COMMON STOCK PURCHASE WARRANT To purchase __________ shares of common stock of BULLION RIVER GOLD CORP. Dated: January __, 2008
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.
#___________________
To
purchase __________ shares of common stock of
Dated:
January
__, 2008
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
January __, 2008, among the Company and the Holder as Purchaser.
2.
Exercise.
(a)
Exercise
Price. The exercise price of the Common Stock under this
Warrant is $0.40.
(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(c), beneficial ownership must be calculated in accordance with Section
13(d)
of the Securities and Exchange Act of 1934 (“Exchange Act”).
1
(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(c); and the Company is not
obliged to verify or confirm the accuracy of the Holder’s
determination.
(iii)
For the purposes of this Section 2(c), in determining the number of outstanding
shares of Common Stock, the Holder may rely on the number of outstanding
shares
of Common Stock as reflected in the most recent of (A) the latest filed of
the
Company’s Form 10-QSB and Form 10-KSB, (B) a public announcement by the Company
stating the number of shares of Common Stock outstanding, or (C) any other
notice by the Company or the Company’s Transfer Agent stating the number of
shares of Common Stock outstanding. If ▇▇▇▇▇▇ 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 Holder is deemed to have
become a holder of record of the shares for all purposes, on the Exercise
Date.
3
(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.
4
(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.
5
(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: January
__,
2008
|
|
|
|
By:__________________________________________
Name:
▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Chief Executive Officer
|
6
EXHIBIT
A
EXERCISE
NOTICE
(To
be
signed only on exercise of Warrant)
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: ______________,
___________
Signed
in the presence of:
__________________________________
(Name)
ACCEPTED
AND AGREED:
[TRANSFEREE]
__________________________________
(Name)
|
____________________________________________________________
(Signature
must conform to name of holder as specified
on
the face of the warrant)
_____________________________________________________________
_____________________________________________________________
(address)
_____________________________________________________________
_____________________________________________________________
(address)
|