First Amendment to Lock-Up & Voting Agreement
This First Amendment to Lock-Up & Voting Agreement (the "Amendment" and
the "Agreement," respectively) is made and entered into by and among AmeriNet
Xxxxx.xxx, Inc., a Delaware corporation formerly operating as Equity Growth
Systems, inc., with a class of securities registered under Section 12 of the
Securities Exchange Act of 1934, as amended ("AmeriNet" and the "Exchange Act,"
respectively) and the officers directors and principal stockholders of AmeriNet
made signatories to this Amendment (the "Holding Company's Principals"),
AmeriNet and AmeriNet's Principals being sometimes hereinafter collectively
referred to as the "Parties" and each being sometimes hereinafter generically
referred to as a "Party").
Preamble:
WHEREAS, AmeriNet and AmeriNet's Principals entered into the Lock-Up &
Voting Agreement in order to induce Messrs. Xxxxxxx X. Xxxxx ("Xx. Xxxxx") and
J. Xxxxx Xxxxxxx ("Xx. Xxxxxxx"), both Florida residents (collectively
hereinafter referred to as "Messrs. Xxxxx & Xxxxxxx"), as the principal
stockholders, officers and directors of American Internet Technical Centers,
Inc., a Nevada corporation originally organized as Ascot Industries, Inc. (the
"Target Company"), to enter into and close on an acquisition agreement with
AmeriNet (the "Reorganization Agreement"), as a result of which American
Internet Technical Center, Inc., a Florida corporation ("American") became a
wholly owned subsidiary of AmeriNet; and
WHEREAS, Messrs. Xxxxxx Xxxxxxxxx-Xxxxx, Xxxxxx X. Xxxxxxxxx and Xxxxx
X. Xxxxxxxx, on their own behalf or on behalf of their respective principals
(the "Petitioning Group") have requested an amendment to the Agreement, to
permit them to sell an aggregate of 400,000 shares of AmeriNet common stock (the
"Excepted Shares"), to a group of investors who have indicated that they would
become actively involved in assisting AmeriNet and American, if the Petitioning
Group sold them the Exempted Shares; and
WHEREAS, in conjunction with an amendment to the Reorganization
Agreement has been effected by Messrs. Xxxxx & Xxxxxxx and AmeriNet, which
affects certain of the voting provisions of the Agreement, and should also be
reflected in an amendment thereto; and
WHEREAS, AmeriNet, American, Messrs. Xxxxx & Xxxxxxx and AmeriNet's
Principals are agreeable to such transaction and such amendments:
NOW, THEREFORE, in consideration of the premises, as well as the mutual
covenants hereinafter set forth, the Parties, intending to be legally bound,
hereby amend the Agreement as follows:
Witnesseth:
First Voting Agreements
The provisions of Item First of the Agreement (the "Voting Agreements")
are here by amended as follows, but except as specifically amended hereby, will
remain in full force and effect:
"b. Designees of the Subscribers are elected to at least one half
of the seats on the Target Company's Board of Directors."
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Second: Stock Lock-Up Agreements
The provisions of Item Second of the Agreement (the "Lock-Up
Agreements") are here by amended as follows, but except as specifically amended
hereby, will remain in full force and effect:
Notwithstanding anything in the Agreement to the contrary, the
following persons may sell an aggregate of 400,000 of AmeriNet common
stock in the proportions indicated below to Xcel Associates, Inc., a
New Jersey corporation, or its designees, at a price of $0.375 per
share; provided that such sales are concluded prior to September
30,1999:
A. Xxxxx X. Xxxxxxxx on his own behalf and on behalf of his
affiliates, 84,000 shares;
B. Xxxxxx Xxxxxxxxx-Xxxxx on his own behalf and on behalf of his
affiliates, 110,000 shares;
C. The Radcliffe Group (Xxxxxx X. Xxxxxxxxx, on his own behalf and
on behalf of his affiliates; Xxxxxx X. Xxxxxxxxx, on his own
behalf and on behalf of his affiliates; Xxxxxxx X. Xxxxxxxxx, on
his own behalf and on behalf of his affiliates; and, Xxxxxxx
Xxxxxxxxx, on her own behalf and on behalf of her affiliates),
206,000 shares;
D. Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall be interpreted as an agreement by
the Petitioning Group to engage in any concerted or group
activities involving AmeriNet's common stock, as determined for
purposes of Commission Rule 144, or Sections 13, 14 or 16 of the
Exchange Act.
Page 142
Third: Miscellaneous
3.1 Amendment.
No modification, waiver, amendment, discharge or change of this
Amendment shall be valid unless the same is evinced by a written instrument,
subscribed by the Party against which such modification, waiver, amendment,
discharge or change is sought.
3.2 Notice.
(a) All notices, demands or other communications given hereunder shall be
in writing and shall be deemed to have been duly given on the first
business day after mailing by United States registered or unaudited
mail, return receipt requested, postage prepaid, addressed as follows:
To AmeriNet's Principals (other than The Yankee Companies, Inc.
["Yankees"]):
At such addresses as they provide AmeriNet's transfer agent for such
purpose, with a copy to G. Xxxxxxx Xxxxxxxxxx, Esquire (at the address
set forth below), who is hereby appointed by each of AmeriNet's
Principals, as his, her or its authorized agent for purposes of
initialing each page of this Amendment, and as a supplemental recipient
of notices.
To AmeriNet:
AmeriNet Xxxxx.xxx, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000; Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and, e-mail
xxxxxxxxxx@xxxxxx.xxx; Attention: Xxxxxxx Xxxxxx
Jordan, President; with a copy to
G. Xxxxxxx Xxxxxxxxxx, Esquire; General Counsel
AmeriNet Xxxxx.xxx, Inc.
00000 Xxxxx Xxxxxxx 000; Xxxxxxxxxxx, Xxxxxxx
00000 Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail, XxxxxxxxXx@xxx.xxx.
To Yankees:
The Yankee Companies, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000; Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxxxxxxx@xxxxxx.xxx;
Attention: Xxxxxxx Xxxxx Xxxxxx, President; with a copy to
The Yankee Companies, Inc.
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxxxx0@xxxxxxxx.xxx
Attention: Xxxxxxx X. Xxxxx, III, Vice President
or such other address or to such other person as any Party shall
designate to the other for such purpose in the manner hereinafter set
forth.
Page 143
(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 Amendment and its exhibits and
incorporated materials on their behalf.
(3) This Agreement shall not be construed differently, or more or
less stringently against or in favor of any Party, based on its
authorship.
3.3 Merger.
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. All prior agreements whether written or
oral are merged herein and shall be of no force or effect, except for the
Agreement, as modified hereby, which is hereby confirmed and reaffirmed.
3.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and the Closing hereon and
shall be effective regardless of any investigation that may have been made or
may be made by or on behalf of any Party.
3.5 Severability.
If any provision or any portion of any provision of this Amendment,
other than one of the conditions precedent or subsequent, or the application of
such provision or any portion thereof to any person or circumstance shall be
held invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Amendment 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,
shall not be affected thereby.
3.6 Governing Law.
This Amendment shall be construed in accordance with the substantive
and procedural laws of the State of Delaware (other than those regulating
taxation and choice of law) but any proceedings pertaining directly or
indirectly to the rights or obligations of the Parties hereunder shall, to the
extent legally permitted, be held in Broward County, Florida.
3.7 Indemnification.
Each Party hereby irrevocably agrees to indemnify and hold the other
Parties harmless from any and all liabilities and damages (including legal or
other expenses incidental thereto), contingent, current, or inchoate to which
they or any one of them may become subject as a direct, indirect or incidental
consequence of any action by the indemnifying Party or as a consequence of the
failure of the indemnifying Party to act, whether pursuant to requirements of
this Amendment or otherwise. In the event it becomes necessary to enforce this
indemnity through an attorney, with or without litigation, the successful Party
shall be entitled to recover from the indemnifying Party, all costs incurred
including reasonable attorneys' fees throughout any negotiations, trials or
appeals, whether or not any suit is instituted.
Page 144
3.8 Litigation.
(a) In any action between the Parties to enforce any of the terms of this
Amendment or any other matter arising from this Amendment, the
prevailing Party shall 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.
(b) In the event of any dispute arising under this Amendment, or the
negotiation thereof or inducements to enter into the Amendment, the
dispute shall, at the request of any Party, be exclusively resolved
through the following procedures:
(1) (A) First, the issue shall be submitted to mediation
before a mediation service in Broward County, Florida
to be selected by lot from six alternatives to be
provided, two by Yankees as agent for AmeriNet's
Principals, one by AmeriNet and three by the
Subscribers acting by majority vote (based on their
relative stock ownership in AmeriNet).
(B) The mediation efforts shall 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
shall 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, two by
Yankees as agent for AmeriNet's Principals, one by AmeriNet
and three by the Subscribers acting by majority vote (based on
their relative stock ownership in AmeriNet).
(3) (A) Expenses of mediation shall be borne by AmeriNet,
if successful. Expenses of mediation, if unsuccessful
and of arbitration shall 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 shall be borne equally by
the Parties.
3.9 Benefit of Amendment.
The terms and provisions of this Amendment shall be binding upon and
inure to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees.
Page 145
3.10 Captions.
The captions in this Amendment are for convenience and reference only
and in no way define, describe, extend or limit the scope of this Amendment or
the intent of any provisions hereof.
3.11 Number and Gender.
All pronouns and any variations thereof shall 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.
3.12 Further Assurances.
The Parties 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 Amendment.
3.13 Status.
Nothing in this Amendment shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship.
3.14 Counterparts.
(a) This Amendment may be executed in any number of counterparts. All
executed counterparts shall constitute one Amendment notwithstanding
that all signatories are not signatories to the original or the same
counterpart.
(b) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Amendment, which shall be the document filed with the Commission.
3.15 License.
(a) This Amendment is the property of Yankees and the use hereof by the
Parties is authorized hereby solely for purposes of this transaction.
(b) The use of this form of Amendment or of any derivation thereof without
Yankees' prior written permission is prohibited.
Page 146
In Witness Whereof, the Parties have caused this Amendment to be
executed effective as of the date last set forth below.
Signed, sealed and delivered
In Our Presence:
AmeriNet Xxxxx.xxx, Inc.
---------------------------------
_________________________________ By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx Jordan, President
(Corporate Seal)
Attest: /s/ G. Xxxxxxx Xxxxxxxxxx
G. Xxxxxxx Xxxxxxxxxx, Secretary
Dated: September 7, 1999
AmeriNet's Principals:
---------------------------------
_________________________________
/s/ Xxxxxxx X. Xxxxxxx
Stockholder
Dated: August 30, 1999
---------------------------------
_________________________________ /s/ Xxxxxxx X. Xxxxx
Director and Stockholder
Dated: September 7, 1999
---------------------------------
_________________________________ /s/ Xxxxx Xxxxx Field
Director and Stockholder
Dated: September __, 1999
---------------------------------
_________________________________ /s/ G. Xxxxxxx Xxxxxxxxxx
Officer, Director and Stockholder
Dated: September 7, 1999
Page 147
---------------------------------
_________________________________ /s/ Xxxx Xxxxxxxxx-Xxxxx
Director and Stockholder, on his own
behalf and as attorney-in-fact for his
father, Xxxxxx Xxxxxxxxx-Xxxxx
Dated: September __, 1999
---------------------------------
_________________________________ /s/ X. Xxxxxxxxx-Xxxxx
Stockholder
on his own behalf and on
behalf of his affiliates
Dated: August 29, 1999
---------------------------------
_________________________________ /s/ Xxxxx X. Xxxxxxxx
Stockholder on his own behalf
and on behalf of his affiliates
Dated: September __, 1999
---------------------------------
_________________________________ /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, on her own behalf
and as a trustee for the Xxxxx
Family Spendthrift Trust, Stockholders
Dated: September 7, 1999
---------------------------------
_________________________________ /s/ Xxxxxxx X. Xxxxx, III
Xxxxxxx X. Xxxxx, III, on his own behalf
and as a trustee for his children, Xxxxxxx,
Xxxxxxxxx & Xxxxxx, Stockholders
Dated: September 7, 1999
---------------------------------
_________________________________ /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxx Xxxxxx, on his
own behalf and on behalf of
Xxxxxxxxxx Capital Corp., Stockholders
Dated: September 7, 1999
---------------------------------
Page 148
---------------------------------
_________________________________ /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, on her own behalf,
on behalf of Blue Lake Capital Corp.,
and as a trustee for her children
Xxxxxx and Montana, Stockholders
Dated: September 7, 1999
---------------------------------
_________________________________ /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, on his own behalf
and on behalf of his affiliates, Stockholder
Dated: September __, 1999
---------------------------------
_________________________________ /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, on his own behalf
and on behalf of his affiliates, Stockholder
Dated: September __, 1999
---------------------------------
_________________________________ /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx, on his own behalf
and on behalf of his affiliates, Stockholder
Dated: September __, 1999
---------------------------------
_________________________________ /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx, on her own behalf
and on behalf of her affiliates, Stockholder
Dated: September __, 1999
The Yankee Companies, Inc.
---------------------------------
_________________________________ By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxx Xxxxxx, President
(Corporate Seal)
Attest: /s/ Xxxxxxx X. Xxxxx, III
Xxxxxxx X. Xxxxx, III, Secretary
Dated: September 7, 1999
Page 149
