EXHIBIT 4.1
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. THESE SECURITIES ARE ISSUED 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.
COMMON STOCK PURCHASE WARRANT
#_____________________
TO PURCHASE __________ SHARES OF COMMON STOCK OF
BULLION RIVER GOLD CORP.
DATED: ______________
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 Unit Purchase
Agreement (the "PURCHASE AGREEMENT"), dated ____________, among the
Company and the Holder as Purchaser.
2. EXERCISE.
(a) EXERCISE PRICE. The exercise price of the Common Stock under this
Warrant is $0.25.
(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, Pacific Standard Time, on
the Termination Date by delivering to the Company (i) a duly
executed facsimile copy of the annexed Exercise Notice (attached
hereto as Exhibit A), and, (ii) within 5 Trading Days of
delivering the Exercise Notice to the Company, (A) this Warrant,
and (B) with payment to the Company of 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(b), beneficial ownership must
be calculated in accordance with Section 13(d) of the Securities
and Exchange Act of 1934 ("EXCHANGE ACT").
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(ii) The Holder acknowledges that the Company is not representing
to Holder that the calculation described in Section 2(c) 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 an Exercise Notice is deemed to be the Holder's
declaration that the Holder has determined that this Warrant is
exercisable as set out in the Exercise Notice and subject to the
limitations in this Section 2(b); 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(b), 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.
(d) MECHANICS OF EXERCISE.
(i) CASH PAYMENT. Payment may be made either in cash or by
certified or official bank check payable to the order of the
Company equal to the applicable aggregate Exercise Price for the
number of shares of Common Stock specified in the Exercise Notice
(as such exercise number shall be adjusted to reflect any
adjustment in the total number of shares of Common Stock issuable
to the Holder per the terms of this Warrant) and the Holder shall
thereupon be entitled to receive the number of duly authorized,
validly issued, fully-paid and non-assessable shares of Common
Stock determined as provided herein.
(ii) CASHLESS EXERCISE.
(1) Payment upon exercise may be made at the option of the
Holder either (i) in cash as described in Section (d)(i)
above, or (ii) cashlessly in accordance with Section
(d)(ii)(2) below, or (iii) by a combination of either of
the foregoing methods, for the number of shares of Common
Stock specified in the Exercise Notice (as such exercise
number is adjusted to reflect any adjustment in the total
number of shares of Common Stock issuable to the Holder
under the terms of this Warrant) and the Holder shall
thereupon be entitled to receive the number of duly
authorized, validly issued, fully paid and non-assessable
shares of Common Stock determined as provided herein.
(2) If the Fair Market Value (defined below) of one share
of Common Stock is greater than the Exercise Price (at the
date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the Holder may elect to
receive shares equal to the value (as determined below) of
this Warrant (or the portion thereof being exercised) by
surrender of this Warrant at the principal office of the
Company together with the properly endorsed Exercise Notice
in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the
following formula:
X=Y (A-B)
-------
A
2
Where: X = the number of shares of Common Stock to be
issued to the Holder
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being exercised (at the date of such
calculation)
A = the Fair Market Value of one share of the
Company's Common Stock (at the date of such
calculation)
B = Exercise Price (as adjusted to the date of such
calculation)
(3) The Holder may employ the cashless exercise feature
described in Section (2) above only if the shares
underlying the Warrant are not registered.
(4) For purposes of Rule 144 promulgated under the 1933
Act, it is intended, understood and acknowledged that the
Warrant Shares issued in a cashless exercise transaction
shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed
to have commenced, on the date this Warrant was originally
issued pursuant to the Purchase Agreement.
(5) Fair Market Value. Fair Market Value of a share of
Common Stock as of a particular date (the "Determination
Date") shall mean:
(a) If the Company's Common Stock is traded on an
exchange or is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation
("NASDAQ"), National Market System, the NASDAQ
SmallCap Market or the American Stock Exchange, LLC,
then the closing or last sale price, respectively,
reported for the last business day immediately
preceding the Determination Date;
(b) If the Company's Common Stock is not traded on
an exchange or on the NASDAQ National Market System,
the NASDAQ SmallCap Market or the American Stock
Exchange, Inc., but is traded in the
over-the-counter market, then the average of the
closing bid and ask prices reported for the last
business day immediately preceding the Determination
Date; or
(c) If the Company's Common Stock is not publicly
traded, then as the Holder and the Company agree, or
in the absence of such an agreement, by arbitration
in accordance with the rules then standing of the
American Arbitration Association, before a single
arbitrator to be chosen from a panel of persons
qualified by education and training to pass on the
matter to be decided.
(e) 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).
(f) 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 Exercise Notice within 5 Trading Days from
the later of (A) the Company's receipt of the Exercise Notice, (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 Xxxxxx is deemed to
have become a holder of record of the shares for all purposes, on the
Exercise Date.
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(g) 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.
(h) 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 (h) by the Warrant Share Delivery
Date, then the Holder may rescind the exercise.
(i) 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.
(j) 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.
(k) CLOSING OF BOOKS. The Company will not close its stockholder books or
records in any manner that prevents the timely exercise of this Warrant.
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.
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(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.
(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) ASSIGNMENT; EXCHANGE OF WARRANT. Subject to compliance with
applicable securities laws, this Warrant, and the rights evidenced
hereby, may be transferred by any registered holder hereof (a
"Transferor"). On the surrender for exchange of this Warrant, with the
Transferor's endorsement in the form of Exhibit B attached hereto (the
"Transferor Endorsement Form") and together with an opinion of counsel
reasonably satisfactory to the Company that the transfer of this Warrant
will be in compliance with applicable securities laws, the Company at its
expense, but with payment by the Transferor of any applicable transfer
taxes, will issue and deliver to or on the order of the Transferor
thereof a new Warrant or Warrants of like tenor, in the name of the
Transferor and/or the transferee(s) specified in such Transferor
Endorsement Form (each a "Transferee"), calling in the aggregate on the
face or faces thereof for the number of shares of Common Stock called for
on the face or faces of the Warrant so surrendered by the Transferor. No
such transfers shall result in a public distribution of the Warrant.
(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.
IN WITNESS WHEREOF the Company has caused this Warrant to be executed by its
duly authorized officer.
Dated:
BULLION RIVER GOLD CORP.
By:
------------------------------------
Name:
Title:
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EXHIBIT A
EXERCISE NOTICE
(To be signed only on exercise of Warrant)
TO: Bullion River Gold Corp.
The undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby irrevocably elects to purchase (check applicable box):
___ ________ shares of the Common Stock covered by such Warrant; and/or
___ the maximum number of shares of Common Stock covered by such Warrant
pursuant to the Cashless Exercise procedure set forth in Section
2(d)(ii).
The undersigned herewith makes payment of the full Exercise Price for such
shares at the price per share provided for in such Warrant, which is an
aggregate of $_______________________. Such payment takes the form of (check
applicable box or boxes):
___ $__________ in lawful money of the United States; and/or
___ the cancellation of such portion of the attached Warrant as is
exercisable for a total of _______ shares of Common Stock (using a Fair
Market Value of $_______ per share for purposes of this calculation).
The undersigned requests that the certificates for such shares be issued in the
name of, and delivered to ______________________________________________________
whose address is ______________________________________________________________.
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable upon exercise of the within Warrant shall
be made pursuant to registration of the Common Stock under the Securities Act of
1933, as amended (the "Securities Act") or pursuant to an exemption from
registration under the Securities Act.
Dated: ___________________ _________________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
EXHIBIT B
FORM OF TRANSFEROR ENDORSEMENT
(To be signed only on transfer of Warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto the person(s) named below under the heading "Transferees" the right
represented by the within Warrant to purchase the percentage and number of
shares of Common Stock of BULLION RIVER GOLD CORP. to which the within Warrant
relates specified under the headings "Percentage Transferred" and "Number
Transferred," respectively, opposite the name(s) of such person(s) and appoints
each such person Attorney to transfer its respective right on the books of
BULLION RIVER GOLD CORP. with full power of substitution in the premises.
------------------- ---------------------------- -------------------------------
Transferees Percentage Transferred Number Transferred
------------------- ---------------------------- -------------------------------
------------------- ---------------------------- -------------------------------
------------------- ---------------------------- -------------------------------
------------------- ---------------------------- -------------------------------
Dated: ______________, ____ _________________________________________
(Signature must conform to name of holder
as specified on the face of the warrant)
Signed in the presence of:
___________________________ _________________________________________
(Name) _________________________________________
(address)
ACCEPTED AND AGREED: _________________________________________
[TRANSFEREE] _________________________________________
(address)
___________________________
(Name)
