Employment Agreement
This Employment Agreement (the "Agreement") is entered into by and among
Xxxxxxxx X. Xxx Xxxxx, an individual residing in the State of Florida and whose
social security number is ###-##-#### ("Xx. Xxx Xxxxx"); AmeriNet Xxxxx.xxx,
Inc., a Delaware publicly held corporation with a class of securities registered
under Section 12(g) of the Securities Exchange Act of 1934, as amended
("AmeriNet" and the "Exchange Act," respectively, AmeriNet and all of its
subsidiaries, whether current or subsequently formed or acquired, being
collectively hereinafter referred to as the "Consolidated Corporation," and
AmeriNet and Xx. Xxx Xxxxx being sometimes hereinafter collectively to as the
"Parties" or generically as a "Party".
Preamble:
WHEREAS, Xxxxxxx Xxxxxx, AmeriNet's president has advised its board of
directors that in light of its increased operating activities, AmeriNet should
consider retaining a chief operating officer to actively oversee and coordinate
the day to day activities of its operating subsidiaries, and to more carefully
investigate the operations of its proposed acquisitions, and has suggested that
AmeriNet recruit a chief operating officer with substantial experience in
technical areas with which AmeriNet is increasingly involved and in management
of large numbers of employees and subordinates; and
WHEREAS, AmeriNet has directed the Yankee Companies, Inc., a Florida
corporation which serves as AmeriNet's strategic consultant ("Yankees") to
recommend and individual meeting the parameters established by Xx. Xxxxxx, to
serve as its vice president and chief operating officer; and
WHEREAS, Yankees has conducted an executive recruitment search and
recommended Xx. Xxx Xxxxx to AmeriNet's board of directors based on his 35 years
of experience as an executive with IBM and past experience with him as the
president of a subsidiary during extremely difficult times at Colmena Corp.; and
WHEREAS, after interviewing Xx. Xxx Xxxxx, AmeriNet's board of directors
has determined that he has impressive credentials and experience and has
requested that he serve as AmeriNet's vice president and chief operating
officer, at least through the end of the next fiscal year; and
WHEREAS, Xx. Xxx Xxxxx is agreeable to serving as AmeriNet's vice president
and chief operating officer on the terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars 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
TERM, RENEWALS, EARLIER TERMINATION
1.1 Term.
Subject to the provisions set forth herein, the term of Xx. Xxx Xxxxx'x
employment hereunder shall be deemed to commence on first business day of the
first week following the last date appearing on the signature page of this
Agreement and continue until June 30, 2001, unless extended or earlier
terminated by AmeriNet as hereinafter set forth.
131
1.2 Renewals.
(A) This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing
not to renew this Agreement provides the other Party with written
notice of its election not to renew ("Termination Election Notice") on
or before the 60th day prior to termination of the then current term.
(B) In the event of renewal, the provisions hereof shall continue in
effect, subject to date based adjustments.
1.3 Earlier Termination.
AmeriNet shall have the right to terminate this Agreement prior to the
expiration of its Term or of any renewals thereof, subject to the provisions of
Section 1.4, for the following reasons:
(a) For Cause:
(1) AmeriNet may terminate Xx. Xxx Xxxxx'x employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof to
Xx. Xxx Xxxxx, which notice shall specify the cause for
termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of Xx. Xxx Xxxxx, through sickness or other
incapacity, to discharge his duties under this Agreement for
21 or more consecutive days or for a total of 45 or more
days in a period of twelve consecutive months;
(B) The refusal of Xx. Xxx Xxxxx to follow the directions of
AmeriNet's board of directors;
(C) Dishonesty; theft; or conviction of a crime involving moral
turpitude;
(D) Material default in the performance of his obligations,
services or duties required under this Agreement or
materially breach of any provision of this Agreement, which
default or breach has continued for five days after written
notice of such default or breach.
(b) Discontinuance of Business:
In the event that AmeriNet discontinues operating its business, this
Agreement shall terminate as of the last day of the month on which it
ceases operation with the same force and effect as if such last day of
the month were originally set as the termination date hereof;
provided, however, that a reorganization of AmeriNet shall not be
deemed a termination of its business.
(c) Death:
This Agreement shall terminate immediately on Xx. Xxx Xxxxx'x death;
however, all accrued compensation at such time shall be promptly paid
to Xx. Xxx Xxxxx'x estate.
132
1.4 Final Settlement.
Upon termination of this Agreement and payment to Xx. Xxx Xxxxx of all
amounts due him hereunder, Xx. Xxx Xxxxx or his representative shall execute and
deliver to the terminating entity on a form prepared by the terminating entity,
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, shall forthwith tender to AmeriNet all records, manuals and written
procedures, as may be desired by it for the continued conduct of its business.
ARTICLE TWO
SCOPE OF EMPLOYMENT
2.1 Retention.
AmeriNet hereby hires Xx. Xxx Xxxxx and Xx. Xxx Xxxxx hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) Xx. Xxx Xxxxx shall be employed as vice president and chief operating
officer of AmeriNet and shall perform the duties associated with the
position of president by AmeriNet's bylaws.
(b) Without limiting the generality of the foregoing, Xx. Xxx Xxxxx shall:
(1) Be responsible for development, implementation, coordination and
supervision of operating systems and procedures designed to
improve and integrate the operations of AmeriNet's subsidiaries;
(2) Be responsible for supervision of all of AmeriNet's subsidiaries,
for monitoring their performance and for implementing directions
thereto from AmeriNet's board of directors;
(3) Be responsible for monitoring the attainment by AmeriNet's
subsidiaries of their roles under AmeriNet's strategic plan and
for suggesting and implementing improvements in their operations;
(4) Be responsible for personnel recruitment and supervision and for
reviewing compensation and benefit plans in order to develop
uniform standards and opportunities for all personnel employed by
AmeriNet and its subsidiaries;
(1) Perform such other duties as are assigned to him by
AmeriNet's board of directors or president, subject to
compliance with all applicable laws and fiduciary
obligations.
(c) Xx. Xxx Xxxxx covenants and agrees to perform his employment duties in
good faith and, subject to the exception specified in Section 2.4, to
devote substantially all of his business time, energies and abilities
to the proper and efficient management and execution of such duties.
133
2.3 Status.
(a) Xx. Xxx Xxxxx shall serve as a member of AmeriNet's board of directors and
of the board of directors executive committee, as an officer of AmeriNet
and as an employee of AmeriNet but shall have no authority to act as an
agent thereof, or to bind AmeriNet or its subsidiaries as a principal or
agent thereof, all such functions being reserved to its board of directors
in compliance with the requirements of its constituent documents.
(b) Xx. Xxx Xxxxx hereby covenants and agrees that he shall not hold himself
out as an authorized agent of AmeriNet unless such authority is
specifically assigned to him, on a case by case basis, by its board of
directors pursuant to a duly adopted resolution which remains in effect.
(c) Xx. Xxx Xxxxx hereby represents and warrants to AmeriNet that he is subject
to no legal, self regulatory organization (e.g., National Association of
Securities Dealers, Inc.'s bylaws) or regulatory impediments to the
provision of the services called for by this Agreement, or to receipt of
the compensation called for under this Agreement or any supplements
thereto; and, Xx. Xxx Xxxxx hereby irrevocably covenants and agrees to
immediately bring to the attention of AmeriNet any facts required to make
the foregoing representation and warranty continuingly accurate throughout
the term of this Agreement, or any supplements or extensions thereof.
2.4 Exclusivity.
Xx. Xxx Xxxxx shall, unless specifically otherwise authorized by AmeriNet's
board of directors, on a case by case basis, devote his business time
exclusively to the affairs of AmeriNet; provided, however, that AmeriNet hereby
recognizes that Xx. Xxx Xxxxx is under an independent consulting agreement with
Yankees that will in the event of a conflict with Xx. Xxx Xxxxx'x obligations to
AmeriNet, supersede Xx. Xxx Xxxxx'x duties to AmeriNet and hereby consents to
his continuation in such roles as Yankees may from time to time assign to him.
2.5 Limitations on Services
(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., in-house "due diligence" or "compliance"
departments of Licensed Securities Firms, etc.; accordingly, Xx. Xxx
Xxxxx agrees that he will not:
(1) Release any financial or other material information or data
about AmeriNet without the prior written consent and approval
of AmeriNet's General Counsel;
(2) Conduct any meetings with financial analysts without informing
AmeriNet's General Counsel and board of directors in advance
of the proposed meeting and the format or agenda of such
meeting.
(b) In any circumstances where Xx. Xxx Xxxxx is describing the securities
of AmeriNet to a third party, Xx. Xxx Xxxxx shall disclose to such
person any compensation received from AmeriNet to the extent required
under any applicable laws, including, without limitation, Section 17(b)
of the Securities Act of 1933, as amended.
(c) In rendering his services, Xx. Xxx Xxxxx shall not disclose to any
third party any confidential non-public information furnished by
AmeriNet or American Internet or otherwise obtained by it with respect
to AmeriNet, except on a need to know basis, and in such case, subject
to appropriate assurances that such information shall not be used,
directly or indirectly, in any manner that would violate state or
federal prohibitions on xxxxxxx xxxxxxx of AmeriNet's securities.
134
(d) Xx. Xxx Xxxxx shall not take any action which would in any way
adversely affect the reputation, standing or prospects of AmeriNet or
AmeriNet or which would cause AmeriNet to be in violation of applicable
laws.
ARTICLE THREE
COMPENSATION
3.1 Compensation.
As consideration for Xx. Xxx Xxxxx'x services to AmeriNet Xx. Xxx Xxxxx
shall be entitled to:
(a) (1) (A) Immediately purchase 50,000 unregistered shares of
AmeriNet's common stock, $0.01 par value per share, at a
price of $0.60 per share; and
(B) An option pursuant to Section 422 et. seq. of the Internal
Revenue Code of 1986, as amended (the "Code") to purchase up
to 100,000 shares of AmeriNet's common stock during the 36
month period commencing at the end of the 365th day
following commencement of the initial term of this
Agreement, at an exercise price of $0.56 per share, the last
reported price paid therefor reported on the over the
counter electronic bulletin board operated by the National
Association of Securities Dealers, Inc., a Delaware
corporation and self regulatory organization registered with
the Commission under the Exchange Act (the "OTC Bulletin
Board" and the "NASD," respectively) on the date of this
agreement, provided that:
1. He remains in the employ of AmeriNet for a period of
not less than 365 consecutive days;
2. He has not been discharged by AmeriNet for cause;
3. He fully complies with the provisions of this Agreement,
including, without limitation, the confidentiality and
non-competition sections hereof;
(2) Xx. Xxx Xxxxx hereby represents, warrants, covenants and
acknowledges that:
(A) The securities being issued as compensation under
this Agreement (the "Securities") will be issued
without registration under the provisions of Section
5 of the Securities Act or the securities regulatory
laws and regulations of the State of Florida (the
"Florida Act") pursuant to exemptions provided
pursuant to Section 4(6) of the Act and comparable
provisions of the Florida Act;
(B) Xx. Xxx Xxxxx shall be responsible for preparing and
filing any reports concerning this transaction with
the Commission and with Florida Division of
Securities, and payment of any required filing fees
(none being expected);
(C) All of the Securities will bear legends restricting
their transfer, sale, conveyance or hypothecation
unless such Securities are either registered under
the provisions of Section 5 of the Act and under the
Florida Act, or an opinion of legal counsel, in form
and substance satisfactory to legal counsel to
AmeriNet is provided to AmeriNet's General Counsel to
the effect that such registration is not required as
a result of applicable exemptions therefrom;
135
(D) AmeriNet's transfer agent shall be instructed not to
transfer any of the Securities unless the General
Counsel for AmeriNet advises it that such transfer is
in compliance with all applicable laws;
(E) Xx. Xxx Xxxxx is acquiring the Securities for his own
account, for investment purposes only, and not with a
view to further sale or distribution; and
(F) Xx. Xxx Xxxxx or his advisors have examined
AmeriNet's books and records and questioned its
officers and directors as to such matters involving
AmeriNet as he deemed appropriate.
(b) In addition to the compensation described above:
(1) In the event that Xx. Xxx Xxxxx arranges or provides funding for
the Consolidated Corporation on terms more beneficial than those
reflected in the Consolidated Corporation's current principal
financing agreements, copies of which are included among the
Consolidated Corporation's records available through the SEC's
XXXXX web site, Xx. Xxx Xxxxx shall be entitled, at its election,
to either:
(A) A fee equal to 5% of such savings, on a continuing basis; or
(B) If equity funding is provided through Xx. Xxx Xxxxx or any
affiliates thereof, a discount of 5% from the bid price for
the subject equity securities, if they are issuable as free
trading securities, or, a discount of 25% from the bid price
for the subject equity securities, if they are issuable as
restricted securities (as the term restricted is used for
purposes of SEC Rule 144); and
(C) If equity funding is arranged for the Consolidated
Corporation by Xx. Xxx Xxxxx and AmeriNet is not obligated
to pay any other source compensation in conjunction
therewith, other than the normal commissions charged by
broker dealers in securities in compliance with the
compensation guidelines of the NASD, the Xx. Xxx Xxxxx shall
be entitled to a bonus in a sum equal to 5% of the net
proceeds of such funding.
(2) In the event that Xx. Xxx Xxxxx generates business for the
Consolidated Corporation, then, on any sales resulting
therefrom, Xx. Xxx Xxxxx shall be entitled to a commission
equal to 5% of the net income derived by the Consolidated
Corporation therefrom, on a continuing basis.
3.2 Benefits
Xx. Xxx Xxxxx shall be entitled to any benefits generally made available to
all other employees (rather than to a specified employee or group of employees).
136
3.3 Indemnification.
AmeriNet will defend, indemnify and hold Xx. Xxx Xxxxx harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by him in good faith on behalf of the Consolidated Corporation, its
affiliates or for other persons or entities at the request of the board of
directors of AmeriNet, to the fullest extent legally permitted, and in
conjunction therewith, shall assure that all required expenditures are made in a
manner making it unnecessary for Xx. Xxx Xxxxx to incur any out of pocket
expenses; provided, however, that Xx. Xxx Xxxxx permits AmeriNet to select and
supervise all per sonnel involved in such defense and that Xx. Xxx Xxxxx waives
any conflicts of interest that such personnel may have as a result of also
representing AmeriNet, their stockholders or other personnel and agrees to hold
them harmless from any matters involving such representation, except such as
involve fraud or bad faith.
3.4 Non-accountable Expense Allowance
Xx. Xxx Xxxxx shall be entitled to a $500 per month, non-accountable,
non-refundable expense allowance.
ARTICLE FOUR
SPECIAL COVENANTS
4.1 Confidentiality.
(a) Xx. Xxx Xxxxx acknowledges that, in and as a result of his employment
hereunder, he will be developing for AmeriNet, making use of, acquiring
and/or adding to, confidential information of special and unique nature and
value relating to such matters as AmeriNet's trade secrets, systems,
procedures, manuals, confidential reports, personnel resources, strategic
and tactical plans, advisors, clients, investors and funders; consequently,
as material inducement to the entry into this Agreement by AmeriNet, Xx.
Xxx Xxxxx hereby covenants and agrees that he shall not, at anytime during
or following the terms of his employment hereunder, directly or indirectly,
personally use, divulge or disclose, for any purpose whatsoever, any of
such confidential information which has been obtained by or disclosed to
him as a result of his employment by AmeriNet, or AmeriNet's affiliates.
(b) In the event of a breach or threatened breach by Xx. Xxx Xxxxx of any of
the provisions of this Section 4.1, AmeriNet, in addition to and not in
limitation of any other rights, remedies or damages available to AmeriNet,
whether at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by Xx. Xxx Xxxxx, or by Xx.
Xxx Xxxxx'x partners, agents, repre sentatives, servants, employers,
employees, affiliates and/or any and all persons directly or indirectly
acting for or with him.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
AmeriNet as a result of a breach by Xx. Xxx Xxxxx of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect AmeriNet's interests, Xx. Xxx Xxxxx hereby covenants and agrees
that AmeriNet shall have the following additional rights and remedies in the
event of a breach hereof:
(a) Xx. Xxx Xxxxx hereby consents to the issuance of a permanent injunction
enjoining him from any violations of the covenants set forth in Section 4.1
hereof; and
(b) 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, Xx. Xxx Xxxxx hereby covenants and agrees
to pay over to AmeriNet, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
137
(i) Any payment or compensation of any kind received by him because of
such violation before the issuance of such injunction, or
(ii) The sum of One Thousand ($1,000.00) Dollars per violation, which sum
shall 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 Article Four, 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.
4.3 Cumulative Remedies.
Xx. Xxx Xxxxx hereby irrevocably agrees that the remedies described in
Section 4.3 hereof shall 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.
4.4 Acknowledgment of Reasonableness.
Xx. Xxx Xxxxx hereby represents, warrants and acknowledges that he has
carefully read and considered the provisions of this Article Four 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 AmeriNet, its
officers, directors and other employees; consequently, in the event that any of
the above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, Xx. Xxx Xxxxx hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in place of
any limitation deemed unenforceable and, Xx. Xxx Xxxxx hereby covenants and
agrees that if so modified, the covenants contained in this Article Four shall
be as fully enforceable as if they had been set forth herein directly by the
Parties. In determining the nature of this limitation, Xx. Xxx Xxxxx 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 this covenant not to compete be imposed and maintained to the greatest
extent possible.
4.5 Unauthorized Acts.
Xx. Xxx Xxxxx hereby covenants and agrees that he will not do any act or
incur any obligation on behalf of AmeriNet or American Internet of any kind
whatsoever, except as authorized by its board of directors or by its
stockholders pursuant to duly adopted stockholder action.
4.6 Covenant not to Disparage
Xx. Xxx Xxxxx hereby irrevocably covenants and agrees that during the term
of this Agreement and after its termination, he will refrain from making any
remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about the Consolidated Company, its constituent
members, or their officers, directors, stockholders, employees, agent or
affiliates, whether related to the business of the Consolidated Company, to
other business or financial matters or to personal matters.
138
ARTICLE FIVE
MISCELLANEOUS
5.1 Notices.
(a) All notices, demands or other communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been
duly given on the first business day after mailing by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
To Xx. Xxx Xxxxx:
Xxxxxxxx X. Xxx Xxxxx: 0000 Xxxxx 00xx Xxxxxxx; Xxxxxxxxx, Xxxxxxx 00000
Telephone (000) 000-0000; Facsimile (000) 000-0000;
e-mail xxxxx@xxxxxxxxxxxxx.xxx
To AmeriNet:
AmeriNet Xxxxx.xxx, Inc.
The Crystal Corporate Center; 0000 Xxxxx Xxxxxxxx Xxxxx,
Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and, e-mail xxxxxxxxxx@xxxxxx.xxx;
Attention: Xxxxx X. Xxxxxxx, Vice President; with a copy to
Xxxxxx Xxxxxxxx, Esquire; General Counsel
AmeriNet Xxxxx.xxx, Inc.
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx
00000 Telephone (000) 000-0000, Fax (000) 000-0000; and, e-mail,
xxxxxxxx@xxxxxxxx.xxx; and to
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; and, e-mail xxxxxxxxxx@xxxxxx.xxx;
Attention: Xxxxxxx Xxxxx Xxxxxx, 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.
(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 on their behalf.
(c) The decision by any Party not to use the services of legal counsel in
conjunction with this transaction shall be solely at their own risk, each
Party acknowledging that applicable rules of the Florida Bar prevent
AmeriNet's general counsel, who has reviewed, approved and caused
modifications on behalf of AmeriNet, from representing anyone other than
AmeriNet in this transaction.
139
5.2 Amendment.
(a) No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by the Party
against which the enforcement of said modification, waiver, amendment,
discharge or change is sought.
(b) This Agreement may not be modified without the consent of a majority in
interest of AmeriNet's stockholders.
5.3 Merger.
(a) This instrument 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 shall
be of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall 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, 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 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, shall not be effected thereby.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
5.7 Litigation.
(a) 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 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 Agreement, or the
negotiation thereof or inducements to enter into the Agreement, 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, three by
AmeriNet and three by Xx. Xxx Xxxxx.
140
(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, three
by AmeriNet and three by Xx. Xxx Xxxxx.
(3) (A) Expenses of mediation shall be borne by AmeriNet, if
successful.
(B) Expenses of mediation, if unsuccessful and of arbitration
shall be borne by the Party or Parties against whom the
arbitration decision is rendered.
(C) 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.
5.8 Benefit of Agreement.
(a) This Agreement may not be assigned by Xx. Xxx Xxxxx without the prior
written consent of AmeriNet.
(b) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties, their successors, assigns,
personal representative, estate, heirs and legatees.
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 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.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of employer-employee in AmeriNet.
141
5.13 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(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 Agreement,
which shall be the document filed with the Securities and Exchange
Commission.
5.14 License.
(a) This Agreement 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 agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
(c) This Agreement shall not be more strictly interpreted against any Party as
a result of its authorship.
* * * * *
In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth * below.
Signed, Sealed & Delivered
In Our Presence
Xx. Xxx Xxxxx
--------------------------
__________________________ /s/ Xxxxxxxx X. Xxx Xxxxx
Xxxxxxxx X. Xxx Xxxxx
Dated: May 22, 2000
AmeriNet Xxxxx.xxx, Inc.
a Delaware corporation
--------------------------
__________________________ By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Vice President
{CORPORATE SEAL}
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: May 22, 2000
142
