EXHIBIT 10.3
NEITHER THIS WARRANT NOR THE WARRANT STOCK (AS HEREINAFTER DEFINED) HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE. THIS WARRANT AND THE WARRANT STOCK MAY BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE ACT AND SUCH LAWS. THIS LEGEND SHALL BE
ENDORSED UPON ANY WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT.
THIS WARRANT IS SUBJECT TO THE TERMS OF THE SECURITIES PURCHASE AGREEMENT, DATED
AS OF OCTOBER 22, 2002 BETWEEN THE COMPANY AND THE HOLDER HEREOF, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY, AND ANY
TRANSFERS AND TRANSFEREES OF THIS WARRANT AND THE WARRANT STOCK ARE SUBJECT TO
THE TERMS AND CONDITIONS OF SUCH AGREEMENT.
Warrant No.___________
WARRANT
For the Purchase of Common Stock of
SILVER KEY MINING COMPANY, INC.
A Nevada Corporation
VOID AFTER 5:00 P.M., EASTERN STANDARD TIME, ON OCTOBER 22, 2007.
______ Shares October 22, 2002
FOR VALUE RECEIVED, SILVER KEY MINING COMPANY, INC., a Nevada
corporation (the "Company"), hereby certifies that ___________________________
(the "Holder") is entitled, subject to the provisions of this Warrant, to
purchase from the Company up to ____________________ (____________) shares of
common stock (the "Common Shares"), par value $.0001 per share ("Common Stock"),
of the Company at an exercise price per Common Share equal to $1.17 per Common
Share (the "Exercise Price"), during the period commencing October 22, 2002 and
expiring at 5:00 P.M., Eastern Standard time, on October 22, 2007 (5 years from
the date of issuance).
The number of Common Shares to be received upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set forth. The Common
Shares deliverable upon such exercise, or the entitlement thereto upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "Warrant Stock." The Warrants issued on the same date hereof bearing the
same terms and conditions as this Warrant shall be collectively referred to as
the "Warrants".
The Holder agrees with the Company that this Warrant is issued, and all
the rights hereunder shall be held subject to, all of the conditions,
limitations and provisions set forth herein.
1. EXERCISE OF WARRANT
(a) By Payment of Cash. This Warrant may be exercised by its
presentation and surrender to the Company at its principal office (or such
office or agency of the Company as it may designate in writing to the Holder
hereof), commencing on October 22, 2002 ("Date of Issuance") and expiring at
5:00 P.M., Eastern Standard time, on October 22, 2007 (5 years from the Date of
Issuance), with the Warrant Exercise Form attached hereto duly executed and
accompanied by payment (either in cash or by certified or official bank check or
by wire transfer, payable to the order of the Company) of the Exercise Price for
the number of shares specified in such Form.
The Company agrees that the Holder hereof shall be deemed the record
owner of such Common Shares as of the close of business on the date on which
this Warrant shall have been presented and payment made for such Common Shares
as aforesaid whether or not the Company or its transfer agent is open for
business. Certificates for the Common Shares so purchased shall be delivered to
the Holder hereof within a reasonable time, not exceeding 15 days, after the
rights represented by this Warrant shall have been so exercised. If this Warrant
should be exercised in part only, the Company shall, upon surrender of this
Warrant for cancellation, execute and deliver a new Warrant evidencing the
rights of the Holder hereof to purchase the balance of the shares purchasable
hereunder as soon as reasonably possible.
(b) Cashless Exercise. In lieu of the payment method set forth in
Section 1(a) above, the Holder may elect to exchange all or some of this Warrant
for the Common Shares equal to the value of the amount of this Warrant being
exchanged on the date of exchange. If the Holder elects to exchange this Warrant
as provided in this Section 1(b), the Holder shall tender to the Company this
Warrant for the amount being exchanged, along with written notice of the
Holder's election to exchange some or all of this Warrant, and the Company shall
issue to the Holder the number of Common Shares computed using the following
formula:
X = Y (A-B)
-------
A
Where: X = The number of Common Shares to be issued to the Holder.
Y = The number of Common Shares purchasable
under the amount of this Warrant being
exchanged (as adjusted to the date of such
calculation).
A = The Market Price of one Common Share.
B = The Exercise Price (as adjusted to the date of
such calculation).
The Warrant exchange shall take place on the date specified in the
notice or if the date the notice is received by the Company is later than the
date specified in the notice, on the date the notice is received by the Company.
As used herein in the phrase "Market Price" at any date shall be deemed
to be the last reported sale price or the closing price of the Common Stock on
any exchange (including the National Association of Securities Dealers Automated
Quotation System ("Nasdaq")) on which the Common Stock is listed or the closing
price as quoted on the OTC Bulletin Board, or BBX, whichever is applicable, or,
in the case no such reported sale takes place on such day, the average of the
last reported sales prices or quotations for the last five trading days, in
either case as officially reported or quoted by the principal securities
exchange or the OTC Bulletin Board, or BBX, and if the Common Stock is not
listed or quoted as determined in good faith by resolution of the Board of
Directors of the Company, based on the best information available to it.
(c) "Easy Sale" Exercise. In lieu of the payment method set forth in
Section 1(a) above, when permitted by law and applicable regulations (including
rules of Nasdaq and National Association of Securities Dealers ("NASD")), the
Holder may pay the aggregate Exercise Price (the "Exercise Amount") through a
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"same day sale" commitment from the Holder (and if applicable a broker-dealer
that is a member of the NASD (an "NASD Dealer")), whereby the Holder irrevocably
elects to exercise this Warrant and to sell a portion of the shares so purchased
to pay the Exercise Amount and the Holder (or, if applicable, the NASD Dealer)
commits upon sale (or, in the case of the NASD Dealer, upon receipt) of such
shares to forward the Exercise Amount directly to the Company.
2. COVENANTS BY THE COMPANY
The Company covenants and agrees as follows:
(a) Reservation of Shares. During the period within which the rights
represented by this Warrant may be exercised, the Company shall, at all times,
reserve and keep available out of its authorized capital stock, solely for the
purposes of issuance upon exercise of this Warrant, such number of its Common
Shares as shall be issuable upon the exercise of this Warrant. If at any time
the number of authorized Common Shares shall not be sufficient to effect the
exercise of this Warrant, the Company will take such corporate action as may be
necessary to increase its authorized but unissued Common Shares to such number
of shares as shall be sufficient for such purpose. The Company shall have
analogous obligations with respect to any other securities or property issuable
upon exercise of this Warrant.
(b) Valid Issuance, etc. All Common Shares which may be issued upon
exercise of the rights represented by this Warrant included herein will be, upon
payment thereof, validly issued, fully paid, non-assessable and free from all
taxes, liens and charges with respect to the issuance thereof.
(c) Taxes. All original issue taxes payable in respect of the
issuance of Common Shares upon the exercise of the rights represented by this
Warrant shall be borne by the Company, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the issuance or
transfer of this Warrant or the Warrant Stock.
(d) Fractional Shares. The Company shall not be required to issue
certificates representing fractions of Common Shares. In lieu of any fractional
interests, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
3. EXCHANGE OR ASSIGNMENT OF WARRANT
This Warrant is exchangeable, without expense, at the option of the
Holder, upon presentation and surrender hereof to the Company for other Warrants
of different denominations, entitling the Holder to purchase in the aggregate
the same number of Common Shares purchasable hereunder. Subject to the
provisions of this Warrant and the receipt by the Company of any required
representations and agreements, upon surrender of this Warrant to the Company
with the Warrant Assignment Form annexed hereto duly executed and funds
sufficient to pay any transfer tax, the Company shall, without additional
charge, execute and deliver a new Warrant in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be canceled. In
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the event of a partial assignment of this Warrant, the new Warrants issued to
the assignee and the Holder shall make reference to the aggregate number of
shares of Warrant Stock issuable upon exercise of this Warrant.
4. RIGHTS OF THE HOLDER
The Holder shall not, by virtue hereof, be entitled to any voting or
other rights of a stockholder of the Company, either at law or in equity, and
the rights of the Holder are limited to those expressed in this Warrant.
5. ADJUSTMENT OF EXERCISE PRICE
(a) Common Stock Dividends; Common Stock Splits; Reclassification.
If the Company, at any time while this Warrant is outstanding, (a) shall pay a
stock dividend on its Common Stock, (b) subdivide outstanding shares of Common
Stock into a larger number of shares (or combine the outstanding shares of
Common Stock into a smaller number of shares) or (c) issue by reclassification
of shares of Common Stock any shares of capital stock of the Company, then (i)
the Exercise Price shall be multiplied by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding prior to such event
and the denominator of which shall be the number of shares of Common Stock
outstanding after such event and (ii) the number of shares of the Warrant Stock
shall be multiplied by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such event. Any adjustment made pursuant to this Section
5.1 shall become effective immediately after the record date for the
determination of stockholders entitled to receive such dividend or distribution
or, in the case of a subdivision or re-classification, shall become effective
immediately after the effective date thereof.
(b) Rights; Options; Warrants or Other Securities. If the Company,
at any time while this Warrant is outstanding, shall fix a record date for the
issuance of rights, options, warrants or other securities to all the holders of
its Common Stock entitling them to subscribe for or purchase, convert to,
exchange for or otherwise acquire shares of Common Stock for no consideration or
at a price per share less than the Exercise Price, the Exercise Price shall be
multiplied by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to such issuance or sale plus the
number of shares of Common Stock which the aggregate consideration received by
the Company would purchase at the Exercise Price, and the denominator of which
shall be the number of shares of Common Stock outstanding immediately prior to
such issuance date plus the number of additional shares of Common Stock offered
for subscription, purchase, conversion, exchange or acquisition, as the case may
be. Such adjustment shall be made whenever such rights, options, warrants or
other securities are issued, and shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
rights, options, warrants or other securities.
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(c) Subscription Rights. If the Company, at any time while this
Warrant is outstanding, shall fix a record date for the distribution to holders
of its Common Stock, evidence of its indebtedness or assets or rights, options,
warrants or other security entitling them to subscribe for or purchase, convert
to, exchange for or otherwise acquire any security (excluding those referred to
in Sections 5(a) and 5(b) above), then in each such case the Exercise Price at
which this Warrant shall thereafter be exercisable shall be determined by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the per-share Market Price on
such record date less the then fair market value at such record date of the
portion of such assets or evidence of indebtedness so distributed applicable to
one outstanding share of Common Stock as determined by the Board of Directors in
good faith, and the denominator of which shall be the Exercise Price as of such
record date; provided, however, that in the event of a distribution exceeding
10% of the net assets of the Company, such fair market value shall be determined
by an appraiser selected in good faith by the registered owners of a majority of
the Warrant Stock then outstanding; and provided, further, that the Company,
after receipt of the determination by such appraiser shall have the right to
select in good faith an additional appraiser meeting the same qualifications, in
which case the fair market value shall be equal to the average of the
determinations by each such appraiser. Such adjustment shall be made whenever
any such distribution is made and shall become effective immediately after the
record date mentioned above.
(d) Rounding. All calculations under this Section 5 shall be made to
the nearest cent or the nearest l/l00th of a share, as the case may be.
(e) Notice of Adjustment. Whenever the Exercise Price is adjusted
pursuant to this Section 5, the Company shall promptly deliver to the Holder a
notice setting forth the Exercise Price after such adjustment and setting forth
a brief statement of the facts requiring such adjustment. Such notice shall be
signed by the chairman, president or chief financial officer of the Company.
(f) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any shares so owned or held
shall be considered an issue or sale of Common Stock by the Company.
(g) Change of Control; Compulsory Share Exchange. In case of (A) any
Change of Control Transaction (as defined below) or (B) any compulsory share
exchange pursuant to which the Common Stock is converted into other securities,
cash or property (each, an "Event"), lawful provision shall be made so that the
Holder shall have the right thereafter to exercise this Warrant for shares of
stock and other securities, cash and property receivable upon or deemed to be
held by holders of Common Stock following such Event, and the Holder shall be
entitled upon such Event to receive such amount of shares of stock and other
securities, cash or property as the shares of the Common Stock of the Company
into which this Warrant could have been exercised immediately prior to such
Event (without taking into account any limitations or restrictions on the
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exercisability of this Warrant) would have been entitled; provided, however,
that in the case of a transaction specified in (A), above, in which holders of
the Company's Common Stock receive cash, the Holder shall have the right to
exercise the Warrant for such number of shares of the surviving company equal to
the amount of cash into which this Warrant is then exercisable, divided by the
fair market value of the shares of the surviving company on the effective date
of such Event. The terms of any such Event shall include such terms so as to
continue to give to the Holder the right to receive the securities, cash or
property set forth in this Section 5(g) upon any exercise or redemption
following such Event, and, in the case of an Event specified in (A), above, the
successor corporation or other entity (if other than the Company) resulting from
such reorganization, merger or consolidation, or the person acquiring the
properties and assets, or such other controlling corporation or entity as may be
appropriate, shall expressly assume the obligation to deliver the securities or
other assets which the Holder is entitled to receive hereunder. The provisions
of this Section 5(g) shall similarly apply to successive Events. "Change of
Control Transaction" means the occurrence of any (i) merger or consolidation of
the Company with or into another entity, unless the holders of the Company's
securities immediately prior to such transaction or series of transactions
continue to hold at least 50% of such securities following such transaction or
series of transactions, (ii) a sale, conveyance, lease, transfer or disposition
of all or substantially all of the assets of the Company in one or a series of
related transactions or (iii) the execution by the Company of an agreement to
which the Company is a party or by which it is bound, providing for any of the
events set forth above in (i) or (ii).
(h) Issuances Below Exercise Price. If the Company, at any time
while this Warrant is outstanding:
(i) issues or sells, or is deemed to have issued or sold, any
Common Stock;
(ii) in any manner grants, issues or sells any rights, options,
warrants, options to subscribe for or to purchase Common Stock or any stock or
other securities convertible into or exchangeable for Common Stock (other than
any Excluded Securities (as defined below)) (such rights, options or warrants
being herein called "Options" and such convertible or exchangeable stock or
securities being herein called "Convertible Securities"); or
(iii) in any manner issues or sells any Convertible Securities;
for (a) with respect to paragraph (i) above, a price per share, or (b)
with respect to paragraphs (ii) or (iii) above, a price per share for which
Common Stock issuable upon the exercise of such Options or upon conversion or
exchange of such Convertible Securities is, less than the Exercise Price in
effect immediately prior to such issuance or sale, then, immediately after such
issuance, sale or grant, the Exercise Price shall be reduced to a price equal to
the price per share of the Common Stock sold or the exercise price or conversion
price of the Options and Convertible Securities, as applicable. No modification
of the issuance terms shall be made upon the actual issuance of such Common
Stock upon conversion or exchange of such Options or Convertible Securities. The
number of Common Shares issuable upon exercise of this Warrant shall be
increased to an amount equal to the quotient of (A) the product of (x) the
Exercise Price in effect immediately prior to the adjustment multiplied by (y)
the number of Common Shares issuable upon exercise of this Warrant immediately
prior to the adjustment, divided by (B) the adjusted Exercise Price. If there is
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a change at any time in (i) the exercise price provided for in any Options, (ii)
the additional consideration, if any, payable upon the issuance, conversion or
exchange of any Convertible Securities or (iii) the rate at which any
Convertible Securities are convertible into or exchangeable for Common Stock,
then immediately after such change the Exercise Price shall be adjusted to
Exercise Price which would have been in effect at such time had such Options or
Convertible Securities still outstanding provided for such changed exercise
price, additional consideration or changed conversion rate, as the case may be,
at the time initially granted, issued or sold; provided that no adjustment shall
be made if such adjustment would result in an increase of the Exercise Price
then in effect.
"Excluded Securities" means (i) options to be granted pursuant to a
stock option plan approved by Stanford Venture Capital Holdings, Inc.
("Stanford"); (ii) shares of Common Stock issued upon conversion or exercise of
warrants, options or other securities convertible into Common Stock which have
been specifically disclosed to Stanford in the Securities Purchase Agreement
dated as of even date herewith between the Company and Stanford, or (iii) shares
of Common Stock or securities convertible into or exercisable for shares of
Common Stock issued or deemed to be issued by the Company in connection with a
strategic acquisition by the Company of the assets or business, or division
thereof, of another entity which acquisition has been approved by Stanford in
writing.
(i) Effect on Exercise Price of Certain Events. For purposes of
determining the adjusted Exercise Price under Section 5(h), the following shall
be applicable:
(i) Calculation of Consideration Received. If any Common Stock,
Options or Convertible Securities are issued or sold or deemed to have been
issued or sold for cash, the consideration received therefor will be deemed to
be the net amount received by the Company therefor, without deducting any
expenses paid or incurred by the Company or any commissions or compensations
paid or concessions or discounts allowed to underwriters, dealers or others
performing similar services in connection with such issue or sale. In case any
Common Stock, Options or Convertible Securities are issued or sold for a
consideration other than cash, the amount of the consideration other than cash
received by the Company will be the fair value of such consideration, except
where such consideration consists of securities listed or quoted on a national
securities exchange or national quotation system, in which case the amount of
consideration received by the Company will be the arithmetic average of the
closing sale price of such security for the five (5) consecutive trading days
immediately preceding the date of receipt thereof. In case any Common Stock,
Options or Convertible Securities are issued to the owners of the non-surviving
entity in connection with any merger in which the Company is the surviving
entity, the amount of consideration therefor will be deemed to be the fair value
of such portion of the net assets and business of the non-surviving entity as is
attributable to such Common Stock, Options or Convertible Securities, as the
case may be. The fair value of any consideration other than cash or securities
will be determined jointly by the Company and the registered owners of a
majority of the Warrant Stock then outstanding. If such parties are unable to
reach agreement within 10 days after the occurrence of an event requiring
valuation (the "Valuation Event"), the fair value of such consideration will be
determined within 48 hours of the 10th day following the Valuation Event by an
appraiser selected in good faith by the Company and agreed upon in good faith by
the registered owners of a majority of the Warrant Stock then outstanding. The
determination of such appraiser shall be binding upon all parties absent
manifest error.
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(ii) Integrated Transactions. In case any Option is issued in
connection with the issue or sale of other securities of the Company, together
comprising one integrated transaction in which no specific consideration is
allocated to such Options by the parties thereto, the Options will be deemed to
have been issued for an aggregate consideration of $.001.
(iii) Record Date. If the Company takes a record of the holders
of Common Stock for the purpose of entitling them (a) to receive a dividend or
other distribution payable in Common Stock, Options or in Convertible Securities
or (b) to subscribe for or purchase Common Stock, Options or Convertible
Securities, then such record date will be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
(iv) Other Events. If any event occurs that would adversely
affect the rights of the Holder of this Warrant but is not expressly provided
for by this Section 5 (including, without limitation, the granting of stock
appreciation rights, phantom stock rights or other rights with equity features),
then the Company's Board of Directors will make an appropriate adjustment in the
Exercise Price so as to protect the rights of the Holder; provided, however,
that no such adjustment will increase the Exercise Price.
(j) Notice of Certain Events. If:
(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock;
(ii) the Company shall declare a special nonrecurring cash
dividend on or a redemption of its Common Stock;
(iii) the Company shall authorize the granting to the holders of
all of its Common Stock rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any rights;
(iv) the approval of any stockholders of the Company shall be
required in connection with any capital reorganization, reclassification of the
Company's capital stock, any consolidation or merger to which the Company is a
party, any sale or transfer of all or substantially all of the assets of the
Company, or any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property; or
(v) the Company shall authorize the voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the Company;
then the Company shall cause to be filed at each office or agency
maintained for the purpose of exercise of this Warrant, and shall cause to be
delivered to the Holder, at least 30 calendar days prior to the applicable
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record or effective date hereinafter specified, a notice (provided such notice
shall not include any material non-public information) stating (a) the date on
which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend,
distributions, redemption, rights or warrants are to be determined or (b) the
date on which such reorganization, reclassification, consolidation, merger,
sale, transfer or share exchange is expected to become effective or close, and
the date as of which it is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities, cash or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, transfer or share exchange; provided, however, that
the failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be specified
in such notice. Nothing herein shall prohibit the Holder from exercising this
Warrant during the 30-day period commencing on the date of such notice.
(k) Increase in Exercise Price. In no event shall any provision in
this Section 5 cause the Exercise Price to be greater than the Exercise Price on
the date of issuance of this Warrant, except for a combination of the
outstanding shares of Common Stock into a smaller number of shares as referenced
in Section 5(a) above.
6. RESTRICTIONS ON EXERCISE
(a) Investment Intent. Unless, prior to the exercise of the Warrant,
the issuance of the Warrant Stock has been registered with the Securities and
Exchange Commission pursuant to the Act, the Warrant Exercise Form shall be
accompanied by a representation of the Holder to the Company to the effect that
such shares are being acquired for investment and not with a view to the
distribution thereof, and such other representations and documentation as may be
required by the Company, unless in the opinion of counsel to the Company such
representations or other documentation are not necessary to comply with the Act.
7. RESTRICTIONS ON TRANSFER
(a) Transfer to Comply with the Securities Act of 1933. Neither this
Warrant nor any Warrant Stock may be sold, assigned, transferred or otherwise
disposed of except as follows: (1) to a person who, in the opinion of counsel
satisfactory to the Company, is a person to whom this Warrant or the Warrant
Stock may legally be transferred without registration and without the delivery
of a current prospectus under the Act with respect thereto and then only against
receipt of an agreement of such person to comply with the provisions of this
Section 7 with respect to any resale, assignment, transfer or other disposition
of such securities; (2) to any person upon delivery of a prospectus then meeting
the requirements of the Act relating to such securities and the offering thereof
for such sale, assignment, transfer or disposition; or (3) to any "affiliate"
(as such term is used in Rule 144 promulgated pursuant to the Act) of the
Holder.
(b) Legend. Subject to the terms hereof, upon exercise of this
Warrant and the issuance of the Warrant Stock, all certificates representing
such Warrant Stock shall bear on the face or reverse thereof substantially the
following legend:
"The securities which are represented by this certificate have not been
registered under the Securities Act of 1933, and may not be sold,
transferred, hypothecated or otherwise disposed of until a registration
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statement with respect thereto is declared effective under such act, or
the Company receives an opinion of counsel for the Company that an
exemption from the registration requirements of such act is available."
8. LOST, STOLEN OR DESTROYED WARRANTS
In the event that the Holder notifies the Company that this Warrant has
been lost, stolen or destroyed and provides (a) a letter, in form reasonably
satisfactory to the Company, to the effect that it will indemnify the Company
from any loss incurred by it in connection therewith, and/or (b) an indemnity
bond in such amount as is reasonably required by the Company, the Company having
the option of electing either (a) or (b) or both, the Company may, in its sole
discretion, accept such letter and/or indemnity bond in lieu of the surrender of
this Warrant as required by Section 1 hereof.
9. SUBSEQUENT HOLDERS
Every Holder hereof, by accepting the same, agrees with any subsequent
Holder hereof and with the Company that this Warrant and all rights hereunder
are issued and shall be held subject to all of the terms, conditions,
limitations and provisions set forth in this Warrant, and further agrees that
the Company and its transfer agent, if any, may deem and treat the registered
holder of this Warrant as the absolute owner hereof for all purposes and shall
not be affected by any notice to the contrary.
10. NOTICES
Any notice required or permitted hereunder shall be given in writing
(unless otherwise specified herein) and shall be effective upon personal
delivery, via facsimile (upon receipt of confirmation of error-free transmission
and mailing a copy of such confirmation, postage prepaid by certified mail,
return receipt requested) or two business days following deposit of such notice
with an internationally recognized courier service, with postage prepaid and
addressed the other party at the following address, or at such other addresses
as a party may designate by five days advance written notice to the other party
hereto.
Company: Silver Key Mining Company, Inc.
000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: President
Telephone: 000-000-0000
Facsimile: 813-282-8907
with a copy to: Xxxxxx & Xxxx,
0000 X. Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Holder: Stanford Venture Capital Holdings
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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11. GOVERNING LAW; JURISDICTION
This Warrant shall be governed by and interpreted in accordance with
the laws of the State of Florida, without regard to its principles of conflict
of laws. Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Warrant may be brought against any party in
the federal courts of Florida or the state courts of the State of Florida, and
each of the parties consents to the jurisdiction of such courts and hereby
waives, to the maximum extent permitted by law, any objection, including any
objections based on forum non conveniens, to the bringing of any such proceeding
in such jurisdictions.
(Signature on the following page)
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed on
its behalf, in its corporate name, by its duly authorized officer, all as of the
day and year first above written.
SILVER KEY MINING COMPANY, INC.
By: ______________________________
Name:
----------------------------
Title:
---------------------------
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SILVER KEY MINING COMPANY, INC.
WARRANT EXERCISE FORM
---------------------
The undersigned hereby irrevocably elects (A) to exercise the Warrant
dated __________ _____, 200___ (the "Warrant"), pursuant to the provisions of
Section 1(a) of the Warrant, to the extent of purchasing _____________ shares of
the common stock, par value $.001 per share (the "Common Stock"), of Silver Key
Mining Company, Inc. and hereby makes a payment of $________ in payment
therefor, or (B) to exercise the Warrant to the extent of purchasing _________
shares of the Common Stock, pursuant to the provisions of Section 1(b) of the
Warrant. In exercising the Warrant, the undersigned hereby confirms that the
Common Stock to be issued hereunder is being acquired for investment and not
with a view to the distribution thereof. Please issue a certificate or
certificates representing said shares of Common Stock in the name of the
undersigned or in such other name as is specified below. Please issue a new
Warrant for the unexercised portion of the attached Warrant in the name of the
undersigned or in such other name as is specified below.
__________________________________
Name of Holder
__________________________________
Signature of Holder
or Authorized Representative
__________________________________
Signature, if jointly held
__________________________________
Name and Title of Authorized
Representative
__________________________________
Address of Holder
__________________________________
Date
13
EXECUTION COPY
WARRANT ASSIGNMENT AND JOINDER
Reference is made to those certain Warrants (the "Warrants"), to
purchase an aggregate of 1,880,342 shares of the common stock, $.001 par value
per share ("Common Stock"), of Silver Key Mining Company, Inc., a Nevada
corporation (the "Company"). Capitalized terms not defined herein shall have the
meaning given to them in the Securities Purchase Agreement the "Securities
Purchase Agreement"), dated as of October 16, 2002, by and among the Company,
the stockholders of the Company listed on the signature page attached thereto
and Stanford Venture Capital Holdings, Inc., a Delaware corporation
("Stanford").
Now therefore, for value received, Stanford, hereby sells, assigns and
transfers unto ____________ ("Assignee") an aggregate of ____________ percent
(_____%) of the total Warrants purchased by Stanford in accordance with the
terms of the Securities Purchase Agreement with each share of Common Stock
represented by the Warrants ("Warrant Shares") exercisable at an exercise price
per Warrant Share of $1.17 in accordance with the Table of Closing Dates as
outlined in Section 1(c) of the Securities Purchase Agreement.
By execution and delivery of this Warrant Assignment and Joinder,
Assignee, as successor to Stanford with respect of the Warrant Shares (i) will
be deemed to be a party to the Warrants and the Registration Rights Agreement,
incorporated by this reference as though fully set forth herein, (ii) authorizes
this Warrant Assignment and Joinder to be attached to each Warrant, and (iii)
represents and warrants that Assignee is an Accredited Investor.
Assignee, as successor to Stanford with respect to the Warrant Shares,
will have all rights, and shall observe all the obligations, applicable to a
"Holder" as set forth in the Warrants and an "Investor" as set forth in the
Registration Rights Agreement, as though such Assignee had executed the Warrants
and the Registration Rights Agreement as an initial Holder or Investor
thereunder, and confirms his obligations under the Warrants and the Registration
Rights Agreement.
Date: October ___, 2002
"Company" "Holder"
Silver Key Mining Company, Inc. Stanford Venture Capital Holdings, Inc.
By:_________________________ ____________________________
Name: ___________________ By:
Title:
Title: President
"Assignee"
_____________________________
_____________________________
_____________________________
_____________________________
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