REGISTRATION RIGHTS AGREEMENT
Exhibit
10.4
This
registration rights agreement (this “Agreement”)
is
made as of August 3, 2006, among Bullion River Gold Corp., a Nevada corporation
(the “Company”),
and
the purchasers (each a “Purchaser”
and
collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of
the
date of this Agreement among the Company and the Purchasers (the “Purchase
Agreement”).
The
Company and the Purchasers agree that:
1. Definitions.
Capitalized terms used and not otherwise defined in this Agreement have the
same
meanings as they have in the Purchase Agreement. As used in this
Agreement:
“Effectiveness
Period”
is
defined in Section 2.
“Filing
Date”
means
the March 31, 2007
“Holder”
or
“Holders”
means
the holder or holders from time to time of Registrable Securities.
“Indemnified
Party”
is
defined in Section 5(b).
“Indemnifying
Party”
is
defined in Section 5(b).
“Losses”
includes all losses, claims, damages, liabilities, costs, attorneys’ fees and
expenses.
“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.
“Prospectus”
means
the prospectus included in the Registration Statement, as amended or
supplemented by any prospectus supplement, whether pre- or post-effective and
all material incorporated by reference or deemed to be incorporated by reference
in the prospectus.
“Registrable
Securities”
means
all of the Securities, Warrants and the Warrant Shares, together with any shares
of Common Stock issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event that affects the Shares or
the
Warrant Shares.
“Registration
Statement”
means
the registration statements required to be filed hereunder, including the
Prospectus, amendments and supplements to the registration statement or
Prospectus, whether pre- and post-effective amendments, all exhibits to them,
and all material incorporated by reference or deemed to be incorporated by
reference in the registration statement.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission having substantially the same purpose and effect as this
Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission having substantially the same purpose and effect as this
Rule.
2. Registration.
By the
Filing Date, the Company will make best efforts to prepare and file with the
Commission the Registration Statement covering the resale of all of the
Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415. Subject to the terms of this Agreement, the Company will use its
best efforts to cause the Registration Statement to be declared effective under
the Securities Act not later August 3, 2007 and will use its best efforts to
keep the Registration Statement continuously effective under the Securities
Act
until all Registrable Securities covered by the Registration Statement have
been
sold or may be sold without volume restrictions pursuant to Rule 144(k) (the
“Effectiveness
Period”).
3. Registration
Procedures.
(a) Each
Holder will furnish to the Company, upon request from the Company, a completed
Questionnaire in the form attached to this Agreement as Annex A at least five
Trading Days before the Filing Date or earlier at the Company’s
request;
and
will furnish, at the Company’s request, a statement certifying the number of
shares of Common Stock beneficially owned by the Holder and, if required by
the
Commission, the name of the Person who has voting and dispositive control over
the Shares
(b) The
Company will (i) prepare and file with the Commission the amendments to the
Registration Statement as may be necessary to keep the Registration Statement
continuously effective for the Registrable Securities for the Effectiveness
Period; (ii) respond as promptly as reasonably possible to any comments received
from the Commission with respect to the Registration Statement or any amendment;
and (iii) comply in all material respects with the provisions of the Securities
Act and the Exchange Act with respect to the disposition of Registrable
Securities covered by the Registration Statement during the applicable
period.
(c) The
Company will use commercially reasonable efforts to avoid the issuance of,
or,
if issued, obtain the withdrawal of, (i) any order suspending the effectiveness
of the Registration Statement, or (ii) any suspension of the qualification
(or
exemption from qualification) of any of the Registrable Securities for sale
in
any jurisdiction.
(d) The
Company will use its commercially reasonable efforts to register or qualify
or
cooperate with the selling Holders in connection with the registration or
qualification (or exemption from the Registration or qualification) of
Registrable Securities for the resale by the Holder under the securities or
Blue
Sky laws of the jurisdictions within the United States as any Holder reasonably
requests in writing, to keep the Registration or qualification (or exemption)
effective during the Effectiveness Period and to do any other acts or things
reasonably necessary to enable the disposition in those jurisdictions of the
Registrable Securities covered by the Registration Statement; provided, that
the
Company is not required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material tax
in
any jurisdiction where it is not then so subject, or file a general consent
to
service of process in any such jurisdiction.
(e) The
Company will comply with all applicable rules and regulations of the
Commission.
(f) The
Company will notify the Holders immediately, with confirmation in writing,
if it
receives during the Effectiveness Period a notice from any federal or state
regulatory authority of any action that could affect the Holders’ ability to
sell the Registrable Securities.
4. Registration
Expenses.
The
Company will bear all fees and expenses that it incurs in performing or
complying with this Agreement whether or not any Registrable Securities are
sold
pursuant to the Registration Statement.
5. Indemnification
(a) Indemnification
by Holders.
Each
Holder will, severally and not jointly, indemnify and hold harmless the Company,
its directors, officers, agents and employees, each Person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section
20
of the Exchange Act), and the directors, officers, agents or employees of the
controlling Persons, to the fullest extent permitted by applicable law, from
and
against all Losses arising out of or based solely upon (i) the Holder’s failure
to comply with the prospectus delivery requirements of the Securities Act or
(ii) any untrue or alleged untrue statement of a material fact contained in
any
Registration Statement, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated or necessary to make the
statements not misleading but only if the untrue statement or omission is
contained in written information furnished by the Holder to the Company
specifically for inclusion in the Registration Statement.
(b) Conduct
of Indemnification Proceedings.
If any
Proceeding is brought or asserted against any Person entitled to indemnity
under
this Agreement (an “Indemnified
Party”),
the
Indemnified Party will promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party may assume the defense, including the
employment of counsel reasonably satisfactory to the Indemnified Party, and
will
pay all fees and expenses incurred in connection with defense; but an
Indemnified Party’s failure to give the notice does not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, unless
a
court of competent jurisdiction (whose decision is not subject to appeal or
further review) decides that the failure has prejudiced the Indemnifying
Party.
Notwithstanding the foregoing, an Indemnified Party may employ separate counsel
in any Proceeding and participate in the defense, and will bear the expense
of
the counsel unless (i) the Indemnifying Party has agreed in writing to pay
the
fees and expenses, (ii) the Indemnifying Party has failed promptly to assume
the
defense of the Proceeding and to employ counsel reasonably satisfactory to
the
Indemnified Party, or (iii) the named parties to the Proceeding (including
any
impleaded parties) include both the Indemnified Party and the Indemnifying
Party, and the Indemnified Party reasonably believes that a material conflict
of
interest is likely to exist if the same counsel were to represent the
Indemnified Party and the Indemnifying Party (in which case, if the Indemnified
Party notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party may not assume the defense and must bear the reasonable fees and expenses
of the separate counsel). The Indemnifying Party is not liable for any
settlement of any Proceeding without its written consent, which consent cannot
be unreasonably withheld. No Indemnifying Party will, without the prior written
consent of the Indemnified Party, settle any Proceeding that includes an
Indemnified Party unless the settlement includes an unconditional release of
the
Indemnified Party from all liability on the claims that are the subject matter
of the Proceeding. The Indemnifying Party will pay all reasonable fees and
expenses of the Indemnified Party (including reasonable fees and expenses
incurred in connection with investigating or preparing to defend a Proceeding
in
a manner consistent with this Section) to the Indemnified Party within ten
Trading Days of written notice to the Indemnifying Party.
(c) Contribution.
If a
claim for indemnification under Section 5(a)
is
unavailable to an Indemnified Party (by reason of public policy or otherwise),
then each Indemnifying Party, in lieu of indemnifying the Indemnified Party,
will contribute to the amount paid or payable by the Indemnified Party as a
result of the Losses, in the proportion that is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in the Losses and any
other relevant equitable considerations. The relative fault of the Indemnifying
Party and Indemnified Party must be determined by referring to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, the
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent the
action, statement or omission. The amount paid or payable by a party as a result
of any Losses is deemed to include, subject to the limitations set out in this
Agreement, any reasonable attorneys’ or other reasonable fees or expenses
incurred by the party in connection with any Proceeding to the extent that
the
party would have been indemnified for the fees or expenses if the
indemnification provided for in this Section 5
was
available to the party.
The
parties agree that it would not be just and equitable if contribution pursuant
to this Section 5(c)
were
determined by pro rata allocation or by any other method of allocation that
does
not take into account the equitable considerations referred to in the
immediately preceding paragraph. The indemnity and contribution agreements
contained in this Section are in addition to any liability that the Indemnifying
Parties may have to the Indemnified Parties.
6. Miscellaneous
(a) Remedies.
If the
Company or a Holder breaches any of its obligations under this Agreement, each
Holder or the Company, as the case may be, in addition to being entitled to
exercise all rights granted by law and under this Agreement, is entitled to
specific performance of its rights under this Agreement.
(b) Compliance.
Each
Holder will comply with the prospectus delivery requirements of the Securities
Act as applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement.
(c) Discontinued
Disposition.
Each
Holder will, when it receives a notice from the Company under Section
3(f),
immediately stop selling the Registrable Securities under the Registration
Statement until the Holder has received written notice from the Company that
the
use of the applicable Prospectus may be resumed. The Company will use its best
efforts to ensure that the use of the Prospectus may be resumed as promptly
as
is practicable.
(d) Amendments
and Waivers.
This
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from its provisions may not be given, unless they are written
and
signed by the Company and each Holder of the then outstanding Registrable
Securities.
(e) Notices.
Any
notices or other communications or deliveries required or permitted to be
provided hereunder must be made in accordance with the provisions of the
Purchase Agreement.
(f) Successors
and Assigns.
This
Agreement inures to the benefit of and binds the successors and permitted
assigns of each of the parties and inures to the benefit of each
Holder.
(g) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts and delivered to the
other parties by any means, each of which when so executed is deemed to be
an
original and, all of which taken together will constitute one and the same
Agreement.
(h) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement will be determined with the provisions of the Purchase
Agreement.
(i) Cumulative
Remedies.
The
remedies provided are cumulative and do not exclude any remedies provided by
law.
(j) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions remain in full
force and effect and are in no way affected, impaired or invalidated, and the
parties will use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by the term, provision, covenant or restriction. The parties
stipulate that they would have executed the remaining terms, provisions,
covenants and restrictions without including any that might be declared invalid,
illegal, void or unenforceable.
(k) Headings.
The
headings in this Agreement are for convenience of reference only and do not
limit or otherwise affect the meaning.
(l) Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each Holder are several and not joint with the obligations of
any
other Holder, and no Holder can be responsible in any way for the performance
of
the obligations of any other Holder. Nothing in the Transaction Documents
delivered at any Closing, and no action taken by any Holder pursuant to them,
can be deemed to constitute the Holders as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Holders are in any way acting in concert with respect to such obligations or
the
transactions contemplated by this Agreement. Each Holder is entitled to protect
and enforce its rights and it is not necessary for any other Holder to be joined
as an additional party in any proceeding for such purpose.
*************************
In
witness whereof,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
By:/s/
Xxxxx X. Xxxxx
Xxxxx
X. Xxxxx
Chief
Financial Officer
|
[Signature
page of holders follow.]
[Holders’
signature pages to BLRV Registration Rights Agreement]
Name
of
Holder: Xxxxx Participation Corp
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx-Xxxx Xxxxxxx
Name
of
Authorized Signatory: Xxxxx-Xxxx Xxxxxxx
Title
of
Authorized Signatory: Secretary
[SIGNATURE
PAGES CONTINUE]
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Registration
Rights Agreement
Annex
A
Selling
Security-holder Notice and Questionnaire
The
undersigned beneficial owner of common stock, par value $0.001 per
share
(the “Common
Stock”),
of
Bullion River Gold Corp., a
Nevada corporation
(the “Company”),
(the
“Registrable
Securities”)
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”)
a
registration statement on Form ___ (the “Registration Statement”) for the
registration and resale under Rule 415 of the Securities Act of 1933 (the
“Securities
Act”),
of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement, dated as of _________________,
2006
(the “Registration
Rights Agreement”),
among
the Company and the Purchasers. All capitalized terms not otherwise defined
herein have the meanings ascribed to them in the Registration Rights
Agreement.
Certain
legal consequences arise from being named as a selling security-holder in the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling security-holder in the Registration Statement and the related
prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling
Security-holder”)
of
Registrable Securities hereby elects to include the Registrable Securities
owned
by it and listed below in Item 3 (unless otherwise specified under Item 3)
in
the Registration Statement.
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Registration
Rights Agreement
The
undersigned hereby provides the following information to the Company and
represents and warrants that this information is accurate:
QUESTIONNAIRE
1. Name.
|
(a)
|
Full
legal name of Selling
Security-holder
|
|
(b)
|
Full
legal name of registered Holder (if not the same as (a) above) through
which Registrable Securities listed in Item 3 below are
held:
|
|
(c)
|
Full
legal name of natural control person (which means a natural person
who
directly or indirectly alone or with others has power to vote or
dispose
of the securities covered by the
questionnaire):
|
2.
Address for notices to Selling Security-holder:
|
Telephone:
|
|
Fax:
|
|
Contact
person:
|
3.
Beneficial Ownership of Registrable Securities:
|
(a)
|
Type
and number of Registrable Securities beneficially
owned:
|
Page
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Registration
Rights Agreement
4.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
Yes
o
No
o
|
Note:
|
If
yes, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes
o
No
o
|
(c)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes
o
No
o
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
5.
Beneficial Ownership of Other Securities of the Company Owned by the Selling
Security-holder.
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and number of other securities beneficially owned by the Selling
Security-holder:
|
6.
Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
State
any
exceptions here:
Page
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Registration
Rights Agreement
The
undersigned agrees to notify the Company promptly of any inaccuracies or changes
in the foregoing information that may occur subsequent to this date at any
time
while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained in its answers to Items 1 through 6 and the inclusion of the
information in the Registration Statement and the related Prospectus. The
undersigned understands that the Company will rely upon this information in
connection with its preparation or amendment of the Registration Statement
and
the related Prospectus.
In
witness whereof
the
undersigned, by authority duly given, has caused this Notice and Questionnaire
to be executed and delivered either in person or by its duly authorized
agent.
Dated:____________________________________ Beneficial
Owner: ________________________________
By:___________________________________________
Name:
Title:
Please
fax a copy of this completed and executed Notice and Questionnaire to
000-000-0000; and return the original by overnight mail to Bullion River Gold
Corp., 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx, XX 00000.
Page
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