Consulting Agreement
This Consulting Agreement (the "Agreement") is made and entered into by
and between PriMed Technologies, LC, a Florida limited liability company
("PriMed LC"); PriMed Technologies, Inc. a Florida corporation and affiliate of
PriMed LC ("PriMed Inc.;" PriMed LC and PriMed Inc. being hereinafter
collectively and generically referred to as the "Client"); AmeriNet Xxxxx.xxx,
Inc., a publicly held Delaware corporation with a class of AmeriNet securities
registered under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act" and "AmeriNet," respectively; and, the Yankee
Companies, Inc., a Florida corporation ("Yankees"); the Client, AmeriNet and
Yankees being hereinafter collectively referred to as the "Parties" and
generically as a "Party".
PREAMBLE:
Whereas, the Client is engaged in the business of providing practice
management assistance and systems as described at its current website located at
xxx.xxxxxxxxxx.xxx and desires to become a reporting company under federal
securities laws with a publicly traded class of securities; and
Whereas, AmeriNet is a reporting company under federal securities laws
with a publicly traded class of securities as a result of which, its personnel
have substantial experience with law, accounting and the regulatory obligations
imposed under federal securities laws and regulations, and, as part of its
operations, AmeriNet, with the assistance of Yankees' personnel, provides
assistance and advice to companies that desire to attain reporting status under
Section 12(g) of the Exchange Act; and
Whereas, AmeriNet and Yankees are agreeable to making their services
available to the Client, on the terms and subject to the conditions hereinafter
set forth:
Now, Therefore, in consideration for AmeriNet's and Yankees' agreement
to render the hereinafter described services as well as of the premises, the sum
of $10 and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the Parties, intending to be legally bound, hereby
agree as follows:
WITNESSETH:
ARTICLE ONE
OBLIGATIONS OF THE PARTIES
1.1 Description of Services
(A) AmeriNet and Yankees will assist:
(1) The Client's legal counsel to register its securities with the
Securities and Exchange Commission (the "SEC"), and thereafter, will
assist the Client to make arrangements required to permit trading of
the Client's securities on the OTC Bulletin Board operated by the
National Association of Securities Dealers, Inc., including
introductions to one or more potential market makers and assistance in
the preparation, filing and management of the SEC and NASD Rule
15c2-11 compliance filings which will be required by any broker
dealers publishing quotes in the Client's securities.
(2) AmeriNet and Yankees will assist the Client to obtain a CUSIP number
for its securities, to obtain a stock trading symbol and to list the
Client in a Standard & Poors or comparable nationally recognized
securities manual complying with the manual exemption from Blue Sky
registration in 15 or more states.
(3) The foregoing services are hereinafter referred to as the "Services".
(B) (1) Subject to the requirement that the Client provides assurances
satisfactory to Yankees that proceeds will be used solely in as set
forth in exhibit 1.1(B)(1)-1 and that the Client attains the monthly
gross income and net, pre-tax profits results disclosed in the
business plan annexed hereto and made a part hereof as exhibit
1.1(B)(1)-2 (the "Business Plan"), Yankees will either loan or arrange
for loans to
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the Client of up to $60,000 required by the Client to effect the
business development disclosed in the Business Plan, provided further,
that Yankees obligation to use its best efforts to either make or
arrange for the foregoing loans will terminate in the event that the
Client fails to:
(a) Comply on a timely basis with applicable laws, including, without
limitation, applicable securities, internal revenue,
communications or trade laws;
(b) Develop business goals or projections acceptable to Yankees; or
(c) Meet stated business goals or projections by more than 20%
(2) The loans called for by this Section and, at Yankees' option, all
other funds loaned by Yankees to the Client, will be in the form of
purchases of convertible bonds to be issued by the Client (the "Class
A Bonds"), having the following attributes:
(a) The Class A Bonds will be secured by all of the assets of the
Client;
(b) Each Class A Bond will yield interest until maturity at the
annual rate, compounded monthly, of 8% and thereafter, if not
paid on a timely basis, at the highest rate of interest permitted
under applicable law;
(c) Each Class A Bond will be convertible, at the option of the
holder, into shares of the Client's capital stock in an amount
derived at by dividing the principal amount of the Class A Bond
plus accrued but unpaid interest by the lesser of 50% of the last
transaction price for the Client's common stock as quoted on the
OTC Bulletin Board operated by the NASD on the trading day
preceding provision of the funds by Yankees for which the subject
Class A Bond was issued or 50% of the last transaction price for
the Client's common stock as quoted on the OTC Bulletin Board
operated by the NASD on the trading day preceding the date
Yankees informs the Client of its intention to exercise its
conversion rights, whichever will result in the issuance of the
greater number of the Client shares of Common Stock.
(d) The Class A Bonds will be due and payable in one balloon
installment of principal and accrued interest on the 730th day
following the date on which the funds for which the subject Class
A Bond was issued were tendered to the Client.
(e) The shares of common stock underlying the Class A Bonds will be
registered with the Commission as required by Section 5 of the
Securities Act, using Commission Form S-3 within a reasonable
time after their issuance, provided that the Client is then
eligible to use Commission Form.
(C) Because of the Client's anticipated status under federal securities laws,
in any circumstances where AmeriNet or Yankees is describing the securities
of the Client to a third Party, they will disclose to such person the
compensation received from the Client to the extent required under any
applicable laws, including, without limitation, Section 17(b) of the
Securities Act of 1933, as amended (the "Securities Act"); however, the
Parties acknowledge they do not contemplate that neither AmeriNet nor
Yankees will be involved in any activities on behalf of the Client
requiring such descriptions or disclosures, or that the Services involve
any activities subject to regulation under federal or state securities
laws.
1.2 Fiduciary Obligation to Client
In rendering their Services, neither AmeriNet nor Yankees will disclose
to any third party any confidential non-public information furnished by the
Client or otherwise obtained by them with respect to the Client.
1.3 Limitations on Services
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(A) The Parties recognize that certain responsibilities and obligations are
imposed by federal and state securities laws and by the applicable rules
and regulations of stock exchanges, the National Association of Securities
Dealers, Inc. (collectively with its subsidiaries being hereinafter
referred to as the "NASD"), in-house "due diligence" or "compliance"
departments of licensed securities firms, etc.; accordingly, AmeriNet and
Yankees each agree that they will not release any information or data about
the Client to any selected or limited person(s), entity or group if they
are aware that such information or data has not been generally released or
promulgated.
(B) AmeriNet and Yankees will restrict or cease, as directed by the Client, all
efforts on behalf of the Client, including dissemination of information
regarding the Client, immediately after instructions (in writing by fax or
letter) to that effect from the Client.
1.4 Client's Commitments
(A) All of the Client's affiliates will immediately be consolidated into a
single entity, such entity being the publicly held entity contemplated by
this Agreement.
(B) (1) All work requiring legal review will be submitted for approval by the
Client to the Client's legal counsel prior to its use.
(2) Final drafts of any matters prepared for use by AmeriNet or Yankees in
conjunction with the provision of the Services will be reviewed by the
Client and, if legally required, by the Client's legal counsel, to
assure that:
(a) All required information has been provided;
(b) All materials are presented accurately; and,
(c) That no materials required to render information provided "not
misleading" are omitted.
(3) Only after such review and approval by the Client and, if required,
the Client's legal counsel, will any documents be filed with
regulatory agencies or third parties.
(4) (a) Financial data will be reviewed by competent, independent,
certified public accountants experienced and qualified in
securities related accounting and who are members in good
standing of the AICPA's Securities Practice Section, to be
separately retained by the Client.
(b) Such accountants will be required to review and approve all
financially related filings, prior to release to third parties or
submission to the appropriate regulatory authorities.
(C) The Client will promptly:
(1) Supply AmeriNet and Yankees on a regular and timely basis with:
(a) All approved data and information about the Client, its
management, its products, and its operations and the Client will
be responsible for advising AmeriNet and Yankees of any fact
which would affect the accuracy of any prior data and information
supplied to AmeriNet or Yankees;
(b) Full and complete copies of all filings with all federal and
state securities agencies; with full and complete copies of all
shareholder reports and communications whether or not prepared
with AmeriNet or Yankees's assistance, with all data and
information supplied to any analyst, broker-dealer, market maker,
or other member of the financial community; and with all
product/services brochures, sales materials, etc.;
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(2) Notify AmeriNet and Yankees of the filing of any registration
statement for the sale of securities and/or of any other event which
triggers any restrictions on disclosure; and
(3) Be deemed to make a continuing representation of the accuracy of any
and all material facts, material, information, and data which it
supplies to AmeriNet or Yankees and the Client acknowledges its
awareness that AmeriNet and Yankees will rely on such continuing
representation in performing its functions under this Agreement.
(D) AmeriNet and Yankees, in the absence of notice in writing from the Client,
may rely on the continuing accuracy of material, information and data
supplied by the Client.
ARTICLE TWO
COMPENSATION
2.1 Base Compensation & Costs
(A) For services to be provided during any term or renewal term of this
Agreement (the "Base Compensation"):
(1) In the event that AmeriNet or Yankees arranges or provides funding for
the Client (other than in conjunction with the Class A Bonds) on terms
more beneficial than those reflected in Client's current principal
financing agreements (the entity providing the services being
hereinafter generically referred to as the "Provider"), the Provider
will be entitled, at its election, to either:
(a) A fee equal to 25% of such savings, on a continuing basis; or
(b) If funding is provided though the Provider or any affiliates
thereof, a discount of 10% from the contemporary offering or
placement price for the subject securities, if they are issuable
as free trading securities, or, a discount of 50% from the
contemporary offering or placement price for the subject
securities, if they are issuable as restricted securities (as the
term restricted is used for purposes of SEC Rule 144); or
(c) If funding is provided by any person or group of persons
introduced to the Client by the Provider or persons associated
with the Provider, directly or indirectly, but is not provided by
the Provider or its principals as described in the preceding
subsection, then the Provider will be entitled to an introduction
fee equal to 5% of the aggregate proceeds so obtained; and
(2) In the event that the Provider generates business for the Client,
then, on any sales resulting therefrom, the Provider will be entitled
to a commission equal to 10% of the gross income derived by the Client
therefrom, on a continuing basis.
(3) In the event that the Provider or any affiliate thereof arranges for
an acquisition of or by the Client, then the Provider will be entitled
to compensation equal to 10% of the compensation paid for such
acquisition payable, at the Client's option, in cash or common stock
of the surviving or parent publicly held entity, in addition to any
compensation negotiated and received from the acquired entity or its
affiliates.
(B) (1) In addition to payment of the Base Compensation, the Client will,
provided that it has requested the Provider to provide services for
which costs are incurred, be responsible for payment of all costs and
disbursements associated with the Provider's services either:
(a) Involving less than $50 per item and $200 in the aggregate during
the preceding 30 day period; or
(b) Reflected in an operating budget approved by the Client; or
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(c) Approved in writing by the Client;
(2) Notwithstanding the foregoing, in the event that a Provider requests
authority to incur an expense it deems required for the proper
performance of the Provider's services but the Client refuses to
approve the expenditure, such refusal will excuse performance of such
services.
(3) All of the Provider's statements will be paid within 10 days after
receipt.
(4) In the event additional time for payment is required, the Provider
will have the option of selling the account receivable and the Client
agrees to pay interest thereon at the monthly rate of 1%.
(5) In the event collection activities are required, the Client agrees to
pay all of the Provider's reasonable out of pocket costs associated
therewith.
(C) In the event that the Client's operations are not successful and they are
terminated in a manner rendering the Client a publicly held corporation
without material business operations, Yankees will have and is hereby
irrevocably granted, the right to convert any outstanding amounts owed to
Yankees by the Client (including any outstanding Class A Bonds) into
additional shares of the Client's capital stock of all classes and series,
in an amount sufficient so that after such conversion, Yankees will hold
one share more than 50% of all outstanding and reserved shares (reserved
shares being defined for this purpose as shares allocated for future
issuance under binding agreements or arrangements [e.g., options, warrants,
conversion features]) of each class and series of the Client capital stock.
(D) There will be no change or waiver of the provisions contained herein,
unless such change is in writing and signed by the Client and the Provider.
2.2 Conditional Securities Compensation
Subject to prior registration with the Commission pursuant to the
requirements of Section 5 of the Securities Act, which will constitute a
condition precedent to the issuance of the securities described below (the
Client hereby covenanting and agreeing to take all reasonable measures to
satisfy such condition precedent):
(A) (1) In consideration of the Services to be provided by AmeriNet, the
Client will issue directly to AmeriNet's stockholders of record as of
the 30th day following the date of the date of the SEC approval
allowing the Client's stock to be publicly traded as a result of this
Agreement (the "Record Date"), pro rata based on their ownership of
common stock in AmeriNet, a quantity of the Client's common stock
equal to 10% of the Client's total capital stock outstanding
immediately following such issuance, subject to anti-dilutive rights
for a period of 12 months from the original date of issuance (the
"AmeriNet Shares").
(2) AmeriNet will provide the Client with a copy of its current
shareholder list within 15 days after the Record Date, as of the
Record Date.
(B) In consideration of the Services to be provided by Yankees, the Client will
issue to Yankees a quantity of the Client's common stock equal to an
additional 10% of the Client's total capital stock outstanding immediately
following such issuance, subject to anti-dilutive rights for a period of 12
months following the original date of issuance (the "Yankees Shares").
(C) (1) No fractional shares will be issued by the Client to the AmeriNet
stockholders or to Yankees, rather, any fractional shares will be
increased to the next full share.
(2) The AmeriNet Shares and the Yankees Shares (collectively and
generically hereinafter referred to as the "Registered Shares") will
be issued only if, and after they have been registered with the SEC as
required by Section 5 of the Securities Act, pursuant to a
registration statement on SEC Form SB-1 or SB-2, or a notification
statement pursuant to SEC Regulation A, as well as any applicable
state
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Blue Sky laws, and AmeriNet and Yankees will assist the Client to
prepare and file required documentation associated therewith, at the
Client's expense.
(3) AmeriNet and Yankees hereby covenant and agree that all information
they provide to the Client for inclusion in the registration statement
will be true and correct.
(4) Prior to the issuance of the Registered Shares, AmeriNet and Yankees
will assist the Client to comply with any obligations under SEC Rule
10b-17 pertaining to dividends.
(5) The Parties hereby agree that for auditing, tax or SEC filing fee
purposes the reasonable market value of the Registered Shares is the
lesser of $50,000 or 10% of the Client's stockholders equity or such
other value as may be determined by the Client's accountants pursuant
to applicable tax, SEC and accounting rules and principles.
(D) The Parties believe that the Client will have to pay the following costs in
conjunction with the projects contemplated by this Agreement (in addition
to payments to its legal counsel):
(1) Auditing costs payable to Daszkal, Bolton, Xxxxxx & Xxxxxx & Company
the amount of which the Parties are not competent to determine;
(2) The costs of obtaining a CUSIP number and listing with Standard &
Poors or another comparable manual, which is estimated to be $4,000;
(3) Transfer agent set up and certificate distribution costs which will
vary, based on the agency selected and the initial services required,
but should not exceed $15,000 for physical delivery of certificates to
each stockholder, assuming that such delivery can be structured over
several months; however, in the event that book entry recording in
lieu of physical delivery is a legally available alternative and the
costs of certificates are born by stockholders requesting them, then
the costs can be cut dramatically (in the $5,000 range);
(4) Filing fees to the SEC and State regulatory authorities, not expected
to exceed $5,000;
(5) Travel, long distance telephone, overnight postage and mailing
expenses, not expected to exceed $2,500.
(E) Upon request of Yankees, the Client will engage its legal counsel to
promptly prepare any reports which Yankees is required to file with the
SEC, as a result of the Client's reporting status, including XXX Xxxxx 0, 0
xxx 0, Xxxxxxxxx 13(d) and 13(g), and will submit all such reports to
Yankees for prompt execution and timely filing with the SEC. It will be the
responsibility of Yankees to provide the information required to prepare
any such reports to the Client upon each request for preparation of such
report and all such information provided by Yankees will be true and
correct.
ARTICLE THREE
TERM, RENEWALS & EARLIER TERMINATION
3.1 Term.
(A) This Agreement will be for an initial term of 180 days, commencing on the
date of its complete execution by all Parties, as evinced in the execution
page hereof (the "Initial Term"), but will be reasonably extended as
required to permit completion of the projects contemplated hereby,
registering the securities to be issued to AmeriNet's stockholders and
Yankees and concurrently attaining trading status for the Client's
securities as an issuer filing reports with the SEC pursuant to Section
12(g) of the Exchange Act, provided that the Client has taken all
reasonable actions required to attain such goals during the initial 180 day
period.
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(B) Notwithstanding the foregoing any Party may terminate this Agreement
without penalty if the registration statement covering the distribution of
Registered Shares has not been declared effective within 180 days after
filing thereof.
3.2 Final Settlement.
(A) Upon termination of this Agreement, payment of all sums and securities or
amounts due hereunder, AmeriNet and Yankees or their representative will
execute and deliver to the Client a receipt for such sums and a release of
all claims, except such claims as may have been submitted pursuant to the
terms of this Agreement and which remain unpaid, and, will forthwith tender
to the Client all records, manuals and written procedures, as may be
desired by the Client for the continued conduct of its business; and
(B) The Client or its representative will execute and deliver to AmeriNet or
Yankees, as the case may be, a receipt for all materials returned and a
release of all claims, except such claims as may have been submitted
pursuant to the terms of this Agreement and which remain unpaid, and, will
forthwith tender to AmeriNet or Yankees, as the case may be, all records,
manuals and written procedures, as may be desired by AmeriNet or Yankees
for the continued conduct of their business.
ARTICLE FOUR
CONFIDENTIALITY & COMPETITION COVENANTS
4.1 AmeriNet.
(A) General:
(1) AmeriNet acknowledges that, in and as a result of its entry into this
Agreement, it will be making use of confidential information of
special and unique nature and value relating to such matters as the
Client's trade secrets, systems, procedures, manuals, confidential
reports; consequently, as material inducement to the entry into this
Agreement by the Client, AmeriNet hereby covenants and agrees that it
will not, at anytime during the term of this Agreement, any renewals
thereof and for two years following the terms of this Agreement,
directly or indirectly, use, divulge or disclose, for any purpose
whatsoever, any of such confidential information which has been
obtained by or disclosed to it as a result of its entry into this
Agreement or provision of services hereunder.
(2) In the event of a breach or threatened breach by AmeriNet of any of
the provisions of this Section 4.1, the Client, in addition to and not
in limitation of any other rights, remedies or damages available to
the Client, whether at law or in equity, will be entitled to a
permanent injunction in order to prevent or to restrain any such
breach by AmeriNet, or by its partners, directors, officers,
stockholders, agents, representatives, servants, employers, employees,
affiliates and/or any and all persons directly or indirectly acting
for or with it.
(B) Special Remedies.
(1) In view of the irreparable harm and damage which would undoubtedly
occur to the Client and its clients as a result of a breach by
AmeriNet of the covenants or agreements contained in this Section 4.1,
and in view of the lack of an adequate remedy at law to protect the
Client's interests, AmeriNet hereby covenants and agrees that the
Client will have the following additional rights and remedies in the
event of a breach hereof:
(a) AmeriNet hereby consents to the issuance of a permanent
injunction enjoining it from any violations of the covenants set
forth in this Section 4.1; and
(b) Because it is impossible to ascertain or estimate the entire or
exact cost, damage or injury which the Client or its clients may
sustain prior to the effective enforcement of such
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injunction, AmeriNet hereby covenants and agrees to pay over to
the Client, in the event it violates the covenants and agreements
contained in this Section 4.1, the greater of:
1. Any payment or compensation of any kind received by it
because of such violation before the issuance of such
injunction, or
2. The sum of One Thousand Dollars per violation, which sum
will be liquidated damages, and not a penalty, for the
injuries suffered by the Client or its clients as a result
of such violation, the Parties hereto agreeing that such
liquidated damages are not intended as the exclusive remedy
available to the Client for any breach of the covenants and
agreements contained in this Section 4.1, prior to the
issuance of such injunction, the Parties recognizing that
the only adequate remedy to protect the Client and its
clients from the injury caused by such breaches would be
injunctive relief.
(C) Cumulative Remedies.
AmeriNet hereby irrevocably agrees that the remedies described in this
Section 4.1 will be in addition to, and not in limitation of, any of the rights
or remedies to which the Client and its clients are or may be entitled to,
whether at law or in equity, under or pursuant to this Agreement.
(D) Acknowledgment of Reasonableness.
(1) AmeriNet hereby represents, warrants and acknowledges that its members
or officers and directors have carefully read and considered the
provisions of this Section 4.1 and, having done so, agrees that the
restrictions set forth herein are fair and reasonable and are
reasonably required for the protection of the interests of the Client,
its members, officers, directors, consultants, agents and employees;
consequently, in the event that any of the above-described
restrictions will be held unenforceable by any court of competent
jurisdiction, AmeriNet hereby covenants, agrees and directs such court
to substitute a reasonable judicially enforceable limitation in place
of any limitation deemed unenforceable and, AmeriNet hereby covenants
and agrees that if so modified, the covenants contained in this
Section 4.1 will be as fully enforceable as if they had been set forth
herein directly by the Parties.
(2) In determining the nature of this limitation, AmeriNet hereby
acknowledges, covenants and agrees that it is the intent of the
Parties that a court adjudicating a dispute arising hereunder
recognize that the Parties desire that these covenants not to compete
or circumvent be imposed and maintained to the greatest extent
possible.
(E) Exclusivity.
AmeriNet will not be required to devote all of its business time to the
affairs of the Client, rather it will devote such time as it is reasonably
necessary in light of its other business commitments.
4.2 Yankees.
(A) General:
(1) Yankees acknowledges that, in and as a result of its entry into this
Agreement, it will be making use of confidential information of
special and unique nature and value relating to such matters as the
Client's trade secrets, systems, procedures, manuals, confidential
reports; consequently, as material inducement to the entry into this
Agreement by the Client, Yankees hereby covenants and agrees that it
will not, at anytime during the term of this Agreement, any renewals
thereof and for two years following the terms of this Agreement,
directly or indirectly, use, divulge or disclose, for any purpose
whatsoever, any of such confidential information which has been
obtained by or disclosed to it as a result of its entry into this
Agreement or provision of services hereunder.
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(2) In the event of a breach or threatened breach by Yankees of any of the
provisions of this Section 4.2, the Client, in addition to and not in
limitation of any other rights, remedies or damages available to the
Client, whether at law or in Yankees, will be entitled to a permanent
injunction in order to prevent or to restrain any such breach by
Yankees, or by its partners, directors, officers, stockholders,
agents, representatives, servants, employers, employees, affiliates
and/or any and all persons directly or indirectly acting for or with
it.
(B) Special Remedies.
(1) In view of the irreparable harm and damage which would undoubtedly
occur to the Client and its clients as a result of a breach by Yankees
of the covenants or agreements contained in this Section 4.2, and in
view of the lack of an adequate remedy at law to protect the Client's
interests, Yankees hereby covenants and agrees that the Client will
have the following additional rights and remedies in the event of a
breach hereof:
(a) Yankees hereby consents to the issuance of a permanent injunction
enjoining it from any violations of the covenants set forth in
this Section 4.2; and
(b) Because it is impossible to ascertain or estimate the entire or
exact cost, damage or injury which the Client or its clients may
sustain prior to the effective enforcement of such injunction,
Yankees hereby covenants and agrees to pay over to the Client, in
the event it violates the covenants and agreements contained in
this Section 4.2, the greater of:
1. Any payment or compensation of any kind received by it
because of such violation before the issuance of such
injunction, or
2. The sum of One Thousand Dollars per violation, which sum
will be liquidated damages, and not a penalty, for the
injuries suffered by the Client or its clients as a result
of such violation, the Parties hereto agreeing that such
liquidated damages are not intended as the exclusive remedy
available to the Client for any breach of the covenants and
agreements contained in this Section 4.2, prior to the
issuance of such injunction, the Parties recognizing that
the only adequate remedy to protect the Client and its
clients from the injury caused by such breaches would be
injunctive relief.
(C) Cumulative Remedies.
Yankees hereby irrevocably agrees that the remedies described in this
Section 4.2 will be in addition to, and not in limitation of, any of the rights
or remedies to which the Client and its clients are or may be entitled to,
whether at law or in equity, under or pursuant to this Agreement.
(D) Acknowledgment of Reasonableness.
(1) Yankees hereby represents, warrants and acknowledges that its members
or officers and directors have carefully read and considered the
provisions of this Section 4.2 and, having done so, agrees that the
restrictions set forth herein are fair and reasonable and are
reasonably required for the protection of the interests of the Client,
its members, officers, directors, consultants, agents and employees;
consequently, in the event that any of the above-described
restrictions will be held unenforceable by any court of competent
jurisdiction, Yankees hereby covenants, agrees and directs such court
to substitute a reasonable judicially enforceable limitation in place
of any limitation deemed unenforceable and, Yankees hereby covenants
and agrees that if so modified, the covenants contained in this
Section 4.2 will be as fully enforceable as if they had been set forth
herein directly by the Parties.
(2) In determining the nature of this limitation, Yankees hereby
acknowledges, covenants and agrees that it is the intent of the
Parties that a court adjudicating a dispute arising hereunder
recognize that the
Page 32
Parties desire that these covenants not to compete or circumvent be
imposed and maintained to the greatest extent possible.
(E) Exclusivity.
Yankees will not be required to devote all of its business time to the
affairs of the Client, rather it will devote such time as it is reasonably
necessary in light of its other business commitments.
4.3 Client's Confidentiality & Competition Covenants in Favor of AmeriNet
(A) General Prohibitions
(1) The Client acknowledges that, in and as a result of its engagement of
AmeriNet, the Client will be making use of confidential information of
special and unique nature and value relating to such matters as
AmeriNet's business contacts, professional advisors, trade secrets,
systems, procedures, manuals, confidential reports, lists of clients,
potential customers and funders; consequently, as material inducement
to the entry into this Agreement by AmeriNet, the Client hereby
covenants and agrees that it will not, at anytime during the term of
this Agreement, any renewals thereof an for two years following the
terms of this Agreement, directly or indirectly, use, divulge or
disclose, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to it as a result
of its engagement of AmeriNet, or AmeriNet's affiliates.
(2) In the event of a breach or threatened breach by the Client of any of
the provisions of this Section 4.3, AmeriNet, in addition to and not
in limitation of any other rights, remedies or damages available to
AmeriNet, whether at law or in equity, will be entitled to a permanent
injunction in order to prevent or to restrain any such breach by the
Client, or by the Client's partners, directors, officers,
stockholders, agents, representatives, servants, employers, employees,
affiliates and/or any and all persons directly or indirectly acting
for or with it.
(B) Special Remedies.
In view of the irreparable harm and damage which would undoubtedly
occur to AmeriNet as a result of a breach by the Client of the covenants or
agreements contained in this Section 4.3, and in view of the lack of an adequate
remedy at law to protect AmeriNet's interests, the Client hereby covenants and
agrees that AmeriNet will have the following additional rights and remedies in
the event of a breach hereof:
(1) The Client hereby consents to the issuance of a permanent injunction
enjoining it from any violations of the covenants set forth in this
Section 4.3 is and
(2) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which AmeriNet may sustain prior to the
effective enforcement of such injunction, the Client hereby covenants
and agrees to pay over to AmeriNet, in the event it violates the
covenants and agreements contained in this Section 4.3, the greater
of:
(a) Any payment or compensation of any kind received by it because of
such violation before the issuance of such injunction, or
(b) The sum of One Thousand Dollars per violation, which sum will be
liquidated damages, and not a penalty, for the injuries suffered
by AmeriNet as a result of such violation, the Parties hereto
agreeing that such liquidated damages are not intended as the
exclusive remedy available to AmeriNet for any breach of the
covenants and agreements contained in this Section 4.3, prior to
the issuance of such injunction, the Parties recognizing that the
only adequate remedy to protect AmeriNet from the injury caused
by such breaches would be injunctive relief.
Page 33
(C) Cumulative Remedies.
The Client hereby irrevocably agrees that the remedies described in
this Section 4.3 will be in addition to, and not in limitation of, any of the
rights or remedies to which AmeriNet is or may be entitled to, whether at law or
in equity, under or pursuant to this Agreement.
(D) Acknowledgment of Reasonableness.
(1) The Client hereby represents, warrants and acknowledges that its
officers and directors have carefully read and considered the
provisions of this Section 4.3 and, having done so, agree that the
restrictions set forth herein are fair and reasonable and are
reasonably required for the protection of the interests of AmeriNet,
its members, officers, directors, consultants, agents and employees;
consequently, in the event that any of the above-described
restrictions will be held unenforceable by any court of competent
jurisdiction, the Client hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Client hereby
covenants and agrees that if so modified, the covenants contained in
this Section 4.3 will be as fully enforceable as if they had been set
forth herein directly by the Parties.
(2) In determining the nature of this limitation, the Client hereby
acknowledges, covenants and agrees that it is the intent of the
Parties that a court adjudicating a dispute hereunder recognize that
the Parties desire that these covenants not to compete or circumvent
be imposed and maintained to the greatest extent possible.
4.4 Client's Confidentiality & Competition Covenants in Favor of Yankees
(A) General Prohibitions
(1) The Client acknowledges that, in and as a result of its engagement of
Yankees, the Client will be making use of confidential information of
special and unique nature and value relating to such matters as
Yankees's business contacts, professional advisors, trade secrets,
systems, procedures, manuals, confidential reports, lists of clients,
potential customers and funders; consequently, as material inducement
to the entry into this Agreement by Yankees, the Client hereby
covenants and agrees that it will not, at anytime during the term of
this Agreement, any renewals thereof an for two years following the
terms of this Agreement, directly or indirectly, use, divulge or
disclose, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to it as a result
of its engagement of Yankees, or Yankees's affiliates.
(2) In the event of a breach or threatened breach by the Client of any of
the provisions of this Section 4.4, Yankees, in addition to and not in
limitation of any other rights, remedies or damages available to
Yankees, whether at law or in Yankees, will be entitled to a permanent
injunction in order to prevent or to restrain any such breach by the
Client, or by the Client's partners, directors, officers,
stockholders, agents, representatives, servants, employers, employees,
affiliates and/or any and all persons directly or indirectly acting
for or with it.
(B) Special Remedies.
In view of the irreparable harm and damage which would undoubtedly
occur to Yankees as a result of a breach by the Client of the covenants or
agreements contained in this Section 4.4, and in view of the lack of an adequate
remedy at law to protect Yankees's interests, the Client hereby covenants and
agrees that Yankees will have the following additional rights and remedies in
the event of a breach hereof:
(1) The Client hereby consents to the issuance of a permanent injunction
enjoining it from any violations of the covenants set forth in this
Section 4.4 is and
(2) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Yankees may sustain prior to the
effective enforcement of such injunction, the Client hereby
Page 34
covenants and agrees to pay over to Yankees, in the event it violates
the covenants and agreements contained in this Section 4.4, the
greater of:
(a) Any payment or compensation of any kind received by it because of
such violation before the issuance of such injunction, or
(b) The sum of One Thousand Dollars per violation, which sum will be
liquidated damages, and not a penalty, for the injuries suffered
by Yankees as a result of such violation, the Parties hereto
agreeing that such liquidated damages are not intended as the
exclusive remedy available to Yankees for any breach of the
covenants and agreements contained in this Section 4.4, prior to
the issuance of such injunction, the Parties recognizing that the
only adequate remedy to protect Yankees from the injury caused by
such breaches would be injunctive relief.
(C) Cumulative Remedies.
The Client hereby irrevocably agrees that the remedies described in
this Section 4.4 will be in addition to, and not in limitation of, any of the
rights or remedies to which Yankees is or may be entitled to, whether at law or
in equity, under or pursuant to this Agreement.
(D) Acknowledgment of Reasonableness.
(1) The Client hereby represents, warrants and acknowledges that its
officers and directors have carefully read and considered the
provisions of this Section 4.4 and, having done so, agree that the
restrictions set forth herein are fair and reasonable and are
reasonably required for the protection of the interests of Yankees,
its members, officers, directors, consultants, agents and employees;
consequently, in the event that any of the above-described
restrictions will be held unenforceable by any court of competent
jurisdiction, the Client hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Client hereby
covenants and agrees that if so modified, the covenants contained in
this Section 4.4 will be as fully enforceable as if they had been set
forth herein directly by the Parties.
(2) In determining the nature of this limitation, the Client hereby
acknowledges, covenants and agrees that it is the intent of the
Parties that a court adjudicating a dispute hereunder recognize that
the Parties desire that these covenants not to compete or circumvent
be imposed and maintained to the greatest extent possible.
ARTICLE FIVE
MISCELLANEOUS
5.1 Notices.
All notices, demands or other written communications hereunder will be
in writing, and unless otherwise provided, will be deemed to have been duly
given on the first business day after mailing by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
To the Client:
PriMed Technologies, LC or PriMed Technologies, Inc.;
000 Xxxxxxxxx 00xx Xxxxxx,
Xxxxxxxxx Xxxxx, Xxxxxxx, 00000;
Telephone (000) 000-0000; Fax (000) 000-0000;
e-mail Xxxxx@xxxxxx0.xxx; and,
at such addresses, telephone and fax numbers and e-mail
addresses as the Client may provide or as may be disclosed on the SEC's
XXXXX Internet web site (xxx.xxx.xxx); Attention: Xxxx Xxxxxxxxx, President
To AmeriNet:
AmeriNet Xxxxx.xxx, Inc.;
0000 Xxxxxxxxx 00xx Xxxxxxx;
Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Fax (000) 000-0000;
e-mail xx@xxxxxxxxxxxxx.xxx;
Attention: Xxxxxx
X. Xxxxxxx, President;
Page 35
To Yankees:
The Yankee Companies, Inc.;
The Crystal Corporate Center;
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Fax (000) 000-0000;
e-mail xxxxx@xxxxxxxxxxxxxxx.xxx;
Attention: Xxxxxxx Xxxxx Xxxxxx, President, and to
The Yankee Companies, Inc.;
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Fax (000) 000-0000;
e-mail xxxxxxxxxx@xxxxxxxxxxxxxxx.xxx;
Attention: Xxxxxxx X. Xxxxxxx, Chief Administrative Officer
in each case, with copies to such other address or to such other persons as
any Party will designate to the others for such purposes in the manner
hereinabove set forth.
(B) (1) The Parties acknowledge that Yankees serves as a strategic consultant
to AmeriNet and has acted as scrivener for the Parties in this
transaction but that Yankees is neither a law firm nor an agency
subject to any professional regulation or oversight.
(2) Because of the inherent conflict of interests involved, Yankees has
advised all of the Parties to retain independent legal and accounting
counsel to review this Agreement and its exhibits and incorporated
materials (if any) on their behalf.
5.2 Amendment.
No modification, waiver, amendment, discharge or change of this
Agreement will be valid unless the same is in writing and signed by Parties.
5.3 Merger.
(A) This instrument, together with the instruments referred to herein, contains
all of the understandings and agreements of the Parties with respect to the
subject matter discussed herein.
(B) All prior agreements whether written or oral are merged herein and will be
of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein will survive the execution hereof and will be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement,
other than a conditions precedent, if any, or the application of such provision
or any portion thereof to any person or circumstance will be held invalid or
unenforceable, the remaining portions of such provision and the remaining
provisions of this Agreement or the application of such provision or portion of
such provision as is held invalid or unenforceable to persons or circumstances
other than those to which it is held invalid or unenforceable, will not be
affected thereby.
5.6 Governing Law and Venue.
This Agreement will be construed in accordance with the laws of the
State of Florida and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement will, to the extent permitted by law, be
held in Broward, Florida.
5.7 Dispute Resolution in lieu of Litigation.
(A) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
will, at the request of any Party, be exclusively resolved through the
following procedures:
Page 36
(1) (a) First, the issue will be submitted to mediation before a
mediation service in Broward County, Florida to be selected by
lot from six alternatives to be provided, two selected by
Yankees, two by AmeriNet and two by the Client.
(b) The mediation efforts will be concluded within ten business days
after their initiation unless the Parties unanimously agree to an
extended mediation period;
(2) In the event that mediation does not lead to a resolution of the
dispute then at the request of any Party, the Parties will submit the
dispute to binding arbitration before an arbitration service located
in Broward County, Florida, to be selected by lot, from six
alternatives to be provided, in the manner set forth above for
selection of a mediator;
(3) (a) Expenses of mediation will be borne by the Parties equally if
successful but if unsuccessful, expenses of mediation and of
arbitration will be borne by the Party or Parties against whom
the arbitration decision is rendered.
(b) If the terms of the arbitral award do not establish a prevailing
Party, then the expenses of unsuccessful mediation and
arbitration will be borne 1/2 by the Client and 1/2 by AmeriNet.
(B) Judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
(C) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing
Party will be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials and
appeals, whether or not litigation is initiated.
5.8 Benefit of Agreement.
(A) The terms and provisions of this Agreement will be binding upon and inure
to the benefit of the Parties, jointly and severally, their successors,
assigns, personal representatives, estate, heirs and legatees.
(B) The Parties acknowledge that the Client is negotiating with AmeriNet for a
possible reorganization pursuant to Section 368)(a)(1)(C) of the Code and
in the event of such reorganization, the Parties hereby agree that the
entity acquiring the Client's assets and operations (the "Ultimate entity")
will become subject to all of the Client's obligations to Yankees under
this Agreement, including obligations under the Class A Bonds, and that the
ownership interests of Yankees in the Client shall be converted into
equivalent ownership interests in the Ultimate Entity, which shall become
its own reporting company under Section 12(g) of the Exchange Act, with at
least 10% of its common stock registered for issuance directly as a stock
dividend to AmeriNet's stockholders.
5.9 Captions.
The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof will be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged or delivered and to perform all such
acts and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, stock certificates and other documents, as may, from time
to time, be required herein to effect the intent and purpose of this Agreement.
Page 37
5.12 Status.
(A) Nothing in this Agreement will be construed or will constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship.
(B) Throughout the term of this Agreement, AmeriNet and Yankees will serve as
independent contractors, as that term is defined by the United States
Internal Revenue Service, and in conjunction therewith, will be responsible
for all of their own tax reporting and payment obligations.
(C) In amplification of the foregoing, AmeriNet and Yankees will, subject to
reasonable reimbursement on a pre-approved budgetary basis, be responsible
for providing their own office facilities and supporting personnel.
5.13 Counterparts.
(A) This Agreement may be executed in any number of counterparts delivered
through facsimile transmission.
(B) All executed counterparts will constitute one Agreement notwithstanding
that all signatories are not signatories to the original or the same
counterpart.
5.14 License.
(A) (1) This Agreement is the property of Yankees.
(2) The use hereof by the Parties is authorized hereby solely for purposes
of this transaction and, the use of this form of agreement or of any
derivation thereof without Yankees' prior written permission is
prohibited.
(3) This Agreement will not be construed more stringently or interpreted
less favorably against AmeriNet based on authorship.
(B) The Client hereby acknowledge that neither Yankees nor AmeriNet is a law
firm and that neither provided it with any advice, legal or otherwise, in
conjunction with this Agreement, but rather, has suggested that it rely
solely on its own experience and advisors in evaluating or interpreting
this Agreement and that the Client has confirmed that this Agreement and
any forms of agreements or legal instruments provided to the Client by
Yankees or AmeriNet will be reviewed by the Client's legal counsel prior to
use thereof.
IN WITNESS WHEREOF, the Parties have executed this Agreement, effective
as of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
PRIMED TECHNOLOGIES, LC
----------------------------
____________________________ By: /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Managing Member
Dated: January 16th 2001
Attest: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Secretary
{Seal}
Page 38
PRIMED TECHNOLOGIES, INC.
----------------------------
____________________________ By: /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, President
Dated: January 16th 2001
Attest: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Secretary
{Seal}
AMERINET XXXXX.XXX, INC.
----------------------------
____________________________ By: /s/ Xxxxxx X. Xxxxxxx, President
Dated: January 16th 2001
Attest: /s/ Xxxxxxx X. Xxxxxxx, Secretary
{Seal}
THE YANKEE COMPANIES, INC.
----------------------------
____________________________ By:/s/ Xxxxxxx Xxxxx Xxxxxx, President
Dated: January 16th 2001
Attest: /s/ Xxxxxxx X. Xxxxxxx, Secretary
{Seal}
Page 39
Exhibit 1.1(B)(1)-1
Use of Proceeds
1. Proceeds will be provided, subject to PriMed's compliance with its
obligations under the Agreement, in the following installments:
A. $20,000 upon execution of the Agreement;
B. $19,268.43 on the first Friday following execution of the Agreement;
C. $21,004.21 on the Thursday first following payment of the second
installment.
2. Proceeds will be used solely for the following purposes:
A. Payroll expenses in the following amounts to the persons listed:
Name Amount
Xxxxxx, Xxxxx X. $ 860.23
Xxxxx, Xxxxxxxx X. $ 844.19
X'Xxxxx, Xxxxxxx X. $ 698.23
Pythone, Sergeline $ 624.58
Xxxxxxxx, Xxxxxxxx $ 593.64
Xxxxxxx, Xxxxx X. $ 579.16
Xxxxxx, Xxxx X. $ 690.26
Xxxxxxxxx, Xxxxxxxx $ 901.71
Xxxxxx, Xxxxxx $ 510.15
Lacova, Xxxx X. $ 1,091.84
Hiltchinson, Xxxx X. $ 1,314.98
Xxxxxxx, Xxxxxx $ 257.16
Xxxxx, Ram J. $ 469.56
Xxxxxx, Xxxxxxxx X. $ 307.61
Xxxxxx, Xxxxx X. $ 889.23
Xxxxxxx, Xxxxxx Xxxxxx $ 719.47
Xxxxx, Xxxxxx X. $ 722.43
Xxxxxxx, Xxxxx X. $ 991.87
Brovenick, Xxxxxx X. $ 1,780.05
Xxxxx, Xxxxx X. $ 1,055.96
Xxxxxxx, Xxxxxxx X. $ 470.26
Xxxxxxx, Xxxxxxx $ 1,538.56
Total $ 17,911.03
B. Payments covering the following open checks:
Check
Date Number Amount Recipient
December 4,2000 1084 $ 1,278.95 Sony Electronics, Inc.
January 3, 2001 $ 500.00 Postalia/Postage
January 4, 2001 1131 $ 1,092.95 Sprint PCS
January 8, 2001 1136 $ 3,000.00 Xxxxx Xxxxxxxx
January 8, 2001 1138 $ 448.97 AutoNation Financial Services
January 8, 2001 1139 $ 90.10 Xxxx Business Systems
January 9, 2001 1140 $ 1,268.82 Aim Riverside
January 9, 2001 1144 $ 1,473.33 C.N.A. Insurance
January 9, 2001 $ 500.00 Postalia/Postage
January 11, 2001 1145 $ 205.00 Zsource
Page 40
January 15, 2001 1146 $ 766.99 Xxxx Xxxxx
January 16, 2001 1147 $ 205.00 Department of State
January 18, 2001 $ 500.00 Postaila/Postage
January 22, 2001 1148 $ 229.61 Florida Department of Revenue
January 22, 2001 1150 $ 1,473.33 C.N.A. Insurance
$21,357.50 Total
C. Rental payable to FG Partners, Ltd., $21,004.21
Exhibit 1.1(B)(1)-2
Business Plan
Provided under separate cover
Page 41
