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Exhibit
4.7
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS OR (B) AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT REGISTRATION UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED WITH RESPECT TO SUCH OFFER, SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION; OR (II) UNLESS SOLD PURSUANT
TO RULE 144 UNDER SAID ACT.
THIS WARRANT IS ISSUED PURSUANT TO THAT CERTAIN NOTE (AS
DEFINED BELOW) ISSUED TO THE INITIAL HOLDER OF THIS WARRANT (THE
“INVESTOR”) BY MRU HOLDINGS, INC., A DELAWARE
CORPORATION (THE “COMPANY”).
Dated: July
10, 2008
MRU HOLDINGS, INC.
WARRANT (“WARRANT”) TO PURCHASE SHARES
OF
COMMON STOCK, $0.001 PAR VALUE PER SHARE
1.
Number of Shares
Subject to Warrant . (a) This is to certify that,
FOR VALUE
RECEIVED , Battery Investment Partners VII, LLC (the
“ Investor ”),
is entitled, subject to the terms set forth below, to purchase
from the Company, upon surrender of this Warrant, at any time
or times on or after the date hereof, but prior to the
termination of this Warrant pursuant to Section 3 hereof, at
the Warrant Price, 20,888 shares (the “ Warrant Shares
”) of the Company’s common stock, $0.001 par value
per share (“ Common Stock
”), upon such Investor’s exercise of this Warrant
pursuant to Section 7 hereof. Certain capitalized
terms used in this Warrant are defined in Section 2
hereof.
(b)
Exercise
Limitations .
(i) Notwithstanding
anything to the contrary contained in Section 1(a) hereof, in
no event shall the Investor be entitled to exercise this
Warrant for a number of Warrant Shares in excess of that
number of Warrant Shares which, upon giving effect to such
exercise, would cause the aggregate number of shares of Common
Stock beneficially owned by the Investor and its affiliates to
exceed 19.99% of the voting power of the Company, following
such exercise, unless the
Company obtains the requisite stockholder approval under
NASDAQ Marketplace Rule 4350(i)(1)(B) (the “ Issuance
Limitation ”), in which case, the Issuance
Limitation under this Section 1(b) shall no longer apply to
the Investor. For purposes of this Section 1(b)(i),
the aggregate number of shares of Common Stock beneficially
owned by the Investor and its affiliates
shall
include the shares of Common Stock issuable upon the exercise of
this Warrant, subject in all cases to the Issuance
Limitation. Upon the written request of the Investor,
the Company shall promptly, but in no event later than two (2)
Business Days following the receipt of such notice, confirm in
writing to the Holder the number of shares of Common Stock then
outstanding. The number of Warrant Shares purchaseable
upon exercise of this Warrant and the Warrant Price shall be
subject to adjustment from time to time as described
herein.
2.
Definitions
. As used in this Warrant, the following terms shall have the
meanings ascribed to them below:
(a)
“Business
Day” shall mean any day except Saturday, Sunday
and any day which shall be a legal holiday or a day on which
banking institutions in the state of New York are authorized
or required by law or other government actions to close
between the hours of 9:30 a.m. and 5:00 p.m. Eastern Standard
Time.
(b) “
Note
” means the $47,000 principal amount convertible
promissory note issued to the Investor on July 10,
2008.
(c) “
Fair Market
Value ” means the fair market value of a share of
Common Stock, determined in good faith by the board of
directors of the Company, and measured in reference to the
closing bid price of the Common Stock on the trading day
immediately preceding the day on which a determination of fair
market value is to be made.
(d) “
Holder
” shall mean
the Investor and any permitted transferees.
(e) “
Person
” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization or a governmental entity or any
other legal entity.
(f) “
Warrant
Price ” means $2.25, subject to adjustment as
provided herein.
3.
Termination
. This Warrant shall terminate and no longer be
exercisable at 5:00 p.m., New York time, on July 9,
2013.
4.
Fractional
Shares . No fractional shares shall be
issuable upon exercise of this Warrant and the number of
shares of Common Stock to be issued shall be rounded up to the
nearest whole share.
5.
No
Stockholder Rights . This Warrant, by itself, as
distinguished from any shares of Common Stock purchased
hereunder, shall not entitle the Holder to any of the rights
of a stockholder of the Company.
6.
Reservation of
Stock . The Company shall reserve from its
authorized and unissued Common Stock a sufficient number of
shares to provide for the issuance of Warrant Shares upon the
exercise or conversion of this Warrant. Issuance of
this Warrant shall constitute full authority to the
Company’s officers who are charged with the duty of
executing stock
certificates
to execute, issue and deliver the necessary certificates for
Warrant Shares issuable upon the exercise or conversion of
this Warrant.
7.
Exercise of
Warrant . Subject to the conditions set
forth in Section 1 hereof, this Warrant may be exercised at
any time prior to its termination by the surrender of this
Warrant, together with the Notice of Exercise and the
Investment Representation Statement in the forms attached
hereto as Attachments
1 and
2 ,
respectively, duly completed and executed, at the principal
office of the Company, specifying the portion of this Warrant
to be exercised and accompanied by payment in full of the
Warrant Price (a) in cash or by certified check with respect
to the Warrant Shares being purchased or (b) by written
direction of the Company to cancel a portion of this Warrant
sufficient to satisfy the “cashless exercise”
provisions of this Section 7. This Warrant shall be
deemed to have been exercised immediately prior to the close
of business on the date of its surrender for exercise as
provided above, and the Person entitled to receive the Warrant
Shares issuable upon exercise shall be treated for all
purposes as the holder of such shares of record as of the
close of business on such date. As promptly as
practicable after such date, the Company shall issue and
deliver to the Person or Persons entitled to receive the same
a certificate or certificates (or a direct registration system
statement if the shares are to be issued in book entry form)
representing the number of full Warrant Shares issuable upon
such exercise. If the Warrant shall be exercised
for less than the total number of Warrant Shares then issuable
upon exercise, promptly after surrender of the Warrant upon
such exercise, the Company shall execute and deliver a new
Warrant, dated the date hereof, evidencing the right of the
Holder to the balance of the Warrant Shares purchasable
hereunder upon the same terms and conditions set forth
herein.
In lieu of payment of the Warrant Price in cash, the Holder
may direct the Company to cancel a portion of this Warrant
having a value equal to the Warrant Price for the number of
Warrant Shares as to which the Holder exercises this Warrant,
determined by multiplying the number of Warrant Shares as to
which this Warrant is directed to be cancelled by an amount
equal to the difference between (i) the Fair Market Value on
the date of exercise and (ii) the Warrant Price then in
effect. Payment by such cancellation is referred to
herein as “cashless exercise.”
8.
Adjustment of
Exercise Price and Number of Shares . The
number of shares issuable upon exercise of this Warrant (or
any shares of stock or other securities or property at the
time receivable or issuable upon exercise of this Warrant) and
the Warrant Price therefor are subject to adjustment upon the
occurrence of the following events:
(a)
Adjustment for
Stock Splits, Recapitalizations, etc . The
Warrant Price and the number of shares issuable upon exercise
of this Warrant shall each be proportionally adjusted to
reflect any, stock split, reverse stock split, combination of
shares, reclassification, recapi
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