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”).
WARRANT (“WARRANT”)
TO PURCHASE SHARES
COMMON STOCK, $0.001 PAR VALUE
PER SHARE
1. Number of
Shares Subject to Warrant . (a) This is to certify that, FOR
VALUE RECEIVED , [ ● ]
(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, [ ● ]
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 $[ ● ]
principal amount convertible promissory note issued to the Investor
on July 31, 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 $1.40, 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 30,
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
