Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH MUST BE REASONABLY
ACCEPTABLE TO THE COMPANY.
THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is dated as of ,
2007, among Bullion River Gold Corp., a Nevada corporation (the "COMPANY"), and
each purchaser identified on the signature pages hereto (each, including its
successors and assigns, a "PURCHASER" and collectively the "PURCHASERS"); and
WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant to Section 4(2) of the Securities Act (as defined below),
and Rule 506 promulgated thereunder, the Company desires to issue and sell to
each Purchaser, and each Purchaser, severally and not jointly, desires to
purchase from the Company shares of Common Stock and Warrants on the Closing
Date.
IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agrees as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. For all purposes of this Agreement:
"AFFILIATE" means any Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is
under common control with a Person as these terms are used in and
construed under Rule 144, and any investment fund or managed account
that is managed on a discretionary basis by the same investment manager
as a Purchaser.
"CLOSING" means the closing of the purchase and sale of the
Common Stock and the Warrants under Section 2.1.
"CLOSING DATE" means the Trading Day when all of the
Transaction Documents have been executed and delivered by the
applicable parties.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common shares of the Company with a
par value of $0.001 per share, and any securities into which the common
shares might be reclassified.
"COMMON STOCK EQUIVALENTS" means any securities of the Company
or the Subsidiaries that would at any time entitle the holder to
acquire Common Stock, including without limitation, any debt, preferred
stock, rights, options, warrants or other instrument that is at any
time convertible into or exchangeable for, or otherwise entitles the
holder thereof to receive, Common Stock.
"EFFECTIVE DATE" means the date that the Registration
Statement is first declared effective by the Commission.
"LIENS" means a lien, charge, security interest, encumbrance,
and right of first refusal, preemptive right or other restriction.
"MATERIAL ADVERSE EFFECT" is defined in Section 3.1(b).
"PER SHARE PURCHASE PRICE" equals $0.25, subject to adjustment
for reverse and forward stock splits, stock dividends, stock
combinations and other similar transactions of the Common Stock that
occur after the date of this Agreement.
"PERSON" means an individual or corporation, partnership,
trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date of this Agreement, among the Company
and each Purchaser, in the form of the Attachment 2.
"REGISTRATION STATEMENT" means a registration statement
meeting the requirements set forth in the Registration Rights Agreement
and covering the resale by the Purchasers of the Shares and the Warrant
Shares.
"REQUIRED APPROVALS" is defined in Section 3.1(e).
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the
Commission having substantially the same effect as such Rule.
"SECURITIES" means the Shares, the Warrants and the Warrant
Shares.
"SECURITIES ACT" means the Securities Act of 1933.
"SHARES" means the shares of Common Stock issued or issuable
to each Purchaser under to this Agreement.
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"SUBSCRIPTION AMOUNT" means, as to each Purchaser, the amount
set below each Purchaser's signature block on the signature page, in
United States dollars and in immediately available funds.
"SUBSIDIARY" means any subsidiary of the Company and any
future direct or indirect subsidiary of the Company.
"TRADING DAY" means a day on which the Common Stock is quoted
or traded on a Trading Market.
"TRADING MARKET" means the American Stock Exchange, the New
York Stock Exchange, the Nasdaq National Market, the Nasdaq SmallCap
Market or the OTC Bulletin Board.
"TRANSACTION DOCUMENTS" means this Agreement, the Warrants and
the Registration Rights Agreement and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
"WARRANTS" means the Common Stock Purchase Warrants in the
form of the attached Attachment 1.
"WARRANT SHARES" means the shares of Common Stock issuable
upon exercise of the Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1 CLOSING. On the Closing Date, each Purchaser will purchase from the
Company, severally and not jointly with the other Purchasers, and the Company
will issue and sell to each Purchaser, (a) a number of Shares equal to such
Purchaser's Subscription Amount divided by the Per Share Purchase Price and (b)
the Warrants as determined pursuant to Section 2.2(a)(iii). Upon satisfaction of
the conditions set forth in Section 2.3, the Closing will occur at the offices
of the Company or such other location as the parties will mutually agree.
2.2 DELIVERIES.
(a) On the Closing Date, the Company will deliver or cause to
be delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) a certificate evidencing a number of Shares
equal to the Purchaser's Subscription Amount divided by the
Per Share Purchase Price, registered in the name of the
Purchaser;
(iii) a Warrant, registered in the name of the
Purchaser, pursuant to which the Purchaser has the right to
acquire up to the number of shares of
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Common Stock equal to the Warrant Shares identified in the
Securities Purchase Agreement to be issued to the Purchaser;
and
(iv) the Registration Rights Agreement duly executed
by the Company.
(b) On the Closing Date, each Purchaser will deliver or cause
to be delivered to the Company the following:
(i) this Agreement duly executed by the Purchaser;
(ii) the Purchaser's Subscription Amount by wire
transfer as per the wire instructions provided by the Company;
and
(iii) the Registration Rights Agreement duly executed
by the Purchaser.
2.3 CLOSING CONDITIONS.
(a) The obligations of the Company in connection with the
Closing are subject to each of the following conditions being met:
(i) The representations and warranties of the
Purchasers are accurate in all material respects when they
were made and on the Closing date.
(ii) The Purchasers have performed all obligations,
covenants and agreements required to be performed by the
Closing Date.
(iii) The Purchasers have delivered the items set
forth in Section 2.2(b) of this Agreement.
(b) The respective obligations of the Purchasers in connection
with the Closing are subject to each of the following conditions being
met:
(i) The representations and warranties of the Company
are accurate in all material respects on the Closing Date.
(ii) The Company has performed all obligations,
covenants and agreements required to be performed by the
Closing Date.
(iii) The Company has delivered the items set forth
in Section 2.2(a)of this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Purchaser:
(a) SUBSIDIARIES. The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary
free and clear of any Liens, and all the
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issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase securities.
(b) ORGANIZATION AND QUALIFICATION. Each of the Company and
the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with
the requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation or default of any of the
provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the
Company and the Subsidiaries is duly qualified to conduct business and
is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing could not reasonably be
expected to have (i) a material adverse effect on the legality,
validity or enforceability of any Transaction Documents, (ii) a
material adverse effect on the results of operations, assets, business,
prospects or financial condition of the Company and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company's
ability to perform in any material respect on a timely basis its
obligations under any Transaction Documents (any of (i), (ii) or (iii),
a "MATERIAL ADVERSE EFFECT") and no Proceeding has been instituted in
any such jurisdiction revoking, limiting or curtailing or seeking to
revoke, limit or curtail such power and authority or qualification.
(c) AUTHORIZATION; ENFORCEMENT. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and
otherwise to carry out its obligations under them. The Company's
execution and delivery of each of the Transaction Documents and its
consummation of the transactions contemplated by them have been duly
authorized by all necessary action on the part of the Company and no
further action is required by the Company in their connection other
than in connection with the Required Approvals. Each Transaction
Documents has been (or upon delivery will have been) duly executed by
the Company and, when delivered in accordance with the terms hereof,
will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except (i)
as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement
of creditors' rights generally and (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other
equitable remedies.
(d) NO CONFLICTS. The Company's execution, delivery and
performance of the Transaction Documents, its issuance and sale of the
Shares and its consummation of the other transactions contemplated
hereby do not and will not (i) conflict with or violate any provision
of the Company's or any Subsidiary's certificate or articles of
incorporation, bylaws or other organizational or charter documents, or
(ii) conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of
any court or governmental authority to which the Company or a
Subsidiary is subject (including federal and state securities laws and
regulations).
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(e) FILINGS, CONSENTS AND APPROVALS. The Company is not
required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other
Person in connection with its execution, delivery and performance of
the Transaction Documents, other than (i) the filing with the
Commission of the Registration Statement, and (ii) any filings that are
required by applicable federal and state securities laws (collectively,
the "REQUIRED APPROVALS").
(f) ISSUANCE OF THE SECURITIES. The Shares and Warrants are
duly authorized and, when issued and paid for in accordance with the
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Transaction
Documents. The Warrant Shares, when issued in accordance with the terms
of the Transaction Documents, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company. The
Company has reserved from its duly authorized capital stock the maximum
number of shares of Common Stock issuable pursuant to this Agreement
and the Warrants.
(g) PRIVATE PLACEMENT. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, no
registration under the Securities Act is required for the offer and
sale of the Securities by the Company to the Purchasers. The issuance
and sale of the Securities does not contravene the rules and
regulations of the Trading Market.
(h) INVESTMENT COMPANY. The Company is not, and is not an
Affiliate of, and immediately after receipt of payment for the Shares,
will neither be nor be an Affiliate of, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended. The
Company will conduct its business in such a manner that it will not
become subject to the Investment Company Act.
(i) DISCLOSURE. The Company confirms that neither the Company
nor any other Person acting on its behalf has provided any of the
Purchasers or their agents or counsel with any information that
constitutes or might constitute material, non-public information. All
disclosure provided to the Purchasers regarding the Company, its
business and the transactions contemplated by it furnished by or on
behalf of the Company with respect to the representations and
warranties are true and correct and do not contain any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements, in light of the circumstances under which
they were made, not misleading. The Company acknowledges and agrees
that no Purchaser makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those
specifically set forth in Section 3.2.
(j) GENERAL SOLICITATION. Neither the Company nor any person
acting on behalf of the Company has offered or sold any of the Shares
by any form of general solicitation or general advertising. The Company
has offered the Shares for sale only to the Purchasers and certain
other "accredited investors" within the meaning of Rule 501 under the
Securities Act.
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(k) ACKNOWLEDGMENT REGARDING PURCHASERS' PURCHASE OF SHARES.
The Company acknowledges that each of the Purchasers is acting solely
in the capacity of an arm's length purchaser with respect to the
Transaction Documents and the transactions contemplated. The Company
further acknowledges that no Purchaser is acting as a financial advisor
or fiduciary of the Company (or in any similar capacity) with respect
to this Agreement and the transactions contemplated and any advice
given by any Purchaser or any of their respective representatives or
agents in connection with this Agreement and the transactions
contemplated is merely incidental to the Purchasers' purchase of the
Shares. The Company further represents to each Purchaser that the
Company's decision to enter into this Agreement has been based solely
on the independent evaluation of the transactions contemplated by the
Company and its representatives.
(l) ACKNOWLEDGMENT OF DILUTION. The Company acknowledges that
the issuance of the Securities may result in dilution of the
outstanding shares of Common Stock, which dilution may be substantial
under certain market conditions. The Company further acknowledges that
its obligations under the Transaction Documents, including without
limitation its obligation to issue the Shares and Warrant Shares
pursuant to the Transaction Documents, are unconditional and absolute
and not subject to any right of set off, counterclaim, delay or
reduction, regardless of the effect of any such dilution or any claim
the Company may have against any Purchaser and regardless of the
dilutive effect that such issuance may have on the ownership of the
other stockholders of the Company.
Purchaser acknowledges that the Company does not make or has not made
any representations or warranties with respect to the transactions contemplated
other than those specifically set forth in this Section 3.1.
(m) ANTI-DILUTION PROTECTION. The Exercise Price of the
Warrants and the Conversion Price of this stock shall be subject to
adjustment for issuances of common stock or common stock equivalents at
a purchase price less than the then-effective Exercise Price or
Conversion Price, as the case may be, such that the Exercise Price or
Conversion Price shall be adjusted using weighted average anti-dilution
price protection based on such new issuances, subject to customary
carve outs as subscribed in the Forms of Warrant. The Conversion Price
of this stock will also be subject to proportional adjustment for stock
splits, stock dividends, recapitalizations and the like.
(n) REGISTATION. The Company shall file a Registration
Statement on Form SB-2 (or an alternative available form if the Company
is not eligible to file a Form SB-2) covering the common shares and
warrants shares no later than sixty (60) days following the Initial
Closing and use its best efforts to have the registration Statement
declared effective. The Company's obligation to register shares shall
be limited to the number of shares the Company may register from time
to time as permitted by the SEC's interpretation of SEC Rule 415.
(o) LIQUIDATION DAMAGES. If the Registration Statement is not
filed within sixty (60) days after the Initial Closing, the Company
will pay cash liquidated damages equal to 2.0% of the amount invested
by the Purchaser. If the Registration Statement has not been declared
effective within one hundred fifty (150) days after the filing date,
the Company will pay cash liquidated damages equal to 1.0% of the
amount of the invested by the Purchaser and for
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each thirty (30) day period thereafter up to twenty four (24) months
following the Initial Closing, however such Liquidated damages can be
waived with the approval of at least 3/4 of the new purchase.
Liquidated damages shall not apply to common shares underlying the
warrants.
3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows:
(a) ORGANIZATION; AUTHORITY. The Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, corporate or
partnership power and authority to enter into and to consummate the
transactions contemplated by the Transaction Documents and otherwise to
carry out its obligations. The execution, delivery and performance by
the Purchaser of the transactions contemplated by this Agreement have
been duly authorized by all necessary corporate or similar action on
the part of the Purchaser. Each of the Transaction Documents to which
it is a party has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with these terms, constitutes
the valid and legally binding obligation of the Purchaser, enforceable
against it in accordance with its terms, except as limited by
applicable law.
(b) INVESTMENT INTENT. The Purchaser understands that the
Securities are "restricted securities" and have not been registered
under the Securities Act or any applicable state securities law and
that Purchaser is acquiring the Securities as principal for its own
account and not with a view to or for distributing or reselling any of
the Securities, has no present intention of distributing any of such
Securities, and has no arrangement or understanding with any other
persons regarding the distribution of the Securities (this
representation and warranty does not limit the Purchaser's right to
sell the Securities pursuant to the Registration Statement or otherwise
in compliance with applicable federal and state securities laws).
Purchaser is acquiring the Securities in the ordinary course of its
business. Purchaser does not have any agreement or understanding,
directly or indirectly, with any Person to distribute any of the
Securities.
(c) DISCLOSURE OF INFORMATION. Purchaser carefully reviewed
all filings made by the Company with the Commission as of the date of
this Agreement and has received and carefully reviewed any information
Purchaser has requested from the Company that Purchaser considers
necessary or appropriate for deciding whether to acquire the
Securities, including, without limitation, all material risk factors
relating to the Company. Purchaser further represents that Purchaser
has had ample opportunity to ask questions and receive answers from the
Company concerning the information and the terms and conditions of the
offering of the Securities and to obtain any additional information
necessary to verify the accuracy of the information given to Purchaser.
Purchaser is making its investment in the Company after having
reviewed, analyzed, sought professional advice regarding, and fully
understanding the risk, uncertainties, and liabilities associated with
the Company.
(d) PURCHASER STATUS. At the time Purchaser was offered the
Securities, it was, and at the date hereof it is, and on each date on
which it exercises any Warrants, it
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will be either: (i) an "accredited investor" as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or
(ii) a "qualified institutional buyer" as defined in Rule 144A(a) under
the Securities Act. Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(e) EXPERIENCE OF PURCHASER. Purchaser, either alone or
together with its representatives, is knowledgeable, sophisticated, and
experienced in business and financial matters and is capable of
evaluating the merits and risks of the prospective investment in the
Securities, and has evaluated the merits and risks of the investment.
Purchaser is able to bear the economic risk of an investment in the
Securities and is able to afford a complete loss of the investment.
(f) GENERAL SOLICITATION. Purchaser is not purchasing the
Securities as a result of any advertisement, article, notice or other
communication regarding the Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or
presented at any seminar or any other general solicitation or general
advertisement.
The Company acknowledges that each Purchaser does not make or has not
made any representations or warranties with respect to the transactions
contemplated other than those specifically set forth in this Section 3.2.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 TRANSFER RESTRICTIONS.
(a) The Securities may only be disposed of in compliance with
state and federal securities laws. In connection with any transfer of
the Securities other than pursuant to an effective registration
statement or in compliance with Rule 144, the Company may require the
transferor to provide to the Company an opinion of counsel selected by
the transferor and reasonably acceptable to the Company, the form and
substance of which opinion must be reasonably satisfactory to the
Company, to the effect that the transfer does not require registration
of the transferred Securities under the Securities Act. As a condition
of transfer, any transferee must agree in writing to be bound by the
terms of this Agreement and will have the rights of a Purchaser under
this Agreement and the Registration Rights Agreement.
(b) The Purchaser agrees to the imprinting, so long as it is
required under the Securities Act and the rules and regulations
promulgated under it, on any of the Securities any of the following
legends or substantially similar legends:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR
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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.
4.2 NON-PUBLIC INFORMATION. The Company covenants and agrees that
neither it nor any other Person acting on its behalf will provide any Purchaser
or its agents or counsel with any information that the Company believes
constitutes material non-public information, unless Purchaser has first executed
a written agreement regarding the confidentiality and use of the information.
4.3 USE OF PROCEEDS. The Company will use the net proceeds from the
sale of the Securities for working capital purposes, current debt, and trade
payables in the ordinary course of the Company's business, and not to redeem any
Common Stock or Common Stock Equivalents or to settle any outstanding
litigation.
4.4 RESERVATION OF COMMON STOCK. As of the date hereof, the Company has
reserved and the Company will continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock
for the purpose of enabling the Company to issue the Shares and Warrant Shares
on any exercise of the Warrants.
4.5 DELIVERY OF SECURITIES AFTER CLOSING. The Company will deliver, or
cause to be delivered, the respective Shares and Warrants purchased by each
Purchaser to the Purchaser within 3 Trading Days of the Closing Date.
4.6 RESALES BY PURCHASER. Each Purchaser understands and acknowledges,
severally and not jointly with any other Purchaser, that the SEC takes the
position that the coverage of short sales of shares of the Common Stock "against
the box" before the Effective Date of the Registration Statement with the Shares
is a violation of Section 5 of the Securities Act, as set forth in Item 65,
Section 5 under Section A, of the Manual of Publicly Available Telephone
Interpretations, dated July 1997, compiled by the Office of Chief Counsel,
Division of Corporation Finance. Accordingly, no Purchaser will use any of the
Shares to cover any short sales made before the Effective Date. Further, each
Purchaser will comply with any obligations it may have under Regulation M with
respect to the resale of the Securities.
ARTICLE V.
MISCELLANEOUS
5.1 TERMINATION. This Agreement may be terminated by any party, by
written notice to the other parties, if the Closing has not taken place by the
end of thirty days from the date of this Agreement; but no termination affects
the right of any party to xxx for any breach by the other party (or parties).
5.2 FEES AND EXPENSES. Except as otherwise set forth in this Agreement,
each party will pay the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by the party incident
to the negotiation, preparation, execution,
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delivery and performance of this Agreement. The Company will pay all stamp and
other taxes and duties levied in connection with the delivery of the Securities.
5.3 ENTIRE AGREEMENT. The Transaction Documents, together with their
exhibits and schedules, contain the entire understanding of the parties with
respect to their subject matter and supersede all prior agreements and
understandings, oral or written, with respect to these matters, which the
parties acknowledge have been merged into the Transaction Documents and their
exhibits and schedules.
5.4 NOTICES. Any notices or other communications or deliveries required
or permitted to be provided hereunder must be in writing and are deemed given
and effective on the earliest of (a) the date of transmission, if the notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature attached pages before 6:30 p.m. (Reno, Nevada, time) on a Trading
Day, (b) the next Trading Day after the date of transmission, if the notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature attached pages on a day that is not a Trading Day or later than
6:30 p.m. (Reno, Nevada, time) on any Trading Day, (c) the second Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom the notice is
required to be given. The address for notices and communications are as set
forth on the attached signature pages.
5.5 AMENDMENTS; WAIVERS. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an amendment,
by the Company and each Purchaser or, in the case of a waiver, by the party
against whom enforcement of any waiver is sought. No waiver of any default with
respect to any provision, condition or requirement of this Agreement is deemed
to be a continuing waiver in the future or a waiver of any subsequent default or
a waiver of any other provision, condition or requirement, nor does any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of the right.
5.6 CONSTRUCTION. The headings in this Agreement are for convenience
only, do not constitute a part of this Agreement, and cannot be deemed to limit
or affect any of the provisions. The language used in this Agreement is deemed
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction can be applied against any party.
5.7 SUCCESSORS AND ASSIGNS. This Agreement binds and inures to the
benefit of the parties and their successors and permitted assigns and is not
assignable.
5.8 NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties and their respective successors and permitted assigns and
is not for the benefit of, nor may any provision be enforced by, any other
Person.
5.9 GOVERNING LAW. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents must be governed by
and construed and enforced in accordance with the internal laws of the State of
Nevada, without regard to the principles of conflicts of law. All legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by the Transaction Documents
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(whether brought against a party or its respective affiliates, directors,
officers, shareholders, employees or agents) must be commenced exclusively in
the state and federal courts sitting in Reno. Each party irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in Reno for
the adjudication of any dispute in connection with the Transaction Documents,
and irrevocably waives, and will not assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that it is an improper or inconvenient venue for the proceeding. The
parties waive all rights to a trial by jury. If either party commences an action
or proceeding to enforce any provisions of the Transaction Documents, then the
non-prevailing party in the action or proceeding will reimburse the prevailing
party for its attorneys' fees and other costs and expenses incurred with the
investigation, preparation and prosecution of the action or proceeding.
5.10 EXECUTION. This Agreement may be executed in two or more
counterparts and delivered to the other parties by any means; and the
counterparts, taken together, are considered one and the same agreement, and any
electronically delivered signature page is deemed to be an originally signed
document.
5.11 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement are not in any way be affected
or impaired thereby and the parties will attempt to agree upon a valid and
enforceable provision that is a reasonable substitute, and upon so agreeing,
will incorporate the substitute provision in this Agreement.
5.12 REPLACEMENT OF SECURITIES. If any certificate or instrument
evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
will issue or cause to be issued in exchange and substitution for and upon its
cancellation, or in lieu of and substitution, a new certificate or instrument,
but only upon receipt of evidence reasonably satisfactory to the Company of the
loss, theft or destruction and customary and reasonable indemnity, if requested.
An applicant for a new certificate or instrument under such circumstances will
pay any reasonable third-party costs associated with the issuance of the
replacement Securities.
5.13 REMEDIES. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Purchasers and the Company is entitled to specific performance under the
Transaction Documents.
5.14 INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS. The
obligations of each Purchaser under the Transaction Documents are several and
not joint with the obligations of any other Purchaser, and no Purchaser is
responsible in any way for the performance of the obligations of any other
Purchaser under the Transaction Documents. Nothing contained in any Transaction
Documents, and no action taken by any Purchaser pursuant to them, can be deemed
to constitute the Purchasers as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Purchasers are in
any way acting in concert or as a group with respect to the obligations or the
transactions contemplated by the Transaction Documents. Each Purchaser is
entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of the other
Transaction Documents, and it is not be necessary for any other Purchaser to be
joined as an additional party in any proceeding for this purpose. Each Purchaser
has been represented by its own separate legal
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counsel in their review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and
Transaction Documents for the convenience of the Company and not because it was
required or requested to do so by the Purchasers.
(Signature pages follow.)
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IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
BULLION RIVER GOLD CORP. ADDRESS FOR NOTICE:
By:______________________________________ 0000 Xxxxxxxx Xxxxx, Xxxxx 000
Name: Xxxxx X. Xxxx Xxxx, XX 00000
Title: President Fax: 000-000-0000
With a copy to (which cannot constitute
notice):
[Remainder of page intentionally left blank.
Signature pages for purchasers follow.]
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[Purchasers' signature pages to BLRV Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Purchaser: ____________________________________________________________
Country of incorporation or residence: ________________________________________
SIGNATURE OF AUTHORIZED SIGNATORY OF PURCHASER: _______________________________
Name of Authorized Signatory: _________________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Purchaser: ___________________________________________________
Address for notice of Purchaser:_______________________________________________
_______________________________________________________________________________
Address for delivery of Securities for Purchaser (if not same as above):
_______________________________________________________________________________
_______________________________________________________________________________
Subscription Amount: $______________________________
Shares: ______________________________
Warrant Shares: ($0.40)____________________________________
Warrant Shares: ($0.40) ________________________
EIN number: ____________________________________
Date:_______________________ 2007
[Purchasers' signature pages continue]
