Superseder & Termination Agreement
This Superseder & Termination 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
Exchange Act ("AmeriNet"); and, The Yankee Companies, Inc., a Florida
corporation ("Yankees;" AmeriNet and Yankees being sometimes hereinafter
collectively referred to as the "Parties" or generically as a "Party").
Preamble:
WHEREAS, AmeriNet and Yankees are currently parties to a number of
agreements, including a strategic consulting agreement (the "Consulting
Agreement"), a warrant agreement (the "Warrant Agreement"), a revolving loan
agreement (the "Loan Agreement") and a loan and pledge agreement (the "PCG
Deposit Agreement") and Yankees currently holds a number of AmeriNet promissory
notes (the "AmeriNet Notes), a warrant to purchase 2.5% of AmeriNet's authorized
and reserved capital stock measured as of the date exercise is completed (the
"Yankees Warrant") and most shares of AmeriNet's outstanding class A preferred
stock (the "Class A Preferred Stock"); and
WHEREAS,; AmeriNet is entering into a reorganization agreement pursuant to
Section 368(a)(1)(B) of the Code with Park City Group, Inc., a Delaware
corporation headquartered in Park City Utah ("PCG") pursuant to which, AmeriNet
must, at the time of closing, have no liabilities, no securities outstanding
other than shares of its common stock and options and warrants to purchase
shares of its common stock on a fully determinable basis as of the date of
closing and no assets, as a result of which, AmeriNet must persuade Yankees to
terminate the Consulting and Loan Agreements, convert all of the AmeriNet Notes
into shares of the Class A Preferred stock and convert all of the Class A
Preferred Stock into shares of AmeriNet's common stock, leaving the PCG Deposit
Agreement in full force and effect; and
WHEREAS, subject to the terms and conditions set forth below, Yankees is
agreeable to making the concessions required in order for AmeriNet to meet the
conditions and obligations of its proposed agreement with PCG:
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, will 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:
Accredited investor. "Accredited investor" will 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;
Superseder & Termination
Agreement Page 1
(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) Aggregate Yankees Investment: All sums invested in AmeriNet by Yankees,
including funds advanced, liabilities paid directly and the aggregate
amount of the AmeriNet Notes immediately prior to the Closing.
(C) (1) Closing:
The effectuation of the transactions called for by this Agreement,
including exchange of securities, execution of instruments, stock
certificates, stock powers, releases and other documents.
(2) Closing Date:
The date on which the Closing takes place.
(3) PCG Closing:
The Closing on AmeriNet's reorganization agreement with PCG, which
shall take place concurrently with and as a condition to the Closing.
(D) Code:
The Internal Revenue Code of 1986, as amended.
(E) Commission:
The United States Securities and Exchange Commission
(F) XXXXX:
The Commission's electronic data gathering and retrieval system accessible
by the public at the Commission's website located at xxxx://xxx.xxx.xxx.
(G) (1) Escrow Agent Xxxxxx X. Xxxxxxx, an individual currently serving as
president of AmeriNet, or such replacement as may be mutually selected
by the Parties.
(2) Escrow Agreement
The Agreement between the Escrow Agent and AmeriNet, a copy of which
is annexed hereto and made a part hereof as exhibit I(G)(2).
(H) (1) Exchange Act:
The Securities Exchange Act of 1934, as amended.
(2) 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.
(I) Florida Act:
The Florida Securities and Investor Protection Act.
(J) Florida Rule:
Florida Rule 3E_500.005, which provides as follows: Disclosure
requirements of Section 517.061(11)(a)3., Florida Statutes.
(1) Transactions by an issuer which do not satisfy all of the
conditions of this rule will not raise any presumption that the
exemptions provided by Section 517.061(11), Florida Statutes is
not available for such transactions. Attempted compliance with
this rule does not act as an election; the issuer can also claim
the availability of Section 517.061(11), Florida Statutes,
outside this rule.
(2) The determination as to whether sales of securities are part of a
larger offering (i.e., are deemed to be integrated) depends on
the particular facts and circumstances. In determining whether
sales should be regarded as part of a larger offering and thus
should be integrated, the facts described in Rule 3E_500.01
should be considered.
(3) Although sales made pursuant to Section 517.061(11), Florida
Statutes, and in compliance with this rule, are exempt from the
registration provisions of this Act, such exemption does not
avoid the antifraud provisions of Sections 517.301 and 517.311,
Florida Statutes.
(4) The provisions of this rule will apply only to transactions which
are consummated with persons in the State of Florida.
(5) The requirements of Sections 517.061(11)(a)(3), Florida Statutes,
that each purchaser, or his representative be provided with or
given reasonable access to full and fair disclosure of all
material information will be deemed to be satisfied if either
paragraphs (5)(a) or (5)(b) are complied with:
(a) Access to or Furnishing of Information. Reasonable access
to, or the furnishing of, material information will be
deemed to have been satisfied if prior to the sale a
purchaser is given access to the following information:
1. All material books and records of the issuer; and
2. All material contracts and documents relating to the
proposed transaction; and
3. An opportunity to question the appropriate
executive officers or partners.
(6) In the case of an issuer that is subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the provisions of paragraph (5)(b) of this rule will
be deemed satisfied by providing the following:
(a) The information contained in the annual report required to
be filed under the Securities Exchange Act of 1934 or a
registration statement on Form S_1 [CCH Federal Securities
Law ReporterP. 7121 ] under the Securities Act of 1933,
whichever filing is the most recent required to be filed,
and the information contained in any definitive proxy
statement required to be filed pursuant to Section 14 of the
Securities Exchange Act of 1934 and in any reports or
documents required to be filed by the issuer pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, since the filing of such annual report or registration
statement; and
(b) A brief description of the securities being offered, the use
of the proceeds from the offering, and any material changes
in the issuer's affairs which are not disclosed in the
documents furnished.
(K) Reorganization:
The corporate events effected in reliance on Section 368(a)(1)(B) of the
Code which are to take place on or before May 31, 2001, between AmeriNet
and PCG as a result of which PCG will become a wholly owned subsidiary of
AmeriNet and the former PCG securities holders will become the controlling
stockholders of AmeriNet.
(L) Reorganization Agreement:
The agreement between AmeriNet and all of the stockholders of PCG pursuant
to which the Reorganization is to be effected.
(M) Rule 144(d)(3)(ii)
[Persons Deemed Not to Be Engaged in a Distribution and Therefore Not
Underwriters] .... (ii) Conversions. If the securities sold were acquired
from the issuer for a consideration consisting solely of other securities
of the same issuer surrendered for conversion, the securities so acquired
shall be deemed to have been acquired at the same time as the securities
surrendered for conversion ....
(N) Section 3(a)(9)
(1) Sec. 3(a) of the Securities Act, which provides as follows in
subsection (9): Except as hereinafter expressly provided the
provisions of this title shall not apply to any of the following
classes of securities: .... [Securities Exchanged with Security
Holders] Sec. 3(a)(9) Except with respect to a security exchanged in a
case under title 11 of the United States Code, any security exchanged
by the issuer with its existing security holders exclusively where no
commission or other remuneration is paid or given directly or
indirectly for soliciting such exchange;
(2) Commission Regulations ss.230.149, [Definition of "Exchanged" in
Section 3(a)(9), for Certain Transactions]: The term "exchanged" in
section 3(a)(9) shall be deemed to include the issuance of a security
in consideration of the surrender by the existing security holders of
the issuer, of outstanding securities of the issuer, notwithstanding
the fact that the surrender of the outstanding securities may be
required by the terms of the plan of exchange to be accompanied by
such payment in cash by the security holder as may be necessary to
effect an equitable adjustment, in respect of dividends or interest
paid or payable on the securities involved in the exchange, as between
such security holder and other security holders of the same class
accepting the offer of exchange.
(3) Commission Regulations ss.230.150, [Definition of "Commission or Other
Remuneration" in Section 3(a)(9), for Certain Transactions] The term
"commission or other remuneration" in Section 3(a)(9) shall not
include payments made by the issuer, directly or indirectly, to its
security holders in connection with an exchange of securities for
outstanding securities, when such payments are part of the terms of
the offer of exchange.
(O) Securities Act:
The Securities Act of 1933, as amended.
(P) Service:
The United States Internal Revenue Service.
(Q) (1) AmeriCom AmeriNet Communications, Inc., a Florida corporation
(2) FundsAmerica Funds America Finance Corporation, a Florida corporation.
(3) Trilogy Trilogy International, Inc., a Florida corporation.
(4) PriMed PriMed Technologies, Inc., a Florida corporation.
(5) Vista Vista Vacations International, Inc., , a Florida corporation.
(6) WRI Xxxxxxx.xxx, Inc., a Florida corporation.
(R) All undefined financial terms will have the meanings ascribed to them by
generally accepted accounting practices, consistently applied on the
accrual basis of accounting, as modified by rules of the Commission
including Regulations SB and SK.
(S) Additional terms characterized by initial capital letters are defined in
this Agreement immediately following their first use.
Article II
Operative Provisions
(A) In conjunction with AmeriNet's return to Yankees of all rights to projects
described in AmeriNet press releases and filings with the Commission under
the Exchange Act as the "15c2-11 Project" and the "Emerging Companies
Report Project," in the amendment to license agreement dated April 16,
2001, a copy of which is annexed hereto and made a part hereof as exhibit
II-1 (the "Amendment to License Agreement"), AmeriNet hereby also conveys
to Yankees for purpose of their liquidation, all of AmeriNet's right, title
and interest, if any, in Xxxxxxx Communications, Inc. ("Xxxxxxx") and
AmeriNet Communications, Inc. ("AmeriCom"), including, without limitation,
all of their capital stock and all rights to litigation against them and
their former stockholders.
(B) Subject to the conditions precedent that: all actions required to be taken
in order to comply with the securities and other laws of each state having
jurisdiction over the transactions called for under this Agreement; and,
that the Reorganization becomes fully effective on or before May 31, 2001,
the Parties hereby agree as follows:
(1) AmeriNet:
(a) AmeriNet hereby agrees to transfer to Yankees, at Closing, all of
its right, title and interest in and to all of its assets, of
whatever kind or character, whether real or personal, current or
inchoate, and including without limitation, all of the securities
AmeriNet holds in other corporations, whether as subsidiaries
(e.g., AmeriCom) or as investments (e.g., Trilogy and Vista), all
furniture, fixtures, equipment, supplies, deposits, contract
rights, choses in action, etc., except for:
1. Securities specifically defined in Section II(B)(2) which
are to be transferred to the Escrow Agent for disposition in
accordance with the terms of existing agreements between the
respective issuers, AmeriNet and Yankees; provided, however,
that if they are not so distributed, the Escrow Agent will
promptly convey them to Yankees; and
2. Cash or cash equivalents (certificates of deposit, certified
checks, bank accounts, etc.).
(b) AmeriNet hereby agrees to transfer to the Escrow Agent, at
Closing:
1. All of the common stock in WRI for disposition as provided
for in the superseder and exchange agreement entered into by
the Parties and WRI on or about January 26, 2001, a copy of
which was filed by AmeriNet with the Commission; provided,
however, that if they are not so distributed, the Escrow
Agent will convey them to Yankees;
2. All of the rights of its stockholders to common stock in
PriMed, for disposition as provided for in the consulting
agreement entered into by the Parties and PriMed on or about
January 16, 2001, a copy of which was filed by AmeriNet with
the Commission;
3. All of the rights of its stockholders in the common stock in
FundsAmerica, shares of common stock in which are in the
process of being registered with the Commission for
distribution to persons who held AmeriNet common stock as of
the close of business on June 17, 1999, or their successors
in interest, all as of the day the registration of such
common stock is declared effective by the Commission; as
provided for in Section 1.4 of the consulting agreement
entered into by the Parties and FundsAmerica on or about May
18, 1999, a copy of which was filed by AmeriNet with the
Commission.
(c) Closing on the foregoing will take place as soon as possible
taking into account the requirements of AmeriNet in conjunction
with the PCG closing, and the requirement that AmeriNet not
dispose of substantially all of its assets in a manner that would
require stockholder approval for the transactions contemplated
hereby or in conjunction with the proposed PCG closing.
(2) Yankees:
Yankees hereby:
(a) Takes all of the following actions:
1. Converts all of the AmeriNet Notes into shares of AmeriNet's Class A
Preferred Stock, on the preferential basis provided for in the
Consulting Agreement;
2. Converts all of the shares of AmeriNet's Class A Preferred Stock held
by Yankees into shares of AmeriNet's common stock, on the preferential
basis provided for in the Consulting Agreement.
3. Releases all liens held by Yankees on AmeriNet's assets and
securities, other than those created under the PCG Deposit Agreement.
(b) Agrees, if required by PCG as a condition to closing on the
Reorganization Agreement, to exercise the balance of the
Yankees Warrant by payment of the exercise price exclusively
in AmeriNet securities having a value equal to the exercise
price based on the last transaction price reported for
AmeriNet common stock on the OTC Bulleting Board on the day
preceding Yankees execution of the Yankees warrant exercise
form.
(3) The Parties:
The Parties hereby terminate the Consulting Agreement and the
Loan Agreement,, provided that Yankees is entitled to receipt of
all accrued but unpaid compensation under such Agreements, as of
the date of this Agreement, payable in shares of AmeriNet's
common stock, on the preferential basis provided for in the
Consulting Agreement.
(C) As a material inducement to each Parties entry into this Agreement, each of
the Parties hereby represents to the others that the representing Party:
(1) 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 his, her or its
advisors or representatives, if any, such knowledge and
experience in financial matters that he she or it is capable of
evaluating the relative risks and merits of the transactions
contemplated hereby, the text of Rule 501(a) being set forth, in
full, above;
(2) Acknowledges that he, she or it has, based on his, her or 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 him, her or it in
particular;
(3) (a) Understands that the offer and transfer or issuance of the
securities involved is being made in reliance on the Party's
representation that he, she or 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) Is fully aware of the material risks associated with
becoming an investor in AmeriNet and confirms that he, she
or 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 him, her or it
have been made available to him, her or it;
(4) 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, the contemplated affairs of PCG
and related matters;
(5) 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 called for
by the Florida Rule;
(6) Has represented that he, she or it has the general ability to
bear the risks of the subject transaction and that he, she or it
is a suitable investor for a private offering and hereby affirms
the correctness of such information, including, without
limitation, the representations in the form of the investment
letters annexed hereto and made a part hereof as exhibit 3(E)(6),
an original of which (bearing modifications required to
personalize the letter as to gender, etc., will be executed by
such Party and tendered to AmeriNet concurrently with the
Closing;
(7) Is aware that:
(a) The securities involved are a speculative investment with no
assurance that PCG will be successful, or if successful,
that such success will result in payments to such Party or
to realization of capital gains by such Party on disposition
of the securities involved; and
(b) The securities to be issued to him, her or it have not been
registered under the Securities Act or under any state
securities laws, accordingly such Party may have to hold
such securities and may not be able to liquidate, pledge,
hypothecate, assign or transfer them;
(8) Has obtained his, her or its own opinion from his, her or its own
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 any Party in conjunction with this
Agreement and the issuance of the securities involved in
conjunction therewith, other than such actions as have already
been taken in order to comply with the securities law
requirements of his, her or its state of domicile; and
(9) (a) Except for shares issued in reliance on Staff Legal Bulletin
Number 5 of the Commission's Division of Corporate Finance,
issued pursuant to Section 3(a)(9) of the Securities Act or
registered with the Commission, certificates for the
securities involved will bear restrictive legends and the
transfer agents involved will be instructed not to transfer
the subject securities unless they have been registered
pursuant to Section 5 of the Securities Act or an opinion of
counsel to such Party satisfactory to legal counsel to
AmeriNet and its chief executive officer 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 will read substantially 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, Mutual Releases & Closing
(A) The terms of this Agreement supersede the terms of all other agreements
between AmeriNet, Yankees and their affiliates (other than the PCG Deposit
Agreement and the Yankees Warrant), all of which will be henceforth be
deemed null and void except that, in conjunction with the exchange of any
type of AmeriNet security for any other type of AmeriNet security required
by the terms of this Agreement, each such exchange shall be deemed a
separate transaction pursuant to the exemptive provisions of Section
3(a)(9) of the Securities Act and Commission Rule 144(d)(3)(ii).
(B) In consideration for the exchange of covenants reflected above but
excepting only the obligations created by this Agreement, the Yankees
warrant and the PCG Deposit Agreement, AmeriNet and Yankees 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.
Article IV
General Provisions
4.1 Interpretation.
(A) When a reference is made in this Agreement to schedules or exhibits, such
reference will be to a schedule or exhibit to this Agreement unless
otherwise indicated.
(B) The words "include," "includes" and "including" when used herein will 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 will 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 will be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the
Party or Parties, or their personal representatives, successors and assigns
may require.
(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 will be in
writing and will be deemed to have been duly given on the first business
day after mailing by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
(1) To AmeriNet:
AmeriNet Xxxxx.xxx, Inc.;
Crystal Corporate Center;
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X;
Xxxx Xxxxx, Xxxxxxx 00000;
Attention: Xxxxxx X. Xxxxxxx, President;
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail Xx@xxxxxxxxxxxxx.xxx;
(2) To Yankees:
The Yankee Companies, Inc.;
Crystal Corporate Center;
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000;
Attention: Xxxxxxx Xxxxx Xxxxxx, President
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxx@xxxxxxxxxxxxxxx.xxx;
-
or such other address or to such other person as any Party will 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 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 AmeriNet to retain independent legal and
accounting counsel to review this Agreement and its exhibits and
incorporated materials on its own behalf.
(3) The decision by any AmeriNet not to use the services of legal counsel
in conjunction with this transaction will be solely at their own risk,
each Party acknowledging that applicable rules of the Florida Bar
prevent Yankees' general counsel, who has reviewed, approved and
caused modifications on behalf of Yankees, from representing anyone
other than Yankees 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 will be
of no force or effect.
4.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein will survive the execution hereof and the Reorganization and
will 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 will be held
invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Agreement or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those to which it is held invalid or unenforceable,
will not be affected thereby.
4.6 Governing Law.
This Agreement will be construed in accordance with the substantive and
procedural laws of the State of Delaware (other than those regulating taxation
and choice of law).
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 will 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 will, to the extent legally permitted, be held in Broward
County, Florida, and the prevailing Party will be entitled to recover its
costs and expenses, including reasonable attorneys' fees up to and
including all negotiations, trials and appeals, whether or not 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
will, at the request of any Party, be exclusively resolved through the
following procedures:
(1) (a) First, the issue will be submitted to mediation before a
mediation service in Broward County, Florida to be selected by
lot from four alternatives to be provided, two by Yankees and two
by AmeriNet.
(b) The mediation efforts will be concluded within ten business days
after their initiation unless the Parties unanimously agree to an
extended mediation period;
(2) In the event that mediation does not lead to a resolution of the
dispute then at the request of any Party, the Parties will submit the
dispute to binding arbitration before an arbitration service located
in Broward County, Florida to be selected by lot, in the same manner
as set forth for mediation.
(3) (a) Expenses of mediation will be borne equally by the Parties, if
successful.
(b) Expenses of mediation, if unsuccessful and of arbitration will 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 will be borne equally by
the Parties involved.
(C) (1) It is agreed that this Agreement will be construed pursuant to the
laws of the State of Florida and, in the event it is necessary for any
party to seek to enforce this Agreement, jurisdiction will be in the
appropriate court or tribunal in Broward County, Florida and United
States Courts for the Southern District of Florida and that, in the
event it is necessary to enforce this Agreement, the prevailing Party
will be entitled to recover all reasonable costs, expenses, and
attorney's fees, and will be construed as costs for purposes of this
Agreement.
(2) The Parties specifically agree and waive any right to a jury trial in
the event that it is necessary for a party to institute legal
proceedings herein.
4.9 Benefit of Agreement.
The terms and provisions of this Agreement will 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.
4.11 Counterparts.
(A) This Agreement may be executed in any number of counterparts.
(B) All executed counterparts will constitute one Agreement notwithstanding
that all signatories are not signatories to the original or the same
counterpart.
(C) Execution by exchange of facsimile transmission will be deemed legally
sufficient to bind the signatory; however, the Parties will, for aesthetic
purposes, prepare a fully executed original version of this Agreement which
will be the document filed with the Commission.
4.12 License.
(A) This form of agreement is the property of Yankees and has been customized
for this transaction with the consent of Yankees by its general counsel.
(B) The use of this form of agreement by the Parties is authorized hereby
solely for purposes of this transaction.
(C) The use of this form of agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
In Witness Whereof, AmeriNet and Yankees 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.
/s/ Xxxxx Xxx Xxxxxxxx /s/ (A Delaware corporation)
/s/ Xxxxxxxx Micthem /s/ By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
(Corporate Seal)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: May 23, 2001
State of Florida }
County of Xxxxxx } ss.:
On this 23rd day of May, 2001, before me, a notary public in and for the
county and state aforesaid, personally appeared Xxxxxx X. Xxxxxxx 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: 06/07/04
{Seal}
/s/ Xxxxx Xxx Xxxxxxxx /s/
Notary Public
The Yankee Companies, Inc.
/s/ Xxxxx Xxxxxxxx (a Florida corporation)
/s/ Xxxxxxx X. Xxxxxxx /s/ By: /s/ Xxxxxxx Xxxxx Xxxxxx
Xxxxxxx Miles Xxxxxx, President
(Corporate Seal)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: May 18th, 2001
State of Florida }
County of Palm Beach } ss.:
On this 18th day of May, 2001, before me, a notary public in and for the
county and state aforesaid, personally appeared Xxxxxxx Xxxxx Xxxxxx and Xxxxxxx
X. Xxxxxxx, to me known, and known to me to be the president and secretary of
The Yankee Companies, 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
The Yankee Companies, 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:
(Seal)
/s/ Xxxxxxx X. Xxxxxxx /s/
Notary Public
Exhibit 3(E)(6)
Investment Letters
Date: May 18, 2001
Xxxxxx X. Xxxxxxx
President
AmeriNet Xxxxx.xxx, Inc.
Crystal Corporate Center
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X
Xxxx Xxxxx, Xxxxxxx 00000
Re.: AmeriNet Securities
Dear Xx. Xxxxxxx:
On behalf of the Yankee Companies, Inc., a Florida corporation ("Yankees"),
I hereby certify and warrant that Yankees is a party to the Superseder &
Termination Agreement to which this letter is annexed as an exhibit (the
"Agreement"), pursuant to which it is acquiring equity securities of AmeriNet
Xxxxx.xxx, Inc. ("AmeriNet") and it is providing this letter to acknowledge
certain matters and to bind itself by certain agreements required by AmeriNet,
in order to assure that the issuance of unregistered securities to Yankees
complies with applicable exemptions from securities registration requirements
provided under federal securities laws and the securities laws of Yankees' state
of domicile.
On behalf of Yankees, I hereby certify under penalty of perjury that:
1. Except for securities acquired in reliance on Section 3(a)(9) of the
Securities Act, upon receipt of the AmeriNet securities, Yankees will
be acquiring them for its own account for investment purposes without
any intention of selling or distributing all or any part thereof. On
behalf of Yankees, I represent and warrant that it qualifies as an
accredited investor (as that term is defined in Rule 501(a) of
Regulation D promulgated under authority of the Securities Act of
1933, as amended [the "Securities Act"]) and that it is sophisticated
in financial affairs, or has relied on the advice of someone
sophisticated in financial affairs, is able to bear the economic risks
of this investment and does not have any reason to anticipate any
change in its circumstances, financial or otherwise.
2. I have consulted with Yankees own legal counsel who, after having been
apprized by Yankees of all the material facts surrounding this
transaction, opined to Yankees, for the benefit of AmeriNet, that this
transaction was being effected in full compliance with the applicable
securities laws of Yankees' state of domicile.
3. Except for securities acquired in reliance on Section 3(a)(9) of the
Securities Act, I agree that I will in no event sell or distribute any
of the AmeriNet securities unless in the opinion of AmeriNet's counsel
(based on an opinion of Yankees' legal counsel) the AmeriNet
securities may be legally sold without registration under the
Securities Act, and/or registration and/or other qualification under
then_applicable State and/or Federal statutes, or the AmeriNet
securities will have been so registered and/or qualified and an
appropriate prospectus, will then be in effect.
4. Yankees is fully aware that, except for the securities exchanged in
reliance on Section 3(a)(9) of the Securities Act, the AmeriNet
securities are being offered and issued by AmeriNet to Yankees in
reliance on the exemption provided by Section 4(6) or the Securities
Act which exempts the sale of securities by an issuer solely to
accredited investors, based on Yankees' certifications and warranties.
5. In connection with the foregoing, Yankees consents to AmeriNet's
legending certificates representing the AmeriNet securities to
indicate Yankees' investment intent and the restriction on transfer
contemplated hereby and to AmeriNet's placing a "stop transfer" order
against the AmeriNet securities in AmeriNet's securities transfer
books until the conditions set forth herein will have been met.
6. On behalf of Yankees, I acknowledge execution hereof that Yankees has
had access to Exchange Act Reports that contain material information
concerning AmeriNet and Park City Group, Inc., and to their updated
financial statements, business plans and information, books, records
and properties, and have inspected the same to Yankees' full and
complete satisfaction prior to acquisition of the AmeriNet securities.
7. On behalf of Yankees, I represent and warrant that because of Yankees'
experience in business and investments, it is competent to make an
informed investment decision with respect thereto on the basis of
Yankees' inspection of AmeriNet's records and Yankees' questioning of
AmeriNet's officers.
Xxxxxx X. Xxxxxxx
May 18, 2001
Page 2
On behalf of Yankees, I further certify that Yankees' domicile is located
at the address set forth in the Agreement.
Very truly yours,
The Yankee Companies, Inc.
/s/ Xxxxxxx Xxxxx Xxxxxx /s/
Xxxxxxx Xxxxx Xxxxxx
President
Escrow Agreement
This Escrow Agreement (the "Escrow Agreement") is made and entered into by
and among AmeriNet Xxxxx.xxx, Inc., a Delaware corporation with a class of
securities registered under Section 12(g) of the Exchange Act ("AmeriNet");
Xxxxxxx.xxx, Inc., a Florida corporation ("WRI"); and, Xxxxxx X. Xxxxxxx, a
Florida resident (the "Escrow Agent;" AmeriNet and WRI being collectively
referred to as the "Principals" and the Escrow Agent and the Principals being
sometimes hereinafter collectively referred to as the "Parties" and each being
sometimes hereinafter generically referred to as a "Party").
Preamble:
Whereas, the Principals desire that the Escrow Agent hold all shares of
WRI's common stock owned by AmeriNet (the "Escrow Res") pending its disposition
as required under the terms of the superseder and exchange agreement entered
into by AmeriNet, WRI and the Yankee Companies, Inc., a Florida corporation
("Yankees"), on or about January 26, 2001 (the "Principles' Agreement"),
including the distribution of shares to Xx. Xxxxxx and Yankees and the
registration of WRI common stock with the Commission for issuance to holders of
AmeriNet common stock and their successors in interest, as of the close of
business on the day which the required registration statement is declared
effective by the Commission (the "Qualifying Recipients"); and
Whereas, such arrangement is required as a supplement to the Principles'
Agreement because of AmeriNet's anticipated acquisition of Park City Group, Inc.
(a Delaware corporation headquartered in Park City, Utah; "PCG"), which has
insisted as a condition of such acquisition, that that AmeriNet divest itself of
all assets other than between $1,000,000 and $5,000,000 in cash prior to the
closing on the acquisition of PCG; and
Whereas, the Escrow Agent has agreed to act as escrow agent for the Escrow
Res on the terms and conditions now about to be set forth.
Now, Therefore, in consideration of the covenants and agreements herein set
forth and other good and lawful consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto, intending to be legally bound,
agree as follows:
Witnesseth:
I. Escrow
(a) The Escrow Agent agrees to hold all of the Escrow Res in escrow subject to
the following terms and conditions, which shall control in the event of any
conflict between the provisions hereof and those reflected in any other
instruments.
(1) The Escrow Res, or any portion thereof, may be disbursed at any time
upon notification in writing, signed by both Principals, such writing
to be orally confirmed by the Escrow Agent; or
(2) The Escrow Res, or any portion thereof, may be disbursed upon receipt
of separate written instruments, one from each Principal, otherwise
meeting the requirements of Section I(a)(1); or
(3) (A) The Escrow Agent will deliver the portion of the Escrow Res to be
distributed to the Qualifying Recipients to WRI's transfer agent,
provided that it is registered as such and in good standing with
the Commission (the "WRI Transfer Agent"), at such time as the
Escrow Agent is notified that the registration statement filed by
WRI with the Commission registering the Escrow Res for
distribution to the Qualifying Recipients (the "WRI Registration
Statement") has been declared effective by the Commission, with
signature medallion guaranteed, as required to permit
distribution of the Escrow Res to the Qualified Recipients in the
manner called for by the WRI Registration Statement.
(B) The Escrow Agent will deliver the portion of the Escrow Res to be
delivered to Xx. Xxxxxx, to Xx. Xxxxxx pursuant to the terms of
the Principles' Agreement, concurrently with Xx. Xxxxxx'x
delivery to the Escrow Agent, with signature medallion
guaranteed, as required to permit immediate cancellation by
AmeriNet of the shares of AmeriNet common stock which Xx. Xxxxxx
is required to return to AmeriNet under the terms of the
Principles' Agreement.
(C) The Escrow Agent will deliver the portion of the Escrow Res to be
delivered to Yankees pursuant to the terms of the Principles'
Agreement, concurrently with the distribution of AmeriNet common
stock to the Qualifying Recipients, as described in Section
1(a)(3)(A) above.
(4) In the event that WRI fails to secure an effective date for the
Registration Statement in a manner rendering it abandoned under
federal securities laws, regulations or rules, then the Escrow Agent
shall immediately convey the Escrow Res other than that theretofore
tendered to Xx. Xxxxxx, to the order of Yankees, for disposition as
Yankees deems appropriate, in its sole discretion.
(5) In the event that the Escrow Agent has not received acceptable
dispositive instructions from the Principals within 12 months after
the date of this Escrow Agreement, he may, at his option, initiate an
action in the nature of interpleader and deposit the Escrow Res in the
registry of a court of competent jurisdiction, for disposition.
(6) In the event that either Principal fails to provide the Escrow Agent
with confirmation of disbursement instructions satisfactory to the
Escrow Agent after receipt of a disbursement demand from the other
Principal, the Escrow Agent may, at his option, initiate an action in
the nature of interpleader and deposit the Escrow Res in the registry
of a court of competent jurisdiction, for disposition.
(b) Unless otherwise provided for in this Escrow Agreement or any addendum
hereto, the Escrow Agent shall disburse the Escrow Res without interest or
other accumulation in value.
(c) The Escrow Agent shall not be deemed to have knowledge of any matter or
thing unless and until the Escrow Agent has actually received written
notice of such matter or thing and the Escrow Agent shall not be charged
with any constructive notice whatsoever.
(d) In the event the Escrow Res consist in whole or in part of stocks, bonds or
certificates of deposit (or any other property which may fluctuate in
value) the Escrow Agent shall hold in escrow, pursuant to this Escrow
Agreement, any proceeds of the Escrow Res actually delivered to the Escrow
Agent and realized as a result of splits, calls, redemptions or otherwise,
but shall not be obligated to ascertain the existence of (or initiate
recovery of) such proceeds or to become or remain informed with respect to
the possibility or probability of such proceeds being realized at any time
in the future, or to inform any Principal(s) or any third party with
respect to the nature and extend of any proceeds realized, except upon the
written request of such party, or to monitor current market values of the
Escrow Res. Furthermore, the Escrow Agent shall not be obligated to proceed
with any action or inaction based on information with respect to market
values of the Escrow Res which the Escrow Agent may in any manner learn,
nor shall the Escrow Agent be obligated to inform the Principal(s) or any
third party with respect to market values of any one or more of the Escrow
Res at any time, the Escrow Agent having no duties with respect to
investment management or information, all Principals(s) understanding and
intending that Escrow Agent's responsibilities are purely ministerial in
nature. Any reduction in the market value or other value of the Escrow Res
while deposited with the Escrow Agent shall be at the sole risk of
Principal(s).
(e) In the event instructions from Principal(s) would require the Escrow Agent
to expend any funds or to incur any cost, the Escrow Agent shall be
entitled to refrain from taking any action until it receives payment for
such costs.
(f) The Principal(s) acknowledge and agree that nothing in this Escrow
Agreement shall prohibit the Escrow Agent from (1) serving in a similar
capacity on behalf of the others or (2) acting in the capacity of attorney
for one or more Principal(s) in connection with any matter.
(g) The Parties acknowledge that the Qualified Recipients and Yankees shall be
third party beneficiaries under this Escrow Agreement for purposes of
enforcing rights to receipt of the Escrow Res, as provided for in this
Escrow Agreement.
II. Release of Escrowed Property
(a) The Escrow Agent agrees to release the Escrow Res in accordance with the
terms and conditions set forth in this Escrow Agreement.
(b) In the event the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands from any
Principal(s) or from third persons with respect to the Escrow Res or any
other sums or things which may be held hereunder, which, in its sole
opinion, are in conflict with any provision of this Escrow Agreement, the
Escrow Agent shall be entitled to refrain from taking any action until it
shall be directed otherwise in writing by all Principal(s) and said third
persons, or by a final order or judgment of a court of competent
jurisdiction.
(c) If all or any portion of the Escrow Res delivered to the Escrow Agent is in
the form of a check or in any form other than cash, the Escrow Agent shall
deposit them as required but shall not be liable for the nonpayment thereof
nor responsible to enforce collection thereof. If such check or other
instrument other than cash representing the Escrow Res is returned to the
Escrow Agent unpaid, the Escrow Agent shall notify the applicable
Principal(s) for further instructions.
III. Liability of Escrow Agent
(a) It is agreed that the duties of the Escrow Agent are purely ministerial in
nature and shall be expressly limited to the safekeeping of the Escrow Res
and for the disposition of same in accordance with this Escrow Agreement.
(b) Each Principal hereby indemnifies the Escrow Agent and holds it harmless
from and against any and all claims, liabilities, damages, costs,
penalties, losses, actions, suits or proceedings at law or in equity, or
any other expenses, fees or charges of any character or nature, which it
may incur or with which it may be threatened directly or indirectly arising
from or in any way connected with this Escrow Agreement or which may result
from the Escrow Agent's following of instructions from Principal(s), and in
connection therewith, indemnifies the Escrow Agent against any and all
expenses, including attorney's fees and the cost of defending any action,
suit, or proceeding or resisting any claim, whether or not litigation is
instituted.
(c) The Escrow Agent shall be vested with a lien on all Escrow Res held
hereunder which are deliverable to the Principal(s) under the terms of this
Escrow Agreement, for indemnification, attorney's fees, court costs arising
from any suit, interpleader or otherwise, or other expenses, fees or
charges of any character or nature, which may be incurred by the Escrow
Agent by reason of disputes arising between Principal(s) and/or any third
party as to the correct interpretation of this Escrow Agreement and/or the
Consulting Agreement, and instructions given to the Escrow Agent hereunder,
or otherwise, with the right of the Escrow Agent, regardless of the
instruments aforesaid and without the necessity of instituting any action,
suit or proceeding, to hold the Escrow Res until and unless said additional
expenses, fees and charges shall be fully paid.
IV. Disputes
(a) In the event the Escrow Agent is joined as a party of a lawsuit by virtue
of the fact that it is holding the Escrow Res, the Escrow Agent shall, at
its option, either (1) tender the Escrow Res to the registry of the
appropriate court or (2) disburse the Escrow Res in accordance with the
court's ultimate disposition of the case, and the Principal(s) hereby,
jointly and severally, indemnify and hold the Escrow Agent harmless from
and against any damages or losses in connection therewith including, but
not limited to, reasonable attorney's fees and court costs at all trial and
appellate levels.
(b) In the event the Escrow Agent tenders the Escrow Res to the registry of the
appropriate court and files an action of interpleader naming the
Principal(s) and any affected third parties from whom the Escrow Agent has
received actual notice, the Escrow Agent shall be released and relieved
from any and all further obligations and liability hereunder or in
connection herewith and the Principal(s) hereby, jointly and severally,
indemnify and hold the Escrow Agent harmless from and against any damages
or losses arising in connection therewith including, but not limited to,
all costs and expenses incurred by the Escrow Agent in connection with the
filing of such action including, but not limited to, the reasonable
attorneys' fees and court costs at all trial and appellate levels.
V. Term of Agreement
(a) This Escrow Agreement shall remain in effect until it is canceled in any of
the following manners:
(1) Upon provision of written notice by all Principal(s) to the Escrow
Agent notifying it of cancellation of its designation as escrow agent
to act and serve in said capacity, in which event, cancellation shall
take effect no earlier than twenty (20) days after notice to the
Escrow Agent of such cancellation; or
(2) The Escrow Agent may resign as escrow agent at any time upon giving
notice to the Principal(s) of its desire to so resign, however, the
resignation of the Escrow Agent shall take effect no earlier than ten
(10) days after the giving of notice of resignation; or
(3) Upon compliance with all escrow provisions as set forth in this Escrow
Agreement and in the Consulting Agreement.
(b) In the event the Principal(s) fail to agree to a successor escrow agent
within the period described above, the Escrow Agent shall have the right to
deposit all of the Escrow Res held hereunder into the registry of an
appropriate court and request judicial determination of the rights between
Principal(s), by interpleader or other appropriate action, and the
Principal(s) hereby, jointly and severally, indemnify and hold the Escrow
Agent harmless from and against any damages or loses in connection
therewith, including, but not limited to, reasonable attorney's fees and
court costs at all trial and appellate levels.
(c) Upon termination of the duties of the Escrow Agent in either manner set
forth in subparagraphs 1 or 2 of Paragraph (a) of this Article V, the
Escrow Agent shall deliver all of the Escrow Res to the newly appointed
escrow agent designated by the Principal(s), and, except for rights of the
Escrow Agent specified in Paragraph (a) of Article III of this Escrow
Agreement, the Escrow Agent shall not otherwise have the right to withhold
the Escrow Res from said newly appointed escrow agent.
(d) The Escrow Agent shall not be bound by any modification, cancellation or
rescission of this Escrow Agreement unless in writing and signed by all
Principal(s) and the Escrow Agent. In no event shall any modification of
this Escrow Agreement, which shall affect the rights or duties of the
Escrow Agent, be binding on the Escrow Agent unless it shall have given its
prior written consent.
VI. Cumulative Rights
No right, power or remedy conferred upon the Escrow Agent by this Escrow
Agreement is exclusive of any other right, power or remedy, but each and every
such right, power or remedy shall be cumulative and concurrent and shall be in
addition to any other right, power or remedy the Escrow Agent may have under the
Escrow Agreement or now or hereafter existing at law, in equity or by statute,
and the exercise of one right, power or remedy by the Escrow Agent shall not be
construed or considered as a waiver of any other right, power or remedy.
VII. Compensation
As consideration for the Escrow Agent's services hereunder, the Principals
shall each pay the Escrow Agent the consideration set forth below, to be
tendered to the Escrow Agent within ten business days following execution of
this Escrow Agreement:
(a) AmeriNet shall tender to the Escrow Agent, 5,000 shares of its unregistered
common stock, to be issued in reliance on the exemptions from registration
provided by Section 4(6) of the Securities Act and Section 517.061(11) of
the Florida Act.
(b) WRI shall tender to the Escrow Agent, 3,000 shares of its unregistered
common stock, to be issued in reliance on the exemptions from registration
provided by Section 4(6) of the Securities Act and Section 517.061(11) of
the Florida Act.
(c) As a condition precedent to the receipt of the compensation called for by
this Article VII, the Escrow Agent hereby represents to the other Parties
to this Escrow Agreement that the Escrow Agent:
(1) 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 his, her or its advisors or
representatives, if any, such knowledge and experience in financial
matters that he she or it is capable of evaluating the relative risks
and merits of the transactions contemplated hereby, the text of Rule
501(a) being set forth, in full, above;
(2) Acknowledges that he, she or it has, based on his, her or 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 him, her or it in particular;
(3) (a) Understands that the offer and transfer or issuance of the
securities involved is being made in reliance on the Escrow
Agent's representation that he, she or 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) Is fully aware of the material risks associated with becoming an
investor in WRI and AmeriNet and confirms that he, she or it was
previously informed that all documents, records and books
pertaining to this investment have been available from WRI and
AmeriNet and that all documents, records and books pertaining to
this transaction requested by him, her or it have been made
available to him, her or it;
(4) Has had an opportunity to ask questions of and receive answers
from the officers of WRI and AmeriNet concerning the terms and
conditions of this Escrow Agreement and the transactions
contemplated hereby, as well as the affairs of WRI and AmeriNet,
the contemplated affairs of WRI and AmeriNet and related matters;
(5) 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 called for
by the Florida Rule;
(6) Has represented that he, she or it has the general ability to
bear the risks of the subject transaction and that he, she or it
is a suitable investor for a private offering and hereby affirms
the correctness of such information, including, without
limitation, the representations in the form of the investment
letters annexed hereto and made a part hereof as exhibit VII, an
original of which (bearing modifications required to personalize
the letter as to gender, etc., will be executed by the Escrow
Agent and tendered to WRI and AmeriNet concurrently with the
Closing;
(7) Is aware that:
(a) The securities involved are a speculative investment with no
assurance that WRI and AmeriNet will be successful, or if
successful, that such success will result in payments to the
Escrow Agent or to realization of capital gains by the
Escrow Agent on disposition of the securities involved; and
(b) The securities to be issued to him, her or it have not been
registered under the Securities Act or under any state
securities laws, accordingly the Escrow Agent may have to
hold such securities and may not be able to liquidate,
pledge, hypothecate, assign or transfer them;
(8) Has obtained his, her or its own opinion from his, her or its own
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 any Party in conjunction with this Escrow
Agreement and the issuance of the securities involved in conjunction
therewith, other than such actions as have already been taken in order
to comply with the securities law requirements of his, her or its
state of domicile; and
(9) (a) Certificates for the securities involved will bear restrictive
legends and WRI and AmeriNet's transfer agents will be instructed
not to transfer the subject securities unless they have been
registered pursuant to Section 5 of the Securities Act or an
opinion of counsel to the Escrow Agent satisfactory to legal
counsel to WRI or AmeriNet and WRI or AmeriNet's chief executive
officer (as the transaction requires) 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 will read substantially 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 [WRI or AmeriNet]'s satisfaction."
VIII. Miscellaneous
8.1 Amendment.
No modification, waiver, amendment, discharge or change of this Escrow
Agreement shall be valid unless the same is evinced by a written instrument,
subscribed by the Party against which such modification, waiver, amendment,
discharge or change is sought.
8.2 Notice.
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:
(a) To AmeriNet:
AmeriNet Xxxxx.xxx, Inc.;
Crystal Corporate Center;
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X;
Xxxx Xxxxx, Xxxxxxx 00000;
Attention: Xxxxxxx X. Xxxxxxx, Secretary;
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxxxx@xxxxxxxxxxxxx.xxx,
until AmeriNet acquires PCG and thereafter,
to Park City Group. Inc.; Xxxxxxx X. Xxxxxx, President;
Park City Group, Inc.; 000 Xxxx Xxxxxx;
Xxxx Xxxx, Xxxx 00000;
Telephone (000) 000-0000, Fax (000) 000-0000;
e-mail, xxxxx@xxxxxxxx.xxx; Website, xxx.xxxxxxxx.xxx
(b) To WRI:
Xxxxxxx.xxx, Inc.;
000 Xxxx Xxxxxx Xxxx, Xxxxx 000;
Xxxxxxx Xxxxx, Xxxxxxx 00000;
Attention: Xxxxxxx X. Xxxxxx, President;
Telephone (000) 000-0000; fax (000) 000-0000;
e-mail Xxxxxxx@Xxxxxxx.xxx
(c) To Yankees:
The Yankee Companies, Inc.;
Crystal Corporate Center;
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000;
Attention: Xxxxxxx Xxxxx Xxxxxx, President;
Telephone (000) 000-0000, Fax (000) 000-0000; and, l
e-mai xxxxx@xxxxxxxxxxxxxxx.xxx;
(d) To the Escrow Agent:
Xxxxxx X. Xxxxxxx;
0000 Xxxxxxxxx 00xx Xxxxxxx, Xxxxx 0000;
Xxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail, xxxxxxxx@xxxxxxxxx.xxx,
(e) 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.
8.3 Merger.
This instrument, together with the instruments referred to herein, contains
all of the understandings and agreements of the Parties with respect to the
subject matter discussed herein. All prior agreements whether written or oral
shall be of no force or effect.
8.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and closing hereon and shall
be effective regardless of any investigation that may have been made or may be
made by or on behalf of any Party.
8.5 Severability.
If any provision or any portion of any provision of this Escrow 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 Escrow 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.
8.6 Governing Law and Venue.
This Escrow Agreement shall be governed by the laws of the State of Florida
and any proceedings hereunder shall be held in a forum of the Escrow Agent's
choice.
8.7 Litigation.
In any action between the Parties to enforce any of the terms of this
Escrow Agreement or any other matter arising from this Escrow 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.
8.8 Benefit of Agreement.
The terms and provisions of this Escrow Agreement shall be binding upon and
inure to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees.
8.9 Captions.
The captions in this Escrow Agreement are for convenience and reference
only and in no way define, describe, extend or limit the scope of this Escrow
Agreement or the intent of any provisions hereof.
8.10 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.
8.11 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 Escrow Agreement.
8.12 Counterparts.
This Escrow Agreement may be executed in any number of counterparts. All
executed counterparts shall constitute one Agreement notwithstanding that all
signatories are not signatories to the original or the same counterpart.
8.13 License.
This Escrow Agreement is the property of the Yankees Companies, Inc., a
Florida corporation ("Yankees") and the use hereof by the Parties is authorized
hereby solely for purposes of this transaction and, the use of this form of
agreement or of any derivation thereof without Yankees's prior written
permission is prohibited.
IX. Definitions & Rules of Construction
The following terms or phrases, as used in this Escrow Agreement, will 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:
Accredited investor. "Accredited investor" will 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) Code:
The Internal Revenue Code of 1986, as amended.
(c) Commission:
The United States Securities and Exchange Commission
(d) XXXXX:
The Commission's electronic data gathering and retrieval system
accessible by the public at the Commission's website located at
xxxx://xxx.xxx.xxx.
(e) Exchange Act:
The Securities Exchange Act of 1934, as amended.
(f) Florida Act:
The Florida Securities and Investor Protection Act
(J) Florida Rule:
Florida Rule 3E-500.005, which provides as follows: Disclosure
requirements of Section 517.061(11)(a)3., Florida Statutes.
(1) Transactions by an issuer which do not satisfy all of the
conditions of this rule will not raise any presumption that the
exemptions provided by Section 517.061(11), Florida Statutes is
not available for such transactions. Attempted compliance with
this rule does not act as an election; the issuer can also claim
the availability of Section 517.061(11), Florida Statutes,
outside this rule.
(2) The determination as to whether sales of securities are part of a
larger offering (i.e., are deemed to be integrated) depends on
the particular facts and circumstances. In determining whether
sales should be regarded as part of a larger offering and thus
should be integrated, the facts described in Rule 3E-500.01
should be considered.
(3) Although sales made pursuant to Section 517.061(11), Florida
Statutes, and in compliance with this rule, are exempt from the
registration provisions of this Act, such exemption does not
avoid the antifraud provisions of Sections 517.301 and 517.311,
Florida Statutes.
(4) The provisions of this rule will apply only to transactions which
are consummated with persons in the State of Florida.
(5) The requirements of Sections 517.061(11)(a)(3), Florida Statutes,
that each purchaser, or his representative be provided with or
given reasonable access to full and fair disclosure of all
material information will be deemed to be satisfied if either
paragraphs (5)(a) or (5)(b) are complied with:
(a) Access to or Furnishing of Information. Reasonable access
to, or the furnishing of, material information will be
deemed to have been satisfied if prior to the sale a
purchaser is given access to the following information:
1. All material books and records of the issuer; and
2. All material contracts and documents relating to the
proposed transaction; and
3. An opportunity to question the appropriate executive
officers or partners.
(6) In the case of an issuer that is subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the provisions of paragraph (5)(b) of this rule will
be deemed satisfied by providing the following:
(a) The information contained in the annual report required to
be filed under the Securities Exchange Act of 1934 or a
registration statement on Form S-1 [CCH Federal Securities
Law Reporter P. 7121 ] under the Securities Act of 1933,
whichever filing is the most recent required to be filed,
and the information contained in any definitive proxy
statement required to be filed pursuant to Section 14 of the
Securities Exchange Act of 1934 and in any reports or
documents required to be filed by the issuer pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, since the filing of such annual report or registration
statement; and
(b) A brief description of the securities being offered, the use
of the proceeds from the offering, and any material changes
in the issuer's affairs which are not disclosed in the
documents furnished.
(g) Principles' Agreement:
The agreement entered into between AmeriNet, WRI and Yankees, on or
about January 26, 2001.
(_) Securities Act:
The Securities Act of 1933, as amended.
(h) Service:
The United States Internal Revenue Service.
(i)
All undefined financial terms will have the meanings ascribed to them
by generally accepted accounting practices, consistently applied on
the accrual basis of accounting, as modified by rules of the
Commission including Regulations SB and SK.
(j) Additional terms characterized by initial capital letters are defined
in this Escrow Agreement immediately following their first use.
IN WITNESS WHEREOF, the Parties have caused this Escrow Agreement to be
executed effective as of the 2nd day of April, 2001.
Signed, sealed and delivered
In Our Presence:
AmeriNet Xxxxx.xxx, Inc.
/s/ Xxxxx Xxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Secretary
Xxxxxxx.xxx, Inc.
/s/ Xxxx Haclelio
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President
Escrow Agent
/s/ Xxxxx Xxx Xxxxxxxx /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxxx Xxxxxxx
Exhibit VII
Form of Investment Letters
April 2, 2001
Xxxxxx X. Xxxxxxx
President
AmeriNet Xxxxx.xxx, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Re.: AmeriNet's Securities
Dear Xx. Xxxxxxx:
I hereby certify and warrant that I am a party to that certain escrow
agreement to which a form of this letter is annexed as an exhibit (the
"Agreement"), pursuant to which I am acquiring equity securities of WRI and
AmeriNet and I am providing this letter to acknowledge certain matters and to
bind myself by certain agreements required by WRI and AmeriNet, in order to
assure that the issuance of unregistered securities to me complies with
applicable exemptions from securities registration requirements provided under
federal securities laws and the securities laws of my state of domicile.
I hereby certify under penalty of perjury that:
1. Upon receipt of the WRI and AmeriNet securities, I will be acquiring them
for my own account for investment purposes without any intention of selling
or distributing all or any part thereof. I represent and warrant that I
qualify as an accredited investor (as that term is defined in Rule 501(a)
of Regulation D promulgated under authority of the Securities Act of 1933,
as amended [the "Securities Act"]) and that I am sophisticated in financial
affairs, or have relied on the advice of someone sophisticated in financial
affairs, and I able to bear the economic risks of this investment and I do
not have any reason to anticipate any change in my circumstances, financial
or otherwise, nor any other particular occasion or event which should cause
me to sell or distribute, or necessitate or require my sale or distribution
of the WRI and AmeriNet securities. No one other than me has any beneficial
interest in the WRI and AmeriNet securities.
2. I have consulted with my own legal counsel who, after having been apprized
by me of all the material facts surrounding this transaction, opined to me,
for the benefit of WRI and AmeriNet, that this transaction was being
effected in full compliance with the applicable securities laws of my state
of domicile.
3. I agree that I will in no event sell or distribute any of the WRI and
AmeriNet securities unless in the opinion of WRI and AmeriNet's counsel
(based on an opinion of my legal counsel) the WRI and AmeriNet securities
may be legally sold without registration under the Securities Act, and/or
registration and/or other qualification under then-applicable State and/or
Federal statutes, or the WRI and AmeriNet securities will have been so
registered and/or qualified and an appropriate prospectus, will then be in
effect.
4. I am fully aware that the WRI and AmeriNet securities are being offered and
issued by WRI and AmeriNet to me in reliance on the exemption provided by
Section 4(6) or the Securities Act which exempts the sale of securities by
an issuer solely to accredited investors, based on my certifications and
warranties.
5. In connection with the foregoing, I consent to WRI and AmeriNet's legending
my certificates representing the WRI and AmeriNet securities to indicate my
investment intent and the restriction on transfer contemplated hereby and
to WRI and AmeriNet's placing a "stop transfer" order against the WRI and
AmeriNet securities in WRI and AmeriNet's securities transfer books until
the conditions set forth herein will have been met.
6. I acknowledge by my execution hereof that I have had access to Exchange Act
Reports that contain material information concerning WRI and AmeriNet, and
to WRI and AmeriNet's updated financial statements, business plans and
information, books, records and properties, and have inspected the same to
my full and complete satisfaction prior to my acquisition of the WRI and
AmeriNet securities.
7. I represent and warrant that because of my experience in business and
investments, I am competent to make an informed investment decision with
respect thereto on the basis of my inspection of WRI and AmeriNet's records
and my questioning of WRI and AmeriNet's officers.
I further certify that my domicile is located at the address set forth in
the Agreement.
Very truly yours,
/s/ Xxxxxx X. Xxxxxxx /s/
Xxxxxx X. Xxxxxxx
Signature
Exhibit VII
Form of Investment Letters
April 2, 2001
Xxxxxxx X. Xxxxxx
President
Xxxxxxx.xxx, Inc.
000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Re.: WRI's Securities
Dear Xx. Xxxxxx:
I hereby certify and warrant that I am a party to that certain escrow
agreement to which a form of this letter is annexed as an exhibit (the
"Agreement"), pursuant to which I am acquiring equity securities of WRI and
AmeriNet and I am providing this letter to acknowledge certain matters and to
bind myself by certain agreements required by WRI and AmeriNet, in order to
assure that the issuance of unregistered securities to me complies with
applicable exemptions from securities registration requirements provided under
federal securities laws and the securities laws of my state of domicile.
I hereby certify under penalty of perjury that:
1. Upon receipt of the WRI and AmeriNet securities, I will be acquiring them
for my own account for investment purposes without any intention of selling
or distributing all or any part thereof. I represent and warrant that I
qualify as an accredited investor (as that term is defined in Rule 501(a)
of Regulation D promulgated under authority of the Securities Act of 1933,
as amended [the "Securities Act"]) and that I am sophisticated in financial
affairs, or have relied on the advice of someone sophisticated in financial
affairs, and I able to bear the economic risks of this investment and I do
not have any reason to anticipate any change in my circumstances, financial
or otherwise, nor any other particular occasion or event which should cause
me to sell or distribute, or necessitate or require my sale or distribution
of the WRI and AmeriNet securities. No one other than me has any beneficial
interest in the WRI and AmeriNet securities.
2. I have consulted with my own legal counsel who, after having been apprized
by me of all the material facts surrounding this transaction, opined to me,
for the benefit of WRI and AmeriNet, that this transaction was being
effected in full compliance with the applicable securities laws of my state
of domicile.
3. I agree that I will in no event sell or distribute any of the WRI and
AmeriNet securities unless in the opinion of WRI and AmeriNet's counsel
(based on an opinion of my legal counsel) the WRI and AmeriNet securities
may be legally sold without registration under the Securities Act, and/or
registration and/or other qualification under then-applicable State and/or
Federal statutes, or the WRI and AmeriNet securities will have been so
registered and/or qualified and an appropriate prospectus, will then be in
effect.
4. I am fully aware that the WRI and AmeriNet securities are being offered and
issued by WRI and AmeriNet to me in reliance on the exemption provided by
Section 4(6) or the Securities Act which exempts the sale of securities by
an issuer solely to accredited investors, based on my certifications and
warranties.
5. In connection with the foregoing, I consent to WRI and AmeriNet's legending
my certificates representing the WRI and AmeriNet securities to indicate my
investment intent and the restriction on transfer contemplated hereby and
to WRI and AmeriNet's placing a "stop transfer" order against the WRI and
AmeriNet securities in WRI and AmeriNet's securities transfer books until
the conditions set forth herein will have been met.
Xx. Xxxxxxx Xxxxxx
April 2, 2001
Page 2
6. I acknowledge by my execution hereof that I have had access to Exchange Act
Reports that contain material information concerning WRI and AmeriNet, and
to WRI and AmeriNet's updated financial statements, business plans and
information, books, records and properties, and have inspected the same to
my full and complete satisfaction prior to my acquisition of the WRI and
AmeriNet securities.
7. I represent and warrant that because of my experience in business and
investments, I am competent to make an informed investment decision with
respect thereto on the basis of my inspection of WRI and AmeriNet's records
and my questioning of WRI and AmeriNet's officers.
I further certify that my domicile is located at the address set forth in
the Agreement.
Very truly yours,
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Signature
License Transfer Agreement
This License Transfer Agreement (the "Agreement") is made and entered into
by and between and among The Yankee Companies, Inc., a Florida Corporation (the
"Licensor"), AmeriNet Xxxxx.xxx, Inc., a Delaware corporation (the "Licensee")
and AmeriNet Communications, Inc., a Florida corporation ("AmeriCom"), sometimes
hereinafter collectively referred to as the "Parties").
Preamble:
WHEREAS, the parties previously entered into discussions for the
development of a financial news program, known among the parties as the
"Emerging Companies" project, which was conceived and planned by Licensor, and
to that end created a license between Licensor and Licensee; and
WHEREAS, Licensor and Licensee agreed with AmeriCom that AmeriCom would be
responsible for the development and profitability of the Emerging Companies
project, and to that end agreed that AmeriCom would be a sublicensee; and
WHEREAS, the Licensee has entered into an agreement with Park City Group,
Inc., which requires divestiture by Licensee of certain assets and agreements;
and
WHEREAS, the agreement with Park City Group, Inc. is advantageous to
Licensor and Licensee, such that the reassignment of all rights to the Emerging
Companies project to Yankees and the waiver by Yankees of any remaining
obligations to the other parties is valuable to those Parties; and
WHEREAS, the failure of AmeriCom to develop and make profitable the
Emerging Companies concept has resulted in potential liabilities for AmeriCom,
and therefore it is advantageous to AmeriCom to eliminate those liabilities by
entering into this agreement;
NOW THEREFORE, in consideration of the premises and the mutual advantage to
each party which will result from this agreement, the Parties, intending to be
legally bound, hereby agree as follows:
Article One
Reassignment of Rights
The Licensee and AmeriCom hereby reassign to the Licensor all right, title
and interest in and to the Emerging Companies project, and the Licensor hereby
accepts the reassignment from the Licensee and AmeriCom.
Article Two
Waiver by Licensor
The Licensor hereby waives any and all further compliance with any
agreement, understanding or undertaking regarding the Emerging Companies project
due from any other party to this agreement.
License Transfer Agreement
Page 1
Article Three
Waiver
Licensee and AmeriCom hereby waive any further claim of any kind or
character to the Emerging Companies project. Hereafter, all parties agree that
all rights to this project shall be the property of Licensor.
Article Four
Miscellaneous
4.1 Amendment.
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.
4.2 Merger.
This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein. All prior
agreements whether written or oral, are merged herein and shall be of no force
or effect.
4.3 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.
4.4 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.
4.5 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.
4.6 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.
License Transfer Agreement
Page 2
(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 the Licensor
and three by the Licensee.
(B) The mediation efforts shall be concluded within ten business days
after their in itiation 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 the Licensor and three by the
Licensee.
(3) (A) Expenses of mediation shall be borne by the Licensee, 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.
4.7 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.
4.8 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.
In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
License Transfer Agreement
Page 3
Signed, Sealed & Delivered
In Our Presence
The Yankee Companies, Inc.
a Florida corporation
/S/ Xxxxx Xxxxxxxx
/s/ Xxxxx Xxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxx Xxxxxx
Xxxxxxx Miles Xxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: April 16, 2001
AmeriNet Xxxxx.xxx, Inc.
a Delaware corporation.
/s/ Xxxxxxxx Xxxxxxx
/s/ Xxxxx Xxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: April 16, 2001
AmeriNet Communications, Inc.
a Florida corporation.
/s/ Xxxxxxxx Xxxxxxx
/s/ Xxxxx Xxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: April 16, 2001
License Transfer Agreement
Page 4
Amendment to License Agreement
This Amendment to License Agreement (the "Agreement") is made and entered
into by and between and among The Yankee Companies, Inc., a Florida Corporation
(the "Licensor"), AmeriNet Xxxxx.xxx, Inc., a Delaware corporation (the
"Licensee;" and Xxxxxxx.xxx, Inc., a Florida corporation ("WRI"), sometimes
hereinafter collectively referred to as the "Parties").
Preamble:
WHEREAS, the parties previously entered into an agreement for the licensing
to Licensee of the the exclusive right to develop and use the domain names
00x0-00.xxx, 00x0-00.xxx, 00x0-00.xxx and 00x0-00.xx (the "Licensed Domain
Names"); and
WHEREAS, the Licensee has entered into an agreement with Park City Group,
Inc., which requires divestiture by Licensee of certain assets and agreements;
and
WHEREAS, the agreement with Park City Group, Inc. is advantageous to
Licensor and Licensee, such that the reassignment of the Licensed Domain Names
to Yankees and the waiver by Yankees of any remaining obligations under the
original licensing agreement is valuable to both Parties; and
WHEREAS, the intention stated in the License Agreement to license the
Licensed Domain Names to WRI was never effectuated and WRI desires to
acknowledge its absence of rights in the Licensed Domain Names, and WRI will
benefit from this amendment by being spared litigation to clarify its rights or
lack thereof in the Licensed Domain Names,
NOW THEREFORE, in consideration of the premises and the mutual advantage to
each party which will result from this agreement, the Parties, intending to be
legally bound, hereby agree as follows:
Article One
Reassignment by Licensee
The Licensee hereby reassigns the Licensed Domain Names to the Licensor,
and the Licensor hereby accepts the reassignment from the Licensee.
Article Two
Waiver by Licensor
The Licensor hereby waives any and all further compliance with the License
Agreement entered into between the parties on or about February 9, 2000.
Article Three
Acknowledgment and Waiver by WRI
WRI hereby acknowledges that it was never assigned any rights in the
Licensed Domain Names, and hereby waives any further claim of any kind or
character to said names.
License Agreement
Page 1
Article Four
Miscellaneous
4.1 Amendment.
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.
4.2 Merger.
This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein. All prior
agreements whether written or oral, are merged herein and shall be of no force
or effect.
4.3 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.
4.4 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.
4.5 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.
4.6 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 the Licensor
and three by the Licensee.
License Agreement
Page 2
(B) The mediation efforts shall be concluded within ten business days
after their in itiation 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 the Licensor and three by the
Licensee.
(3) (A) Expenses of mediation shall be borne by the Licensee, 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.
4.7 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.
4.8 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.
In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
The Yankee Companies, Inc.
a Florida corporation
/s/ Xxxxx Malonrio
/s/ Xxxxx Xxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxx Xxxxxx
Xxxxxxx Miles Xxxxxx, President
(CORPORATE SEAL)
Attest:/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: April 16, 2001
License Agreement
Page 3
AmeriNet Xxxxx.xxx, Inc.
a Delaware corporation.
/s/ Xxxxx Xxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
(CORPORATE SEAL)
Attest:/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
Dated: April 16, 2001
Xxxxxxx.xxx, Inc.
a Florida corporation.
/s/ Xxxxxxx Xxxxxx
__________________________ By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Secretary & General Counsel
Dated: April 16, 2001
License Agreement
Page 4
