Post-Effective Amendment to an S-8 — Form S-8 Filing Table of Contents
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Pursuant
to Rule 416(a), this registration statement also covers any additional
securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
(2)
Calculated
pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act
of 1933,
as amended solely for purposes of calculating the registration fee.
The
price is based on the average of the high and low sales prices of
the
registrant’s common stock on May 31, 2007, as reported on the NASDAQ Stock
Market.
Explanatory
Note
This
Post-Effective Amendment No. 1 to this Registration Statement on Form S-8 (the
“Registration Statement”) is filed by MRU Holdings, Inc. (the “Company”) to
register an additional 3,000,000 shares of common stock, par value $0.001 of
the
Company (the “Common Stock”). These shares of Common Stock are reserved for
issuance under the MRU Holdings, Inc. Amended and Restated 2004 Incentive Plan
(the “Plan”). The Company has previously registered 5,000,000 shares of Common
Stock under the Plan (prior to the amendment and restatement thereof) by filing
a Registration Statement on Form S-8 on November 30, 2005 (the “2005
Registration Statement”).
The
Plan
was initially adopted by the Board of Directors of the Company (the “Board”) and
amended and approved by the holders of a majority of the shares eligible to
vote, effective September 20, 2005. On March 23, 2007, the Board approved the
restatement of the Plan with amendments that would, among other things, increase
the number of shares of Common Stock that may be issued pursuant to the Plan.
On
May 14, 2007, the Plan, as amended and restated, was approved by the holders
of
a majority of the shares eligible to vote.
Pursuant
to General Instruction E to Form S-8, the contents of the 2005 Registration
Statement are incorporated herein by reference to the extent not modified or
superseded hereby or by any subsequently filed document that is incorporated
by
reference herein or therein.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I will be sent or given
to persons to whom the information is required to be given as specified by
Rule
428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
Those documents and the documents incorporated by reference in this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.Incorporation
of Documents by Reference.
The
Company hereby incorporates by reference in this Registration Statement the
following documents which have been filed with the Securities and Exchange
Commission (the “SEC”):
All
documents subsequently filed with the SEC by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as amended
(the “Exchange Act”), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date
of
filing of such documents (except for information furnished under Items 2.02
and
7.01 of Form 8-K, which is not deemed filed and not incorporated by reference
herein).
Item
4. Description
of Securities.
Not
applicable.
Item
5.Interests
of Named Experts and Counsel.
None.
Item
6.Indemnification
of Directors and Officers.
We
are
incorporated in the State of Delaware. Section 145(a) of the General Corporation
Law of the State of Delaware (“DGCL”) provides that a Delaware corporation
may indemnify any person who was or is a party or is threatened to be made
a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or
was a
director, officer, employee or agent of the corporation or is or was serving
at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
no
cause to believe his conduct was unlawful.
Section
145(b) of the DGCL provides that a Delaware corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted
in
any of the capacities set forth above, against expenses actually and reasonably
incurred by him in connection with the defense or settlement of such action
or
suit if he acted under similar standards, except that no indemnification may
be
made in respect of any claim, issue or matter as to which such person shall
have
been adjudged to be liable to the corporation unless and only to the extent
that
the court in which such action or suit was brought shall determine that despite
the adjudication of liability, such person is fairly and reasonably entitled
to
be indemnified for such expenses which the court shall deem proper.
Section
145 of the DGCL further provides that to the extent a director or officer of
a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue,
or
matter therein, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of
any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145.
Section
102(b)(7) of the DGCL provides that a corporation in its certificate of
incorporation may eliminate or limit personal liability of members of its board
of directors for breach of a director’s fiduciary duty. However, no such
provision may eliminate or limit the liability of a director for breaching
the
duty of loyalty, failing to act in good faith, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase which was illegal, or obtaining an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty. Our Certificate
of Incorporation contains such a provision.
Our
bylaws include an indemnification provision under which we have the power to
indemnify our directors, officers and former officers and directors (including
heirs and personal representatives) against all costs, charges and expenses
actually and reasonably incurred, including an amount paid to settle an action
or satisfy a judgment to which the director or officer is made a party by reason
of being or having been a director or officer of us or any of our
subsidiaries.
Item
7.Exemption
from Registration Claimed.
Not
applicable.
Item
8.Exhibits.
Exhibit
No.
Description
Incorporated
by Reference to Filings Indicated
4.1
MRU
Holdings, Inc. Amended and Restated 2004 Incentive Plan
Exhibit
5.1 to this Registration Statement on Form
S-8
Item
9.Undertakings.
The
undersigned Registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933, as amended (the “Securities Act”);
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if
the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective Registration Statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
provided,
however,
that
paragraphs (1)(i) and (1)(ii) of this section do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by
the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are
incorporated by reference in this Registration Statement.
(2) That,
for
the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide
offering
thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona
fide
offering
thereof.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Registrant certifies that it
has
reasonable grounds to believe that it meets all the requirements for filing
on
Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the County of New
York,
State of New York, on this 5th day of June, 2007.
Pursuant
to the requirements of the Securities Act, this registration statement has
been
signed by the following persons in the capacities and on the dates indicated.
Signature
Title
/s/
Edwin
J. McGuinn, Jr.
Edwin
J. McGuinn, Jr.
Chairman
of the Board and Chief Executive Officer
/s/
Raza
Khan
Raza
Khan
President
and Director
/s/
Vishal
Garg
Vishal
Garg
Chief
Financial Officer, Secretary and Director
/s/ Michael
M.
Brown
Michael
M. Brown
Director
/s/
C.
David Bushley
C.
David Bushley
Director
/s/
Sunil
Dhaliwal
Sunil
Dhaliwal
Director
/s/
Richmond
T. Fisher
Richmond
T. Fisher
Director
Andrew
Mathieson
Director
EXHIBIT
INDEX
Exhibit
No.
Description
Incorporated
by Reference to Filings Indicated
4.1
MRU
Holdings, Inc. Amended and Restated 2004 Incentive Plan
