The followig agreement has been signed by Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx,
Xx Xxxxxxx, Xxxxxxxx Xxx Xxxxx, Xxxxx Xxxxxxx, G. Xxxxxxx Xxxxxxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxxxx, Xx. and J.Xxxxx Xxxxxxx.
Agreement to Serve as Corporate Director
This agreement to serve as a corporate director (the "Agreement") is
made and entered into by and between AmeriNet Xxxxx.xxx, Inc., a publicly held
Delaware corporation with a class of securities registered under Section 12(g)
of the Securities Act of 1934, as amended ("AmeriNet" and the "Exchange Act,"
respectively), and Fist&Middle&Last, a Florida resident ("Mr. Last Name ").
Preamble:
WHEREAS, Mr. Last Name either currently serves as a member of
AmeriNet's board of directors or is to be nominated for election to AmeriNet's
board of directors at the next annual meeting of AmeriNet's stockholders,
currently scheduled for December 21, 2000 (the "Annual Meeting"); and
WHEREAS, AmeriNet has required, as a condition to nomination for
service on its board of directors, that all nominees by the current board of
directors enter into a form of agreement that delineates the proposed director's
rights, duties and responsibilities; and
WHEREAS, the Parties agree that this Agreement provides important
directives outlining the duties, obligations, responsibilities and rights that
are expected by members of AmeriNet's board of directors and Mr. Last Name
desires to be elected as a member of AmeriNet's board of directors and to serve
thereon in compliance with the requirements of this Agreement and AmeriNet's
bylaws:
NOW, THEREFORE, intending to be legally bound, the Parties agree that
if Mr. Last Name is elected as a member of AmeriNet's board of directors at the
annual meeting of AmeriNet's shareholders for the current year, he will be bound
by the following obligations and shall have the following rights:
Witnesseth:
Article I
Term, Renewals, Earlier Termination
1.1 Term.
(A) Subject to the provisions set forth herein, the term of this Agreement
shall be deemed to commence immediately following Mr. Last Name's
election to AmeriNet's board of directors at the Annual Meeting and
shall continue until the latter of December 31, 2001 or the election,
qualification and assumption of office by Mr. Last Name's successor as
a member of AmeriNet's board of directors, unless earlier terminated as
hereinafter set forth.
(B) Notwithstanding anything in this agreement the Directors term will
terminate if the Director is not re-elected at the next Annual Meeting
(C) In the event that Mr. Last Name is reelected or otherwise serves as a
member of AmeriNet's board of directors after December 31, 2001, then,
unless a new agreement pertaining to his role as a member of AmeriNet's
board of directors is entered into specifically superceding the
provisions of this Agreement, this Agreement shall be deemed
continuingly self renewing for so long as, or whenever Mr. Last Name
serves as a member of AmeriNet's board of directors, with the
compensation called for hereunder being duplicated for the ensuing year
on terms modified solely as follows:
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(1) The term and exercise period of the new Xxxxxxxxxx Options
shall be modified to reflect, as closely as possible, terms
materially similar to those that applied to the Xxxxxxxxxx
option described in Section 3.1 of this Agreement; and
(2) The exercise price shall be the lowest exercise price
permitted under AmeriNet's then current stock option plan,
based on the closing last transaction price of AmeriNet's
common stock on the last day of the year preceding the
immediately preceding term of this Agreement or any extensions
thereof.
(3) The number of Options shall be prorated based on the part of
the year during which Mr. Last Name serves and based on the
roles in which Mr. Last Name serves on AmeriNet's board of
directors based on the formula hereinafter set forth.
1.2 Earlier Termination.
(A) AmeriNet shall have the right to terminate this Agreement prior to the
expiration of its Term, subject to the provisions of Section 1.3, for
the following reasons:
(1) For Cause:
(a) AmeriNet may terminate Mr. Last Name 's rights under
this Agreement at any time for cause.
(b) Such termination shall be evidenced by written notice
thereof to Mr. Last Name , which notice shall specify
the cause for termination.
(c) For purposes hereof, the term "cause" shall mean:
(i) The inability of Mr. Last Name , through
sickness or other incapacity, to discharge
his duties under this Agreement for 30 or
more consecutive days or for a total of 45
or more days in a period of twelve
consecutive months;
(ii) Dishonesty; theft; or conviction of a crime
involving moral turpitude;
(iii) 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.
(2) 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.
(3) Death:
This Agreement shall terminate immediately on Mr. Last Name 's
death; however, all accrued compensation at such time shall be
promptly paid to Mr. Last Name 's estate.
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1.3 Final Settlement.
Upon termination of this Agreement and payment to Mr. Last Name of all
amounts due him hereunder, Mr. Last Name 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 II
Performance of Duties as a Director
2.1 Performance of Duties
(A) Mr. Last Name shall perform his duties as a director , including his
duties as a member of any committee of AmeriNet's board of directors
upon which he may serve, pursuant to the requirements set forth in
AmeriNet's certificate of incorporation and bylaws (its "Constituent
Documents"), in good faith, in a manner he reasonably believes to be in
the best interests of AmeriNet, and with such care as is legally
required for members of boards of directors under the laws of the State
of Delaware and the United States Securities and Exchange Commission,
(the "Commission") unless a higher standard of care is specified in
AmeriNet's Constituent Documents.
(B) In performing his duties, Mr. Last Name shall be entitled to rely on
information, opinions, reports or statements, including financial
statements and other financial data, in each case prepared or presented
by:
(1) One or more officers or employees of AmeriNet whom Mr. Last
Name reasonably believes to be reliable and competent in the
matters presented;
(2) Legal counsel, public accountants or other persons as to
matters which Mr. Last Name reasonably believes to be within
such persons' professional or expert competence; or
(3) A committee of AmeriNet's board of directors upon which he
does not serve, duly designated in accordance with a provision
of AmeriNet's certificate of incorporation or bylaws, as to
matters within its designated authority, which committee Mr.
Last Name reasonably believes to merit confidence.
(C) Mr. Last Name shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause such
reliance described in Section 2.1(B) to be unwarranted.
(D) If Mr. Last Name is present at a meeting of AmeriNet's board of
directors at which action on any corporate matter is taken it shall be
presumed that he assented to the action taken unless he votes against
such action or abstains from voting in respect thereto because of an
asserted conflict of interest.
(E) If Mr. Last Name is requested to provide comments on any corporate
matters through a written request delivered by hand, mail, fax or
e-mail, then, unless he affirmatively provides written comments thereto
or specifies in a written response that he is unable or unwilling to
provide comments thereto, he shall be presumed to have approved the
matter as accurate, complete and not misleading, and if he has
indicated his inability or unwillingness to comment on more than three
occasions within any fiscal year, he shall be presumed to have refused
to perform his duties as a member of AmeriNet's board of directors in a
manner justifying his removal therefrom for cause under this Agreement.
2.2 Director Conflicts of Interest
(A) Neither Mr. Last Name nor any affiliate thereof will enter into any
contract or other transaction with AmeriNet unless the fact of such
relationship or interest is disclosed or known to AmeriNet's board of
directors or committee which authorizes, approves or ratifies the
contract or transaction and it is approved by a vote or consent
sufficient for the purpose without counting the vote or consent of Mr.
Last Name ; and, if stockholder approval is required, the fact of such
relationship or interest is disclosed or known to the stockholders
entitled to vote and they authorize, approve or ratify such contract
or transaction by vote or written consent.
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(B) Mr. Last Name may be counted in determining the presence of a quorum at
a meeting of AmeriNet's board of directors or a committee thereof which
authorizes, approves or ratifies such contract or transaction.
2.3 Performance and Attendance
(A) Mr. Last Name will serve on AmeriNet's board of directors, on
AmeriNet's audit committee, as chairman and on such committees of
AmeriNet's board of directors as to which he is appointed and will
discharge his duties thereunder in good faith, using his best efforts
on behalf of AmeriNet and its stockholders.
(B) Mr. Last Name shall use his best efforts to participate in a timely
manner in all meetings of AmeriNet's board of directors or of
committees thereof to which he has been appointed or elected, and if
unavailable in person, to make arrangements to participate by
teleconference or other legally available means.
(C) In the event that Mr. Last Name fails to participate in a meeting of
AmeriNet's board of directors or of committees thereof to which he has
been appointed or elected, Mr. Last Name shall promptly acquaint
himself with all matters transacted at such meeting and if practical,
shall provide the board of directors or committee involved with
supplemental input and advice on all such matters and if appropriate
and possible, shall request reconsideration of any material matters as
to which his participation would have affected the result of actions
taken.
(D) In the event that Mr. Last Name misses more than 20% of the meetings of
AmeriNet's board of directors or of committees thereof to which he has
been appointed or elected, Mr. Last Name will, at the option of
AmeriNet's board of directors, be presumed to have resigned from the
board of directors prior to the expiration of the term of this
Agreement based on an inability to dedicate required time to the
affairs of AmeriNet and this Agreement shall be presumptively be deemed
the instrument of such resignation.
(E) Mr. Last Name shall be responsible, together with the other members of
the board of directors, for review and approval prior to filing of all
data that AmeriNet is required to file with the Commission, with the
United States Internal Revenue Service (the "Service") and with
comparable state and local agencies.
(F) If a member of the regulatory affairs or audit committees, Mr. Last
Name shall be responsible for using reasonable efforts to assist its
chairman to assure that AmeriNet and all of its subsidiaries develop
and implement information gathering, retention and transmittal
procedures that comply with all applicable legal and auditing
requirements, that AmeriNet and its subsidiaries promptly transmit
required data to AmeriNet's auditors and legal counsel and that
AmeriNet's auditors and legal counsel prepare and pass upon materials
that AmeriNet is required to file with the Commission or the Service,
on a timely basis, adequate for review, comment and correction by all
appropriate personnel, including management of AmeriNet and its
subsidiaries, as well as the members of their boards of directors,
attorneys and advisors, at least three business days prior to the
legally mandated filing dates.
(G) If a member of the audit committee, Mr. Last Name shall be responsible,
together with the other members of the audit committee, for suggesting
auditor candidates to AmeriNet's board of directors and stockholders
and for rejecting any auditors that any member of the audit committee
deems unsatisfactory based on their qualifications, reputation, prices
or geographic location, provided that such member must specify in
writing, all reasons for such rejection and the committee, voting as a
whole, must pass upon such rejection by majority vote, forwarding such
result to the board of directors for appropriate action.
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2.4 Resignation
Unless he is the sole serving member of AmeriNet's board of directors,
Mr. Last Name may resign at any time by providing AmeriNet's board of directors
with written notice indicating the Director's intention to resign and the
effective date thereof.; provided, however, that resignation, whether voluntary
or presumptive (as provided above) shall result in a forfeiture of all rights to
compensation under this Agreement, other than as to compensation that has
accrued pursuant to the provisions of this Agreement.
Article III
Compensation
3.1 Director's Plan Options
(A) Mr. Last Name shall be compensated for his services as a member of
AmeriNet's board of directors and committees thereof with common stock
purchase options issuable under the terms and provisions of AmeriNet's
current Non-Qualified Stock Option & Stock Incentive Plan, as follows:
(1) For basic service as a member of AmeriNet's board of
directors, Mr. Last Name shall be granted an option to
purchase 15,000 shares of AmeriNet's common stock, exercisable
during the twelve month period commencing on January 1, 2002
and ending on December 31, 2003, at an exercise price based on
the last reported transaction price for AmeriNet's common
stock reported on the OTC Bulletin Board on the first business
day following the directors' election for the term subject to
this agreement (normally being the day following the annual
stockholders' meeting).
(2) For service on the audit or executive committee, the option
will be increased by an additional 10,000 shares which will
vest at the rate of 800 shares per month; and
(3) For service as the chair of the executive or audit committee
the option will be increased by an additional 5,000 shares
which will vest at the rate of 400 shares per month.
(4) All non-vested options will, unless earlier forfeited, become
vested on January 1, 2002.
(5) Exercise of the foregoing options will be subject to the
condition precedent that Mr. Last Name comply on a timely
basis with all personal reporting obligations to the
Commission pertaining to his role with AmeriNet and that the
Director-Designee serve in the designated positions providing
all of the services required thereby prudently and in good
faith.
(B) The securities to be 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 regula tions 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;
(1) Mr. Last Name 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);
(2) 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;
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(3) 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;
(4) Mr. Last Name is acquiring the Securities for his own account,
for investment purposes only, and not with a view to further
sale or distribution; and
(5) Mr. Last Name or his advisors have examined information
concerning AmeriNet contained on the Commission's Internet web
site at xxx.xxx.xxx, in the XXXXX archives, as well as
AmeriNet's books and records and have questioned AmeriNet's
officers and directors as to such matters involving AmeriNet
as he or she deemed appropriate.
(C) In the event that AmeriNet files a registration or notification
statement with the Commission or any state securities regulatory
authorities registering or qualifying any of its securities for sale
or resale to the public as free trading securities, it will notify Mr.
Last Name of such intent at least 15 business days prior to such
filing, and shall, if requested by him, include any shares theretofore
issued upon exercise of the Options in such registration or
notification statement, provided that Mr. Last Name cooperates in a
timely manner with any requirements for such registration or
qualification by notification, including, without limitation, the
obligation to provide complete and accurate information therefor; and,
provided further that, the inclusion of such securities in such
notification or registration statement is not deemed by any
participating underwriter to be detrimental to a proposed offering of
AmeriNet's securities to the public or to the price or liquidity of
AmeriNet's publicly held securities.
3.2 Contingent Compensation
In addition to the compensation described above and in Section 3.1
(unless comparable compensation is provided for under the terms of a separate
employment or consulting agreement):
(A) In the event that Mr. Last Name arranges or provides funding for
AmeriNet on terms more beneficial than those reflected in AmeriNet's
current principal financing agreements, copies of which are included
among AmeriNet's records available through the SEC's XXXXX web site,
Mr. Last Name shall be entitled, at his election, to either:
(1) A fee equal to 5% of such savings, on a continuing basis; or
(2) If equity funding is provided through Mr. Last Name 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
(3) If equity funding is arranged for AmeriNet by Mr. Last Name
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, Mr.
Last Name shall be entitled to a bonus in a sum equal to 5% of
the net proceeds of such funding.
(B) In the event that Mr. Last Name generates business for AmeriNet, then,
on any sales resulting therefrom, Mr. Last Name shall be entitled to a
commission equal to 5% of the net income derived by AmeriNet therefrom,
on a continuing basis.
3.3 Indemnification.
AmeriNet will defend, indemnify and hold Mr. Last Name harmless from
all liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs,
Page 62
witness fees, etc.) resulting from any reasonable actions taken by him in good
faith on behalf of AmeriNet, 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 Mr. Last Name to
incur any out of pocket expenses; provided, however, that Mr. Last Name permits
AmeriNet to select and supervise all personnel involved in such defense and that
Mr. Last Name 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.
Article Four
Special Covenants
4.1 Confidentiality.
(1) Mr. Last Name acknowledges that, in and as a result of his duties
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, Mr. Last Name hereby covenants and agrees
that he shall not, at anytime during or following the terms of his
service as a member of AmeriNet's board of directors, 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 association with
AmeriNet, or AmeriNet's affiliates.
(2) In the event of a breach or threatened breach by Mr. Last Name 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 Mr.
Last Name , or by Mr. Last Name 's partners, agents, representatives,
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 Mr. Last Name 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, Mr. Last Name hereby
covenants and agrees that AmeriNet shall have the following additional rights
and remedies in the event of a breach hereof:
(A) Mr. Last Name 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, Mr. Last Name 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:
(1) Any payment orcompensation of any kind received by him because
of such violation before the issuance of such injunction, or
(2) 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
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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.
Mr. Last Name hereby irrevocably agrees that the remedies described in
Section 4.2 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.
Mr. Last Name 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, other directors and employees; consequently, in the event that any of
the above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, Mr. Last Name hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in place of
any limitation deemed unenforceable and, Mr. Last Name 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, Mr. Last Name 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.
Mr. Last Name hereby covenants and agrees that he will not do any act
or incur any obligation on behalf of AmeriNet 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
Except for information given to any governmental entity in the
reasonable belief that it relates to a violation of law, Mr. Last Name 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 AmeriNet, its constituent members, or their officers, directors,
stockholders, employees, agent or affiliates, whether related to the business of
AmeriNet, to other business or financial matters or to personal matters.
Article V
Agreement to Comply with Legal Restrictions.
5.1 AmeriNet Securities.
(A) Mr. Last Name is the record and beneficial owner of the AmeriNet
securities shown on the signature page hereto, which at the date hereof
are free and clear of any liens, claims, options, charges or other
encumbrances; does not beneficially own any other AmeriNet securities
and, has full power and authority to make, enter into and carry out the
terms of this Agreement.
(B) Mr. Last Name agrees that any AmeriNet securities that he purchases or
with respect to which he otherwise acquires record or beneficial
ownership after the date of this Agreement ("New AmeriNet Securities")
shall be subject to the terms and conditions of this Agreement to the
same extent as if they were owned prior to the date of this Agreement.
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(C) Mr. Last Name has full power and authority to execute this Agreement,
to make the representations, warranties and covenants herein contained
and to perform Director-Nominee's obligations hereunder.
(D) Mr. Last Name has no present plan or intention (a "Plan") to sell,
transfer, exchange, pledge or otherwise dispose of, including by means
of a distribution by a partnership to its partners, or a corporation to
its stockholders, or any other transaction which results in a reduction
in the risk of ownership (any of the foregoing being hereinafter
referred to generically as a "Sale") of any of the AmeriNet securities
that Mr. Last Name currently owns or may acquire during the term of
this Agreement, or any securities that may be paid as a dividend or
otherwise distributed thereon with respect thereto or issued or
delivered in exchange or substitution therefor.
(E) If any of Mr. Last Name's representations in this Agreement cease to
be true at any during the term of this Agreement, Mr. Last Name will
deliver to AmeriNet's general counsel a written statement to that
effect, specifying the nature of the change signed by Mr. Last Name.
5.2 Transfer or Encumbrance.
(A) Mr. Last Name agrees not to transfer, sell, exchange, pledge or
otherwise dispose of or encumber Mr. Last Name 's AmeriNet securities
or any New AmeriNet Securities acquired or to make any offer or
agreement relating thereto during the time that Mr. Last Name serves on
AmeriNet's board of directors and for an additional period of 90 days
thereafter (the term of this agreement), except:
(1) During such periods following the filing by AmeriNet of
reports with the Securities and Exchange Commission as may be
determined by the regulatory compliance committee of
AmeriNet's board of directors to provide currency of
information required to avoid violation of restrictions under
the Securities Act and the Exchange Act against trading on
inside information.
(2) In full compliance with the requirements of:
(a) Rule 144 promulgated by the Commission under authority
granted by the Securities Act;
(b) Sections 13D and 16(a) of the Exchange Act, including
requirements pertaining to timely filing of
Commission Forms 3, 4 and 5 or Schedule 13-D; and
(3) In full compliance with the procedures established by AmeriNet
(including requirements imposed upon its transfer agent) to
assure compliance with the foregoing.
(B) No transactions permitted pursuant to Section 5.2(A) shall be effected
until:
(1) Legal counsel representing Mr. Last Name (which legal counsel
is reasonably satisfactory to AmeriNet), shall have advised
AmeriNet in a written opinion letter satisfactory to AmeriNet
and AmeriNet's legal counsel, and upon which AmeriNet and its
legal counsel may rely, that no registration under the
Securities Act would be required in connection with the
proposed sale, transfer or other disposition and that all
requirements under the Exchange Act, including Sections 13 and
16 thereof have been complied with; or
(2) A registration statement under the Securities Act covering
AmeriNet's Stock proposed to be sold, transferred or otherwise
disposed of, describing the manner and terms of the proposed
sale, transfer or other disposition, and containing a current
prospectus, shall have been filed with the Securities and
Exchange Commission (the "Commission") and made effective
under the Securities Act; or
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(3) An authorized representative of the Commission shall have
rendered written advice to Mr. Last Name (sought by
Director-Nominee or Director-Nominee's legal counsel, with a
copy thereof and all other related communications delivered to
AmeriNet) to the effect that the Commission would take no
action, or that the staff of the Commission would not
recommend that the Commission take any action, with respect to
the proposed disposition if consummated; or
(4) AmeriNet's general counsel and president shall have
specifically consented to the transaction in wiring pursuant
to authority delegated in a specific resolution of the
regulatory affairs committee of AmeriNet's board of directors.
(C) Mr. Last Name also understands and agrees that stop transfer
instructions will be given to AmeriNet's transfer agent with respect
to certificates evidencing his AmeriNet securities and that there will
be placed on the certificates evidencing his AmeriNet securities
legends stating in substance: "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(1), 3(b) or 4(2) of such act, and comparable
state law provisions or they have been held by a person deemed a
control person under Commission Rule 144 and subject to reporting
obligations under Section 13D of the Exchange Act and to reporting
obligations and trading restrictions under Section 16(a) of the
Exchange Act. 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 the Company's satisfaction, and,
all required reports pertaining thereto, including Commission Forms 3,
4, 5 and 144 and Commission Schedule 13D have been filed with the
Commission."
5.3 No Proxy Solicitations.
Mr. Last Name will not, and will not permit any entity under his
control, while a director of AmeriNet, to:
(A) Solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) with
respect to any meetings of AmeriNet's stockholders;
(B) Initiate a stockholders' vote or action by consent of AmeriNet
stockholders with respect to any stockholders action; or
(C) Become a member of a "group" [as such term is used in Section 13(d) of
the Exchange Act] with respect to any voting securities of AmeriNet.
5.4 No Limitation on Discretion as Director.
This Article is intended solely to apply to the exercise by Mr. Last
Name in his individual capacity of rights attaching to ownership of the AmeriNet
securities and nothing herein shall be deemed to apply to, or to limit in any
manner the discretion of Mr. Last Name with respect to, any action which may be
taken or omitted by him acting in his fiduciary capacity as a member of
AmeriNet's board of directors or any committee thereof.
Article VI
Miscellaneous
6.1 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:
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To Mr. Last Name :
At the contact information provided in Section 6.18
To AmeriNet:
AmeriNet Xxxxx.xxx, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx,
Xxxxxxx 00000 Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxx@xxxxxxxxxxxxx.xxx;
Attention: Xxxxxxxx X. Xxx Xxxxx, President; with a copy to
General Counsel
AmeriNet Xxxxx.xxx, Inc.
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and to
The Yankee Companies, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxx@xxxxxxxxxxxxxxx.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 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) 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.
(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.
6.2 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.
6.3 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.
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6.4 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.
6.5 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.
6.6 Governing Law.
This Agreement shall be governed by and construed, interpreted and
enforced in accordance with the laws of the State of Delaware, except for any
choice of law provisions that would result in the application of the law of
another jurisdiction, and except for laws involving the fiduciary obligations of
AmeriNet's officers and Director-Nominees, which shall be governed under Florida
law.
6.7 Third Party Reliance.
Legal counsel to and accountants for the Parties shall be entitled to
rely upon this Agreement.
6.8 Venue.
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.
6.9 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, proceedings and appeals, whether or not 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 Mr. Last Name .
(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 Mr. Last Name.
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(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.
6.10 Benefit of Agreement.
(A) This Agreement may not be assigned by Mr. Last Name 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.
6.11 Interpretation.
(A) The words "include," "includes" and "including" when used herein shall
be deemed in each case to be followed by the words "without
limitation."
(B) 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.
(C) 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.
(D) 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.
(E) 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.
6.12 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.
6.13 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.
6.14 Status.
Nothing in this Agreement shall be construed or shall constitute an
agency, employment, partnership, joint venture relationship.
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6.15 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.
6.16 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.
6.16 Waiver.
No waiver by any party hereto of any condition or of any breach of any
provision of this Agreement shall be effective unless in writing and signed by
each party hereto.
6.17 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.
6.18 Consultation with Counsel.
Mr. Last Name has carefully read this Agreement and discussed its
requirements and other applicable limitations upon the sale, transfer or other
disposition of AmeriNet securities to the extent he felt necessary, with his own
legal counsel.
6.19 Information Concerning Mr. Last Name 's Share Ownership.
(A) AmeriNet securities beneficially owned by Mr. Last Name :
(1) ___________ shares of AmeriNet common stock; and
(2) ___________ shares of AmeriNet common stock subject to options
warrants or other rights; and
(3) ___________ other AmeriNet securities, as specifically
described in exhibit 6.19 annexed hereto and
made a part hereof, if any.
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(B) (1) Domicile Address: _________________________________________
Street address City Zip code
(3) Telephone, fax and e-mail: __________________________________
In Witness Whereof, Mr. Last Name and AmeriNet 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:
----------------------------
---------------------------- ----------------------------
Fist&Middle&Last
Dated: December 21, 2000
AmeriNet Xxxxx.xxx, Inc.
----------------------------
____________________________ By: /s/ Xxxxxxxx X. Xxx Xxxxx
Xxxxxxxx X. Xxx Xxxxx, Acting President
(Corporate Seal)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: December 21, 2000
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