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
10.3
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
To
purchase 2,666,667
shares
of common stock of
Dated:
August
3,
2006
This
common stock purchase warrant (the “Warrant”) certifies that, for value
received, Xxxxx Participation Corp. (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 August 3,
2006
(the “Initial Exercise Date”) and by the close of business on August
3,
2008
(the “Termination Date”) but not thereafter, to subscribe for and purchase from
Bullion River Gold Corp., a Nevada corporation (the “Company”), up to 2,666,667
shares
(subject
to adjustment as provided herein)
(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.
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 August
3,
2006,
among the Company and the Holder as Purchaser.
2. Exercise
Price.
The
exercise price of the Common Stock under this Warrant is $1.00, as adjusted
from
time to time pursuant to Section 5 hereof (the “Exercise Price”).
3. Exercise
of Warrant.
The
Holder may exercise the purchase rights represented by this Warrant, in whole
or
in part, at any time and from time to 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”).
| Common Stock Purchase Warrant |
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4. Mechanics
of Exercise.
4.1 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).
4.2 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 (“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.
4.3 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.
4.4. Rescission
Rights.
If the
Company fails to cause its transfer agent to transmit to the Holder a
certificate or certificates representing the Warrant Shares by the Warrant
Share
Delivery Date, then the Holder may rescind the exercise,
in
addition to its other rights and remedies.
4.5 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.
4.6 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.
4.7 Closing
of Books.
The
Company will not close its stockholder books or records in any manner that
prevents the timely exercise of this Warrant.
5. Certain
Adjustments.
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5.1 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 6 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.
5.2 Subsequent
Equity Issuancess.
If the
Company or any subsidiary thereof, as applicable, at any time while this Warrant
is outstanding, shall sell or grant any option to purchase or sell or grant
any
right to reprice its securities, or otherwise dispose of or issue (or announce
any offer, sale, grant or any option to purchase or other disposition) any
Common Stock or Common Stock Equivalents entitling any Person to acquire shares
of Common Stock, at an effective price per share less than the higher of the
(i)
then Conversion Price and (ii) 80% of the then VWAP (such lower effective price
per share, the “Base
Share Price”
and
such issuances collectively, a “Dilutive
Issuance”)
(if
the holder of the Common Stock or Common Stock Equivalents so issued shall
at
any time, whether by operation of purchase price adjustments, reset provisions,
floating conversion, exercise or exchange prices or otherwise, or due to
warrants, options or rights per share which are issued in connection with such
issuance, be entitled to receive shares of Common Stock at an effective price
per share which is less than the Conversion Price, such issuance shall be deemed
to have occurred for less than the higher of (i) the Conversion Price or (ii)
80% of the then VWAP, as applicable, on such date of the Dilutive Issuance),
then (i) the Exercise Price shall be reduced, and only reduced, to equal the
Exercise Price multiplied by the Base Share Price divided by the Conversion
Price of the Debenture and (ii) the number of Warrant Shares issuable hereunder
shall be increased such that the aggregate Exercise Price payable hereunder,
after taking into account the decrease in the Exercise Price, shall be equal
to
the aggregate Exercise Price prior to such adjustment. Such adjustment shall
be
made whenever such Common Stock or Common Stock Equivalents are issued.
Notwithstanding the foregoing, no adjustments shall be made, paid or issued
under this Section 5.2 in respect of an Exempt Issuance. The Company shall
notify the Holder in writing, no later than the Trading Day following the
issuance of any Common Stock or Common Stock Equivalents subject to this
section, indicating therein the applicable issuance price, or applicable reset
price, exchange price, conversion price and other pricing terms (such notice
the
“Dilutive
Issuance Notice”).
For
purposes of clarification, whether or not the Company provides a Dilutive
Issuance Notice pursuant to this Section 5.2, upon the occurrence of any
Dilutive Issuance, after the date of such Dilutive Issuance the Holder is
entitled to receive a number of Warrant Shares based upon the Base Share Price
regardless of whether the Holder accurately refers to the Base Share Price
in
the Notice of Exercise.
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5.3 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 each share of 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 5.3
and
insuring that this Warrant (or any replacement security) is similarly adjusted
upon any subsequent transaction analogous to a Fundamental
Transaction.
5.4 Adjustment
Upon Default.
The
number of Warrant Shares issuable upon exercise of this Warrant shall be
automatically increased by twenty-five percent (25%) upon any Event of Default
occurring under any of the Debentures.
5.5 Calculations.
All
calculations under this Warrant 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
5,
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.
5.6 Notice
to Holders.
If the
Company makes adjustments under this Section 5, 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 (20)
days
before the record date set for the transaction.
6. 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.
7. Miscellaneous.
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7.1 Transfer.
This
Warrant is transferable
by Holder in whole or in part upon notice to the Company.
7.2 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.
7.3 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.
7.4 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.
7.5 Authorized
Shares.
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. 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.
7.6 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.
7.7 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.
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7.8 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.
7.9 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.
7.10 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.
7.11 Amendment.
Any
amendment of this Warrant must be in writing and signed by both the Company
and
the Holder.
7.12 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.
7.13 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.
In
witness whereof the Company has caused this Warrant to be executed by its duly
authorized officer.
Dated:
August 3, 2006
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By:/s/
Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Chief Financial Officer
|
6
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:____________________________
