THIS WARRANT AND THE COMMON STOCK OF RUBY MINING COMPANY, A COLORADO
CORPORATION, (THE "COMPANY") ISSUABLE UPON CONVERSION HEREOF (UNTIL SUCH TIME AS
SUCH COMMON STOCK IS REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT) HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER SECURITIES STATUTE, AND NO
SALE, TRANSFER, OR OTHER DISPOSITION OF ANY INTEREST HEREIN MAY BE MADE UNLESS,
IN THE WRITTEN OPINION OF COUNSEL TO THE COMPANY, SUCH TRANSFER WOULD NOT
VIOLATE OR REQUIRE REGISTRATION UNDER ANY SUCH STATUTE.
ISSUE NO. W061104-5 ISSUE DATE: JUNE 11, 2004
FIVE YEAR WARRANT
To Purchase Common Stock of
RUBY MINING COMPANY
NOT EXERCISABLE FOR FIRST 180 DAYS FROM DATE OF ISSUANCE
This is to certify that, for value received, XXXXXX X. XXXXXXX, XX,,
(together with his or its legal representatives, successors and permitted
assigns, "Holder" or "Warrant Holder"), is entitled to purchase from Ruby Mining
Company, a Georgia Corporation (the "Company"), at any time and from time to
time BEGINNING ON JUNE 11, 2004 AND EXPIRING ON JUNE 11, 2009 (except as
otherwise provided herein) 1,050,000 duly authorized, validly issued, fully paid
and nonassessable shares of common stock, par value $.001 per share, of the
Company (the "Common Stock"), at the Current Warrant Price (as hereinafter
defined) in lawful money of the United States of America. The purchase price
hereunder at any time of a single share of Common Stock is referred to herein as
the "Current Warrant Price." Initially, and until adjustment in the manner
hereinafter provided, the Current Warrant Price with respect to the shares
covered by this Warrant shall be $ 0.25 per share. The number of shares of
Common Stock purchasable hereunder and the Current Warrant Price are subject to
adjustment from time to time in the manner provided in Article 4 below. Certain
terms in this Warrant are defined in Article 5 below.
ARTICLE 1
EXERCISE OF WARRANTS
SECTION 1.1. METHOD OF EXERCISE. Subject to the provisions of Article 3
below, to exercise this Warrant in whole or in part, Holder shall deliver to the
Company at the Warrant Office designated pursuant to Section 2.1: (i) a written
notice, in substantially the form of the Exercise Notice appearing at the end of
this Warrant, of such Holder's election to exercise this Warrant, which notice
shall specify the number of shares of Common Stock to be purchased and
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the nature of payment, whether by check or by this Warrant (pursuant to Section
1.4) or by a combination thereof; (ii) a certified or official bank check
payable to the order of the Company and/or a cancellation of a number of
warrants (pursuant to Section 1.4) (and/or any other form of consideration which
the Company and the Holder hereof may have agreed to accept in payment of the
Current Warrant Price) in the aggregate equal to the aggregate Current Warrant
Price of the number of shares of Common Stock being purchased; and (iii) this
Warrant. The Company shall as promptly as practicable, and in any event within
10 days after receipt by the Company of such notice, execute and deliver or
cause to be executed and delivered, in accordance with said notice, a
certificate or certificates representing the aggregate number of shares of
Common Stock specified in said notice. The stock certificate or certificates so
delivered shall be in the denomination as may be specified in said notice and
shall be issued in the name of such Holder or such other name as shall be
designated in said notice. Such certificate or certificates shall be deemed to
have been issued and such Holder or any other person so designated to be named
therein shall be deemed for all purposes to have become a Holder of record of
such shares as of the date the consideration specified for such shares is
received by the Company as aforesaid. If this Warrant shall have been exercised
only in part, the Company shall, at the time of delivery of said certificate or
certificates, deliver to such Holder a new Warrant evidencing the rights of such
Holder to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of such Holder, appropriate notation may be made on
this Warrant and the same returned to such Holder. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
issuance and delivery of such stock certificates and any new Warrant, except
that, in case such stock certificates or new Warrant shall be registered in a
name or names other than the name of the Holder of this Warrant, funds
sufficient to pay all stock transfer taxes which shall be payable upon the
issuance of such stock certificate or certificates or any new Warrant shall be
paid by the Holder hereof at the time of delivering the notice of exercise
mentioned above or promptly upon receipt of a written request of the Company for
payment of the same.
SECTION 1.2. WARRANT SHARES TO BE FULLY PAID AND NONASSESSABLE. All
shares of Common Stock issued upon the exercise of this Warrant shall be validly
issued, fully paid and nonassessable and, if the Common Stock is then listed on
a securities exchange, shall be duly listed thereon, subject to registration
under the Exchange Act.
SECTION 1.3. NO FRACTIONAL SHARES TO BE ISSUED, The Company shall not
be required upon any exercise of this Warrant to issue a certificate
representing any fraction of a share of Common Stock, but, in lieu thereof,
shall pay Holder cash in an amount equal to a corresponding fraction (calculated
to the nearest 1/100 of a share) of the Current Market Price of one share of
Common Stock as of the date of receipt by the Company of notice of exercise of
this Warrant.
SECTION 1.4. PAYMENT OF CURRENT WARRANT PRICE WITH WARRANTS. Upon any
exercise of this Warrant as provided in Section 1.1, Holder may, in lieu of
payment of the Current Warrant Price in cash, surrender this Warrant (or any
successor hereto or fraction hereof) (valued for such purpose at the Current
Market Price of the underlying Common Stock for which such Warrant is
exercisable on the date of such exercise less the Current Warrant Price then in
effect)
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and apply all or a portion of the amount so determined to the payment of the
Current Warrant Price for the number of shares of Common Stock being purchased.
SECTION 1.5. LEGEND ON WARRANT SHARES. Each certificate for shares
initially issued upon exercise of this Warrant, unless at the time of exercise
such Warrant Shares are registered under the Act, shall bear a legend in
substantially the following form (and any additional legend required by any
securities exchange upon which such Warrant Shares may, at the time of such
exercise, be listed) on the face thereof:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the laws of any
state and may not be sold or otherwise transferred except pursuant to an
effective registration statement or the written opinion of counsel to The
Admiralty Corporation that such registration is not required."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of: (i) a public distribution pursuant to a registration statement; or (ii) an
exempt sale pursuant to Rule 144 or Rule 144A under the Act of the securities
represented thereby) shall also bear such legend unless, in the opinion of
counsel for the Holder thereof as shall be reasonably acceptable to the Company,
the securities represented thereby need no longer be subject to the restrictions
contained in Article 3 below. The provisions of Article 3 below shall be binding
upon all subsequent Holders of this Warrant.
ARTICLE 2
WARRANT OFFICE; OWNERSHIP, TRANSFER
OF WARRANT
SECTION 2.1. WARRANT OFFICE. The Company shall maintain an office for
certain purposes specified herein (the "Warrant Office"), which office shall
initially be the Company's office at One Securities Centre, 0000 Xxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000xxx may subsequently be any other office of the
Company or of any transfer agent of the Common Stock in the continental United
States as to which written notice has previously been given to all of the
Warrant Holders.
SECTION 2.2. OWNERSHIP OF WARRANT. The Company may deem and treat the
person in whose name this Warrant is registered as the Holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of transfer
as provided in this Article 2.
SECTION 2.3. TRANSFER OF WARRANT. The Company agrees to maintain books
at the Warrant Office for the registration and transfer of this Warrant, and,
subject to the provisions of Article 3 below, this Warrant and all rights
hereunder are transferable, in whole or in part, on said books at said office,
upon surrender of this Warrant at said office, together with a written
assignment of this Warrant duly executed by the Holder hereof or his duly
authorized agent or
42
attorney and funds sufficient to pay any transfer taxes payable upon the making
of such transfer. Upon such surrender and payment, the Company shall execute and
deliver a new Warrant or Warrants in the name of the assignee or assignees and
in the denominations specified in such instrument of assignment, and this
Warrant shall promptly be canceled. A Warrant may be exercised by a new Holder
for the purchase of shares of Common Stock without having a new Warrant issued.
No Holder of this Warrant may divide this or any other Warrant into a Warrant
exercisable into less than 100 shares of Common Stock.
SECTION 2.4. EXPENSES OF DELIVERY OF WARRANTS. The Company shall pay
all expenses, taxes (other than transfer taxes) and other charges payable in
connection with the preparation, issuance and delivery of this Warrant or any
new Warrant hereunder.
ARTICLE 3
RESTRICTIONS ON EXERCISE AND TRANSFER;
REGISTRATION RIGHTS; CALL PROVISION
SECTION 3.1. RESTRICTIONS ON EXERCISE AND TRANSFER. The Holder of this
Warrant, as of the date of issuance hereof, represents to the Company that it is
not acquiring the Warrant with a view to the distribution thereof.
Notwithstanding any provisions contained in this Warrant to the contrary, this
Warrant and the related Warrant Shares shall not be transferable except pursuant
to the proviso contained in the following sentence or upon the conditions
specified in this Article 3, which conditions are intended, among other things,
to insure compliance with the provisions of the Act and applicable state law in
respect of the transfer of this Warrant or such Warrant Shares. The Holder of
this Warrant, by its acceptance hereof, agrees that it will not transfer this
Warrant or the related Warrant Shares prior to delivery to the Company of an
opinion of such Holder's counsel reasonably satisfactory to the Company (as such
opinion and such counsel are described in Section 3.2 below) or until
registration of such Warrant Shares under the Act has become effective or after
a sale of such Warrant or Warrant Shares has been consummated pursuant to Rule
144 or Rule 144A under the Act.
SECTION 3.2. NOTICE OF INTENTION TO TRANSFER; OPINION OF COUNSEL. The
Holder of this Warrant, by its acceptance hereof, agrees that prior to any
transfer of this Warrant or of the related Warrant Shares (other than pursuant
to a registration under the Act), such Holder will give written notice to the
Company of its intention to effect such transfer, together with an opinion of
counsel for such Holder as shall be reasonably acceptable to the Company, to the
effect that the proposed transfer of this Warrant and/or such Warrant Shares may
be effected without registration under the Act or applicable state law. Upon
delivery of such notice and opinion to the Company, the Holder of this Warrant
or such Warrant Shares shall be entitled to transfer this Warrant and/or such
Warrant Shares in accordance with the intended method of disposition specified
in the notice delivered by such Holder to the Company; provided, however, that
if such method of disposition would, in the opinion of such counsel, require
that the Company take any reasonable action and/or execute and file with the
Commission and/or any state securities authority with jurisdiction and/or
deliver to the Warrant Holder or any other person any form or document (other
than a registration statement under the Act or under any state securities laws
or any information requirements pursuant to Regulation D) in order to establish
the entitlement of the Holder of this Warrant to take advantage of such method
of
43
disposition, the Company agrees, at its expense, to take any such reasonable
action and/or execute and file and/or deliver any such form or document.
SECTION 3.3. "PIGGYBACK REGISTRATIONS".
(a) If the Company at any time prior to the expiration of the
Warrants, proposes to register any of its equity securities (as defined in the
Act), other than securities which are convertible into shares of Common Stock,
under the Act on Forms X-0, X-0, X-0 or SB-1, or SB-2 (but not Form S-4 or S-8)
or on any other form upon which may be registered securities similar to the
Warrant Shares, it will at each such time give written notice at least 30 days
prior to the filing of the registration statement to all Warrant Holders of its
intention so to do. Such notice shall specify the proposed date of the filing of
the registration statement and advise each Warrant Holder of its right to
participate therein. Upon the written request of any Warrant Holder given prior
to the proposed date of filing set forth in such notice, the Company will cause
each Warrant Share which the Company has been requested to register by such
Warrant Holder to be registered under the Act, all to the extent requisite to
permit the sale or other disposition by such Warrant Holder of the Warrant
Shares so registered.
(b) If, in the written opinion of the underwriter or
underwriters managing the public offering which is the subject of a registration
pursuant to Section 3.3(a) above (or in the event that such distribution shall
not be underwritten, in the written opinion of an investment banking firm of
recognized standing satisfactory to the Warrant Holders), the total amount of
the securities to be so registered, when added to the total amount of Warrant
Shares which the Warrant Holders have requested to be registered pursuant to
Section 3.3(a) above, will exceed the maximum amount of securities of the
Company which can be marketed: (i) at a price reasonably related to their then
current market value; or (ii) without otherwise materially and adversely
affecting the entire offering, then the Company shall have the right to exclude
from such registration such number of Warrant Shares which it would otherwise be
required to register pursuant to Section 3.3(a) above as is necessary to reduce
the total amount of securities to be so registered to the maximum amount of
securities which can be so marketed; provided, however, that if the securities
(other than the Warrant Shares) to be so registered for sale are to be offered
for the account of the Company and others, the Company may only cut back Warrant
Shares pro rata with the securities held by such other persons (it being agreed
that in the case where such registration is to be effected as a result of the
exercise by a Holder of the Company's securities of such Holder's right to cause
such securities to be so registered, such pro rata cut back shall include the
Company).
SECTION 3.4. COMPANY'S OBLIGATIONS IN REGISTRATION. If and whenever the
Company is obligated by the provisions of this Article 3 to effect the
registration of any Warrant Shares under the Act, as expeditiously as possible
the Company will:
(a) as expeditiously prepare and file with the Commission a
registration statement with respect to such Warrant Shares and use its best
efforts to cause such registration statement to become and remain effective
during the period required for the distribution of the securities covered by the
registration statement; PROVIDED, HOWEVER, that in the event that the Warrant
Shares covered by such registration statement are not to be sold to or through
44
underwriters acting for the Company, the Company shall not be required to keep
such registration statement in effect, or to prepare and file any amendments or
supplements thereto, after the expiration of six months following the date on
which such registration statement becomes effective under the Act or such longer
period during which the Commission requires that such registration statement be
kept effective with respect to any of the Warrant Shares so registered;
(b) as expeditiously as possible, prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the Act
with respect to the disposition of all Warrant Shares covered by such
registration statement, whenever the Warrant Holders for whom such Warrant
Shares are registered or are to be registered shall desire to dispose of the
same, subject, however to the proviso contained in Section 3.4(a) above;
provided, however, that in any event the Company's obligations under this
Section 3.4(b) shall terminate 90 days after the effective date of any such
registration statement if none of the Warrant Shares registered thereunder shall
have been sold;
(c) as expeditiously as possible, furnish to the Warrant
Holders for whom such Warrant Shares are registered or are to be registered and
to any underwriter or underwriters such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as such Warrant Holders may reasonably request in
order to facilitate the disposition of such Warrant Shares;
(d) use its reasonable efforts to register or qualify the
Warrant Shares covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the Warrant Holders for
whom such Warrant Shares are registered or are to be registered shall reasonably
request, and do any and all other reasonable acts and things to so register or
qualify which may be necessary or advisable to enable such Warrant Holders to
consummate the disposition in such jurisdictions of such Warrant Shares;
SECTION 3.5. PAYMENT OF REGISTRATION EXPENSES. The costs and expenses
of all registrations under the Act and of all other actions which the Company is
required to take or effect pursuant to this Article 3 shall be paid for by the
Company (including, without limitation, all registration, qualification and
filing fees, printing expenses, expenses of distributing prospectuses and other
documents, fees and disbursements of counsel and accountants for the Company,
and expenses of any special audits incident to or required in connection with
any such registration hereof, but excluding the fees and disbursements of
special counsel for the Warrant Holders, any consultants retained by the Warrant
Holders and underwriters' or brokers' discounts or commissions applicable to the
Warrant Shares).
SECTION 3.6. INFORMATION FROM WARRANT HOLDERS. Notices and requests
delivered by Warrant Holders to the Company pursuant to this Article 3 shall
contain such information regarding the Warrant Shares and the intended method of
disposition thereof as shall reasonably be required in connection with the
action to be taken.
45
SECTION 3.7. COMPANY'S INDEMNIFICATION. In the event of any
registration under the Act of any Warrant Shares pursuant to this Article 3, the
Company hereby agrees to indemnify and hold harmless each Warrant Holder
disposing of such Warrant Shares and each other person, if any, who controls
such Warrant Holder within the meaning of Section 15 of the Act and each other
person (including underwriters) who participates in the offering of such Warrant
Shares against any losses, claims, damages or liabilities, joint or several, to
which such Warrant Holder or controlling person or participating person may
become subject under the Act or otherwise, in so far as such losses, claims,
damages or liabilities (or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement under
which such Warrant Shares were registered under the Act, in any preliminary
prospectus or final prospectus contained therein, or in any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse such
Warrant Holder and each such controlling person or participating person for any
legal or any other expenses incurred by such Warrant Holder or such controlling
person or participating person in connection with investigating or defending any
such loss, claim, damage, liability or proceeding; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon: (a) an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, said preliminary or final prospectus or said
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Warrant Holder or such controlling
or participating person, as the case may be, specifically for use in the
preparation thereof; or (b) an untrue statement or alleged untrue statement,
omission or alleged omission in a prospectus if such untrue statement or alleged
untrue statement, omission or alleged omission is corrected in an amendment or
supplement to the prospectus which amendment or supplement is delivered to such
Warrant Holder and such Warrant Holder thereafter fails to deliver such
prospectus as so amended or supplemented prior to or concurrently with the sale
of Warrant Shares to the person asserting such loss, claim, damage, liability or
expense.
SECTION 3.8. WARRANT HOLDER'S INDEMNIFICATIONS. If the Company so
requests, each Warrant Holder for whom Warrant Shares are to be so registered
shall execute an agreement or agreements, whereby such Warrant Holder agrees to
indemnify and hold harmless the Company, each other person referred to in
subparts (1), (2) and (3) of Section 11(a) of Section 15 of the Act in respect
of such registration statement and each other person, if any, which controls the
Company within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which the Company or such other person or such
person controlling the Company may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceeding in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained, on the effective date thereof, in any
registration statement under which such Warrant Shares were registered under the
Act, in any preliminary prospectus or final prospectus contained therein or in
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
which, in each such case, has been made in or omitted from such registration
statement, said preliminary or final prospectus or said amendment or supplement
in reliance
46
upon, and in conformity with, information furnished to the Company
by such Warrant Holder specifically for use in the preparation thereof. The
Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above, with
respect to information with respect to such persons so furnished in writing by
such persons specifically for inclusion in any prospectus or registration
statement.
SECTION 3.9. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person
entitled to indemnification hereunder will: (a) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks
indemnification; and (b) unless, in such indemnified party's reasonable
judgment, a conflict of interest may exist between such indemnified and
indemnifying parties with respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided, however, that the failure of an indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under this Section 3.9 with respect to such indemnified party,
except to the extent that the indemnifying party is actually prejudiced by such
failure. Whether or not such defense is assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). No
indemnifying party will consent to the entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. An indemnifying party who is
not entitled to, or elects not to, assume the defense of the claim against the
indemnified party, will not be obligated to pay the fees and expenses of more
than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any
other such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels.
If for any reason the indemnification provided for in the preceding
Sections 3.7 and 3.8 above is unavailable to an indemnified party as
contemplated thereby, the indemnifying party shall contribute to the amount paid
or payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnified party and the indemnifying party, but also
the relative fault of the indemnified party and the indemnifying party, as well
as any other relevant equitable considerations. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of fraudulent
misrepresentation.
SECTION 3.10. PUBLIC INFORMATION. The Company covenants and agrees that
if and so long as the Common Stock shall be registered under Section 12 of the
Exchange Act, at any time when any Warrant Holder so entitled desires to make
sales of any Warrant Shares in reliance on Rule 144 or Rule 144A under the Act
either: (i) there will be available adequate current public information with
respect to the Company as required by said Rules; or (ii) if such information is
not available the Company will use its best efforts to make such information
available without delay.
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ARTICLE 4
ANTI-DILUTION PROVISIONS
SECTION 4.1. ADJUSTMENT OF CURRENT WARRANT PRICE AND NUMBER OF SHARES
PURCHASABLE. The Current Warrant Price and the number of shares of Common Stock
purchasable upon the exercise of each Warrant shall be subject to adjustment
from time to time as hereinafter provided in this Article 4. Upon each
adjustment of the Current Warrant Price, the Holder of this Warrant shall
thereafter be entitled to purchase at the Current Warrant Price resulting from
such adjustment, the number of shares (calculated to the nearest whole share) of
Common Stock calculated by multiplying the Current Warrant Price in effect
immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product
thereof by the Current Warrant Price resulting from such adjustment.
SECTION 4.2. EFFECT OF "SPLIT-UPS" AND STOCK DIVIDENDS. In case at any
time or from time to time the Company shall subdivide or combine as a whole, by
reclassification, by the issuance of a stock dividend on the Common Stock
payable in Common Stock, or otherwise, the number of shares of Common Stock then
outstanding into a greater or lesser number of shares of Common Stock, with or
without par value, the Current Warrant Price shall be reduced or increased (as
applicable) proportionately. The issuance of such a stock dividend shall be
treated as a subdivision of the whole number of shares of Common Stock
outstanding immediately prior to such dividend into a number of shares equal to
such whole number of shares so outstanding plus the number of shares issued as a
stock dividend. Upon any such adjustment, the number of shares shall be rounded
upward to the nearest whole share.
SECTION 4.3. EFFECT OF MERGER OR CONSOLIDATION. In case the Company
shall, while this Warrant remains outstanding, enter into any consolidation with
or merger into any other corporation wherein the Company is not the surviving
corporation, or wherein securities of a corporation other than the Company are
distributable to Holders of Common Stock, or sell or convey its property as an
entirety or substantially as an entirety followed by distribution of any or all
of the proceeds thereof to shareholders, and in connection with such
consolidation, merger, sale or conveyance, shares of stock or other securities
or property shall be issuable or deliverable in exchange for the Common Stock,
then, as a condition of such consolidation, merger, sale or conveyance, lawful
and adequate provision shall be made whereby the Holder of this Warrant shall
thereafter be entitled to purchase pursuant to this Warrant (in lieu of the
number of shares of Common Stock which such Holder would have been entitled to
purchase immediately prior to such consolidation, merger, sale or conveyance)
the shares of stock or other securities or property to which such number of
shares of Common Stock would have been entitled at the time of such
consolidation, merger, sale or conveyance, at an aggregate purchase price equal
to that which would have been payable if such number of shares of Common Stock
had been purchased by exercise of this Warrant immediately prior thereto. In
case of any such consolidation, merger, sale or conveyance, an appropriate
provision shall be made with respect to the rights and interests thereafter of
any Holder of this Warrant, to the end that all the provisions of this
48
Warrant (including the provisions of this Article 4) shall thereafter be
applicable, as nearly as practicable, to such stock or other securities or
property thereafter deliverable upon the exercise of this Warrant. The Company
shall not effect any such consolidation, merger, sale or conveyance unless prior
to or simultaneously with the consummation thereof the successor corporation (if
other than the Company) resulting from such consolidation or merger or
purchasing such assets shall assume by written instrument, executed and mailed
or delivered to the Holder of this Warrant, the obligation to deliver to such
Holder such shares of stock or other securities or property as, in accordance
with the foregoing provisions, such Warrant Holder may be entitled to receive,
which instrument shall contain the express assumption by such successor
corporation of the due and punctual performance and observance of every
provision of this Warrant to be performed and observed by the Company and of all
liabilities and obligations of the Company hereunder.
SECTION 4.4. REORGANIZATION OR RECLASSIFICATION. In case of any capital
reorganization or any reclassification of the capital stock of the Company
(except as provided in Section 4.2 above) while this Warrant remains
outstanding, then, as a condition of such reorganization or reclassification,
lawful and adequate provision shall be made whereby the Holder of this Warrant
shall thereafter be entitled to purchase pursuant to this Warrant (in lieu of
the number of shares of Common Stock which such Holder would have been entitled
to purchase immediately prior to such reorganization or reclassification) the
shares of stock of any class or classes or other securities or property to which
such number of shares of Common Stock would have been entitled at the time of
such reorganization or reclassification, at an aggregate purchase price equal to
that which would have been payable if such number of shares of Common Stock had
been purchased immediately prior to such reorganization or reclassification. In
case of any such capital reorganization or reclassification, appropriate
provision shall be made with respect to the rights and interests thereafter of
the Holders of Warrants, to the end that all the provisions of the Warrants
(including the provisions of this Article 4) shall thereafter be applicable, as
nearly as practicable, to such stock or other securities or property thereafter
deliverable upon the exercise of the Warrants.
SECTION 4.5. STATEMENT OF ADJUSTMENT. Upon each adjustment of the
Current Warrant Price and the number of shares of Common Stock purchasable
hereunder, and in the event of any change in the rights of the Holder of this
Warrant by reason of other events herein set forth, then and in each such case
the Company will promptly prepare a schedule setting forth the adjusted Current
Warrant Price and the adjusted number of shares purchasable hereunder, or
specifying the other shares of stock, other securities or property and the
amount thereof receivable as a result of such change in rights, and setting
forth in reasonable detail the method of calculation and the facts upon which
such calculation is based. The Company will promptly mail a copy of such
schedule to the registered Holder of this Warrant.
SECTION 4.6. NOTIFICATIONS BY THE COMPANY. In case at any time the
Company proposes:
(a) to pay any dividend payable in stock (of any class or
classes);
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(b) to effect any capital reorganization or reclassification
of the capital stock of the Company, or consolidation or merger of the Company
with, or sale of all or substantially all of its assets to, another corporation;
or
(c) to effect a voluntary or involuntary dissolution,
liquidation or winding-up of the Company; then, in any one or more such cases,
the Company shall give written notice to the registered Holder of this Warrant
of the date on which: (i) the transfer books of the Company shall close or a
record date shall be taken for such dividend; (ii) a record date shall be taken
to determine stockholders entitled to notice of and to vote at any meeting of
stockholders at which any such proposed reorganization, reclassification,
consolidation, merger, sale of assets, dissolution, liquidation or winding-up is
to be considered; or (iii) such reorganization, reclassification, consolidation,
merger, sale of assets, dissolution, liquidation or winding-up shall take place,
as the case may be. Such notice shall also specify the date as of which the
Holders of Common Stock of record shall participate in such dividend, or shall
be entitled to vote on or exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale of assets, dissolution, liquidation or winding-up, as the case may
be. Such written notice shall be given not less than 10 days prior to such date
on which the transfer books of the Company shall close or a record date shall be
taken or any event shall occur, as the case may be, and such notice may state
that any such action will be taken only if certain events specified in such
notice (such as the clearing of proxy material by the Commission or an
affirmative vote of stockholders) occur prior thereto.
ARTICLE 5
CERTAIN DEFINITIONS
For all purposes of this Warrant, unless the context otherwise
requires, the following terms shall have the following respective meanings:
"Act": the Securities Act of 1933, as amended from time to time, 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.
"Commission": the Securities and Exchange Commission, or any other
federal agency then administering the Act.
"Current Market Price": the "Closing Price" (as defined below) of the
Common Stock on the last business day immediately preceding any date of
reference. For the purpose of determining Current Market Price, the "Closing
Price" of the Common Stock on any business day shall be: (i) if the Common Stock
is listed or admitted for trading on any United States national securities
exchange, the last reported sale price of Common Stock on such exchange; (ii) if
the Common Stock is listed or admitted for trading on any tier of The NASDAQ
Stock Market, the last reported sale price of Common Stock on such tier; or
(iii) if the Common Stock is traded in the over-the-counter market, the closing
sales price for the Common Stock as quoted on the OTC Bulletin Board.
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"Current Warrant Price": (per share of Common Stock at any date): the
price at which one share of Common Stock may be purchased hereunder at any time;
initially $ 0.25. The Current Warrant Price is subject to adjustment from time
to time pursuant to Article 4 above.
"Exchange Act": the Securities Exchange Act of 1934, as amended from
time to time, or any successor federal statute, and the rules and regulations of
the Commission thereunder.
"Outstanding": when used with reference to Common Stock at any date,
all issued shares of Common Stock (including, but without duplication, shares
deemed issued pursuant to Article 4 above) at such date, except shares then held
in the treasury of the Company.
"Person": an individual, corporation, partnership, joint venture, trust
estate, unincorporated organization or government or an agency or political
subdivision thereof.
"Total Warrants": the sum of the aggregate number of shares of: (i)
Common Stock purchasable by the Holder(s) upon exercise of the Warrant then
outstanding; and (ii) Warrant Shares which had been issued pursuant to the
exercise the Warrant.
"Warrant Office": see Section 2.1 above.
"Warrant Shares": the shares of Common Stock purchasable or purchased
by the Warrant Holder upon the exercise of the Warrant. Unless otherwise
expressly stated herein, Warrant Shares shall not include shares of Common Stock
purchased upon exercise of the Warrant which have been sold by a Warrant Holder
pursuant to a registration statement under the Act.
"Warrant Holder": the registered Holder of the Warrant or any related
Warrant Shares.
"Warrant": the warrant issued by the Company hereunder evidencing the
right initially to purchase an aggregate of 75,000 shares of Common Stock and
all warrants issued in substitution or subdivision hereof.
ARTICLE 6
CERTAIN COVENANTS OF THE COMPANY
The Company represents, warrants, covenants and agrees that:
(a) it will reserve and set apart and have at all times, free
from preemptive rights, a number of shares of authorized but unissued Common
Stock or other securities or property deliverable upon the exercise of this
Warrant sufficient to enable it at any time to fulfill all its obligations
thereunder;
(b) before taking any action which would cause an adjustment
reducing the Current Warrant Price below the then par value of the shares of
Common Stock issuable upon exercise of this Warrant, it will take any corporate
action which may be necessary in order that
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the Company may validly and legally issue fully paid and nonassessable shares of
such Common Stock at such adjusted Current Warrant Price;
(c) if any shares of Common Stock required to be reserved for
the purposes of the exercise of this Warrant require registration with or
approval of any governmental authority under any federal law (other than the
Act) or under any state law before such shares may be issued upon exercise of
this Warrant, the Company will, at its expense, as expeditiously as possible,
cause such shares to be duly registered or approved, as the case may be;
(d) this Warrant shall be binding upon any corporation
succeeding to the Company by merger, consolidation or acquisition of all or
substantially all of the Company's assets.
ARTICLE 7
CERTAIN COVENANTS OF THE HOLDER
The Holder represents, warrants, covenants and agrees that:
(a) this transaction is exempt from the Act and, accordingly
neither the Warrant nor the Warrant Shares have been registered under the Act;
they are acquiring the Warrant and Warrant Shares for investment purposes only
and not with a view to or for resale in connection with any distribution of the
Warrant or Warrant Shares, nor with any present intention of distribution
(within the meaning of the Act) of the Warrant or Warrant Shares; because the
Warrant and Warrant Shares will not have been registered under the Act, the
Company will not permit the transfer of such shares without registration under
the Act, or upon the issuance to the Company of a favorable opinion of its
counsel to the effect that such transfer, whether pursuant to Rule 144 of the
Act or otherwise, shall not be in violation of the Act, and any applicable state
security laws; and the share certificates representing the Warrant Shares will
be issued with a restrictive legend providing notice of such restriction;
(b) Holder has had an opportunity to ask questions of, and
receive answers from, appropriate officers and representatives of the Company
concerning the terms and conditions of the issuance of this Warrant and the
Warrant Shares and to obtain any additional information concerning the Company
which they have requested; and
(c) the Company has made available for inspection by them
various documents connected with the Company's business and has not refused in
any way to permit them to inspect any document requested to be inspected by
them.
ARTICLE 8
NOTICE
Any notice or other document required to be given or delivered to the
Warrant Holder shall be delivered at, or sent by certified or registered mail
to, such Holder at the last address shown on the books of the Company maintained
at the Warrant Office for the registration and registration of transfer of the
Warrants or at any more recent address of which any Warrant
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Holder shall have notified the Company in writing. Any notice or other document
required or permitted to be given or delivered to Holders of record of
outstanding Warrant Shares shall be delivered at, or sent by certified or
registered mail to, each such Holder at such Holder's address as the same
appears on the stock records of the Company. Any notice or other document
required or permitted to be given or delivered to the Company, other than such
notice or documents required to be delivered to the Warrant Office, shall be
delivered at, or sent by certified or registered mail to, the office of the
Company in Atlanta, Georgia, or such other address within the United States of
America as shall have been furnished by the Company to the Warrant Holders and
the Holders of record of Warrant Shares. Any notice or other document sent by
certified or registered mail, return receipt requested, shall be deemed to have
been delivered and received when sent if the receipt is appropriately completed
and returned. Notices or documents delivered in any other manner than as set
forth above shall be deemed to have been delivered only when and if received.
ARTICLE 9
LIMITATIONS OF LIABILITY;
NOT STOCKHOLDERS
No provision of this Warrant shall be construed as conferring upon the
Holder hereof the right to vote, consent, receive dividends or receive notice
other than as herein expressly provided in respect of meetings of stockholders
for the election of directors of the Company or any other matter whatsoever as a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the Holder hereof to purchase shares of Common Stock, and no mere
enumeration herein of the rights or privileges of the Holder hereof, shall give
rise to any liability of such Holder for the purchase price of any Warrant
Shares or as a stockholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
ARTICLE 10
LOSS, DESTRUCTION, ETC. OF WARRANTS
Upon receipt of evidence satisfactory to the Company of the loss, theft,
mutilation or destruction of any Warrant, and in the case of any such loss,
theft or destruction upon delivery of a bond of indemnity in such form and
amount as shall be reasonably satisfactory to the Company, or in the event of
such mutilation upon surrender and cancellation of the Warrant, the Company will
make and deliver a new Warrant, of like tenor, in lieu of such lost, stolen,
destroyed or mutilated Warrant. Any Warrant issued under the provisions of this
Article 9 in lieu of any Warrant alleged to be lost, destroyed or stolen, or in
lieu of any mutilated Warrant, shall constitute an original contractual
obligation on the part of the Company.
ARTICLE 10
LAW GOVERNING
This Warrant shall be governed by, and construed and enforced in
accordance with, the law of the State of Georgia, without reference to its
choice of law principles.
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ARTICLE 11
SUCCESSORS AND ASSIGNS
The rights and obligations of the parties hereunder shall be binding
upon and inure to the benefit of their respective successors and assigns.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in
its name effective as of the 11th day of June, 2004.
RUBY MINING COMPANY
By: /s/ G. Xxxxxx Xxxxxxxxxxx
Its: ___________CEO__________
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EXERCISE NOTICE
RUBY MINING COMPANY
The undersigned, the Holder of the foregoing Warrant, hereby elects to
exercise purchase rights represented by said Warrant for, and to purchase
thereunder, ________ shares of the Common Stock covered by said Warrant and (a)
herewith (1) makes payment in full therefor of $___________ by certified or
official bank check payable to the order of Ruby Mining Company, or (2)
surrenders to the Company that number of warrants required for full payment of
the shares to be purchased; and (b) requests (1) that certificates for such
shares (and any securities or other property issuable upon such exercise) be
issued in the name of and delivered to _______________________________, whose
address is ______________________________ and (2) if such shares shall not
include all of the shares issuable as provided in said Warrant, that a new
Warrant of like tenor and date for the balance of the shares issuable thereunder
be delivered to the undersigned.
------------------------------------
Signature Medallion Guaranteed:
Dated:
---------------------------
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________ the rights represented by the foregoing Warrant of Ruby
Mining Company and appoints ______________________________ attorney to transfer
said rights on the books of said corporation, with full power of substitution in
the premises.
------------------------------------
Signature Medallion Guaranteed:
Dated:
---------------------------
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