Warrant Agreement
THIS WARRANT AGREEMENT, originally dated as of January 5, 1999, as
amended on December 30, 1999, is made and entered into by and between Colmena
Corp., a Delaware corporation (the "Issuer") and The Yankee Companies, Inc., a
Florida corporation (hereinafter referred to variously as the "Holder" or
"Yankees").
Preamble:
WHEREAS, the Issuer and Yankees entered into a certain strategic
consulting agreement dated January 5, 1999, which was amended at the request of
the Issuer on or about January 2, 2000 (hereinafter the "Advisory Agreement"),
pursuant to which Yankees is entitled to receive certain compensation, including
among other things, warrants ("Warrants") to purchase shares of the Issuer's
capital stock, $0.01 par value per share in an amount equal to 75% of the
Issuer's authorized and reserved capital stock (the term "Capital Stock" being
defined for purposes of this Agreement as all equity securities or securities
convertible into equity securities or exchangeable thereof, including. without
limitation , common stock, preferred stock, convertible debentures, options,
warrants, etc.), upon and subject to the terms and conditions of the Advisory
Agreement;
NOW, THEREFORE, in consideration of the premises, the payment by the
Holder to or for the benefit of the Issuer of FIVE ($5.00) DOLLARS, the
agreements herein set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agrees as follows:
Witnesseth:
1. Grant
The Holder is hereby granted the right to purchase, at any time from
January 15, 1999, until 5:00 p.m., New York time, on December 31, 2002,
shares of the Issuer's Capital Stock , $0.01 par value per share in an
amount equal to 75% of the Issuer's authorized and reserved Capital
Stock (the term "reserved" referring to Capital Stock that although not
issued, has been allocated for issuance pursuant to existing
agreements, options, warrants or reasonably contemplated
contingencies"), as provided in Sections 6 and 8 hereof.
2. Warrant Certificates.
The warrant certificates (the"Warrant Certificates") delivered and to
be delivered pursuant to this agreement shall be in the form set forth
in Exhibit A attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions, and other variations
as required or permitted by this Agreement.
3. Exercise of Warrant.
3.1 Method of Exercise
(a) The Warrants initially are exercisable at an aggregate exercise price
of $80,000 (allocated to the shares of Capital Stock purchases as
provided in Section 8 hereof) as set forth in Section 6 hereof payable
by certified or official bank check in New York Clearing House funds,
subject to adjustment as provided in Section 8 hereof.
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(b) Upon surrender of a Warrant Certificate with the annexed Form of
Election to Purchase duly executed, together with payment of the
Exercise Price (as hereinafter defined) for the shares of Capital Stock
purchased at the Issuer's principal offices, as reflected in the
records of the Securities and Exchange Commission maintained on its
XXXXX Internet site, the registered holder of a Warrant Certificate
("Holder" or "Holders') shall be entitled to receive a certificate or
certificates for the shares of Capital Stock so purchased.
(c) The purchase rights represented by each Warrant Certificate are
exercisable at the option of the Holder thereof, in whole or in part
(but not as to fractional shares of the Capital Stock underlying the
Warrants).
(d) Warrants may be exercised to purchase all or part of the shares of
Capital Stock represented thereby.
(e) In the case of the purchase of less than all the shares of Capital
Stock purchasable under any Warrant Certificate, the Issuer shall
cancel said Warrant Certificate upon the surrender thereof and shall
execute and deliver a new Warrant Certificate of like tenor for the
balance of the shares of Capital Stock .
3.2 Exercise by Surrender of Warrant.
(a) In addition to the method of payment set forth in Section 3.1 and in
lieu of any cash payment required thereunder the Holder(s) of the
Warrants shall have the right at any time to and from time to time
exercise the Warrants in full or in part by surrendering the Warrant
Certificate in the manner specified in Section 3.1 in exchange for the
number of shares of Capital Stock equal to the product of (x) the
number of shares to which the Warrants are being exercised multiplied
by (y) a fraction, the numerator of which is the highest closing
offering price for the Issuer's Capital Stock calculated either (i) on
the date on which the form of election attached hereto is deemed to
have been sent to the Issuer pursuant to Section 13 hereof ("Notice
Date") or (ii) as the average of the Market Price for each of the five
trading days preceding the Notice Date, whichever of (i) or (ii) is
greater, less the Adjusted Exercise Price on such date, and the
denominator of which is such Market Price.
(b) The Parties acknowledge that this optional form of exercise is designed
to permit tacking of the Warrant holding period to that of the Capital
Stock received upon exercise thereof, for purposes of SEC Rule 144,
under the concept commonly referred to as "cashless exercise."
4. Issuance of Certificates.
(a) Upon the exercise of the Warrant, the issuance of certificates for
shares of Capital Stock or other securities, properties or rights
underlying such Warrants shall be made forthwith and in any event such
issuance shall be made within five (5) business days thereafter,
without charge to the Holder thereof, including, without limitations
any tax which may be payable in respect of the issuance thereof and
such certificates shall (subject to the provisions of Sections 5 and 7
hereof) be issued in the name of, or in such names as may be directed
by, the Holder thereof; provided, however, that the Issuer shall not
be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such
certificates in a name other than that of the Holder and the Issuer
shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have
paid to the Issuer the amount of such tax or shall have established to
the satisfaction of the Issuer that such tax has been paid.
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(b) The Warrant Certificates and the certificates representing the shares
of Capital Stock (and/or other securities, property or rights issuable
upon exercise of the Warrants) shall be executed on behalf of the
Issuer by the manual or facsimile signature of the then present
Chairman or Vice Chairman of the Board of Directors or President or
Vice President of the Issuer under its corporate seal reproduced
thereon, attested to by the manual or facsimile signature of the then
present Secretary or Assistant Secretary of the Issuer.
(c) Warrant Certificates shall be dated the date of execution by the
Issuer upon initial issuance, division, exchange, substitution or
transfer.
5. Restriction On Transfer of Warrants.
(a) The Holder of a Warrant Certificate, by its acceptance thereof,
covenants and agrees that the Warrants are being acquired as an
investment and not with a view to the distribution thereof.
(b) Notwithstanding the foregoing, the Warrants are fully transferable if
the transfer is effected in compliance with applicable securities and
corporate laws and in accordance with the Uniform Commercial Code, as
adopted in the State of Delaware.
6. Exercise Price.
6.1 Initial and Adjusted Exercise Price.
(a) The Initial Exercise Price per share of Capital Stock was the price
obtained by dividing the sum of $40,000 by
(b) The result obtained by:
(1) Dividing the total outstanding shares of the Issuer's Capital
Stock and the total shares of Capital Stock that although not
issued, had been allocated for issuance pursuant to existing
agreements, options, warrants or reasonably contemplated
contingencies on the original date of this Agreement by 49;
and
(2) Multiplying the result by 51.
(b) The Adjusted Exercise Price per share of Capital Stock shall be
determined at each time any portion of this Warrant is exercised as
follows:
(1) The aggregate number of shares subject to this Warrant will
first be determined by adding the total outstanding shares of
the Issuer's Capital Stock and the total shares of Capital
Stock that although not issued, have been allocated for
issuance pursuant to existing agreements, options, warrants or
reasonably contemplated contingencies, and that total shall be
multiplied by three (the "Aggregate Warrant Shares");
(2) The aggregate number of shares heretofore issued upon partial
exercises of this Warrant (the "Issued Warrant Shares") shall
be subtracted from the Aggregate Warrant Shares, the result
being hereinafter referred to as the "Remaining Warrant
Shares;"
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(3) The aggregate payments for the Issued Warrant Shares as of the
date of exercise (but prior to the exercise in question) will
be subtracted from the sum of $80,000, and the remainder shall
be divided by the number of Remaining Warrant Shares, the
result being the then current exercise price per share (the
"Adjusted Exercise Price").
6.2 Exercise Price.
The term "Exercise Price" herein shall mean the Initial Exercise Price
or the Adjusted Exercise Price, depending upon the context.
7. Registration Rights.
7.1 Registration Under the Securities Act of 1933.
(a) (1) The Warrants and the shares of Capital Stock issuable upon
exercise of the Warrants and any of the other securities issuable
upon exercise of the Warrants have not been registered under the
Securities Act of 1933, as amended (the "Act") for public resale.
(2) Upon exercise, in part or in whole, of the Warrants, certificates
representing the shares of Capital Stock and any other securities
issuable upon exercise of the Warrants (collectively, the
"Warrant Securities") shall bear the following legend:
(b) The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended ("Act') for public resale,
and may not be offered or sold except pursuant to (i) an effective
registration statement under the Act, (ii) to the extent applicable,
Rule 144 under the Act (or any similar rule under such Act relating to
the disposition of securities), or (iii) an opinion of counsel, if such
opinion shall be reasonably satisfactory to counsel to the issuer, that
an exemption from registration under such Act is available, including
the exemption referred to as the 4(1)1/2 exemption.
7.2 Piggyback Registration.
(a) If, at any time during the five year period commencing after the
original date hereof, the Issuer proposes to register any of its
securities under the Act (other than in connection with a merger or
pursuant to Form X-0, X-0 or comparable registration statement) it will
give written notice by registered mail, at least thirty days prior to
the filing of each registration statement, to Yankees and to all other
Holders of the Warrants and/or the Warrant Securities of its intention
to do so.
(b) If Yankees or other Holders of the Warrants and/or Warrant Securities
notify the Issuer within twenty (20) days after receipt of any such
notice of its or their desire to include any such securities in such
proposed registration statement, the Issuer shall afford Yankees and
such Holders of the Warrants and/or Warrant Securities the opportunity
to have any such Warrant Securities registered under such registration
statement.
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7.3 Demand Registration.
(a) At any time during the term of this Warrant, the Holders of the
Warrants and/or Warrant Securities representing a "Majority" (as
hereinafter defined) of such securities (assuming the exercise of all
of the Warrants) shall have the right (which right is in addition to
the registration rights under Section 7.2 hereof), exercisable by
written notice to the Issuer, to have the Issuer prepare and file with
the Commission, on one occasion, a registration statement and such
other documents, including a prospectus, as may be necessary in the
opinion of both counsel for the Issuer and counsel for Yankees and
Holders, in order to comply with the provisions of the Act, so as to
permit a public offering and sale of their respective Warrant
Securities for nine (9) consecutive months by such Holders and any
other Holders of the Warrants and/or Warrant Securities who notify the
Issuer within ten (10) days after receiving notice from the Issuer of
such request.
(b) The Issuer covenants and agrees to give written notice of any
registration request under this Section 7.3 by any Holder or Holders
to all other registered Holders of the Warrants and the Warrant
Securities within (10) days from the date of the receipt of any such
registration request.
(c) Notwithstanding anything to the contrary contained herein, if the
Issuer shall not have filed a registration statement for the Warrant
Securities within the time period specified in Section 7.4(a) hereof
pursuant to the written notice specified in Section 7.3(a) of a
Majority of the Holders of the Warrants and/or Warrant Securities, the
Issuer agrees that upon the written notice of election of a Majority
of the Holders of the Warrants and/or Warrant Securities it shall
repurchase (i) any and all Warrant Securities at higher of the Market
Price as defined in Section 3.2(a) per share of Capital Stock on (x)
the date of the notice sent pursuant to Section 7.3(a) or (y) the
expiration of the period in Section 7.4(a) and (ii) any and all
Warrants at such Marker Price less the exercise price of such Warrant.
(d) Such repurchase shall be in immediately available funds and shall
close within two (2) days after the later of (i) the expiration of the
period specified in Section 7.4(a) or (ii) the delivery of the written
notice of election specified in this Section 7.3(d).
7.4 Covenants of the Issuer, With Respect to Registration.
In connection with any registration under Section 7.2 or 7.3 hereof,
the Issuer covenants and agrees as follows:
(a) The Issuer shall use its best efforts to file a registration statement
within sixty (60) days of receipt of any demand therefor, shall use its
best efforts to have any registration statements declared effective at
the earliest possible time, and shall furnish the Holder desiring to
sell Warrant Securities such number of prospectuses as shall reasonably
be requested.
(b) The Issuer shall pay all costs (excluding any underwriting or selling
commissions or over charges of any broker-dealer acting on behalf of
Holders), fees and expenses in connection with all registration
statements filed pursuant to Sections 7.2 and 7.3(a) hereof including,
without limitation, the Issuer's legal and accounting fees, printing
expenses, blue sky fees and expenses.
(c) If the Issuer shall fail to comply with the provisions of Section
7.4(a), the Issuer shall, in addition to any other equitable or other
relief available to the Holder(s), be liable for any or all damages
due to loss of profit sustained by the Holder(s) requesting
registration of its Warrant Securities.
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(d) The Issuer will take all necessary action which may be required in
qualifying or registering the Warrant Securities included in a
registration statement for offering and sale under the securities or
blue sky laws of the state requested by the Holder.
(e) The Issuer shall indemnify the Holder(s) of the Warrant Securities to
be sold pursuant to any registration statement and each person, if any,
who controls such Holder within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), against all loss, claim, damage, expense or liability
(including all expenses reasonably incurred in investigating, preparing
or defending against any claim whatsoever) to which any of them may
become subject under the Act, The Exchange Act or otherwise, arising
from such registration statement.
(f) Nothing contained in this Agreement shall be construed as requiring the
Holder(s) to exercise their Warrants prior to the initial filing of any
registration statement or the effectiveness thereof.
(g) The Issuer shall not permit the inclusion of any securities other than
the Warrant Securities to be included in any registration statement
filed pursuant to Section 7.3 hereof, or permit any other registration
statement to be or remain effective during the effectiveness of a
registration statement filed pursuant to Section 7.3 hereof, without
the prior written consent of the Holders of the Warrants arid Warrant
Securities representing a Majority of such securities (assuming an
exercise of all of the Warrants).
(h) The Issuer shall furnish to each Holder participating in the offering,
and to each underwriter, if any, a signed counterpart, addressed to
such Holder or underwriter, of (i) an opinion of counsel to the
Issuer, dated the effective date of such registration statement (and,
if such registration includes an underwritten public offering, an
opinion dated the date of the closing under the underwriting
agreement), and (ii) a "cold comfort" letter dated the effective date
of such registration statement (and, if such registration includes an
underwritten public offering; a letter dated the date of the closing
under the underwriting agreement) signed by the independent public
accountants who have issued a report on the Issuer's financial
statements included in such registration statement, in each case
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of such accountants' letter, with respect to agents
subsequent to the date of such financial statements, are as
customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in underwritten public
offering of securities.
(i) The Issuer shall as soon as practicable after the effective date of the
registration statement, and in any event within 15 months thereafter,
make "generally available to its security holders" (within the meaning
of Rule 158 under the Act) an earnings statement (which need not be
audited) complying with Section 11(a) of the Act and covering a period
of at least 12 consecutive months beginning after the effective date of
the registration agreement.
(j) (1) The Issuer shall deliver promptly to each Holder participating in
the offering requesting the correspondence and memoranda
described below and the managing underwriter copies of all
correspondence between the Commission and the Issuer, its counsel
or auditors and all memoranda relating to discussions with the
Commission or its staff with respect to the registration
statement and permit the Holder and underwriter to do such
investigation, upon reasonable advance notice, with respect to
information contained in or omitted from the registration
statement as it deems reasonably necessary to comply with
applicable securities laws or rules of the National Association
of Securities Dealers, Inc. ("NASD").
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(2) Such investigation shall include access to books, records and
properties and opportunities to discuss the business of the
Issuer with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as
any such Holder shall reasonably request as it deems necessary to
comply with applicable securities laws or NASD rules.
(k) In addition to the Warrant Securities, upon the written request
therefor by any Holder(s), the Issuer shall include in the registration
statement any other securities of the Issuer held by such Holder(s) as
of the date of filing of such registration statement, including without
limitation, restricted shares of Capital Stock , options, warrants or
any other securities convertible into shares of Capital Stock .
(l) For purposes of this Agreement, the term "Majority" in reference to the
Holders of Warrants or Warrant Securities shall mean in excess of fifty
percent of the then outstanding Warrants or Warrant Securities that:
(1) Are not held by the Issuer, an affiliate (for purposes hereof
the term affiliate not including Yankees, its officers,
directors, stockholders or their families), officer, creditor,
employee or agent thereof or any of their respective
affiliates, members of their family, persons acting as
nominees or in conjunction therewith; or
(2) Have not been resold to the public pursuant to a registration
statement filed with the Commission under the Act.
8. Other Adjustments in Exercise Price
8.1 Subdivision and Combination.
In case the Issuer shall at any time subdivide or combine the
outstanding shares of Capital Stock , the Adjusted Exercise Price shall
forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
8.2 Adjustment in Number of Securities.
Upon each adjustment of the Adjusted Exercise Price pursuant to the
provisions of this Section 8, the number of Securities issuable upon
the exercise of each Warrant shall be adjusted to the nearest full
amount by multiplying, a number equal to the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant
Securities issuable upon exercise of the Warrants immediately prior to
such adjustment and dividing the product so obtained by the Adjusted
Exercise Price.
8.3 Definition of Capital Stock .
(a) For the purpose of this Agreement, the term "Capital Stock " shall mean:
(1) The class of stock designated as Capital Stock in the
Certificate of Incorporation of the Issuer as may be amended
as of the date hereof, or
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(2) Any other class of stock resulting from successive changes or
reclassifications of such Capital Stock consisting solely of
changes in par value, or from par value to no par value, or
from no par value to par value.
(b) In the event that the Issuer shall after the date hereof issue
securities with greater or superior voting rights than the shares of
Capital Stock outstanding as of the date hereof, the Holder, at its
option, may receive upon exercise of any Warrant either shares of
Capital Stock or a like number of such securities with greater or
superior voting rights.
8.4 Merger or Consolidation.
(a) In care of any consolidation of the Issuer with, or merger of the
Issuer with, or merger of the Issuer into, another corporation (other
than a consolidation or merger which does not result in any
reclassification or change of the outstanding Capital Stock ), the
corporation formed by such consolidation or merger shall execute and
deliver to the Holder a supplemental warrant agreement providing that
the holder of each Warrant then outstanding or to be outstanding shall
have the right thereafter (until the expiration of such Warrant) to
receive upon exercise of such warrant, the kind and amount of shares of
stock and other securities and property receivable upon such
consolidation or merger, by a holder of the number of shares of Capital
Stock of the Issuer for which such warrant might have been exercised
immediately prior to such consolidation, merger, sale or transfer.
(b) Such supplemental warrant agreement shall provide for adjustments which
shall be identical to the adjustments provided in Sections 6 and 8.
(c) The provisions of this Subsection 8.4 shall similarly apply to
successive consolidations or mergers.
8.5 No Adjustment of Exercise Price in Certain Cases.
No adjustments of the Exercise Price for the reasons set forth in this
Section 8 shall be made upon the issuance or sale of the Warrants or
the shares of Capital Stock issuable upon the exercise of the Warrants.
8.6 Dividends and Other Distributions.
(a) In the event that the Issuer shall at any time prior to the exercise of
all Warrants declare a dividend (other then a dividend consisting
solely of shares of Capital Stock ) or otherwise distribute to its
stockholders any assets, property, rights, evidences of indebtedness,
securities (over than shares of Capital Stock ), whether issued by the
Issuer or by another, or any other thing of value, the Holders of the
unexercised Warrants shall thereafter be entitled, in addition to the
shares of Capital Stock or other securities and property receivable
upon the exercise thereof, to receive, upon the exercise of such
Warrants, the same property, assets, rights, evidences of indebtedness,
securities or any other thing of value that they would have been
entitled to receive at the time of such dividend or distribution as if
the Warrants had been exercised immediately prior to such dividend or
distribution.
(b) At the time of any such dividend or distribution, the Issuer shall make
appropriate reserves to ensure the timely performance of the provisions
of this Subsection 8.6.
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9. Exchange and Replacement of Warrant Certificates
(a) Each Warrant Certificate is exchangeable without expense, upon the
surrender thereof by the registered Holder at the principal executive
office of the Issuer, for a new Warrant Certificate of like tenor and
date representing in the aggregate the right to purchase the same
number of Securities in such denominations as shall be designated by
the Holder thereof at the time of such surrender.
(b) Upon by the Issuer of evidence reasonably satisfactory to it of loss,
theft, destruction or mutilation of any Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Issuer of all reasonable
expenses incidental thereto, and upon surrender and cancellation of the
Warrants if mutilated, the Issuer will make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
10. Elimination of Fractional Interests.
The Issuer shall not be required to issue certificates representing
fractions of shares of Capital Stock upon the exercise of the Warrants,
nor shall it be required to issue scrip or pay cash in lieu of
fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up
to the nearest whole number of shares of Capital Stock or other
securities, properties or rights.
11. Reservation and Listing of Securities.
(a) The Issuer shall at all times reserve and keep available out of its
authorized shares of Capital Stock , solely for the purpose of issuance
upon the exercise of the Warrants, such number of shares of Capital
Stock or other securities properties or rights as shall be issuable
upon the exercise thereof.
(b) The Issuer covenants and agrees that, upon exercise of the Warrants and
payment of the Exercise Price therefor, all shares of Capital Stock and
over securities issuable upon such exercise shall be duly and validly
issued, fully paid, non-assessable and not subject to the preemptive
rights of any stockholder.
(c) As long as the Warrants shall be outstanding, the Issuer shall use its
best efforts to cause all shares of Capital Stock issuable upon the
exercise of the Warrants to be listed (subject to official notice of
issuance) on all securities exchanges on which the Capital Stock issued
to the public in connection herewith may then be listed and/or quoted,
for purposes hereof the NASDAQ stock market being deemed equivalent to
a stock exchange.
12. Notice to Warrant Holders.
(a) Nothing contained in this Agreement shall be consented as conferring
upon the Holders the right to vote or to consent or to receive notice
as a stockholder in respect of any meetings of stockholders for the
election of directors or any other manner, or as having any rights
whatsoever as a stockholder of the Issuer.
(b) If, however, at any time prior to the expiration of the Warrants and
their exercise, any of the following events shall occur:
(1) the Issuer shall take a record of the holders of its shares of
Capital Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a
cash dividend or distribution payable otherwise than out of
current or retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the
Issuer; or
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(2) the Issuer shall offer to all the holders of its Capital Stock
any additional shares of capital stock of the Issuer or
securities convertible into or exchange for shares of capital
stock of the Issuer, or any option, right or warrant to
subscribe therefor: or
(3) a dissolution, liquidation or winding up of the Issuer other
than in connection with a consolidation or merger) or a sale
of all or substantially all of its property, assets and
business as an entirety shall be proposed; then
(c) In any one or more of said events the Issuer shall give notice of such
event at last fifteen (15) days prior to the date fixed as a record
date or the date of the closing the transfer books for the
determination of the stockholders entitled to such dividend,
distribution, convertible or exchangeable securities or subscription
rights, or entitled to vote on such proposed dissolution, liquidation,
winding up or sale.
(d) Such notice shall specify such record date or the date of closing the
transfer books, as the case may be.
13. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made when
delivered, or mailed registered or certified mail, return receipt
requested:
(a) If to the Holders, The Yankee Companies, Inc., to Crystal Corporate
Center; 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx
00000, with a copy to 0000 Xxxxxxxxx 00xx Xxxxxxx, Xxxxx, Xxxxxxx 00000
and as otherwise listed on the books of the Issuer, or
(b) If to the Issuer, to the address reflected in the records of the
Securities and Exchange Commission maintained on its XXXXX Internet
site or to such other address as the Issuer may designate by notice to
the Holders.
14. Supplements and Amendments.
(a) Except as otherwise expressly provided herein, the provisions of this
Agreement may be amended or waived at any time only by the written
agreement of the parties hereto.
(b) Any waiver, permit, consent or approval of kind or character on the
part of each Company or the Holder of any provisions or conditions of
this Agreement must be made in writing and shall be effective only in
the extent specifically set forth in such writing.
15. Successors.
All the covenants and provisions of this Agreement shall be binding
upon and inure to the benefit of the Issuer, the Holder and their
respective successors and assigns hereunder.
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16. Governing Law; Submission to Jurisdiction.
(a) This Agreement and each Warrant Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware
and for all the purposes shall be construed in accordance with the laws
of said State without giving effect to the rules of said State
governing the conflicts of laws.
(b) The Issuer and the Holder hereby agree that any action, proceeding or
claim against it arising out of, or relating in any way to, this
Agreement shall be brought and enforced in the courts of the State of
Florida or of the United Slates of America for the Southern District of
Florida, and irrevocably submits to such jurisdiction, which
jurisdiction shall be exclusive.
(c) The Issuer, and the Holder hereby irrevocably waive any objection to
such exclusive jurisdiction or inconvenient forum.
(d) Any such process or summons to be served upon any of the Issuer and the
Holder (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or
certified mail, return receipt requested, postage prepaid, address it
at the address as set forth in Section 13 hereof.
(e) Such mailing shall deemed personal service and shall be legal and
binding upon the party so served in any action, proceeding or claim.
(f) The Issuer and the Holder agree that the prevailing party(ies) in any
such action or proceeding shall be entitled to recover from the other
party(ies) all of its/their reasonable legal costs and expenses
relating to such action or proceeding and/or incurred in connection
with the preparation therefor.
17. Entire Agreement Modification.
This Agreement and the Purchase Agreement (to the extent portions
thereof are referred to herein) contain the entire understanding
between the parties hereto with respect to the subject matter hereof
and may not be modified or amended except by a writing duly signed by
the party against whom enforcement of the modification or amendment is
sought.
18. Severability.
If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provision of this Agreement.
19. Captions.
The caption headings of the Sections of this Agreement are for
convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no
substantive effect.
20. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any person or
corporation over than the Issuer and the Holder any legal or equitable
right, remedy or claim under this Agreement; and this Agreement shall
be for the sole and exclusive 'benefit of the Issuer and the Holder.
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21. Counterparts.
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an
original, and, such counterparts shall together constitute but one and
the same instrument.
In Witness Whereof, the Parties have executed this Agreement, effective
as of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
Colmena Corp.
----------------------------
____________________________ By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President
Dated: December 30, 1999
The Yankee Companies, Inc.
----------------------------
____________________________ By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx Xxxxxx, President
Dated: December 30, 1999
Page 174
Warrant Certificate
The warrants represented by this certificate and the other securities
issuable upon exercise thereof may not be offered or sold except pursuant to (i)
an effective registration statement under the securities act of 1933. (ii) to
the extent applicable, rule 144 under such act (or any similar rule under such
act relating to the disposition of securities), or (iii) an opinion of counsel,
if such opinion shall be reasonably satisfactory to counsel for the issuer, that
an exemption from registration under such act is available.
The transfers or exchange of the warrants represented by this
certificate is restricted in accordance with the warrant agreement referred to
herein.
EXERCISABLE ON OR BEFORE 5:30 P.M., NEW YORK TIME, December 31, 2002
Certificate Number SB-2
This Warrant Certificate certifies that The Yankee Companies, Inc., a
Florida corporation, or registered assigns, is the registered holder (the
"Holder" or "Yankees") of a warrant to purchase, at any time from January 15,
1999, until 5:30 p.m. New York time on December 31, 2002 ("Expiration Date") an
aggregate number of shares of Capital Stock (the "Capital Stock ") of Colmena
Corp., a Delaware corporation (the "Issuer"), determined, on each occasion on
which this Warrant is exercised by:
(a) Adding the total outstanding shares of the Issuer's Capital Stock and
the total shares of Capital Stock that although not issued, have been
allocated for issuance pursuant to existing agreements, options,
warrants or reasonably contemplated contingencies, and multiplying that
total by three (the "Aggregate Warrant Shares"); and
(b) Subtracting therefrom the aggregate number of shares theretofore issued
upon any partial exercises of this Warrant (the "Issued Warrant
Shares"), the result being hereinafter referred to as the "Warrant
Shares."
Terms:
1. The payments per share required upon exercise of this Warrant will be
determined by subtracting the aggregate of payments made under this
Warrant prior to the exercise in question from the sum of $80,000, and
dividing the remainder by the number of Remaining Warrant Shares at
such time, the result being the then current exercise price per share
(the "Adjusted Exercise Price").
2. As of the date hereof, this Warrant Certificate has been exercised to
the extent of 6,000,000 shares of Capital Stock for which Yankees has
paid $30,000.
3. Future exercise of this Warrant shall be effected by surrender of this
Warrant Certificate and payment of the Adjusted Exercise Price at an
office or agency of the Issuer or by surrender of this Warrant
Certificate in lieu of cash payment, but subject to the conditions set
forth herein and in the Warrant Agreement originally dated as of
January 5, 1998, as amended on December 30, 1999, between the Issuer
and The Yankee Companies, Inc., (the "Warrant Agreement").
4. Payment of the Exercise Price shall be made by certified or official
bank check in New York Clearing House funds payable to the order of the
Issuer, unless the cashless exercise option has been elected.
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5. No Warrant may be exercised after 5:30 p.m. New York time, on the
Expiration Date, at which time all Warrants evidenced hereby unless
exercised prior thereto, hereby shall thereafter be void.
6. The rights evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants pursuant to the Warrant Agreement which is
hereby incorporated by reference in and made a part of this instrument
and is hereby referred to for a description of the rights, obligations,
duties and immunities thereunder of the Issuer and the Holders (the
words "Holders" or "Holder" meaning the registered holders or
registered holder) of the Warrants.
In Witness Whereof, this instrument has been executed by the Issuer,
effective as of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
Colmena Corp.
----------------------------
____________________________ By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx, President
[CORPORATE SEAL]
Attest: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx, Secretary
Dated: December 30, 1999
Page 176
Colmena Corp.
Warrant Exercise Form
Dated: ________________
The Undersigned hereby irrevocably elects to exercise the subject
Warrant to the extent of purchasing ___ Shares and:
(A) [__] Hereby makes payment of $______, the actual exercise price thereof; or
(B) [__] Avails itself of the cashless exercise rights granted herein and for
purposes thereof asserts that the Market Price (as defined in the
Warrant Agreement") for purposes of determining the quantity of the
Capital Stock Issuable and the quantity of the Capital Stock to be
canceled in lieu of payment is $_____ per share.
(To be completed by the Issuer)
The Issuer agrees with the Market Price determination set fort[ ]y the
Holder:
The Issuer does not agree with the Market Price determination set forth
by the Holder and instead, asserts that the Market is $_____ per share:
[ ]
In the event that the Issuer and the Holder cannot agree on the Market
Price within three business days following the date this form us
submitted by the Holder, the Issuer must initiate the dispute
resolution procedures established in the Warrant Agreement.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Please type or print in block letters
---------------------
(Name)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(Address)
Signature: _______________________
NOTICE: The signatures to this exercise of Warrant must correspond
with the name as written upon the face of the Warrant in every
particular, without alteration or enlargement or any change
whatever.
Signature Guaranteed:
IMPORTANT: SIGNATURE MUST BE GUARANTEED BY A FIRM WHICH IS A MEMBER OF A
REGISTERED NATIONAL EXCHANGE OR BY A COMMERCIAL BANK OR A TRUST
COMPANY!
Page 177
Colmena Corp.
Assignment Form
FOR VALUE RECEIVED, The Yankee Companies, Inc., a Florida corporation,
hereby sells, assigns and transfer unto:
(Please type or print in block letters)
-------------------------------
(Name)
---------------------------------------------------------------
---------------------------------------------------------------
(Address)
the right to purchase Shares represented by this Warrant Certificate to the
extent of ______ Shares to which this Warrant relates, and does hereby
irrevocably constitute and appoint ________________ attorney, to transfer the
same on the books of the Issuer with full power of substitution in the premises.
Dated: _____________________
Signature: ___________________________________
Xxxxxxx Xxxxx Xxxxxx, President
of The Yankee Companies, Inc.,
a Florida corporation
NOTICE: The signatures to this partial assignment of Warrant must
correspond with the name as written upon the face of the Warrant
in every particular, without alteration or enlargement or any
change whatever.
Signature Guaranteed:
IMPORTANT: SIGNATURE MUST BE GUARANTEED BY A FIRM WHICH IS A MEMBER OF A
REGISTERED NATIONAL EXCHANGE OR BY A COMMERCIAL BANK OR A TRUST
COMPANY!
Page 178
