sale of the Securities made in
reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule
144 is not applicable, any resale of the Securities under circumstances in which the seller may be
deemed to be an underwriter (as that term is defined in the 0000 Xxx) may require compliance with
some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and
(iii) neither the Company nor any other person is under any obligation to register the Securities
under the 1933 Act or any state securities laws or to comply with the terms and conditions of any
exemption thereunder.
(h) Legends. Buyer understands that the certificates or other instruments representing
the Securities, except as set forth below, shall bear any legend as required by the “blue sky” laws
of any state and a restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of such stock certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED UNLESS (A) REGISTERED UNDER AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR (B) PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION,
PROVIDED THAT UPON THE REQUEST OF THE COMPANY THE SELLER DELIVERS TO THE
COMPANY AN OPINION OF COUNSEL, IN A FORM REASONABLY ACCEPTABLE TO THE
COMPANY, CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION OR (II) UNLESS SOLD
PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.
The legend set forth above shall be removed and the Company shall issue a certificate without such
legend to the holder of the Securities upon which it is stamped, if, unless otherwise required by
state securities laws, (i) such Securities are registered for resale under the 1933 Act , or (ii)
in connection with a sale, assignment or other transfer, such holder provides the Company with an
opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such sale or
transfer of the Securities may be made without registration under the applicable requirements of
the 1933 Act, or (iii) following
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a sale of transfer of such Securities pursuant to Rule 144 (assuming the transferor is not an
affiliate of the Company), or (iv) while such Securities are eligible for sale under Rule 144(k).
(i) Validity; Enforcement. This Agreement has been duly and validly authorized,
executed and delivered by Buyer and constitute the legal, valid and binding obligation of Buyer
enforceable against Buyer in accordance with its respective terms, except as such enforceability
may be limited by general principles of equity or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally,
the enforcement of applicable creditors’ rights and remedies.
(j) No Conflicts. The execution, delivery and performance by Buyer of this Agreement
and the consummation by Buyer of the transactions contemplated hereby will not (i) result in a
violation of the organizational documents of Buyer or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which Buyer is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities laws) applicable to
Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or
violations which would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the ability of Buyer to perform its obligations hereunder.
(k) Residency. Buyer is an entity organized in the state of Colorado.
(l) Independent Investment Decision. Buyer has independently evaluated the merits of
its decision to purchase Units pursuant to this Agreement, and Buyer confirms that it has not
relied on the advice of the Company nor any other Company’s business and/or legal counsel in making
such decision.
(m) General Solicitation. Buyer is not purchasing the Units as a result of any
advertisement, article, notice or other communication regarding the Units published in any
newspaper, magazine or similar media or broadcast over television or radio or presented at any
seminar.
(n) Organization. Buyer is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization with the requisite corporate or
partnership power and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations thereunder.
(o) Certain Fees. Buyer has not entered into an agreement whereby 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.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers that:
(a) Organization and Qualification. The Company and its Subsidiaries are entities duly
organized and validly existing in good standing under the laws of the jurisdiction in which they
are formed, and have the requisite power and authorization to own their properties and to carry on
their business as now being conducted. Each of the Company and its Subsidiaries is duly qualified
as a foreign entity to do business and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in good standing would
not reasonably be expected to have a Material Adverse Effect. As used in this Agreement, “Material
Adverse Effect” means any material adverse effect on the business, properties, assets, operations,
results of operations, condition (financial or otherwise) or prospects of the Company and its
Subsidiaries, taken as a whole, or on the transactions contemplated hereby or by the agreements and
instruments to be entered into in connection herewith, or on the authority or ability of the
Company to perform its obligations under this Agreement.
(b) Authorization; Enforcement; Validity. The Company has the requisite power and
authority to enter into and perform its obligations under this Agreement, and to issue the
Securities in accordance with the terms hereof. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby, including,
without limitation, the issuance of the Securities have been duly authorized by the Company’s Board
of Directors and other than (i) the filing of a Form D under Regulation D of the 1933 Act, and (iv)
such filings required under applicable securities or “Blue Sky” laws of the states of the United
States, no further filing, consent, or authorization is required by the Company, its Board of
Directors or its stockholders. This Agreement has been duly executed and when delivered by the
Company will constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with its respective terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies.
(c) Issuance of Securities. The issuance of the Securities are duly authorized and are
free from all liens and charges with respect to the issue thereof. The Securities when issued,
will be validly issued, fully paid and nonassessable and free from all preemptive or similar
rights, liens and charges with respect to the issue thereof. Based in part upon the accuracy of the
representations and warranties of the Buyers’ set forth in Article 2, the issuance by the Company
of the Securities is, or will be upon issuance, exempt from registration under the 1933 Act.
(d) No Conflicts. The execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the transactions contemplated hereby (including,
without limitation, the issuance of the Securities will not (i) result in a violation of any
certificate of incorporation, certificate of formation, any certificate of
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designations or other constituent documents of the Company or any of its Subsidiaries, or the
bylaws of the Company or any of its Subsidiaries or (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a default) in any respect under,
or give to others any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or
(iii) result in a violation of any law, rule, regulation, order, judgment or decree (including
foreign, federal and state securities laws and regulations) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound
or affected; except in the case of each of clauses (ii) and (iii), such as could not, individually
or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
(e) Consents. Other than as contemplated in Section 3(b), the Company is not required
to obtain any consent, authorization or order of, or make any filing or registration with, any
court, governmental agency or any regulatory or self-regulatory agency or any other person in order
for it to execute, deliver or perform any of its obligations under or contemplated by this
Agreement in accordance with the terms hereof.
(f) No General Solicitation; Placement Agents’ Fees. Neither the Company, nor any of
its affiliates, nor any person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in connection with the
offer or sale of the Securities. The Company shall be responsible for the payment of any placement
agent’s fees, financial advisory fees, or brokers’ commissions (other than for persons engaged by
Buyer or its investment advisor) relating to or arising out of the transactions contemplated
hereby.
(g) No Integrated Offering. None of the Company, its Subsidiaries, any of their
affiliates, and any person acting on their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under circumstances that would
require registration of any of the Securities under the 1933 Act or cause the Private Placement to
be integrated with prior offerings by the Company for purposes of the 1933 Act or any applicable
stockholder approval provisions, including, without limitation, under the rules and regulations of
any exchange or automated quotation system on which any of the Securities of the Company are listed
or designated. None of the Company, its Subsidiaries, their affiliates and any person acting on
their behalf will take any action or steps referred to in the preceding sentence that would require
registration of any of the Securities under the 1933 Act or cause the Private Placement to be
integrated with other offerings.
(h) Conduct of Business; Regulatory Permits. Neither the Company nor its Subsidiaries
is in violation of any term of or in default under their organizational charter or bylaws. Neither
the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any
statute, ordinance, rule or regulation applicable to the Company or its Subsidiaries, except for
possible violations which could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The
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Company and its Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate regulatory authorities necessary to conduct their respective businesses, except where
the failure to possess such certificates, authorizations or permits would not have, individually or
in the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has
received any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit.
(i) Equity Capitalization. As of the date hereof, the authorized capital stock of the
Company consists of (i) 90,000,000 shares of Common Stock, of which as of the date hereof,
15,000,000 are issued and outstanding and (ii) 10,000,000 shares of preferred stock, of which as of
the date hereof, no shares are issued and outstanding. All of such outstanding shares have been, or
upon issuance will be, validly issued and are fully paid and nonassessable. None of the Company’s
capital stock is subject to preemptive rights or any other similar rights or any liens or
encumbrances suffered or permitted by the Company. The Company has furnished to the Buyers true,
correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in
effect on the date hereof, and the Company’s Bylaws, as amended and as in effect on the date
hereof.
(j) Absence of Litigation. There is no action, suit, proceeding or investigation
before or by any court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries, the Common Stock, the Preferred Stock or any of the Company’s Subsidiaries or any
of the Company’s or its Subsidiaries’ officers or directors, whether of a civil or criminal nature
or otherwise.
(k) Subsidiary Rights. The Company or one of its Subsidiaries has the unrestricted
right to vote, and (subject to limitations imposed by applicable law) to receive dividends and
distributions on, all capital common stock of its Subsidiaries as owned by the Company or such
Subsidiary.
(l) Disclosure. All disclosure provided to the Buyers pursuant to this Agreement regarding
the Company, its business and the transactions contemplated hereby, including the Schedules to this
Agreement, furnished by or on behalf of the Company is true and correct and does 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 the light of the circumstances under which they were made, not
misleading
4. COVENANTS.
(a) Form D and Blue Sky. The Company agrees to file a Form D with respect to the
Securities as required under Regulation D promulgated under the 1933 Act. The Company shall take
such action as the Company shall reasonably determine is necessary in order to obtain an exemption
for or to qualify the Securities for sale to Buyer pursuant to this Agreement under applicable
securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from
such qualification).
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(b) Board Representation. Buyer will have the right to nominate one member to the
Company’s Board of Directors, such member to initially be Xx. Xxxxxx X. Xxxxxxxxx, so long as Buyer
owns common stock that aggregates at least 5% of the outstanding common stock of the Company. If
Buyer desires to replace its nominee with a different member, Buyer must obtain the consent of the
Company’s Board of Directors. In the event that Buyer ceases to own common stock of the Company
that aggregates less than 5% of the outstanding common stock of the Company, Buyer’s representative
on the Board of Directors of the Company shall resign within five business days of such event.
(c) LIMITATION AND DISCLAIMER OF IMPLIED REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE
AND ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE. BUYER ACKNOWLEDGES THAT BUYER, TOGETHER WITH ITS REPRESENTATIVES AND ADVISORS, HAS
CONDUCTED SUCH DUE DILIGENCE INVESTIGATIONS OF THE COMPANY AND ITS BUSINESS, FINANCIAL CONDITION,
RESULTS AND PROSPECTS AS BUYER DEEMS NECESSARY. EXCEPT AS OTHERWISE PROVIDED IN THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE COMPANY MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO THE ACCURACY OR COMPLETENESS OF ANY
DATA, REPORTS, RECORDS, PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER
FURNISHED OR MADE AVAILABLE TO BUYER OR ITS REPRESENTATIVES BY THE COMPANY OR BY THE COMPANY’S
AGENTS OR REPRESENTATIVES; ANY AND ALL SUCH DATA, RECORDS, REPORTS, PROJECTIONS, INFORMATION AND
OTHER MATERIALS FURNISHED BY THE COMPANY OR BY THE COMPANY’S AGENTS OR REPRESENTATIVES OR OTHERWISE
MADE AVAILABLE TO BUYER OR BUYER’S REPRESENTATIVES ARE PROVIDED TO OR FOR THE BENEFIT OF BUYER AS A
CONVENIENCE, AND SHALL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST THE COMPANY OR THE
AGENTS OR REPRESENTATIVES OF THE COMPANY; AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT
BUYER’S SOLE RISK.
5. REGISTER.
The Company shall maintain at its principal executive offices (or such other office or agency
of the Company as it may designate by notice to each holder of Common Stock), a register for the
Common Stock in which the Company shall record the name and address of the Person in whose name the
Common Stock have been issued (including the name and address of each transferee) and the aggregate
principal amount of Common Stock held by such Person. The Company shall keep the register open and
available at all times during business hours for inspection of any Buyer or its legal
representatives upon reasonable notice.
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6. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Units to Buyer at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the following conditions,
provided that these conditions are for the Company’s sole benefit and may be waived by the Company
at any time in its sole discretion by providing Buyer with prior written notice thereof:
(a) Buyer shall have executed this Agreement and delivered the same to the Company.
(b) Buyer and each other Buyer shall have delivered to the Company the Purchase Price for the
Units being purchased by Buyer at the Closing by check or wire transfer of immediately available
funds pursuant to the wire instructions provided by the Company.
(c) The representations and warranties of Buyer shall be true and correct in all material
respects (except for those representations and warranties that are qualified by materiality or
Material Adverse Effect, which shall be true and correct in all respects) as of the date when made
and as of the Closing Date as though made at that time (except for representations and warranties
that speak as of a specific date, which shall be true and correct as of such specific date), and
Buyer shall have performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied or complied with by
Buyer at or prior to the Closing Date.
7. CONDITIONS TO BUYER’S OBLIGATION TO PURCHASE.
The obligation of Buyer hereunder to purchase the Units at the Closing is subject to the
satisfaction, at or before the Closing Date, of each of the following conditions, provided that
these conditions are for Buyer’s sole benefit and may be waived by Buyer at any time in its sole
discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed and delivered to Buyer (i) this Agreement, including
the Company’s acceptance of this Agreement and (ii) certificates representing the aggregate
principal amount of Securities being purchased by Buyer at the Closing pursuant to this Agreement.
(b) The representations and warranties of the Company shall be true and correct in all
material respects (except for those representations and warranties that are qualified by
materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the
date when made and as of the Closing Date as though made at that time (except for representations
and warranties that speak as of a specific date, which shall be true and correct as of such
specific date) and the Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Company at or prior to the
Closing Date.
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(c) The Company shall have obtained all governmental, regulatory or third party consents and
approvals, if any, necessary for the sale of the Units.
8. TERMINATION.
In the event that the Closing shall not have occurred with respect to a Buyer on or before
December 31, 2007, then Buyer may terminate this Agreement by giving written notice to the Company.
9. MISCELLANEOUS.
(a) Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of Texas, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Texas or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of Texas. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The
City of Dallas, County of Dallas, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, not a
facsimile signature.
(c) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
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(d) Severability. If any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
(e) Entire Agreement; Amendments. This Agreement supersedes all other prior oral or
written agreements between the Buyers, the Company, their affiliates and persons acting on their
behalf with respect to the matters discussed herein, and this Agreement and the instruments
referenced herein and therein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein or therein, neither
the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect
to such matters. No provision of this Agreement may be amended or waived other than by an
instrument in writing signed by the Company and the Buyer, and any amendment to this Agreement or
any waiver of any provision of this Agreement made in conformity with the provisions of this
Section 9(e) shall be binding on all Buyers and holders of Units, as applicable. No such amendment
shall be effective to the extent that it applies to less than all of the holders of the applicable
Units then outstanding. No consideration shall be offered or paid to any Person to amend or consent
to a waiver or modification of any provision of any of this Agreement unless the same consideration
also is offered to all of the parties to this Agreement, or holders of Units, as the case may be.
The Company has not, directly or indirectly, made any agreements with any Buyers relating to the
terms or conditions of the transactions contemplated by this Agreement except as set forth in this
Agreement. Without limiting the foregoing, the Company confirms that, except as set forth in this
Agreement, no Buyer has made any commitment or promise or has any other obligation to provide any
financing to the Company or otherwise.
(f) Notices. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile (provided confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one Business Day after deposit with an overnight
courier service, in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:
If to the Company:
GreenHunter Energy, Inc.
0000 Xxxx Xxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Attention: Chief Financial Officer
GreenHunter Energy, Inc.
0000 Xxxx Xxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Attention: Chief Financial Officer
If to a Buyer, to its address and facsimile number set forth on the signature page hereto,
with copies to Buyer’s representatives as set forth on the signature page
hereto, or to such other address and/or facsimile number and/or to the attention of
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such other
Person as the recipient party has specified by written notice given to each other party five
(5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given
by the recipient of such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time, date,
recipient facsimile number and an image of the first page of such transmission or (C) provided
by an overnight courier service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or
(iii) above, respectively.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, including any purchasers of
Securities. Neither the Company nor Buyer shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other party; provided however, that Buyer may
transfer and assign the Securities to a wholly-owned subsidiary or affiliate of the Buyer so long
as such Assignee qualifies as an accredited investor under Regulation D without the Company’s
consent. Any attempted assignment without such consent shall be void ab initio.
(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person.
(i) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
(j) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
(k) Irrevocability. Subscriber hereby acknowledges and agrees that upon written
notice of acceptance from the Company, the Subscription hereunder is irrevocable by Subscriber,
that, except as required by law, Subscriber is not entitled to cancel, terminate or revoke this
Agreement or any agreements of Subscriber hereunder and that this Agreement and such other
agreements shall survive the death or disability of Subscriber and shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors, administrators,
successors, legal representatives and permitted assigns. If Subscriber is more than one person, the
obligations of Subscriber hereunder shall be joint and several and the agreements, representations,
warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon
each such person and his or her heirs, executors, administrators, successors, legal representatives
and permitted assigns.
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10. Signature.
The signature page of this Agreement is contained as part of the applicable subscription
package, entitled “Signature Page.”
IN WITNESS WHEREOF, the Parties have executed this Subscription Agreement as of the 10th
day of December, 2007.
GREENHUNTER ENERGY, INC. |
||||
By: | ||||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Sr. VP, General Counsel and Secretary | |||
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