Warrant Agreement
THIS WARRANT AGREEMENT is made and entered into by and between AmeriNet
Xxxxx.xxx, Inc., 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 during November of 1998 (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 common stock, $0.01 par value per share ("Common Stock"),
upon and subject to the terms and conditions of the Advisory Agreement; and
WHEREAS, the Parties have amended the Advisory Agreement in a manner
that changed the terms of the original warrant agreement also executed during
November of 1998 (the "Original Warrant"), and have determined that a new
warrant agreement must be executed and exchanged for the Original Warrant
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, the cancellation of the Original Warrant Agreement
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 shares of the
Issuer's Common Stock in an amount equal to 12.5% of the Issuer's
outstanding or reserved Common Stock immediately following complete
exercise of all the Warrants, at any time from June 30, 2000 until the
later of the close of business on December 31, 2003 or the 183rd day
after this Warrant and the shares of Common Stock into which it can be
exercised are registered for sale to the public under applicable
federal and state securities laws, provided, however, that the Holder
shall have the option of exercising this Warrants prior to such
registration at a 50% discount from the otherwise applicable exercise
price, subject to the resale restrictions imposed by Securities and
Exchange Commission Rule 144, but subject to the piggy back and
registration provisions hereinafter set forth.
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.
244
3. Exercise of Warrant.
ss.3.1 Method of Exercise
(a) The Warrants initially are exercisable at an initial exercise price
(subject to adjustment as provided in Section 8 hereof) per share of
Common Stock 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.
(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 Common 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 Common 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 Common Stock underlying the
Warrants).
(d) Warrants may be exercised to purchase all or part of the shares of
Common Stock represented thereby.
(e) In the case of the purchase of less than all the shares of Common 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 Common Stock.
ss.3.2 Exercise by Surrender of Warrant.
(a) (1) 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 Common 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 Market Price (as
defined in Section 8.1 hereof) of the Common Stock less the Exercise
Price and the denominator of which is such Market Price.
(2) The Parties acknowledge that this optional form of exercise is
designed to permit tacking of the Warrant holding period to that of
the Common Stock received upon exercise thereof, for purposes of SEC
Rule 144, under the concept commonly referred to as "cashless
exercise."
(b) Solely for the purposes of this Section 3.2, Market Price shall be
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.
245
4. Issuance of Certificates.
(a) Upon the exercise of the Warrant the issuance of certificates for shares of
Common 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 arid 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.
(b) The Warrant Certificates and the certificates representing the shares of
Common 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.
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, unless they are properly registered as
contemplated hereby or are eligible for applicable exemptions from registration.
6. Exercise Price.
ss.6.1 Initial and Adjusted Exercise Price.
(a) (1) The initial exercise price of each Warrant shall be based on dividing
the sum of $90,000 by 12.5% of the number of the Issuer's authorized
and outstanding shares of Common Stock plus 12.5% of the number of the
Issuer's shares of Common Stock reserved for issuance under currently
determinable circumstances (e.g., outstanding options, warrants,
convertible debentures, commitments under employment, reorganization
or acquisition agreements or shares issuable in conjunction with
pending acquisitions) at the time of exercise.
(2) For purposes of illustration, if the Issuer had 20,000,000 shares of
Common Stock authorized, of which 9,000,000 were outstanding and
1,000,000 were reserved for issuance under currently determinable
circumstances, then the Holder would be entitled to purchase 1,500,000
shares and the Warrant exercise price per share would be determined by
dividing $90,000 by 1,500,000 shares = ($0.06).
246
(3) Consequently, any increase in the aggregate of authorized and reserved
shares will result in a decrease in the exercise price per share and
any decrease thereof will result in an increase in the exercise price
per share, the product of the shares of Common Stock underlying this
warrant and the exercise price per share always equaling $90,000.
(b) The adjusted exercise price shall be the price which shall result from time
to time from any and all adjustments of the initial exercise price in
accordance with the foregoing provisions and the provisions of Section 8
hereof.
ss.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.
ss.7.1 Registration Under the Securities Act of 1933.
(a) The Warrants and the shares of Common 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.
(b) Upon exercise, in part or in whole, of the Warrants, certificates
representing the shares of Common Stock and any other securities issuable
upon exercise of the Warrants (collectively, the "Warrant Securities")
shall bear the following legend:
(c) 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.
ss.7.2 Piggyback Registration.
(a) If, at any time after the 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 (30) 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.
247
ss.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) (1) 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 8. l) per share of Common 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.
(2) 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.
ss.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) (1) 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.
248
(2) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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).
(g) 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.
(h) 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.
249
(i) (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").
(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.
(j) 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 Common Stock, options, warrants or any other
securities convertible into shares of Common Stock.
(k) 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 (50%) or the then outstanding Warrants or Warrant Securities that
(i) are not held by the Issuer, an affiliate, 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 (ii) have
not been resold to the public pursuant to a registration statement filed
with the Commission under the Act.
8. Adjustments to Exercise and Number of Securities.
ss.8.1 Computation of Adjusted Exercise Price.
The Adjusted Exercise Price shall be computed in the manner described and
illustrated in Section 6.1 of this Warrant Agreement.
ss.8.2 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 Common Stock) or otherwise distribute to its stockholders any
assets, property, rights, evidences of indebtedness, securities (over than
shares of Common 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 Common 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.
250
(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 8.2.
ss.8.3 Subdivision and Combination.
In case the Issuer shall at any time subdivide or combine the outstanding
shares of Common Stock, the Exercise Price shall forthwith be
proportionately decreased in the case of subdivision or increased in the
case of combination.
ss.8.4 Adjustment in Number of Securities.
Upon each adjustment of the 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.
ss.8.5 Definition of Common Stock.
(a) For the purpose of this Agreement, the term "Common Stock" shall mean (i)
the class of stock designated as Common Stock in the Certificate of
Incorporation of the Issuer as may be amended as of the date hereof, or
(ii) any other class of stock resulting from successive changes or
reclassifications of such Common 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 Common Stock
outstanding as of the date hereof, the Holder, at its option, may receive
upon exercise of any Warrant either shares of Common Stock or a like number
of such securities with greater or superior voting rights.
ss.8.6 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 Common 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 Common Stock of the Issuer for which such warrant might
have been exercised immediately prior to such consolidation, merger, sale
or transfer.
(b) (1) Such supplemental warrant agreement shall provide for adjustments
which shall be identical to the adjustments provided in Section 8.
(2) The foregoing provision of this Subsection shall similarly apply to
successive consolidations or mergers.
251
ss.8.7 No Adjustment of Exercise Price in Certain Cases.
No adjustment of the Exercise Price shall be made:
(a) Upon the issuance or sale of the Warrants or the shares of Common Stock
issuable upon the exercise of the Warrants; or
(b) If the amount of said adjustment shall be less than 1 cent ($.01) per
Security, provided, however, that in such case any adjustment that would
otherwise be required then to be made shall be carried forward and shall be
made at the time of and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to at least 1
cent ($.01) per Security.
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 Common 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 Common 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 Common Stock, solely for the purpose of issuance upon
the exercise of the Warrants, such number of shares of Common 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 Common 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 Common Stock issuable upon the exercise of
the Warrants to be listed (subject to official notice of issuance) on all
securities exchanges on which the Common Stock issued to the public in
connection herewith may then be listed and/or quoted NASDAQ.
252
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
Common 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
(2) the Issuer shall offer to all the holders of its Common 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, 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.
(c) Such notice shall specify such record date or the date of closing the
transfer books, as the case may be.
(d) Failure to give such notice or any defect herein shall not affect the
validity of any action taken in connection win the declaration or payment
of any such dividend, or the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation winding up or sale.
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 the Holders, The Yankee Companies, Inc., to 902 Xxxxx Xxxxx Road, 136;
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 set forth in Section 3 hereof or to such
other address as the Issuer may designate by notice to the Holders.
253
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.
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) (1) 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.
(2) The Issuer, and the Holder hereby irrevocably waive any objection to
such exclusive jurisdiction or inconvenient forum.
(3) 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.
(4) Such mailing shall deemed personal service and shall be legal and
binding upon the party so served in any action, proceeding or claim.
(5) 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.
254
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.
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
AmeriNet Xxxxx.xxx, Inc.
----------------------------
/s/ Xxxxxxx X. Xxxxxx
____________________________ By: ____________________________
Xxxxxxx Xxxxxx Xxxxxx, President
[CORPORATE SEAL]
/s/ Xxxxxxx X. Xxxxxxx
Attest:____________________________
Xxxxxxx X. Xxxxxxx, Secretary
Dated: November 23, 1999
The Yankee Companies, Inc.
----------------------------
/s/ Xxxxxxx X. Xxxxxx
____________________________ By: ____________________________
Xxxxxxx Xxxxx Xxxxxx
President
[CORPORATE SEAL]
/s/ Xxxxxxx X. Xxxxxxx
Attest:____________________________
Xxxxxxx X. Xxxxxxx, Secretary
Dated: November 23, 1999
255
EXHIBIT A-1
FORM OF 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, ___________ ___, ______
No. SB-1 _________
Warrants _________
---------
Warrant Certificate _________
---------
This Warrant Certificate certifies that The Yankee Companies, Inc., a
Florida corporation, or _________ registered assigns, is the registered holder
of Warrants to purchase initially, at any time from June 30, 2000, until 5:30
p.m. New York time on ___________ ___, ______ ("Expiration Date") up to
_________ fully- paid and non-assessable shares of common stock, $0,01 par value
per share ("Common Stock") of AmeriNet Xxxxx.xxx, Inc., a Delaware corporation
(the "Issuer"), at an initial exercise price, subject to adjustment in certain
events (the "Exercise Price"), of $_____ per share of Common Stock, upon
surrender of this Warrant Certificate and payment of the 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 dated as of November 23, 1999 between the Issuer and The
Yankee Companies, Inc., (the "Warrant Agreement").
Unless the cashless exercise rights set forth in the Warrant Agreement are
exercised, 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.
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.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement 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
AmeriNet Xxxxx.xxx, Inc.
----------------------------
____________________________ By: ____________________________
Xxxxxxx Xxxxxx Jordan, President
[CORPORATE SEAL]
Attest:__________________________
Xxxxxxx X. Xxxxxxx, Secretary
Dated: November 23, 1999
256
AmeriNet Xxxxx.xxx, Inc.
Warrant
Exercise Form
Date: _________ ___, ____
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.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Please type or print in block letters
---------------------
(Name)
--------------------------------
--------------------------------
(Address)
Signature: _______________________
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 to the extent of ______
Shares to which the within 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: ____ ___, 199_
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!
257
