Exhibit 10.1
WARRANT
THIS WARRANT AND THE SHARES OF COMMON STOCK PURCHASABLE HEREUNDER HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS, UNLESS
THE HOLDER OF THIS WARRANT AND/OR SHARES DELIVERS TO THE COMPANY AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
BLUE RIDGE ENERGY, INC.
SERIES I COMMON STOCK
PURCHASE WARRANT
Warrant to Purchase __________ Shares of Common Stock
Issued December 31, 2004
Expires December 31, 2005
THIS WARRANT CERTIFIES THAT, for value received, pursuant to the undersigned's
non- U.S. Unit Private Placement Subscription Agreement for the offering of
Series I Common Stock (the "Offering") entered into between Blue Ridge Energy,
Inc., a Nevada corporation (the "Company"), and the undersigned (the "Warrant
Holder"), at any time beginning with December 31, 2004, which was the final
closing of the Offering and on any Business Day thereafter until 5:00 p.m.,
Pacific Time, December 31, 2005 (the "Expiration Date"), the undersigned is
entitled to subscribe for and purchase from the Company ___________ shares of
Common Stock at a price per share equal to the Exercise Price.
1. CERTAIN DEFINITIONS
The following terms, as used in this Warrant, have the following meanings:
"Business Day" means any day except a Saturday, Sunday, or other day on
which commercial banks in Houston, Texas, are authorized by law to
close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's currently authorized common stock,
$.005 par value, and stock of any other class or other consideration
into which such currently authorized common stock may hereafter have
been changed.
"Exercise Price" means $0.50 per share of Common Stock.
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"Securities Act" means the Securities Act of 1933, or any successor
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Warrant Shares" means the shares of Common Stock issued or issuable on
exercise of this Warrant.
2. EXERCISE OF WARRANT
The Warrant Holder may exercise this Warrant, only in whole and not in part, at
any time on any Business Day between the of the final closing of the Offering
and before the Expiration Date, by delivering to the Company a duly executed
notice (a "Notice of Exercise") in the form of Exhibit A to this Agreement and
by payment to the Company of the Exercise Price by cashier's check in an amount
equal to the product of (i) the Exercise Price times (ii) the number of Warrant
Shares as to which this Warrant is being exercised.
As soon as reasonably practicable but not later than twenty (20) Business Days
after the Company has received the Notice of Exercise and payment, the Company
shall execute and deliver or cause to be executed and delivered, in accordance
with the Notice of Exercise, a certificate or certificates representing the
number of shares of Common Stock specified in the Notice of Exercise, issued in
the name of the Warrant Holder. This Warrant shall be deemed to have been
exercised and the share certificate or certificates shall be deemed to have been
issued, and the Warrant Holder shall be deemed for all purposes to have become a
holder of record of shares of Common Stock, as of the first Business Day after
the date that the Notice of Exercise and payment have been received by the
Company.
The Warrant Holder shall surrender this Warrant to the Company when it delivers
the Notice of Exercise.
Each certificate for Warrant Shares issued on exercise of this Warrant, unless
at the time of exercise the Warrant Shares are registered under the Securities
Act, shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERD UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAWS, UNLESS THE HOLDER OF THE SHARES
DELIVERS TO THE COMPANY AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
Any certificate for Warrant Shares issued at any time in exchange or
substitution for any certificate bearing the legend shall also bear the legend
unless, in the written opinion of counsel, which counsel and opinion shall be
reasonably accepted to the Company, the Warrant Shares
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represented by the certificate no longer are subject to restrictions on resale
under the Securities Act.
The Company shall not be required to issue fractions of shares of Common Stock
on an exercise of the Warrant. If any fraction of a share would, but for this
restriction, be issuable on an exercise of the Warrant, in lieu of delivering a
fractional share, the Company shall pay to the Warrant Holder, in cash, an
amount equal to the same fraction times the Exercise Price of a share of Common
Stock under this Warrant.
3. INVESTMENT REPRESENTATION
By accepting the Warrant, the Warrant Holder represents that he is acquiring the
Warrant for his own account for investment purposes and not with the view to any
sale or distribution, and that the Warrant Holder will not offer, sell or
otherwise dispose of the Warrant or the Warrant Shares acquired by him on the
exercise of this Warrant except under circumstances as will not result in a
violation of applicable securities laws.
4. VALIDITY OF WARRANT AND ISSUANCE OF SHARES
The Company represents and warrants that this Warrant has been duly authorized
and is validly issued.
The Company further represents and warrants that on the date of this Warrant it
has duly authorized and reserved, and will at all times until the Expiration
Date, have duly authorized and reserved, a sufficient number of shares of Common
Stock as to permit the exercise in full of this Warrant, and that all of these
shares of Common Stock are and will be duly authorized and, when issued on
exercise of the Warrant, will be validly issued, fully paid and non-assessable,
and free and clear of all security interests, claims, liens, equities and other
encumbrances.
5. ADJUSTMENTS
The Exercise Price in effect at any time, and the number of Warrant
Shares purchased on any exercise of this Warrant, shall be subject to
change or adjustment as follows:
(a) Common Stock Reorganization. If at any time before any exercise of
this Warrant the Company either:
(i) subdivides its outstanding shares of Common Stock
into a greater number of shares;
(ii) combines its outstanding shares of Common Stock into
a smaller number of shares;
(iii) changes its outstanding shares of Common Stock into
the same or a given number of shares of any other
class of class of securities;
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(iv) declares on or in respect of its shares of Common
Stock a dividend payable in shares or other
securities of the Company; or
(v) offers to the holders of shares of Common Stock any
rights to subscribe for shares or for other
securities of the Company;
Then the number of Warrant Shares you receive on the exercise of this
Warrant shall be determined by the Company based on the Exercise Price
and the same terms and conditions that would have been applied if you
had exercised this Warrant on the record date for the any of the
transactions set forth above.
(b) Capital Reorganization. At any time while this Warrant is
outstanding, if the Company consolidates with or merges into any other
corporation or corporations, or sells all or substantially all of its
property and business as a whole, the Company shall ensure that as part
of the terms of the consolidation, merger, or sale that the Warrant
Holder shall receive in lieu of the Warrant Shares that otherwise would
have been issuable to the Warrant Holder on any exercise of this
Warrant, and at the same Exercise Price provided above, the same kind
and amount of securities or assets as may be issuable, distributable,
or payable on the consolidation, merger, or sale with respect to the
Company's shares of Common Stock.
(c) Notice of Adjustment. The Company shall give notice to the Warrant
Holder of any event which requires an adjustment under this Section 5,
describing the event in reasonable detail and specifying the record
date or effective date, as the case may be, and, if determinable, the
required adjustment and its computation. If the required adjustment is
not determinable as the time of the notice, the Company shall give
notice to the Warrant Holder of the adjustment and computation as soon
as reasonably practicable after the adjustment becomes determinable.
6. LOST, MUTILATED OR MISSING WARRANT CERTIFICATES
On receipt by the Company of evidence satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or
destruction, on receipt of an indemnification or bond satisfactory to the
Company, or, in the case of mutilation, on surrender and cancellation of the
mutilated Warrant, the Company shall execute and deliver a new replacement
Warrant of like tenor and representing the right to purchase the same aggregate
number of Warrant Shares. The Warrant Holder shall reimburse the Company for all
reasonable expenses incidental to the replacement of the missing or mutilated
Warrant.
7. NOTICES
All notices, requests, demands and other communications under this Warrant must
be in writing and will be deemed duly given: (i) when personally delivered, (ii)
on receipt of a facsimile transmission with a confirmed transmission with a
confirmed transmission answer back, (iii) three (3) days after having been
deposited in the United States mail, certified or registered, return
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receipt requested, postage prepaid, or (iv) one (1) business day after having
been dispatched by a nationally recognized overnight courier service, addressed
to the parties as follows:
If to the Company: Blue Ridge Energy, Inc.
Attention: Xxxxxxx X. Xxxx, Secretary
00000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the _________________________
Warrant Holder: _________________________
Telephone:_______________
Facsimile:_______________
Any party may change its address for notice purposes by giving notice of such
change of address in accordance with the foregoing provisions.
8. MISCELLANEOUS
(a) This Warrant shall not entitle the Warrant Holder, before the
exercise of the Warrant, to any rights as a shareholder of the Company.
(b) In case any one or more of the provisions contained in this Warrant
shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained in this Warrant shall not in any way be affected or impaired
thereby. The parties shall endeavor in good faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
(c) This Warrant is personal to the Warrant Holder and may not
transferred or assigned without the prior written consent of the
Company and any attempted transfer or assignment without the Company's
written consent shall be null and void. All of the provisions of this
Warrant by or for the benefit of the Company or the Warrant Holder bind
and inure to the benefit of their respective successors and permitted
assigns.
(d) This Warrant, the construction, interpretation and enforcement of
this Warrant and the rights of the parties to this Warrant shall be
determined under, governed by and construed in accordance with the laws
of the State of Nevada without regard to principles of conflicts of
interest.
(e) The section headings used in this Warrant are for convenience of
reference only and shall not be construed in any way to affect the
interpretation of any provisions of this Warrant.
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(f) This Warrant constitutes the enter agreement between the Company
and the Warrant Holder regarding the subject matter of this Warrant and
supersedes all previous agreements. There are no other oral or written
agreements, representations, warranties, undertakings or agreements
between the parties regarding the subject matter of this Warrant. This
Warrant may not be amended or modified in any respect, except by a
written instrument signed by the Company and the Warrant Holder.
IN WITNESS WHEREOF, the Company and the Warrant Holder agree to the foregoing
terms and conditions and have executed this Warrant as of the day and year first
above written.
COMPANY
BLUE RIDGE ENERGY, INC.
a Nevada corporation
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By: Xxxxxxx X. Xxxx, Secretary
WARRANT HOLDER
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(Signature)
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(Please print name)
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EXHIBIT A
SERIES I
FORM OF NOTICE OF EXERCISE OF WARRANT
TO: BLUE RIDGE ENERGY, INC.
Reference is made to the Series I Common Stock Warrant issued December
31, 2004 (the "Warrant"). Initially capitalized terms used herein have the
meaning as defined in the Warrant.
The undersigned, pursuant to the provisions set forth in the
Warrant, hereby irrevocably elects and agrees to purchase
_____ shares of Common Stock, and makes payment herewith in
full therefor at the Exercise Price of $0.50 per share of
Common Stock by cash or cashier's check.
The undersigned represents that it is exercising the Warrant for its
own account for investment purposes and not with the view to any sale or
distribution and that the Warrant Holder will not offer, sell or otherwise
dispose of the Warrant or any underlying Warrant Shares in violation of
applicable securities laws.
WARRANT HOLDER
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Date:
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