NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE...
Exhibit
10.7
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE
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 (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.
THIS
SECURITY AND THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE
BEEN
ISSUED PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, PURSUANT
TO
REGULATION S THEREUNDER. THIS
SECURITY AND THE SECURITIES INTO WHICH THIS SECURITY IS EXCERCISABLE 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.
COMMON
STOCK PURCHASE WARRANT
Warrant#:________________________
To
purchase __________ shares of common stock of
Dated:
______________________,
2006
This
common stock purchase warrant
(the
“Warrant”)
certifies that, for value received, ________________________ (the
“Holder”),
is
entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the date given above
(the “Initial
Exercise Date”)
and by
the close of business on the second anniversary of the Initial Exercise Date
(the “Termination
Date”)
but
not thereafter, to subscribe for and purchase from Bullion River Gold Corp.,
a
Nevada corporation (the “Company”),
up to
_____________ shares
(the “Warrant
Shares”)
of
common stock, par value $0.001 per share, of the Company (the “Common
Stock”).
The
purchase price of one share of Common Stock under this Warrant is equal to
the
Exercise Price, as defined in Section 2(a).
1. Definitions.
Capitalized terms used and not otherwise defined in this Warrant have the same
meanings as they have in the Securities Purchase Agreement (the “Purchase
Agreement”),
dated
,
2006,
among the Company and the Holder as Purchaser.
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2. Exercise.
(a) Exercise
Price.
The
exercise price of the Common Stock under this Warrant is $1.00,
(b) Exercise
of Warrant.
The
Holder may exercise the purchase rights represented by this Warrant at any
time
from the Initial Exercise Date to five o’clock in the afternoon, Reno time, on
the Termination Date by delivering to the Company (i) a duly executed facsimile
copy of the annexed Notice of Exercise, and, (ii) within 5 Trading Days of
delivering the Notice of Exercise to the Company, (A) this Warrant, and (B)
by
wire or cashier’s check drawn on a United States bank the United States dollar
amount equal to the number of Warrant Shares being purchased times the Exercise
Price (the “Exercise
Amount”).
(c) Exercise
limitations.
(i) The
Holder may not exercise any portion of this Warrant if, immediately after the
Warrant Shares are issued, the Holder (together with the Holder’s Affiliates)
would beneficially own more than 4.99% of the number of shares of the Common
Stock outstanding. For the purposes of the foregoing sentence, the number
of shares of Common Stock beneficially owned by the Holder and its Affiliates
includes the number of shares of Common Stock issuable upon the exercise of
this
Warrant, but excludes the number of shares of Common Stock that would be
issuable upon (i) the Holder’s exercise of the remaining, unexercised portion of
this Warrant and (ii) the Holder’s or its Affiliates’ exercise or conversion of
the unexercised or nonconverted portion of any other securities of the Company
that the Holder or any of its Affiliates own beneficially.
Except as set forth in the foregoing sentence, for the purposes of this Section
2(c),
beneficial ownership must be calculated in accordance with Section 13(d) of
the
Securities and Exchange Act of 1934 (“Exchange
Act”).
(ii) The
Holder acknowledges that the Company is not representing to Holder that the
calculation described in Section 2(c)(i)
complies
with Section 13(d) of the Exchange Act and Holder is solely responsible for
any
schedules required to be filed in accordance with it. The determination of
whether this Warrant is exercisable (in relation to other securities owned
by
the Holder and its Affiliates) is in the sole discretion of the Holder, and
the
submission of a Notice of Exercise is deemed to be the Holder’s declaration that
the Holder has determined that this Warrant is exercisable as set out in the
Notice of Exercise and subject to the limitations in this Section 2(c);
and the
Company is not obliged to verify or confirm the accuracy of the Holder’s
determination.
(iii) For
the
purposes of this Section 2(c),
in
determining the number of outstanding shares of Common Stock, the Holder may
rely on the number of outstanding shares of Common Stock as reflected in the
most recent of (A) the latest filed of the Company’s Form 10-QSB and Form
10-KSB, (B) a public announcement by the Company stating the number of shares
of
Common Stock outstanding, or (C) any other notice by the Company or the
Company’s Transfer Agent stating the number of shares of Common Stock
outstanding. If Xxxxxx asks for it, the Company will within two Trading
Days confirm orally and in writing to the Holder the number of shares of Common
Stock then outstanding.
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(d) Mechanics
of Exercise.
(i) Authorization
of Warrant Shares.
The
Company will issue all Warrant Shares as duly authorized, validly issued, fully
paid and non-assessable, and free from all taxes, liens and charges (other
than
taxes in respect of any transfer occurring contemporaneously with the issue).
(ii) Delivery
of certificates upon exercise.
The
Company’s transfer agent will deliver certificates for Warrant Shares to the
Holder to the address specified by the Holder in the Notice of Exercise within
3
Trading Days from the later of (A) the Company’s receipt of the Notice of
Exercise, (B) the Holder’s surrender of this Warrant, and (C) the Company’s
receipt of the Exercise Amount as set out in Section 2(b)
(“Warrant
Share Delivery Date”).
This
Warrant is deemed to have been exercised on the date the Exercise Amount is
received by the Company (“Exercise
Date”);
and
the Warrant Shares are deemed to have been issued, and Holder is deemed to
have
become a holder of record of the shares for all purposes, on the Exercise
Date.
(iii) Delivery
of new Warrants upon exercise.
If this
Warrant is exercised in part, the Company will, when it delivers the certificate
or certificates representing Warrant Shares, deliver to Holder a new Warrant
evidencing the rights of Holder to purchase the unpurchased Warrant Shares,
identical in all other respects with this Warrant.
(iv) Rescission
rights.
If the
Company fails to cause its transfer agent to transmit to the Holder a
certificate or certificates representing the Warrant Shares pursuant to this
Section 2(d)(iv)
by the
Warrant Share Delivery Date, then the Holder may rescind the
exercise.
(v) No
fractional shares or scrip.
No
fractional shares or scrip representing fractional shares may be issued upon the
exercise of this Warrant. If the Holder would otherwise be entitled to
fractional shares upon the exercise, the Company will pay a cash adjustment
in
respect of the fraction in an amount equal to the fraction multiplied by the
Exercise Price.
(vi) Charges,
taxes and expenses.
The
Company will issue certificates for Warrant Shares in the name of the Holder
and
will not charge the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of the certificate.
(vii) Closing
of books.
The
Company will not close its stockholder books or records in any manner that
prevents the timely exercise of this Warrant.
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3. Certain
Adjustments.
(a) Stock
dividends and splits.
If the
Company, at any time while this Warrant is outstanding,
(i)
pays a stock dividend or otherwise makes a distribution on shares of its Common
Stock or any other Common Stock Equivalent (which, for avoidance of doubt,
does
not include any shares of Common Stock issued by the Company pursuant to this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger
number of shares, (iii) combines outstanding shares of Common Stock into a
smaller number of shares, or (iv) issues by reclassification of shares of the
Common Stock any shares of capital stock of the Company, then the Exercise
Price
must be multiplied by a fraction of which the numerator is the number of shares
of Common Stock (excluding treasury shares, if any) outstanding before the
event
and of which the denominator is the number of shares of Common Stock outstanding
after the event, and the number of shares issuable upon exercise of this Warrant
must be proportionately adjusted by this fraction. Any adjustment made pursuant
to this Section 3(a)
is
effective immediately after the record date for the determination of
stockholders entitled to receive the dividend or distribution and is effective
immediately after the effective date in the case of a subdivision, combination
or re-classification.
(b) Fundamental
Transaction.
If, at
any time while this Warrant is outstanding,
(i) the
Company merges or consolidates with or into another Person, (ii) the Company
sells all or substantially all of its assets in one or a series of related
transactions, (iii) any Person completes a tender offer or exchange offer by
which holders of Common Stock are permitted to tender or exchange their shares
for other securities, cash or property, or (iv) the Company reclassifies its
Common Stock or completes any compulsory share exchange pursuant to which the
Common Stock is effectively converted into or exchanged for other securities,
cash or property (in any such case, a “Fundamental
Transaction”),
then,
upon any subsequent conversion of this Warrant, the Holder has the right to
receive, for each Warrant Share that would have been issued upon the exercise
absent the Fundamental Transaction, the same consideration as the Company has
given its other holders of its Common Stock for the conversion of their Common
Stock outstanding at the time of the Fundamental Transaction (the “Alternate
Consideration”).
Any
successor to the Company or surviving entity in a Fundamental Transaction must
issue to the Holder a new warrant consistent with the foregoing provisions
with
evidence of the Holder’s right to exercise the warrant into Alternate
Consideration. The terms of any agreement pursuant to which a Fundamental
Transaction is completed must include terms requiring the successor or surviving
entity to comply with the provisions of this Section 3(b)
and
insuring that this Warrant (or any replacement security) is similarly adjusted
upon any subsequent transaction analogous to a Fundamental
Transaction.
(c) Calculations.
All
calculations under this Section 3
must be
made to the nearest cent or the nearest 1/100th
of a
share, as the case may be. The number of shares of Common Stock outstanding
at
any given time does not include shares of Common Stock owned or held by or
for
the account of the Company. For the purposes of this Section 3,
the
number of shares of Common Stock deemed to be issued and outstanding as of
a
given date is the sum of the number of shares of Common Stock (excluding
treasury shares, if any) issued and outstanding.
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(d) Notice
to Holders.
If the
Company makes adjustments under this Section 3,
the
Company will promptly mail to each Holder a notice containing a description
of
the event that required the adjustment. If the Company proposes any transaction
that affects the rights of the holders of its Common Stock, then the Company
will notify the Holders of the proposal at least twenty days before the record
date set for the transaction.
4. Warrant
register.
The
Company will register this Warrant on its warrant register and will treat the
registered Holder as the absolute owner for all purposes.
5. Miscellaneous.
(a) Title
to Warrant.
This
Warrant is not transferable.
(b) No
rights as shareholder until Exercise Date.
This
Warrant does not entitle the Holder to any voting rights or other rights as
a
shareholder of the Company before the Exercise Date. Upon the surrender of
this
Warrant and the payment of the aggregate Exercise Price, the Company will issue
the Warrant Shares to the Holder as the record owner of the Warrant Shares
as of
the close of business on the Exercise Date.
(c) Loss,
Theft, Destruction or Mutilation of Warrant.
The
Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
or any stock certificate relating to the Warrant Shares, and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it,
and upon surrender and cancellation of the Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate
of like tenor and dated as of the cancellation, in lieu of the Warrant or stock
certificate.
(d) Saturdays,
Sundays, Holidays, etc.
If the
last date for doing anything under this Warrant falls on a Saturday, Sunday
or a
legal holiday, then the thing may be done on the next succeeding Trading
Day.
(e) Authorized
Shares.
(i) The
Company covenants that, while the Warrant is outstanding, it will reserve from
its authorized and unissued Common Stock a sufficient number of shares to
provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant. The Company further covenants that its issuance
of
this Warrant constitutes full authority to its officers who are charged with
the
duty of executing stock certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of the purchase rights
under this Warrant. The Company will take all such reasonable action as may
be
necessary to assure that the Warrant Shares are issued as provided without
a
violation of any applicable law or regulation, or of any requirements of the
Trading Market upon which the Common Stock may be listed or quoted.
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(ii) Unless
waived or consented to by the Holder, the Company will not by any action avoid
or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in carrying out of all
its
terms and take whatever actions is necessary or appropriate to protect the
rights of Holder under this Warrant from impairment.
(f) Jurisdiction.
All
questions concerning the construction, validity, enforcement and interpretation
of this Warrant must be determined in accordance with the provisions of the
Purchase Agreement.
(g) Restrictions.
The
Holder acknowledges that the Holder’s sale or transfer of the Warrant Shares, if
not registered, will be subject to restrictions upon resale imposed by state
and
federal securities laws.
(h) No
waiver.
No
course of dealing or any delay or failure to exercise any right hereunder on
the
part of Holder operates as a waiver of the right or otherwise prejudices
Holder’s rights, powers or remedies.
(i) Notice.
Any
notice, request or other document required or permitted to be given or delivered
by either party to the other must be delivered in accordance with the notice
provisions of the Purchase Agreement.
(j) Successors
and Assigns.
Subject
to applicable securities laws, this Warrant inures to the benefit of and binds
the successors and permitted assigns of the Company and the Holder.
(k) Amendment.
Any
amendment of this Warrant must be in writing and signed by both the Company
and
the Holder.
(l) Severability.
Wherever possible, each provision of this Warrant must be interpreted under
applicable law, but if any provision of this Warrant is prohibited by or invalid
under applicable law, the provision is ineffective to the extent of the
prohibition or invalidity, without invalidating the remaining provisions of
this
Warrant.
(m) Headings.
The
headings used in this Warrant are for the convenience of reference only and
are
not, for any purpose, deemed a part of this Warrant.
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IN
WITNESS WHEREOF the Company has caused this Warrant to be executed by its duly
authorized officer.
Dated:________________________________
|
By:
/s/ Xxxxx X.
Xxxx
Name: Xxxxx X. Xxxx
Title:
President
|
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NOTICE
OF EXERCISE
The
undersigned hereby elects to purchase _____________ Warrant
Shares of the Company pursuant to the terms of the attached Warrant (only if
exercised in full; if exercised in part, attach a copy of the Warrant), and
tenders herewith payment of the exercise price in full, together with all
applicable transfer taxes, if any.
Payment
will take the form of lawful money of United States.
Please
deliver the Warrant Shares to the following:
________________________________________________________
________________________________________________________
________________________________________________________
_________________________________________________
Signature
of Holder or authorized signatory of Holder
Name
of
Holder:____________________________________________________
Name
of
authorized signatory:_________________________________________
Title
of
authorized signatory:_____________________________________
Date:_________________________
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