Superseder & Settlement Agreement
This Superseder & Settlement Agreement (the "Agreement") is made and
entered into by and among AmeriNet Xxxxx.xxx, Inc., a publicly held Delaware
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); and Xcel Associates, Inc.., a New Jersey corporation ("Xcel"); (
AmeriNet and Xcel being sometimes hereinafter collectively referred to as the
"Parties" or generically as a "Party").
Preamble:
Whereas, AmeriNet entered into a warrant agreement with Xcel dated
September 7, 1999, wherein Xcel was granted a warrant to purchase up to
1,000,000 shares of AmeriNet common stock at $0.75 per share (the "Warrant
Agreement"), which required AmeriNet to file a registration statement
registering the underlying shares (the "Registration Statement") with the
Securities Exchange Commission; and.
Whereas, AmeriNet did not file Such Registration Statement due to the
continually changing disclosure required; and
Whereas, the Parties had further dealings wherein Xcel was to be granted
additional warrant rights to purchase up to 1,000,000 shares of AmeriNet's
common stock at $1.25 per share; and,
Whereas, Xcel has agreed to forego any such additional warrant rights; and,
Whereas, pursuant to a Loan Guaranty and Indemnification Agreement dated
September 30, 1999, Xcel loaned $75,000 to American Internet Technical Center,
Inc. ("AITC"), then the sole AmeriNet subsidiary, which loan was secured by a
pledge of 35,000 shares of AmeriNet common stock by The Yankee Companies
("Yankees") for which Yankees was compensated by AmeriNet; and,
Whereas, AITC defaulted in repaying the loan to Xcel and Xcel was issued
the 35,000 shares of AmeriNet stock pledged to it by Yankees; and ,
Whereas, AmeriNet has agreed to repay the $75,000 loan to Xcel and Xcel has
agreed to return the 35,000 shares to AmeriNet; and,
Whereas, the Parties wish to resolve any other outstanding obligations
arising from the aforementioned
dealings,
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the Parties, intending to be legally bound, hereby agree as follows:
Witnesseth:
Article I
Definitions
The following terms or phrases, as used in this Agreement, shall have the
following meanings:
(A) Accredited Investor:
An investor that meets the requirements for treatment as an
accredited investor, as defined in Rule 501(a) of Commission
Regulation D, which provides as follows:
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Accredited investor.
"Accredited investor" shall mean any person who comes within
any of the following categories, or who the issuer
reasonably believes comes within any of the following
categories, at the time of the sale of the securities to
that person:
(1) Any bank as defined in section 3(a)(2) of the Act, or any
savings and loan association or other institution as defined
in section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity; any broker or dealer
registered pursuant to section 15 of the Securities Exchange
Act of 1934; any insurance company as defined in section
2(13) of the Act; any investment company registered under
the Investment Company Act of 1940 or a business development
company as defined in section 2(a)(48) of that Act; Small
Business Investment Company licensed by the U.S. Small
Business Administration under section 301(c) or (d) of the
Small Business Investment Act of 1958; any plan established
and maintained by a state, its political subdivisions, or
any agency or instrumentality of a state or its political
subdivisions for the benefit of its employees, if such plan
has total assets in excess of $5,000,000; employee benefit
plan within the meaning of the Employee Retirement Income
Security Act of 1974 if the investment decision is made by a
plan fiduciary, as defined in section 3(21) of such Act,
which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if
the employee benefit plan has total assets in excess of
$5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors;
(2) Any private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific
purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the
issuer of the securities being offered or sold, or any
director, executive officer, or general partner of a general
partner of that issuer;
(5) Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase
exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint
income with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation of
reaching the same income level in the current year;
(7) Any trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a sophisticated
person as described in ss.230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
(B) Commission: The United States Securities and Exchange Commission
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(C) Exchange Act: The Securities Exchange Act of 1934, as amended.
(D) Exchange Act Reports:
The reports on Commission Forms 10-SB, 10-KSB, 10-QSB and
8-K and Commission Schedules 14A and 14C, that AmeriNet is
required to file pursuant to Sections 13, 14, 15(d) and
12(g) of the Exchange Act.
(E) Securities Act: The Securities Act of 1933, as amended.
Article II
Settlement Agreement
(A) Xcel hereby irrevocably agrees to release AmeriNet from its obligation
under the Warrant Agreement to file a Registration Statement with the
Commission.
(B) Xcel further irrevocably agrees to forego any rights it may have
eventually had to purchase 1,000,000 shares of common stock at $1.25
per share.
(C) In consideration for Xcel's release of AmeriNet as detailed in the
preceding paragraphs (A) and (B), AmeriNet agrees to issue 200,000
restricted shares of its common stock to Xcel on or before June 15,
2000.
(D) AmeriNet further agrees to pay to Xcel the sum of $75,000 on or before
June 15, 2000 as repayment for Xcel's loan to AITC and Xcel agrees to
return 35,000 shares of AmeriNet stock to AmeriNet, which shares Xcel
received from Yankees upon AITC's default in repaying the loan.
(E) As a material inducement to AmeriNet's consideration of agreeing to
issue restricted stock to Xcel as stated in paragraph (C), Xcel
represents, warrants and covenants to AmeriNet, as follows:
(1) Xcel is familiar with the requirements for treatment as an
"accredited investor" under Regulation D and Section 4(6) of
the Securities Act and meets one or more of the definitions of
an "accredited investor" contained in Rule 501(a) promulgated
under authority of Securities Act and has, alone or together
with its advisors or representatives, if any, such knowledge
and experience in financial matters that. Xcel is capable of
evaluating the relative risks and merits of this subscription,
the text of Rule 501(a) being set forth, in full, above;
(2) Xcel acknowledges that it has, based on its own substantial
experience, the ability to evaluate the transactions
contemplated hereby and the merits and risks thereof in
general and the suitability of the transaction for it in
particular;
(3) (a) Xcel understands that the offer and issuance of
the AmeriNet Stock is being made in reliance on
Xcel's representation that it has reviewed all of
AmeriNet's reports filed with the Commission during
the past 12 months and posted on the Commission's
Internet web site (xxx.xxx.xxx) under the XXXXX
Archives sub site, and has become familiar with the
information disclosed therein, including that
contained in exhibits filed with such reports.
(b) Xcel is fully aware of the material risks associated
with becoming an investor in AmeriNet and confirms
that it was previously informed that all documents,
records and books pertaining to this investment have
been available from AmeriNet and that all documents,
records and books pertaining to this transaction
requested by her have been made available to her;
Page 6
(4) Xcel has had an opportunity to ask questions of and receive
answers from the officers of AmeriNet concerning the terms and
conditions of this Agreement and the transactions contemplated
hereby, as well as the affairs of AmeriNet and related
matters;
(5) Xcel has had an opportunity to obtain additional information
necessary to verify the accuracy of the information referred
to in subparagraphs (a), (b), (c) and (d) hereof, as well as
to supplement the information in the Exchange Act Reports.
(6) Xcel has represented to Xcel that it has the general ability
to bear the risks of the subject transaction and that Xcel is
a suitable investor for a private offering and Xcel hereby
affirms the correctness of such information to AmeriNet.
(7) Xcel acknowledges and is aware that:
(a) The AmeriNet Stock is a speculative investment with
no assurance that AmeriNet will be successful, or if
successful, that such success will result in payments
to Xcel or to realization of capital gains by Xcel on
disposition of the AmeriNet Stock; and
(b) The AmeriNet Stock to be issued to her has not been
registered under the Securities Act or under any
state securities laws, accordingly Xcel may have to
hold such common stock and may not be able to
liquidate, pledge, hypothecate, assign or transfer
it;
(8) Xcel has obtained its own opinion from its legal counsel to
the effect that after an examination of the transactions
associated herewith and the applicable law, no action needs to
be taken by Xcel in conjunction with this Agreement and the
issuance of the AmeriNet Stock in conjunction therewith; and
(9) (a) The certificates for the AmeriNet Stock will bear
restrictive legends and AmeriNet's transfer agent
will be instructed not to transfer the subject
securities unless they have been registered pursuant
to Section 6 of the Securities Act or an opinion of
counsel to Xcel satisfactory to legal counsel to
AmeriNet and AmeriNet's president has been provided,
to the effect that the proposed transaction is exempt
from registration requirements imposed by the
Securities Act, the Exchange Act and any applicable
state or foreign laws.
(b) The legend shall read as follows: "The securities
represented by this certificate were issued without
registration under the Securities Act of 1933, as
amended, or comparable state laws in reliance on the
provisions of Section 4(6) of such act, and
comparable state law provisions. These securities may
not be transferred pledged or hypothecated unless
they are first registered under applicable federal,
state or foreign laws, or the transaction is
demonstrated to be exempt from such requirements to
AmeriNet's satisfaction."
Article III
Superseder
(A) The terms of this Agreement supersede the terms of all other agreements
between AmeriNet and Xcel and its affiliate, including, but not limited
to, the Warrant Agreement, all of which will be henceforth null and
void as if they had never been entered into, this Agreement being
deemed a novation, settlement accord and satisfaction of all such prior
agreements.
(B) In consideration for the exchange of covenants reflected above but
excepting only the obligations created by this Agreement, AmeriNet and
Xcel hereby each release, discharge and forgive the other, and each of
the others' subsidiaries, affiliates, members, officers, directors,
partners, agents and employees from any and all liabilities, whether
current or inchoate, from the beginning of time until the date of this
Agreement.
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Article IV
General Provisions
4.1 Interpretation.
(A) When a reference is made in this Agreement to Schedules or Exhibits,
such reference shall be to a Schedule or Exhibit to this Agreement
unless otherwise indicated.
(B) The words "include," "includes" and "including" when used herein shall
be deemed in each case to be followed by the words "without
limitation."
(C) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(D) 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.
(E) 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.
(F) The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
4.2 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 certified
mail, return receipt requested, postage prepaid, addressed as follows:
(1) To AmeriNet:
AmeriNet Xxxxx.xxx, Inc.
Crystal Corporate Center; 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X;
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxx Xxxxx, Interim President
Telephone (000) 000-0000, Fax (000) 000-0000
AmeriNet Xxxxx.xxx, Inc.
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000
Attention, Xxxxxx Xxxxxxxx, General Counsel
Telephone (000) 000-0000, Fax (000) 000-0000
(2) Xcel
Xcel Associates, Inc..
000 Xxxxxx Xxxx, 0xx xxxxx, Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Telephone (000) 000-0000, Fax (000) 000-0000
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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) At the request of any Party, notice will also be provided by overnight
delivery, facsimile transmission or e- mail, provided that a
transmission receipt is retained.
(C) (1) The Parties acknowledge that the Yankee Companies, Inc., a
Florida corporation ("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) 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.
(3) 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.
4.3 Merger of All Prior Agreements Herein.
(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 shall
be of no force or effect.
4.4 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.
4.5 Severability.
If any provision or any portion of any provision of this Agreement, 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 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 affected thereby.
4.6 Governing Law.
This Agreement 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).
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4.7 Indemnification.
(A) 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
Agreement or otherwise.
(B) 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.
4.8 Dispute Resolution.
(A) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement 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, and 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 any formal proceedings are 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 Xcel.
(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 Xcel.
(3) (a) Expenses of mediation shall be borne equally by the
Parties, 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 involved.
4.9 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees but are not intended to confer upon
any other person any rights or remedies hereunder.
4.10 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 Agreement.
Page 10
4.11 Counterparts.
(A) This Agreement may be executed in any number of counterparts.
(B) All executed counterparts shall constitute one Agreement
notwithstanding that all signatories are not signatories to the
original or the same counterpart.
(C) 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 Commission.
In Witness Whereof, AmeriNet and Xcel have caused this Agreement to be
executed by themselves or their duly authorized respective officers, all as of
the last date set forth below:
Signed, sealed and delivered
In Our Presence:
AmeriNet Xxxxx.xxx, Inc.
_________________________________ (A Delaware corporation)
_________________________________ By: /s/ Xxxxx Xxx Xxxxx /s/
____________________________
Xxxxx Xxx Xxxxx, President
(Corporate Seal)
Attest: /s/ Xxxxxxx X. Xxxxxxx
____________________________
Xxxxxxx X. Xxxxxxx, Secretary
Dated: May 31, 2000
State of Florida }
County of Palm Beach } ss.:
On this 31 day of May, 2000, before me, a notary public in and for the
county and state aforesaid, personally appeared Xxxxx Xxx Xxxxx and Xxxxxxx X.
Xxxxxxx, to me known, and known to me to be the president and secretary of
AmeriNet Xxxxx.xxx, Inc., the above-described corporation, and to me known to be
the persons who executed the foregoing instrument, and acknowledged the
execution thereof to be their free act and deed, and the free act and deed of
AmeriNet Xxxxx.xxx, Inc., for the uses and purposes therein mentioned.
In witness whereof, I have hereunto set my hand and affixed my notarial
seal the day and year in this certificate first above written. My commission
expires the 21 day of April, 2004.
/s/ Xxxxxxx Xxxxxxx
{Seal} --------------------------------
Notary Public
Page 11
Xcel Associates, Inc.
_________________________________ (a New Jersey corporation)
_________________________________ By: /s/ Xxxxxx X. Xxxxxx
_____________________________
Xxxxxx X. Xxxxxx, President
(Corporate Seal)
Attest: /s/ Xxxxxx X. Xxxxx, Xx.
_____________________________
Xxxxxx X. Xxxxx, Xx. Secretary
Dated: May 30, 0000
Xxxxx xx Xxx Xxxxxx }
County of Monmouth } ss.:
On this 30th day of May, 2000, before me, a notary public in and for the
county and state aforesaid, personally appeared Xxxxxx X. Xxxxxx and Xxxxxx X.
Xxxxx, Xx., to me known, and known to me to be the president and secretary of
Xcel Associates, Inc.., the above-described corporation, and to me known to be
the persons who executed the foregoing instrument, and acknowledged the
execution thereof to be their free act and deed, and the free act and deed of
Xcel Associates, Inc.., for the uses and purposes therein mentioned.
In witness whereof, I have hereunto set my hand and affixed my notarial
seal the day and year in this certificate first above written. My commission
expires the 30th day of May, 2000.
(Seal) /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------
Attorney at Law of N.J.
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