UNIT PURCHASE AGREEMENT
Exhibit
10.1
The
undersigned (hereinafter “Purchaser”) hereby wishes to purchase, and Bullion
River Gold Corp., a Nevada corporation (the “Company”), wishes to sell, units of
securities (the “Units”) each comprised of (i) one share of Common Stock of the
Company, par value $0.001 per share (“Common Stock”), and (ii) one warrant to
purchase one share of Common Stock in the form of that attached hereto as Exhibit
A pursuant to the terms of this Unit Purchase
Agreement.
The
Units, the Common Stock, the Warrant and the shares issuable upon exercise
of
the Warrant (“Warrant Shares”) are sometimes referred to collectively herein as
the “Securities.”
Section
1. Subscription of
the
Purchaser.
1.1
Purchase of
Units. The Purchaser hereby irrevocably agrees, represents and
warrants with, to and for the benefit of the Company, that such Purchaser is
executing this Unit Purchase Agreement (“Agreement”) to purchase _______ Units
from the Company (“Units”), with each Unit consisting of (i) one share of Common
Stock of the Company and (ii) one Warrant to purchase one share of Common Stock
of the Company for an exercise price of $0.40 per share, at a price
per Unit of $0.25, resulting in the purchase price and number of Units set
forth
on the Purchaser’s signature page hereto (the “Offering Price”). The
Purchaser understands that the Company is relying upon the accuracy and
completeness of the information contained herein in complying with its
obligations under federal and state securities and other applicable
laws. Subject to the terms and conditions of this Agreement, upon
execution and delivery hereof by the Purchaser, the Purchaser hereby agrees
to
purchase the Units of the Company pursuant to the transaction hereof, and
against concurrent delivery of the purchase price for such Units.
1.2
Offering. This
offering of the Units (the "Offering") is being made to Purchaser, who shall
represent to the Company pursuant to this Agreement that Purchaser is an
"accredited investor," as that term is defined in Regulation D promulgated
under
the Securities Act of 1933, as amended (the "Securities Act") or who has
otherwise been qualified as an investor by the Company. All of the
Units offered hereby are being sold by the Company. The Company is
offering Units for the consideration set forth herein. There is no
minimum amount required to close the Offering and the Company shall be entitled
to receive any and all of the Offering proceeds as the investments are
made. The minimum subscription amount is $25,000.
Section
2.
The
Closing.
2.1
The closing of the Issuance to Purchaser (the "Closing") shall take place
simultaneously with the execution and delivery of this Agreement at the offices
of Xxxxxxxxxx & Xxxxx LLP, 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx
Xxxxxxxxxx at 4:00 pm PST on January __, 2008, or such later date and time
as
the Company and the Purchaser shall agree.
2.2
At the Closing, the Company shall deliver to Purchaser a stock certificate
representing the Common Stock purchased and a Warrant duly executed by the
Company, against receipt by the Company of a wire transfer in an aggregate
amount equal to the purchase price therefor as set forth on the signature page
hereto and the Agreement duly executed by Purchaser. The wire transfer shall
be
sent pursuant to the following instructions:
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Bank:
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Xxxxx
Fargo Bank
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0000
Xxxxxxx Xxxx
|
|
|
Xxxx,
Xxxxxx 00000
|
|
|
(000)
000-0000
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|
|
Account
Name:
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|
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Routing
No.:
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121
000 248
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Account
No.:
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403
001 3395
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Swift
Code:
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XXXXXX0X
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Section
3. Representations
and
Warranties of the Company.
The
Company hereby represents and warrants to Purchaser as follows:
3.1
Organization. The
Company is duly organized, validly existing and in good standing under the
laws
of the State of Nevada and is qualified to conduct its business as a foreign
corporation in each jurisdiction where the failure to be so qualified would
have
a material adverse effect on the Company.
3.2
Authorization of
Agreement, Etc. The execution, delivery and performance by the
Company of this Agreement, the Warrant and each other document or instrument
contemplated hereby or thereby (collectively, the "Financing Documents") have
been duly authorized by all requisite corporate action by the Company; and
this
Agreement and each other Financing Document have been duly executed and
delivered by the Company. Each of the Financing Documents, when
executed and delivered by the Company, constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws affecting creditors'
rights and remedies generally, and subject as to enforceability to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.3
Use of
Proceeds. The Company will use the net proceeds from the sale
of the Securities hereunder for working capital purposes.
3.4
Reservation of
Shares. So long as any of the Warrants remain outstanding, the
Company shall take all action necessary to at all times have authorized, and
reserved for the purpose of issuance, no less than one hundred percent (100%)
of
the aggregate number of shares of Common Stock needed to provide for the
issuance of the Warrant Shares.
3.5
Issuance of
Shares. The Common Stock to be issued and the Warrant to be
granted at the Closing have been duly authorized by all necessary corporate
action and the Common Stock, when paid for or issued in accordance with the
terms hereof, shall be validly issued and outstanding, fully paid and
nonassessable. When the Warrant Shares are issued in accordance with
the terms of the Warrant, such shares will be duly authorized validly issued
and
outstanding, fully paid and nonassessable, and the holder shall be entitled
to
all rights accorded to a holder of Common Stock.
2
Section
4.
Representations
and
Warranties of Purchaser.
Purchaser
hereby represents and warrants to the Company as follows:
4.1
Authorization of
the
Documents. Purchaser has all requisite power and authority
(corporate or otherwise) to execute, deliver and perform the Financing Documents
and the transactions contemplated thereby, and the execution, delivery and
performance by Purchaser of the Financing Documents have been duly authorized
by
all requisite action by Purchaser and each such Financing Document, when
executed and delivered by Purchaser, constitutes a valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles
of
equity (regardless of whether enforcement is sought in a proceeding at law
or in
equity).
4.2
Representation of
Accredited Investor Status, Investment Experience and Ability to Bear
Risk. Purchaser acknowledges that the Offering has not been
registered with the Securities and Exchange Commission because the Company
is
relying on an exemption from registration under Section 4(2) of the Securities
Act and Regulation D promulgated thereunder. Purchaser believes that at the
time
of the sale of the Units to Purchaser, Purchaser (or, if Purchaser is a
corporation, limited liability company or trust, each of its equity owners)
qualifies as an "accredited investor" (as defined under Rule 501 of Regulation
D
promulgated under the Securities Act) using the following qualification factors
(check all appropriate items):
(__) $1,000,000
Net Worth
Test:
I,
Purchaser, am a natural person and my individual net worth, or joint net worth
with my spouse (if any), inclusive of home, furnishings and automobiles, at
the
time of this purchase is in excess of $1,000,000.
(__) $200,000
Individual/$300,000 Joint Annual Income Test:
I,
Purchaser, am a natural person and my individual annual gross income (exclusive
of my spouse's income) has been in excess of $200,000 in each of the two most
recent tax years, and I reasonably expect individual annual gross income
(exclusive of my spouse's income) to be in excess of $200,000 for the current
tax year; or I am a natural person and my joint annual gross income (including
my spouse's annual gross income) has been in excess of $300,000 in each of
the
two most recent tax years, and I reasonably expect our joint annual gross
incomes to be in excess of $300,000 for the current tax year.
("Income"
under this test is defined as adjusted gross income for federal income tax
purposes plus (i) deductions for long-term capital gains under the Internal
Revenue Code; (ii) deductions for depletion under section 611 et seq. of the
Code; (iii) any exclusion for interest received on tax-exempt securities; and
(iv) any losses of a Company allocated to the individual limited partners of
the
Company as reported on Form 1040).
3
(__) Bank
or Investment Company Test:
Purchaser
is a bank as defined in section 3(a)(2) of the Securities Act, or any savings
and loan association or other institution as defined in section 3(a)(5)(A)
of
the Securities Act, whether acting in its individual or fiduciary capacity;
or
is a broker or dealer registered pursuant to section 15 of the Securities
Exchange Act of 1934; or is an insurance company as defined in section 2(13)
of
the Securities Act; or is any investment company registered under the Investment
Corporation Act of 1940, or a business development company as defined in section
2(a)(48) of that Act; or is a Small Business Investment Corporation licensed
by
the U.S. Small Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958; is a plan established and maintained by a
state, its political subdivision, or any agency or instrumentality of a state
or
its political subdivisions, for the benefit of its employees, if such plan
has
total assets in excess of $5,000,000; or is an employee benefit plan within
the
meaning of the employee Retirement Income Security Act of 1974, if the
investment decision is made by a plan fiduciary, as defined in section 3(21)
of
such Act, which is either a bank, savings and loan association, insurance
company, or registered investment adviser, or if the employee benefit plan
has
total assets in excess of $5,000,000, or, if a self-directed plan, with
investment decisions made solely by persons that are accredited
investors.
(__) Private
Business Development Corporation Test:
Purchaser
is a private business development company as defined in section 202(a)(22)
of
the Investment Advisors Act of 1940.
(__) IRC
Section 501(c)(3) Organization Test:
Purchaser
is an organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts or similar business trust, or Company, not formed
for
the specific purpose of acquiring the securities being offered, with total
assets in excess of $5,000,000.
(__) Direct
Relationship to Issuer Test:
Purchaser
is a director, executive officer, partner or manager of the Company of the
securities being offered or sold, or any director, executive officer or manager
of a partner or partner of that issuer.
(__) $5,000,000
Noninvestment Trust Test:
Purchaser
is a trust with total assets in excess of $5,000,000 not formed for the specific
purpose of acquiring the securities being offered, whose purchase is directed
by
a "sophisticated person" as described in section 230.506(b)(2)(ii).
4
(__) Equity
Entity Comprised of Accredited Investors Test:
Purchaser
is any equity entity in which all of the equity owners are accredited investors
as defined above. Purchaser has had one of the persons
responsible for overseeing and/or managing one or more of Purchaser’s financial
accounts complete the attestation in Section D hereof in order to verify the
information in this Section 4:
Yes
_________ No
_________
In
addition, Purchaser is knowledgeable and experienced with respect to the
financial and business activities contemplated by the Company and is capable
of
evaluating the risks and merits of investing in the Units and, in making a
decision to proceed with this investment, has not relied upon any
representations, warranties or agreements, other than those set forth in this
Agreement and can bear the economic risk of an investment in the Company for
an
indefinite period of time, and can afford to suffer the complete loss
thereof.
4.3
U.S.A. Patriot Act
Representations.
(A)
Purchaser represents, warrants and covenants that Purchaser:
(i)(a)
is subscribing for the
Securities for Purchaser’s own account, own risk and own beneficial interest,
(b) is not acting as an agent, representative, intermediary, nominee or in
a
similar capacity for any other person or entity, nominee account or beneficial
owner, whether a natural person or entity (each such natural person or entity,
an “Underlying Beneficial Owner”) and no Underlying Beneficial Owner will have a
beneficial or economic interest in the Securities being purchased by Purchaser
(whether directly or indirectly, including without limitation, through any
option, swap, forward or any other hedging or derivative transaction), (c)
if it
is an entity, including, without limitation, a fund-of-funds, trust, pension
plan or any other entity that is not a natural person (each, an “Entity”), has
carried out thorough due diligence as to and established the identities of
such
Entity’s investors, directors, officers, trustees, beneficiaries and grantors
(to the extent applicable, each a “Related Person” of such Entity), holds the
evidence of such identities, will maintain all such evidence for at least five
years from the date of Purchaser’s resale or other disposition of all the
Securities, will request such additional information as the Company may require
to verify such identities as may be required by applicable law, and will make
such information available to the Company upon its request, and (d) does not
have the intention or obligation to sell, pledge, distribute, assign or transfer
all or a portion of the Securities to any Underlying Beneficial Owner or any
other person; or
(check and initial one
box)
(ii)(a)
is subscribing for the
Securities as a record owner and will not have a beneficial ownership interest
in the Securities, (b) is acting as an agent, representative, intermediary,
nominee or in a similar capacity for one or more Underlying Beneficial Owners
(as defined in (A)(i)(a) above), and understands and acknowledges that the
representations, warranties and agreements made in the Financing Documents
are
made by Purchaser with respect to both Purchaser and the Underlying Beneficial
Owner(s), (c) has all requisite power and authority from the Underlying
Beneficial Owner(s) to execute and perform the obligations under the Financing
Documents, (d) has carried out thorough due diligence as to and established
the
identities of all Underlying Beneficial Owners (and, if an Underlying Beneficial
Owner is not a natural person, the identities of such Underlying Beneficial
Owner’s Related Persons (to the extent applicable)), holds the evidence of such
identities, will maintain all such evidence for at least five years from the
date of Purchaser’s resale or other disposition of all the Securities, and will
make such information available to the Company upon its request and (e) does
not
have the intention or obligation to sell, pledge, distribute, assign or transfer
all or a portion of the Securities to any person other than the Underlying
Beneficial Owner(s).
5
(B)
Purchaser hereby represents and warrants that the proposed investment in the
Company that is being made on its own behalf or, if applicable, on behalf of
any
Underlying Beneficial Owners does not directly or indirectly contravene United
States federal, state, local or international laws or regulations applicable
to
Purchaser, including anti-money laundering laws (a “Prohibited
Investment”).
(C)
Federal regulations and Executive Orders administered by the U.S. Treasury
Department’s Office of Foreign Assets Control (“OFAC”) prohibit, among other
things, the engagement in transactions with, and the provision of services
to,
certain foreign countries, territories, entities and individuals. The
lists of OFAC prohibited countries, territories, persons and entities can be
found on the OFAC website at <xxx.xxxxx.xxx/xxxx>. Purchaser
hereby represents and warrants that neither Purchaser nor, if applicable, any
Underlying Beneficial Owner or Related Person, is a country, territory, person
or entity named on an OFAC list, nor is Purchaser nor, if applicable, any
Underlying Beneficial Owner or Related Person, a natural person or entity with
whom dealings are prohibited under any OFAC regulations.
(D)
Purchaser represents and warrants that neither Purchaser nor, if applicable,
any
Underlying Beneficial Owner or Related Person, is a senior foreign political
figure, or any immediate family member or close associate of a senior foreign
political figure within the meaning of, and applicable guidance issued by the
Department of the Treasury concerning, the U.S. Bank Secrecy Act (31 U.S.C.
§5311 et seq.), as amended, and any regulations promulgated
thereunder.
(E)
Purchaser agrees promptly to notify the Company should Purchaser become aware
of
any change in the information set forth in paragraphs (A) through
(D).
(F)
Purchaser agrees to indemnify and hold harmless the Company, its affiliates,
their respective directors, officers, shareholders, employees, agents and
representatives (each, an “Indemnitee”) from and against any and all losses,
liabilities, damages, penalties, costs, fees and expenses (including legal
fees
and disbursements) (collectively, “Damages”) which may result, directly or
indirectly, from Purchaser’s misrepresentations or misstatements contained
herein or breaches hereof relating to paragraphs (A) through (D).
(G)
Purchaser understands and agrees that, notwithstanding anything to the contrary
contained in any document (including any side letters or similar agreements),
if, following Purchaser’s investment in the Company, it is discovered that the
investment is or has become a Prohibited Investment, such investment may
immediately be redeemed by the Company or otherwise be subject to the remedies
required by law, and Purchaser shall have no claim against any Indemnitee for
any form of Damages as a result of such forced redemption or other
action.
6
(H)
Upon the written request from the Company, Purchaser agrees to provide all
information to the Company to enable the Company to comply with all applicable
anti-money laundering statutes, rules, regulations and policies, including
any
policies applicable to a portfolio investment held or proposed to be held by
the
Company. Purchaser understands and agrees that the Company may release
confidential information about Purchaser and, if applicable, any Underlying
Beneficial Owner(s) or Related Person(s) to any person, if the Company, in
its
sole discretion, determines that such disclosure is necessary to comply with
applicable statutes, rules, regulations and policies.
4.4
Risk
Factors. The Purchaser understands and acknowledges that the
purchase of the Securities involves a number of significant risks, and that
the
Purchaser may lose the Purchaser’s entire investment in the Securities.
Purchaser has read the Company’s various filings and reports on file and
publicly available with the Securities and Exchange Commission including the
Company’s financial statements included therein.
4.5
Restricted
Stock. Purchaser understands and acknowledges that the Securities have
not been, and when issued will not be, registered with the Securities and
Exchange Commission. Further, the Purchaser understands and acknowledges that
the certificates representing the Common Stock and the Warrant Shares, when
issued, shall bear a restrictive legend.
Section
5.
Conditions at
Closing.
5.1
Precedent to the
Obligation of the Company to Sell the Securities. The obligation
hereunder of the Company to issue and sell the Securities to the Purchaser
is
subject to the satisfaction or waiver, at or before the Closing, of each of
the
conditions set forth below. These conditions are for the Company’s
sole benefit and may be waived by the Company at any time in its sole
discretion.
(A)
Accuracy of the
Purchaser’s Representations and Warranties. The
representations and warranties of the Purchaser shall be true and correct in
all
material respects as of the date when made and as of the Closing Date as though
made at that time, except for representations and warranties that are expressly
made as of a particular date, which shall be true and correct in all material
respects as of such date.
(B)
Performance by the
Purchaser. The Purchaser shall have performed, satisfied and
complied in all respects with all covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Purchaser
at or prior to the Closing.
(C)
Delivery of Purchase
Price. The Purchase Price for the Securities has been
delivered to the Company at the Closing Date.
(D)
Delivery of
Transaction Documents. The Transaction Documents shall have
been duly executed and delivered to the Company by the Purchaser.
7
5.2
Conditions Precedent
to the Obligation of the Purchaser to Purchase the
Securities. The obligation hereunder for the Purchaser to
acquire and pay for the Securities is subject to the satisfaction or waiver,
at
or before the Closing, of each of the conditions set forth
below. These conditions are for the Purchaser’s sole benefit and may
be waived by the Purchaser at any time in its sole discretion.
(A)
Accuracy of the
Company’s Representations and Warranties. Each of the
representations and warranties of the Company in this Agreement shall be true
and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time (except for representations and
warranties that are expressly made as of a particular date), which shall be
true
and correct in all material respects as of such date.
(B)
Performance by the
Company. The Company shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Closing.
(C)
Delivery of
Transaction Documents. The Transaction Documents shall have
been duly executed and delivered by the Company to the Purchaser.
Section
6.
Brokers and
Finders.
The
Company shall not be obligated to pay any commission, brokerage fee or finder’s
fee based on any alleged agreement or understanding between Purchaser and a
third person in respect of the transactions contemplated
hereby. Purchaser hereby agrees to indemnify the Company against any
claim by any third person for any commission, brokerage or finder's fee or
other
payment with respect to this Agreement or the transactions contemplated hereby
based on any alleged agreement or understanding between Purchaser and such
third
person, whether express or implied from the actions of Purchaser.
Section
7.
Indemnification.
Purchaser
hereby agrees to indemnify
and defend (with counsel acceptable to the Company) the Company and its
officers, directors, employees and agents and hold them harmless from and
against any and all liability, loss, damage, cost or expense, including costs
and reasonable attorneys’ fees, incurred on account of or arising
from:
(i)
Any breach of or inaccuracy in Purchaser’s representations, warranties or
agreements herein or in the Financing Documents; and
(ii) Any
action, suit or proceeding based on a claim that any of Purchaser’s
representations and warranties in the Financing Documents were inaccurate or
misleading, or otherwise cause for obtaining damages or redress from the Company
or any officer, director, employee or agent of the Company under the Securities
Act.
8
Section
8. Successors and
Assigns.
This
Agreement shall bind and inure to the benefit of the Company, Purchaser and
their respective successors and assigns.
Section
9. Entire
Agreement.
This
Agreement and the other writings and agreements referred to in this Agreement
or
delivered pursuant to this Agreement contain the entire understanding of the
parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings among the parties with respect
thereto.
Section
10. Notices.
All
notices, demands and requests of any kind to be delivered to any party in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given if personally delivered or if sent by internationally-recognized
overnight courier or by registered or certified mail, return receipt requested
and postage prepaid, addressed as follows:
if
to the
Company, to:
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx,
Xxxxxx 00000
Tel.
No.:
(000) 000-0000
Fax
No.: (000) 000-0000
Attention:
Xxxxx X. Xxxx, CEO
with
a
copy to:
Xxxxxxxxxx
& Xxxxx LLP
00000
Xxxxxxxx Xxxx., Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Tel.
No.:
(000) 000-0000
Fax
No.:
(000) 000-0000
Attention:
Xxxxxxxx X. Post, Esq.
if
to
Purchaser, to:
the
address of Purchaser set forth on the signature page hereto;
or
to
such other address as the party to whom notice is to be given may have furnished
to the other parties to this Agreement in writing in accordance with the
provisions of this Section
10. Any such notice or communication shall be deemed to have
been received (i) in the case of personal delivery, on the date of such
delivery, (ii) in the case of internationally-recognized overnight courier,
on
the next business day after the date when sent and (iii) in the case of mailing,
on the third business day following that on which the piece of mail containing
such communication is posted.
9
Section
11. Amendments.
This
Agreement may not be modified or amended, or any of the provisions of this
Agreement waived, except by written agreement of the Company and
Purchaser.
Section
12. Governing Law;
Waiver of Jury Trial.
All
questions concerning the construction, interpretation and validity of this
Agreement shall be governed by and construed and enforced in accordance with
the
domestic laws of Nevada without giving effect to any choice or conflict of
law
provision or rule (whether in the State of Nevada or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than
the
State of Nevada. In furtherance of the foregoing, the internal law of
the State of Nevada will control the interpretation and construction of this
Agreement, even if under such jurisdiction's choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily or
necessarily apply.
BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE
ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE
OR
DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED
HERETO.
Section
13. Submission to
Jurisdiction.
Any
legal
action or proceeding with respect to this Agreement or the other Financing
Documents may be brought in the courts of the State of California and the United
States of America located in the City of Los Angeles, California, U.S.A. and,
by
execution and delivery of this Agreement, the Company hereby accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Purchaser hereby irrevocably waives, in
connection with any such action or proceeding, any objection, including, without
limitation, any objection to the venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any such
action or proceeding in such respective jurisdictions. Purchaser
hereby irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at its address
as set forth herein.
Section
14. Severability.
It
is the
desire and intent of the parties that the provisions of this Agreement be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall
be
ineffective, without invalidating the remaining provisions of this Agreement
or
affecting the validity or enforceability of such provision in any
jurisdiction. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not to be invalid, prohibited or unenforceable
in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or affecting
the
validity or enforceability of such provision in any other
jurisdiction.
10
Section
15. Independence of
Agreements,
Covenants, Representations and Warranties.
All
agreements and covenants hereunder shall be given independent effect so that
if
a certain action or condition constitutes a default under a certain agreement
or
covenant, the fact that such action or condition is permitted by another
agreement or covenant shall not affect the occurrence of such default, unless
expressly permitted under an exception to such covenant. In addition,
all representations and warranties hereunder shall be given independent effect
so that if a particular representation or warranty proves to be incorrect or
is
breached, the fact that another representation or warranty concerning the same
or similar subject matter is correct or is not breached will not affect the
incorrectness of or a breach of a representation and warranty
hereunder. The exhibit and any schedules attached hereto are hereby
made part of this Agreement in all respects.
Section
16. Counterparts.
This
Agreement may be executed in any number of counterparts, and each such
counterpart of this Agreement shall be deemed to be an original instrument,
but
all such counterparts together shall constitute but one
agreement. Facsimile counterpart signatures to this Agreement shall
be acceptable and binding.
Section
17. Headings.
The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
Section
18. Expenses.
Purchaser
shall pay Purchaser’s own fees and expenses incurred in connection with the
preparation, negotiation, execution and delivery of the Financing
Documents.
Section
19. Preparation of
Agreement.
The
Company, or its counsel, prepared this Agreement the Subscription Application
and the Warrant solely on the Company’s behalf. Each party to this
Agreement acknowledges that: (i) the party had the advice of, or
sufficient opportunity to obtain the advice of, legal counsel separate and
independent of legal counsel for any other party hereto; (ii) the terms of
the
transactions contemplated by this Agreement are fair and reasonable to such
party; and (iii) such party has voluntarily entered into the transactions
contemplated by this Agreement without duress or coercion. Each party
further acknowledges that such party was not represented by the legal counsel
of
any other party hereto in connection with the transactions contemplated by
this
Agreement, nor was he or it under any belief or understanding that such legal
counsel was representing his or its interests. Each party agrees that
no conflict, omission or ambiguity in this Agreement, or the interpretation
thereof, shall be presumed, implied or otherwise construed against any other
party to this Agreement on the basis that such party was responsible for
drafting this Agreement.
* * * * *
11
IN
WITNESS WHEREOF, each of
the undersigned has duly executed this Unit Purchase Agreement as of January
___, 2008.
|
PURCHASER:
__________________________________
Name
of Purchaser (Individual or
Institution)
__________________________________
Title
of Individual representing
Purchaser
(if an Institution)
Purchase
Price $______________________
Number
of
Units:_____________________
|
COMPANY:
By:_________________________________
Name: Xxxxx
X. Xxxx
Title: Chief
Executive Officer
________________________________
Name
of Individual representing
Purchaser
(if an Institution)
________________________________
Signature
of Individual Purchaser or
Individual
representing Purchaser
Address:
________________________________
Telephone:
________________________________
Facsimile:
________________________________
|
EXHIBIT
A
WARRANT
