SECURITIES PURCHASE AGREEMENT
Exhibit
99.3
Reg
S
THE
SECURITIES SOLD HEREUNDER HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, PURSUANT TO
REGULATION S THEREUNDER. THE SECURITIES SOLD HEREUNDER CANNOT BE TRANSFERRED,
OFFERED, OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (AS THAT TERM IS
DEFINED IN REGULATION S) EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES
ACT OF 1933, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION.
THIS
SECURITIES PURCHASE AGREEMENT (this
“Agreement”)
is
dated as of _____________,
2005,
among Bullion River Gold Corp., a Nevada corporation (the “Company”),
and
each purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser”
and
collectively the “Purchasers”);
and
WHEREAS,
subject
to the terms and conditions set forth in this Agreement and pursuant to Section
4(2) of the Securities Act (as defined below), and Rule 506 promulgated
thereunder, the Company desires to issue and sell to each Purchaser, and each
Purchaser, severally and not jointly, desires to purchase from the Company
in
the aggregate, up to $7,500,000 of shares of Common Stock and Warrants on the
Closing Date.
IN
CONSIDERATION of
the
mutual covenants contained in this Agreement, and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the
Company and each Purchaser agrees as follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
For all
purposes of this Agreement:
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person as these
terms are used in and construed under Rule 144, and any investment fund or
managed account that is managed on a discretionary basis by the same investment
manager as a Purchaser.
“Closing”
means
the closing of the purchase and sale of the Common Stock and the Warrants under
Section 2.1.
“Closing
Date”
means
the Trading Day when all of the Transaction Documents have been executed and
delivered by the applicable parties.
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
the common shares of the Company with a par value of $0.001 per share, and
any
securities into which the common shares might be reclassified.
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“Common
Stock Equivalents”
means
any securities of the Company or the Subsidiaries that would at any time entitle
the holder to acquire Common Stock, including without limitation, any debt,
preferred stock, rights, options, warrants or other instrument that is at any
time convertible into or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock.
“Effective
Date”
means
the date that the Registration Statement is first declared effective by the
Commission.
“Liens”
means
a
lien, charge, security interest, encumbrance, and right of first refusal,
preemptive right or other restriction.
“Material
Adverse Effect”
is
defined in Section 3.1(b).
“Per
Share Purchase Price”
equals
$0.50,
subject
to adjustment for reverse and forward stock splits, stock dividends, stock
combinations and other similar transactions of the Common Stock that occur
after
the date of this Agreement.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding”
means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated as of the date of this Agreement,
among
the Company and each Purchaser, in the form of the attached Exhibit
A.
“Registration
Statement”
means
a
registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Purchasers of the Shares and
the
Warrant Shares.
“Required
Approvals”
is
defined in Section 3.1(e).
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities”
means
the Shares, the Warrants and the Warrant Shares.
“Securities
Act”
means
the Securities Act of 1933.
“Shares”
means
the shares of Common Stock issued or issuable to each Purchaser under to this
Agreement.
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“Subscription
Amount”
means,
as to each Purchaser, the amount set below each Purchaser’s signature block on
the signature page, in United States dollars and in immediately available funds.
“Subsidiary”
means
any subsidiary of the Company and any future direct or indirect subsidiary
of
the Company.
“Trading
Day”
means
a
day on which the Common Stock is quoted or traded on a Trading
Market.
“Trading
Market”
means
the American Stock Exchange, the New York Stock Exchange, the Nasdaq National
Market, the Nasdaq SmallCap Market or the OTC Bulletin Board.
“Transaction
Documents”
means
this Agreement, the Warrants and the Registration Rights Agreement and any
other
documents or agreements executed in connection with the transactions
contemplated hereunder.
“Warrants”
means
the Common Stock Purchase Warrants in the form of the attached Exhibit
B.
“Warrant
Shares”
means
the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
On the
Closing Date, each Purchaser will purchase from the Company, severally and
not
jointly with the other Purchasers, and the Company will issue and sell to each
Purchaser, (a) a number of Shares equal to such Purchaser’s Subscription Amount
divided by the Per Share Purchase Price and (b) the Warrants as determined
pursuant to Section 2.2(a)(iii).
The
aggregate Subscription Amounts for the Shares sold hereunder will be a maximum
of $7,500,000. Upon satisfaction of the conditions set forth in Section
2.3,
the
Closing will occur at the offices of the Company or such other location as
the
parties will mutually agree.
2.2 Deliveries.
(a) On
the
Closing Date, the Company will deliver or cause to be delivered to each
Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
certificate evidencing a number of Shares equal to the Purchaser’s Subscription
Amount divided by the Per Share Purchase Price, registered in the name of the
Purchaser;
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(iii) a
Warrant, registered in the name of the Purchaser, pursuant to which the
Purchaser has the right to acquire up to the number of shares of Common Stock
equal to 100% of the Shares to be issued to the Purchaser; and
(iv) the
Registration Rights Agreement duly executed by the Company.
(b) On
the
Closing Date, each Purchaser will deliver or cause to be delivered to the
Company the following:
(i) this
Agreement duly executed by the Purchaser;
(ii) the
Purchaser’s Subscription Amount by wire transfer as per the wire instructions
provided by the Company; and
(iii) the
Registration Rights Agreement duly executed by the Purchaser.
2.3 Closing
Conditions.
(a) The
obligations of the Company in connection with the Closing are subject to each
of
the following conditions being met:
(i) The
representations and warranties of the Purchasers are accurate in all material
respects when they were made and on the Closing date
(ii) The
Purchasers have performed all obligations, covenants and agreements required
to
be performed by the Closing Date.
(iii) The
Purchasers have delivered the items set forth in Section 2.2(b)
of this
Agreement.
(b) The
respective obligations of the Purchasers in connection with the Closing are
subject to each of the following conditions being met:
(i) The
representations and warranties of the Company are accurate in all material
respects on the Closing Date
(ii) The
Company has performed all obligations, covenants and agreements required to
be
performed by the Closing Date.
(iii) The
Company has delivered the items set forth in Section 2.2(a)
of this
Agreement.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
The
Company represents and warrants to each Purchaser:
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(a) Subsidiaries.
The
Company owns, directly or indirectly, all of the capital stock or other equity
interests of each Subsidiary free and clear of any Liens, and all the issued
and
outstanding shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities.
(b) Organization
and Qualification.
Each of
the Company and the Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and
to
carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or
charter documents. Each of the Company and the Subsidiaries is duly qualified
to
conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing could not reasonably be expected
to have (i) a material adverse effect on the legality, validity or
enforceability of any Transaction Documents, (ii) a material adverse effect
on
the results of operations, assets, business, prospects or financial condition
of
the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under any Transaction Documents (any of (i), (ii) or
(iii), a “Material
Adverse Effect”)
and no
Proceeding has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification.
(c) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by each of the Transaction Documents
and otherwise to carry out its obligations under them. The Company’s execution
and delivery of each of the Transaction Documents and its consummation of the
transactions contemplated by them have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company in their connection other than in connection with the Required
Approvals. Each Transaction Documents has been (or upon delivery will have
been)
duly executed by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
(d) No
Conflicts.
The
Company’s execution, delivery and performance of the Transaction Documents, its
issuance and sale of the Shares and its consummation of the other transactions
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal
and
state securities laws and regulations).
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(e) Filings,
Consents and Approvals.
The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other Person
in
connection with its execution, delivery and performance of the Transaction
Documents, other than (i) the filing with the Commission of the Registration
Statement, and (ii) any filings that are required by applicable federal and
state securities laws (collectively, the “Required
Approvals”).
(f) Issuance
of the Securities.
The
Shares and Warrants are duly authorized and, when issued and paid for in
accordance with the Transaction Documents, will be duly and validly issued,
fully paid and nonassessable, free and clear of all Liens imposed by the Company
other than restrictions on transfer provided for in the Transaction Documents.
The Warrant Shares, when issued in accordance with the terms of the Transaction
Documents, will be validly issued, fully paid and nonassessable, free and clear
of all Liens imposed by the Company. The Company has reserved from its duly
authorized capital stock the maximum number of shares of Common Stock issuable
pursuant to this Agreement and the Warrants.
(g) Private
Placement.
Assuming the accuracy of the Purchasers representations and warranties set
forth
in Section 3.2,
no
registration under the Securities Act is required for the offer and sale of
the
Securities by the Company to the Purchasers. The issuance and sale of the
Securities does not contravene the rules and regulations of the Trading
Market.
(h) Investment
Company.
The
Company is not, and is not an Affiliate of, and immediately after receipt of
payment for the Shares, will neither be nor be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
The Company will conduct its business in such a manner that it will not become
subject to the Investment Company Act.
(i) Disclosure.
The
Company confirms that neither the Company nor any other Person acting on its
behalf has provided any of the Purchasers or their agents or counsel with any
information that constitutes or might constitute material, non-public
information. All disclosure provided to the Purchasers regarding the Company,
its business and the transactions contemplated by it furnished by or on behalf
of the Company with respect to the representations and warranties are true
and
correct and do not contain any untrue statement of a material fact or omit
to
state any material fact necessary in order to make the statements, in light
of
the circumstances under which they were made, not misleading. The Company
acknowledges and agrees that no Purchaser makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than
those specifically set forth in Section 3.2.
(j) General
Solicitation.
Neither
the Company nor any person acting on behalf of the Company has offered or sold
any of the Shares by any form of general solicitation or general advertising.
The Company has offered the Shares for sale only to the Purchasers and certain
other “accredited investors” within the meaning of Rule 501 under the Securities
Act.
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(k) Acknowledgment
Regarding Purchasers’ Purchase of Shares.
The
Company acknowledges that each of the Purchasers is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated. The Company further acknowledges that no
Purchaser is acting as a financial advisor or fiduciary of the Company (or
in
any similar capacity) with respect to this Agreement and the transactions
contemplated and any advice given by any Purchaser or any of their respective
representatives or agents in connection with this Agreement and the transactions
contemplated is merely incidental to the Purchasers’ purchase of the Shares. The
Company further represents to each Purchaser that the Company’s decision to
enter into this Agreement has been based solely on the independent evaluation
of
the transactions contemplated by the Company and its representatives.
(l) Acknowledgment
of Dilution.
The
Company acknowledges that the issuance of the Securities may result in dilution
of the outstanding shares of Common Stock, which dilution may be substantial
under certain market conditions. The Company further acknowledges that its
obligations under the Transaction Documents, including without limitation its
obligation to issue the Shares and Warrant Shares pursuant to the Transaction
Documents, are unconditional and absolute and not subject to any right of set
off, counterclaim, delay or reduction, regardless of the effect of any such
dilution or any claim the Company may have against any Purchaser and regardless
of the dilutive effect that such issuance may have on the ownership of the
other
stockholders of the Company.
Purchaser
acknowledges that the Company does not make or has not made any representations
or warranties with respect to the transactions contemplated other than those
specifically set forth in this Section 3.1.
3.2 Representations
and Warranties of the Purchasers.
Each
Purchaser hereby, for itself and for no other Purchaser, represents and warrants
as of the date hereof and as of the Closing Date to the Company as
follows:
(a) Organization
Authority.
The
Purchaser is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with full right,
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by the Transaction Documents and otherwise to carry
out its obligations. The execution, delivery and performance by the Purchaser
of
the transactions contemplated by this Agreement have been duly authorized by
all
necessary corporate or similar action on the part of the Purchaser. Each of
the
Transaction Documents to which it is a party has been duly executed by the
Purchaser, and when delivered by the Purchaser in accordance with these terms,
constitutes the valid and legally binding obligation of the Purchaser,
enforceable against it in accordance with its terms, except as limited by
applicable law.
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(b) Investment
Intent.
The
Purchaser understands that the Securities are “restricted securities” and have
not been registered under the Securities Act or any applicable state securities
law and that Purchaser is acquiring the Securities as principal for its own
account and not with a view to or for distributing or reselling any of the
Securities, has no present intention of distributing any of such Securities,
and
has no arrangement or understanding with any other persons regarding the
distribution of the Securities (this representation and warranty does not limit
the Purchaser’s right to sell the Securities pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state
securities laws). Purchaser is acquiring the Securities in the ordinary course
of its business. Purchaser does not have any agreement or understanding,
directly or indirectly, with any Person to distribute any of the
Securities.
(c) Disclosure
of Information.
Purchaser carefully reviewed all filings made by the Company with the Commission
as of the date of this Agreement and has received and carefully reviewed any
information Purchaser has requested from the Company that Purchaser considers
necessary or appropriate for deciding whether to acquire the Securities,
including, without limitation, all material risk factors relating to the
Company. Purchaser further represents that Purchaser has had ample opportunity
to ask questions and receive answers from the Company concerning the information
and the terms and conditions of the offering of the Securities and to obtain
any
additional information necessary to verify the accuracy of the information
given
to Purchaser. Purchaser is making its investment in the Company after having
reviewed, analyzed, sought professional advice regarding, and fully
understanding the risk, uncertainties, and liabilities associated with the
Company.
(d) Experience
of Such Purchaser.
Purchaser, either alone or together with its representatives, is knowledgeable,
sophisticated, and experienced in business and financial matters and is capable
of evaluating the merits and risks of the prospective investment in the
Securities, and has evaluated the merits and risks of the investment. Purchaser
is able to bear the economic risk of an investment in the Securities and is
able
to afford a complete loss of the investment.
(e) General
Solicitation.
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
(f) Regulation
S.
(i) Purchaser
either has been duly formed and is validly existing as a corporation or other
legal entity in good standing under the laws of its jurisdiction of
incorporation set forth on the signature page to this Agreement or is an
individual who is not a citizen or resident of the United States. Purchaser
is
not organized under the laws of the United States and is not a “U.S. Person” as
that term is defined in Rule 902(o) of Regulation S.
8
(ii) Purchaser
was not formed for the purpose of investing in Regulation S securities or for
the purpose of investing in the Securities sold under this Agreement. Purchaser
is not registered as an issuer under the Securities Act and is not required
to
be registered with the SEC under the Investment Company Act of 1940, as amended.
Purchaser is entering into this Agreement and is participating in the offering
of the Shares for its own account, and not on behalf of any U.S. Person as
defined in Rule 902(o) of Regulation S.
(iii) The
Company has not made an offer to enter into this Agreement to Purchaser in
the
United States other than as permitted in the case of an account managed by
a
professional fiduciary resident in the United States within the meaning of
Section 902(o)(2) of Regulation S. At the times of the offer and execution
of
this Agreement and, to the best knowledge of Purchaser, at the time the offering
originated, Purchaser was located and resident outside the United States, other
than as permitted in the case of an account managed by a professional fiduciary
resident in the United States within the meaning of Section 902(o)(2) of
Regulation S.
(iv) Neither
Purchaser, nor any of its Affiliates, nor any person acting on its behalf or
on
behalf of any Affiliate has engaged or will engage in any activity undertaken
for the purpose of, or that reasonably could be expected to have the effect
of,
conditioning the markets in the United States for the Shares or for any
securities that are convertible into or exercisable for the common stock of
the
Company, including, but not limited to, effecting any sale or short sale of
the
Company’s securities through Purchaser or any of its Affiliates before the
expiration of any restricted period contained in Regulation S. To the best
knowledge of Purchaser, this Agreement and the transactions contemplated by
it
are not part of a plan or scheme to evade the registration provisions of the
Securities Act, and Purchaser is purchasing the Shares for investment purposes.
Purchaser and, to the best knowledge of Purchaser, each distributor, if any,
participating in this offering of the Securities have agreed that they will
neither offer nor sell any Securities before the date hereof and through the
expiration of the any restricted period set forth in Rule 903 of Regulation
S
(as amended from time to time) to U.S. Persons or for the account or benefit
of
U.S. Persons, and they will offer or sell any of the Securities only in
compliance with the provisions of Regulation S and any other applicable
provisions of the Securities Act. Purchaser and its representatives have not
conducted any Directed Selling Effort as that term is used and defined in Rule
902 of Regulation S and will not engage in any Directed Selling Effort within
the United States through the expiration of any restricted period set forth
in
Rule 903 of Regulation S.
(v) Purchaser
acknowledges that following the expiration of any restricted period provided
by
Rule 903 of Regulation S, any interest in this Agreement or in the Securities
sold may be resold within the jurisdiction of the United States or to U.S.
Persons as defined in Rule 902(o) of Regulation S by or for the account of
the
parties only (i) pursuant to a registration statement under the Securities
Act,
or (ii) if applicable, pursuant to an exemption from registration for sales
by a
person other than an issuer, underwriter, or dealer as those terms are used
in
Section 4(1) and related provisions of the Securities Act and regulations or
pursuant to another exemption from registration, only following the expiration
of any restricted period (if applicable) required by Regulation S. Purchaser
acknowledges that this Agreement and the Securities have not been registered
under the Securities Act or qualified under state securities laws of the United
States and that their transferability within the jurisdiction of the United
States is restricted by the Securities Act as well as state laws. Purchaser
acknowledges it has received a copy of Regulation S, is familiar with and
understands its terms, and has had the opportunity to consult with its legal
counsel concerning this Agreement and Regulation S.
9
The
Company acknowledges that each Purchaser does not make or has not made any
representations or warranties with respect to the transactions contemplated
other than those specifically set forth in this Section 3.2.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of the Securities other than
pursuant to an effective registration statement or in compliance with Regulation
S and Rule 144, the Company may require the transferor to provide to the Company
an opinion of counsel selected by the transferor and reasonably acceptable
to
the Company, the form and substance of which opinion must be reasonably
satisfactory to the Company, to the effect that the transfer does not require
registration of the transferred Securities under the Securities Act. As a
condition of transfer, any transferee must agree in writing to be bound by
the
terms of this Agreement and will have the rights of a Purchaser under this
Agreement and the Registration Rights Agreement.
(b) The
Purchaser agrees to the imprinting, so long as it is required under the
Securities Act and the rules and regulations promulgated under it, on any of
the
Securities any of the following legends or substantially similar
legends:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH WILL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
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THESE
SECURITIES HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, PURSUANT TO REGULATION S THEREUNDER.
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE CANNOT BE TRANSFERRED, OFFERED,
OR SOLD
IN THE UNITED STATES OR TO U.S. PERSONS (AS THAT TERM IS DEFINED IN REGULATION
S) EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OF 1933, OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM REGISTRATION.
4.2 Non-Public
Information.
The
Company covenants and agrees that neither it nor any other Person acting on
its
behalf will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
Purchaser has first executed a written agreement regarding the confidentiality
and use of the information.
4.3 Use
of Proceeds.
The
Company will use the net proceeds from the sale of the Securities for working
capital purposes, current debt and trade payables, and not to redeem any Common
Stock or Common Stock Equivalents or to settle any outstanding
litigation.
4.4 Reservation
of Common Stock.
As of
the date hereof, the Company has reserved and the Company will continue to
reserve and keep available at all times, free of preemptive rights, a sufficient
number of shares of Common Stock for the purpose of enabling the Company to
issue the Shares and Warrant Shares on any exercise of the Warrants.
4.5 Delivery
of Securities after Closing.
The
Company will deliver, or cause to be delivered, the respective Shares and
Warrants purchased by each Purchaser to the Purchaser within 3 Trading Days
of
the Closing Date.
4.6 Resale
by Purchaser.
Each
Purchaser understands and acknowledges, severally and not jointly with any
other
Purchaser, that the SEC takes the position that the coverage of short sales
of
shares of the Common Stock “against the box” before the Effective Date of the
Registration Statement with the Shares is a violation of Section 5 of the
Securities Act, as set forth in Item 65, Section 5 under Section A, of the
Manual of Publicly Available Telephone Interpretations, dated July 1997,
compiled by the Office of Chief Counsel, Division of Corporation Finance.
Accordingly, no Purchaser will use any of the Shares to cover any short sales
made before the Effective Date. Further, each Purchaser will comply with any
obligations it may have under Regulation M with respect to the resale of the
Securities.
ARTICLE
V.
MISCELLANEOUS
5.1 Termination.
This
Agreement may be terminated by any party, by written notice to the other
parties, if the Closing has not taken place by the end of thirty days from
the
date of this Agreement; but no termination affects the right of any party to
xxx
for any breach by the other party (or parties).
5.2 Fees
and Expenses.
Except
as otherwise set forth in this Agreement, each party will pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by the party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company
will pay all stamp and other taxes and duties levied in connection with the
delivery of the Securities.
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5.3 Entire
Agreement.
The
Transaction Documents, together with their exhibits and schedules, contain
the
entire understanding of the parties with respect to their subject matter and
supersede all prior agreements and understandings, oral or written, with respect
to these matters, which the parties acknowledge have been merged into the
Transaction Documents and their exhibits and schedules.
5.4 Notices.
Any
notices or other communications or deliveries required or permitted to be
provided hereunder must be in writing and are deemed given and effective on
the
earliest of (a) the date of transmission, if the notice or communication is
delivered via facsimile at the facsimile number set forth on the signature
attached pages before 6:30 p.m. (Reno, Nevada, time) on a Trading Day, (b)
the
next Trading Day after the date of transmission, if the notice or communication
is delivered via facsimile at the facsimile number set forth on the signature
attached pages on a day that is not a Trading Day or later than 6:30 p.m. (Reno,
Nevada, time) on any Trading Day, (c) the second Trading Day following the
date
of mailing, if sent by U.S. nationally recognized overnight courier service,
or
(d) upon actual receipt by the party to whom the notice is required to be given.
The address for notices and communications are as set forth on the attached
signature pages.
5.5 Amendments
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and each
Purchaser or, in the case of a waiver, by the party against whom enforcement
of
any waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement is deemed to be a continuing waiver
in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement, nor does any delay or omission of either
party to exercise any right hereunder in any manner impair the exercise of
the
right.
5.6 Construction.
The
headings in this Agreement are for convenience only, do not constitute a part
of
this Agreement, and cannot be deemed to limit or affect any of the provisions.
The language used in this Agreement is deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
can
be applied against any party.
5.7 Successors
and Assigns.
This
Agreement binds and inures to the benefit of the parties and their successors
and permitted assigns and is not assignable.
5.8 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision be enforced by, any other Person.
12
5.9 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents must be governed by and construed and enforced
in
accordance with the internal laws of the State of Nevada,
without
regard to the principles of conflicts of law. All legal proceedings concerning
the interpretations, enforcement and defense of the transactions contemplated
by
the Transaction Documents (whether brought against a party or its respective
affiliates, directors, officers, shareholders, employees or agents) must be
commenced exclusively in the state and federal courts sitting in Reno.
Each
party irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in Reno
for the
adjudication of any dispute in connection with the Transaction Documents, and
irrevocably waives, and will not assert in any suit, action or proceeding,
any
claim that it is not personally subject to the jurisdiction of any such court,
that it is an improper or inconvenient venue for the proceeding. The parties
waive all rights to a trial by jury. If either party commences an action or
proceeding to enforce any provisions of the Transaction Documents, then the
non-prevailing party in the action or proceeding will reimburse the prevailing
party for its attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of the action or
proceeding.
5.10 Execution.
This
Agreement may be executed in two or more counterparts and delivered to the
other
parties by any means; and the counterparts, taken together, are considered
one
and the same agreement, and any electronically delivered signature page is
deemed to be an originally signed document.
5.11 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement are not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute, and upon so agreeing, will incorporate the substitute
provision in this Agreement.
5.12 Replacement
of Securities.
If any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company will issue or cause to be issued in exchange and
substitution for and upon its cancellation, or in lieu of and substitution,
a
new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft or destruction and customary
and
reasonable indemnity, if requested. An applicant for a new certificate or
instrument under such circumstances will pay any reasonable third-party costs
associated with the issuance of the replacement Securities.
5.13 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each of the Purchasers and the Company
is
entitled to specific performance under the Transaction Documents.
13
5.14 Independent
Nature of Purchasers’ Obligations and Rights.
The
obligations of each Purchaser under the Transaction Documents are several and
not joint with the obligations of any other Purchaser, and no Purchaser is
responsible in any way for the performance of the obligations of any other
Purchaser under the Transaction Documents. Nothing contained in any Transaction
Documents, and no action taken by any Purchaser pursuant to them, can be deemed
to constitute the Purchasers as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Purchasers are
in
any way acting in concert or as a group with respect to the obligations or
the
transactions contemplated by the Transaction Documents. Each Purchaser is
entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of the other
Transaction Documents, and it is not be necessary for any other Purchaser to
be
joined as an additional party in any proceeding for this purpose. Each Purchaser
has been represented by its own separate legal counsel in their review and
negotiation of the Transaction Documents. The Company has elected to provide
all
Purchasers with the same terms and Transaction Documents for the convenience
of
the Company and not because it was required or requested to do so by the
Purchasers.
(Signature
pages follow.)
IN
WITNESS WHEREOF,
the
parties hereto have caused this Securities Purchase Agreement to be duly
executed by their respective authorized signatories as of the date first
indicated above.
|
|
Address
for Notice:
|
|
By:__________________________________________
Name:
Xxxxx X. Xxxx
Title:
President
|
0000
Xxxxxxxxx Xxx, Xxxxx 000
Xxxx,
XX 00000
Fax:
000-000-0000
|
|
With
a copy to (which cannot constitute notice):
|
[Remainder
of page intentionally left blank.
Signature
pages for purchasers follow.]
14
[Purchasers’
signature pages to BLRV Securities Purchase Agreement]
In
witness whereof,
the
undersigned have caused this Securities Purchase Agreement to be duly executed
by their respective authorized signatories as of the date first indicated
above.
Name
of
Purchaser:
__________________________________________________________________________
Country
of incorporation or residence:
___________________________________________________________
Signature
of Authorized Signatory of Purchaser:
___________________________________________________
Name
of
Authorized Signatory:
_________________________________________________________________
Title
of
Authorized Signatory:
__________________________________________________________________
Email
Address of Purchaser:
____________________________________________________________________
Address
for notice of
Purchaser:_________________________________________________________________
Address
for delivery of Securities for Purchaser (if not same as above):
____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
Subscription
Amount: $____________________________________
Shares:_________________________________________________
Warrant
Shares:__________________________________________
Date:_____________________________________________,
2005
[Purchasers’
signature pages continue]
15
