Employment Agreement
This Employment Agreement (the "Agreement") is entered into by and among
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual residing in the State of Florida ("▇▇.
▇▇▇▇▇▇"); AmeriNet ▇▇▇▇▇.▇▇▇, Inc., a Delaware publicly held corporation with a
class of securities registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended ("AmeriNet" and the "Exchange Act," respectively,
AmeriNet and all of its subsidiaries, whether current or subsequently formed or
acquired, being collectively hereinafter referred to as the "Consolidated
Corporation," and AmeriNet and ▇▇. ▇▇▇▇▇▇ being sometimes hereinafter
collectively to as the "Parties" or generically as a "Party".
Preamble:
WHEREAS, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AmeriNet's president has advised its board of
directors that in light of its currently increased activities in the public
sector, AmeriNet should consider retaining a president more experienced in
matters involving the securities industry, public finance and securities
regulatory requirements; and
WHEREAS, AmeriNet has directed the Yankee Companies, Inc., a Florida
corporation which serves as AmeriNet's strategic consultant ("Yankees") to
recommend and individual meeting the parameters established by ▇▇. ▇▇▇▇▇▇▇, to
serve as its president for the next fiscal year; and
WHEREAS, Yankees has conducted an executive recruitment search and
recommended ▇▇. ▇▇▇▇▇▇ to AmeriNet's board of directors based on the expectation
that during the next twelve months AmeriNet's development as a diversified
Internet group of companies will require substantial additional capital and
consequently, a president familiar with the investment community and the
practical and regulatory aspects of capital formation; and
WHEREAS, after interviewing ▇▇. ▇▇▇▇▇▇, AmeriNet's board of directors has
determined that he is experienced and well known in the financial community and
is thoroughly knowledgeable with the obligations and restriction imposed on
public companies by the Exchange Act and the Securities Act of 1933, as amended
(the "Securities Act") and has requested that he serve as AmeriNet's president
during the next fiscal year; and
WHEREAS, ▇▇. ▇▇▇▇▇▇ is agreeable to serving as AmeriNet's president on the
terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
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Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of ▇▇. ▇▇▇▇▇▇'▇
employment hereunder shall be deemed to commence on first business day of the
first week following the last date appearing on the signature page of this
Agreement and continue until August 30, 2000, unless extended or earlier
terminated by AmeriNet as hereinafter set forth.
1.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing not to
renew this Agreement provides the other Party with written notice of its
election not to renew ("Termination Election Notice") on or before the 60th day
prior to termination of the then current term.
1.3 Earlier Termination.
AmeriNet shall have the right to terminate this Agreement prior to the
expiration of its Term or of any renewals thereof, subject to the provisions of
Section 1.4, for the following reasons:
(a) For Cause:
(1)AmeriNet may terminate the President's employment under this
Agreement at any time for cause.
(2)Such termination shall be evidenced by written notice thereof to
▇▇. ▇▇▇▇▇▇, which notice shall specify the cause for termination.
(3)For purposes hereof, the term "cause" shall mean:
(a)The inability of ▇▇. ▇▇▇▇▇▇, through sickness or other incapacity,
to discharge his duties under this Agreement for 21 or more consecutive
days or for a total of 45 or more days in a period of twelve consecutive
months;
(b)The refusal of ▇▇. ▇▇▇▇▇▇ to follow the directions of AmeriNet's
board of directors;
(c)Dishonesty; theft; or conviction of a crime involving moral
turpitude;
(d)Material default in the performance of his obligations, services or
duties required under this Agreement or materially breach of any provision
of this Agreement, which default or breach has continued for five days
after written notice of such default or breach.
(b) Discontinuance of Business:
In the event that AmeriNet discontinues operating its business, this
Agreement shall terminate as of the last day of the month on which it
ceases operation with the same force and effect as if such last day of the
month were originally set as the termination date hereof; provided,
however, that a reorganization of AmeriNet shall not be deemed a
termination of its business.
(c) Death:
This Agreement shall terminate immediately on ▇▇. ▇▇▇▇▇▇'▇ death;
however, all accrued compensation at such time shall be promptly paid to
▇▇. ▇▇▇▇▇▇'▇ estate.
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1.4 Final Settlement.
Upon termination of this Agreement and payment to ▇▇. ▇▇▇▇▇▇ of all amounts
due him hereunder, ▇▇. ▇▇▇▇▇▇ or his representative shall execute and deliver to
the terminating entity on a form prepared by the terminating entity, a receipt
for such sums and a release of all claims, except such claims as may have been
submitted pursuant to the terms of this Agreement and which remain unpaid, and,
shall forthwith tender to AmeriNet all records, manuals and written procedures,
as may be desired by it for the continued conduct of its business.
Article Two
Scope of Employment
2.1 Retention.
AmeriNet hereby hires ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) ▇▇. ▇▇▇▇▇▇ shall be employed as the president of AmeriNet and
shall perform the duties associated with the position of president by
AmeriNet's bylaws.
(b) Without limiting the generality of the foregoing, ▇▇. ▇▇▇▇▇▇
shall:
(1) Serve as the principal point of contact between AmeriNet
and:
(A)The media (print, electronic, voice and picture);
(B)The investment community;
(C)AmeriNet's security holders;
(2) Be responsible for supervision of all of AmeriNet's other
officers;
(3) Be responsible for AmeriNet's compliance with all
applicable laws, including federal, state and local
securities laws and tax laws;
(4) Be responsible for supervision of AmeriNet's
subsidiaries; and
(5) Perform such other duties as are assigned to him by
AmeriNet's board of directors, subject to compliance with all
applicable laws and fiduciary obligations.
(c) ▇▇. ▇▇▇▇▇▇ covenants and agrees to perform his employment duties
in good faith and, subject to the exceptions specified in Section 2.4, to
devote substantially all of his business time, energies and abilities to
the proper and efficient management and execution of such duties. 2.3
Status.
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2.3 Status
(a)▇▇. ▇▇▇▇▇▇ shall serve as an employee of AmeriNet but shall have no
authority to act as an agent thereof, or to bind AmeriNet or its
subsidiaries as a principal or agent thereof, all such functions being
reserved to its board of directors in compliance with the requirements of
its constituent documents.
(b)▇▇. ▇▇▇▇▇▇ hereby covenants and agrees that he shall not hold
himself out as an authorized agent of AmeriNet unless such authority is
specifically assigned to him, on a case by case basis, by its board of
directors pursuant to a duly adopted resolution which remains in effect.
(c)▇▇. ▇▇▇▇▇▇ hereby represents and warrants to AmeriNet that he is
subject to no legal, self regulatory organization (e.g., National
Association of Securities Dealers, Inc.'s bylaws) or regulatory impediments
to the provision of the services called for by this Agreement, or to
receipt of the compensation called for under this Agreement or any
supplements thereto; and, ▇▇. ▇▇▇▇▇▇ hereby irrevocably covenants and
agrees to immediately bring to the attention of AmeriNet any facts required
to make the foregoing representation and warranty continuingly accurate
throughout the term of this Agreement, or any supplements or extensions
thereof.
(d)Annexed hereto and made a part hereof as exhibit 2.3(d) is a letter
from Sunshine Securities Corporation, an NASD member firm, consenting to
▇▇. ▇▇▇▇▇▇'▇ entry into this agreement.
2.4 Exclusivity.
▇▇. ▇▇▇▇▇▇ shall, unless specifically otherwise authorized by AmeriNet's
board of directors, on a case by case basis, devote his business time
exclusively to the affairs of AmeriNet; provided, however, that AmeriNet hereby
recognizes that ▇▇. ▇▇▇▇▇▇ is:
(a)A party to an agreement with the Southeast Companies, Inc., which
has been assigned thereby to Yankees, calling for him to provide services
thereto;
(b)The president of Southeast Counseling & Management, a division of
the Southeast Companies, Inc.
(c)The president of Securities Counseling & Management, Inc., a
Florida corporation;
(d)An officer of Zagreus, Inc., a currently inactive public company in
the process of reorganization; and
(e)A registered representative and registered principal with Sunshine
Securities Corporation; and hereby consents to his continuation in such
roles, provided that his role as AmeriNet's president shall take priority
in allocation of time and resources to any activities pertaining to such
roles, and that he will resolve any actual conflicts of interest resulting
from such roles in favor of AmeriNet.
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2.5 Limitations on Services
(a)The Parties recognize that certain responsibilities and obligations
are imposed by federal and state securities laws and by the applicable
rules and regulations of stock exchanges, the National Association of
Securities Dealers, Inc., in-house "due diligence" or "compliance"
departments of Licensed Securities Firms, etc.; accordingly, ▇▇. ▇▇▇▇▇▇
agrees that he will not:
(1)Release any financial or other material information or data
about AmeriNet without the prior written consent and approval of
AmeriNet's General Counsel;
(2)Conduct any meetings with financial analysts without informing
AmeriNet's General Counsel and board of directors in advance of the
proposed meeting and the format or agenda of such meeting.
(b)In any circumstances where ▇▇. ▇▇▇▇▇▇ is describing the securities
of AmeriNet to a third party, ▇▇. ▇▇▇▇▇▇ shall disclose to such person any
compensation received from AmeriNet to the extent required under any
applicable laws, including, without limitation, Section 17(b) of the
Securities Act of 1933, as amended.
(c)In rendering his services, ▇▇. ▇▇▇▇▇▇ shall not disclose to any
third party any confidential non-public information furnished by AmeriNet
or American Internet or otherwise obtained by it with respect to AmeriNet,
except on a need to know basis, and in such case, subject to appropriate
assurances that such information shall not be used, directly or indirectly,
in any manner that would violate state or federal prohibitions on ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ of AmeriNet's securities.
(d)▇▇. ▇▇▇▇▇▇ shall not take any action which would in any way
adversely affect the reputation, standing or prospects of AmeriNet or
AmeriNet or which would cause AmeriNet to be in violation of applicable
laws.
Article Three
Compensation
3.1 Compensation.
As consideration for ▇▇. ▇▇▇▇▇▇'▇ services to AmeriNet ▇▇. ▇▇▇▇▇▇ shall
be entitled to:
(a) (1)An option to purchase up to 100,000 shares of AmeriNet's common
stock during the 36 month period commencing at the end of the 365th day
following commencement of the initial term of this Agreement, at an
exercise price equal to the last reported price paid therefor reported on
the over the counter electronic bulletin board operated by the National
Association of Securities Dealers, Inc., a Delaware corporation and self
regulatory organization registered with the Commission under the Exchange
Act (the "OTC Bulletin Board" and the "NASD," respectively), provided that:
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(a)He remains in the employ of AmeriNet for a period of not less
than 365 consecutive days;
(b)He has not been discharged by AmeriNet for cause;
(c)He fully complies with the provisions of this Agreement,
including, without limitation, the confidentiality and non-competition
sections hereof;
(2)▇▇. ▇▇▇▇▇▇ hereby represents, warrants, covenants and acknowledges
that:
(A)The securities being issued as compensation under this
Agreement (the "Securities") will be issued without registration under
the provisions of Section 5 of the Securities Act or the securities
regulatory laws and regulations of the State of Florida (the "Florida
Act") pursuant to exemptions provided pursuant to Section 4(6) of the
Act and comparable provisions of the Florida Act;
(B)▇▇. ▇▇▇▇▇▇ shall be responsible for preparing and filing any
reports concerning this transaction with the Commission and with
Florida Division of Securities, and payment of any required filing
fees (none being expected);
(C)All of the Securities will bear legends restricting their
transfer, sale, conveyance or hypothecation unless such Securities are
either registered under the provisions of Section 5 of the Act and
under the Florida Act, or an opinion of legal counsel, in form and
substance satisfactory to legal counsel to AmeriNet is provided to
AmeriNet's General Counsel to the effect that such registration is not
required as a result of applicable exemptions therefrom;
(D)AmeriNet's transfer agent shall be instructed not to transfer
any of the Securities unless the General Counsel for AmeriNet advises
it that such transfer is in compliance with all applicable laws;
(E)▇▇. ▇▇▇▇▇▇ is acquiring the Securities for his own account,
for investment purposes only, and not with a view to further sale or
distribution; and
(F)▇▇. ▇▇▇▇▇▇ or his advisors have examined AmeriNet's books and
records and questioned its officers and directors as to such matters
involving AmeriNet as he deemed appropriate.
(3)In the event that AmeriNet files a registration or notification
statement with the Commission or any state securities regulatory
authorities registering or qualifying any of its securities for sale or
resale to the public as free trading securities, it will notify ▇▇. ▇▇▇▇▇▇
of such intent at least 15 business days prior to such filing, and shall,
if requested by him, include any shares theretofore issued upon exercise of
the Options in such registration or notification statement, provided that
▇▇. ▇▇▇▇▇▇ cooperates in a timely manner with any requirements for such
registration or qualification by notification, including, without
limitation, the obligation to provide complete and accurate information
therefor.
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(b)In addition to the compensation described above:
(1)In the event that ▇▇. ▇▇▇▇▇▇ arranges or provides funding for the
Consolidated Corporation on terms more beneficial than those reflected in
the Consolidated Corporation's current principal financing agreements,
copies of which are included among the Consolidated Corporation's records
available through the SEC's ▇▇▇▇▇ web site, ▇▇. ▇▇▇▇▇▇ shall be entitled,
at its election, to either:
(A)A fee equal to 5% of such savings, on a continuing basis; or
(B)If equity funding is provided through ▇▇. ▇▇▇▇▇▇ or any
affiliates thereof, a discount of 5% from the bid price for the
subject equity securities, if they are issuable as free trading
securities, or, a discount of 25% from the bid price for the subject
equity securities, if they are issuable as restricted securities (as
the term restricted is used for purposes of SEC Rule 144); and
(C)If equity funding is arranged for the Consolidated Corporation
by ▇▇. ▇▇▇▇▇▇ and AmeriNet is not obligated to pay any other source
compensation in conjunction therewith, other than the normal
commissions charged by broker dealers in securities in compliance with
the compensation guidelines of the NASD, the ▇▇. ▇▇▇▇▇▇ shall be
entitled to a bonus in a sum equal to 5% of the net proceeds of such
funding.
(2)In the event that ▇▇. ▇▇▇▇▇▇ generates business for the
Consolidated Corporation, then, on any sales resulting therefrom, ▇▇.
▇▇▇▇▇▇ shall be entitled to a commission equal to 5% of the net income
derived by the Consolidated Corporation therefrom, on a continuing basis.
3.2 Benefits
▇▇. ▇▇▇▇▇▇ shall be entitled to any benefits generally made available to
all other employees (rather than to a specified employee or group of
employees).
3.3 Indemnification.
AmeriNet will defend, indemnify and hold ▇▇. ▇▇▇▇▇▇ harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by him in good faith on behalf of the Consolidated Corporation, its
affiliates or for other persons or entities at the request of the board of
directors of AmeriNet, to the fullest extent legally permitted, and in
conjunction therewith, shall assure that all required expenditures are made in a
manner making it unnecessary for ▇▇. ▇▇▇▇▇▇ to incur any out of pocket expenses;
provided, however, that ▇▇. ▇▇▇▇▇▇ permits AmeriNet to select and supervise all
personnel involved in such defense and that ▇▇. ▇▇▇▇▇▇ waives any conflicts of
interest that such personnel may have as a result of also representing AmeriNet,
their stockholders or other personnel and agrees to hold them harmless from any
matters involving such representation, except such as involve fraud or bad
faith.
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Article Four
Special Covenants
4.1 Confidentiality.
(a)▇▇. ▇▇▇▇▇▇ acknowledges that, in and as a result of his employment
hereunder, he will be developing for AmeriNet, making use of, acquiring
and/or adding to, confidential information of special and unique nature and
value relating to such matters as AmeriNet's trade secrets, systems,
procedures, manuals, confidential reports, personnel resources, strategic
and tactical plans, advisors, clients, investors and funders; consequently,
as material inducement to the entry into this Agreement by AmeriNet, ▇▇.
▇▇▇▇▇▇ hereby covenants and agrees that he shall not, at anytime during or
following the terms of his employment hereunder, directly or indirectly,
personally use, divulge or disclose, for any purpose whatsoever, any of
such confidential information which has been obtained by or disclosed to
him as a result of his employment by AmeriNet, or AmeriNet's affiliates.
(b)In the event of a breach or threatened breach by ▇▇. ▇▇▇▇▇▇ of any
of the provisions of this Section 4.1, AmeriNet, in addition to and not in
limitation of any other rights, remedies or damages available to AmeriNet,
whether at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by ▇▇. ▇▇▇▇▇▇, or by ▇▇.
▇▇▇▇▇▇'▇ partners, agents, representatives, servants, employers, employees,
affiliates and/or any and all persons directly or indirectly acting for or
with him.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
AmeriNet as a result of a breach by ▇▇. ▇▇▇▇▇▇ of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect AmeriNet's interests, ▇▇. ▇▇▇▇▇▇ hereby covenants and agrees that
AmeriNet shall have the following additional rights and remedies in the event of
a breach hereof:
(a)▇▇. ▇▇▇▇▇▇ hereby consents to the issuance of a permanent
injunction enjoining him from any violations of the covenants set forth in
Section 4.1 hereof; and
(b)Because it is impossible to ascertain or estimate the entire or
exact cost, damage or injury which AmeriNet may sustain prior to the
effective enforcement of such injunction, ▇▇. ▇▇▇▇▇▇ hereby covenants and
agrees to pay over to AmeriNet, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(i)Any payment or compensation of any kind received by him
because of such violation before the issuance of such injunction, or
(ii)The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for the
injuries suffered by AmeriNet as a result of such violation, the
Parties hereto agreeing that such liquidated damages are not intended
as the exclusive remedy available to AmeriNet for any breach of the
covenants and agreements contained in this Article Four, prior to the
issuance of such injunction, the Parties recognizing that the only
adequate remedy to protect AmeriNet from the injury caused by such
breaches would be injunctive relief.
4.3 Cumulative Remedies.
▇▇. ▇▇▇▇▇▇ hereby irrevocably agrees that the remedies described in Section
4.3 hereof shall be in addition to, and not in limitation of, any of the rights
or remedies to which AmeriNet is or may be entitled to, whether at law or in
equity, under or pursuant to this Agreement.
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4.4 Acknowledgment of Reasonableness.
▇▇. ▇▇▇▇▇▇ hereby represents, warrants and acknowledges that he has
carefully read and considered the provisions of this Article Four and, having
done so, agrees that the restrictions set forth herein are fair and reasonable
and are reasonably required for the protection of the interests of AmeriNet, its
officers, directors and other employees; consequently, in the event that any of
the above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, ▇▇. ▇▇▇▇▇▇ hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in place of
any limitation deemed unenforceable and, ▇▇. ▇▇▇▇▇▇ hereby covenants and agrees
that if so modified, the covenants contained in this Article Four shall be as
fully enforceable as if they had been set forth herein directly by the Parties.
In determining the nature of this limitation, ▇▇. ▇▇▇▇▇▇ hereby acknowledges,
covenants and agrees that it is the intent of the Parties that a court
adjudicating a dispute arising hereunder recognize that the Parties desire that
this covenant not to compete be imposed and maintained to the greatest extent
possible.
4.5 Unauthorized Acts.
▇▇. ▇▇▇▇▇▇ hereby covenants and agrees that he will not do any act or incur
any obligation on behalf of AmeriNet or American Internet of any kind
whatsoever, except as authorized by its board of directors or by its
stockholders pursuant to duly adopted stockholder action.
4.6Covenant not to Disparage
▇▇. ▇▇▇▇▇▇ hereby irrevocably covenants and agrees that during the term of
this Agreement and after its termination, he will refrain from making any
remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about the Consolidated Company, its constituent
members, or their officers, directors, stockholders, employees, agent or
affiliates, whether related to the business of the Consolidated Company, to
other business or financial matters or to personal matters.
Article Five
Miscellaneous
5.1 Notices.
(a)All notices, demands or other communications hereunder shall
be in writing, and unless otherwise provided, shall be deemed to have
been duly given on the first business day after mailing by registered
or certified mail, return receipt requested, postage prepaid,
addressed as follows:
To ▇▇. ▇▇▇▇▇▇:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
Telephone (▇▇▇) ▇▇▇-▇▇▇▇; Facsimile (▇▇▇) ▇▇▇-▇▇▇▇; e-mail
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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To AmeriNet:
AmeriNet ▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇; ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone (561)
▇▇▇-▇▇▇▇, Fax (▇▇▇) ▇▇▇-▇▇▇▇; and, e-mail ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇; Attention:
Senior Vice President; with a copy to
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esquire; General Counsel
AmeriNet ▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Fax (▇▇▇) ▇▇▇-▇▇▇▇; and, e-mail, ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇;
and to
The Yankee Companies, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇; ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Fax (▇▇▇) ▇▇▇-▇▇▇▇; and, e-mail
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇;
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, President
or such other address or to such other person as any Party shall designate to
the other for such purpose in the manner hereinafter set forth.
(b)(1)The Parties acknowledge that Yankees serves as a strategic
consultant to AmeriNet and has acted as scrivener for the Parties in
this transaction but that Yankees is neither a law firm nor an agency
subject to any professional regulation or oversight.
(2)Because of the inherent conflict of interests involved,
Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement and its
exhibits and incorporated materials on their behalf.
(c)The decision by any Party not to use the services of legal
counsel in conjunction with this transaction shall be solely at their
own risk, each Party acknowledging that applicable rules of the
Florida Bar prevent AmeriNet's general counsel, who has reviewed,
approved and caused modifications on behalf of AmeriNet, from
representing anyone other than AmeriNet in this transaction.
5.2 Amendment.
(a)No modification, waiver, amendment, discharge or change of
this Agreement shall be valid unless the same is in writing and signed
by the Party against which the enforcement of said modification,
waiver, amendment, discharge or change is sought.
(b)This Agreement may not be modified without the consent of a
majority in interest of AmeriNet's stockholders.
5.3 Merger.
(a)This instrument contains all of the understandings and
agreements of the Parties with respect to the subject matter discussed
herein.
(b)All prior agreements whether written or oral, are merged
herein and shall be of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
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5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
5.7 Litigation.
(a)In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, trials and appeals,
whether or not litigation is initiated.
(b)In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
shall, at the request of any Party, be exclusively resolved through the
following procedures:
(1)(A)First, the issue shall be submitted to mediation before a
mediation service in Broward County, Florida, to be selected by lot
from six alternatives to be provided, three by AmeriNet and three by
▇▇. ▇▇▇▇▇▇.
(B)The mediation efforts shall be concluded within ten business
days after their initiation unless the Parties unanimously agree to an
extended mediation period;
(2)In the event that mediation does not lead to a resolution of
the dispute then at the request of any Party, the Parties shall submit
the dispute to binding arbitration before an arbitration service
located in Broward County, Florida to be selected by lot, from six
alternatives to be provided, three by AmeriNet and three by ▇▇.
▇▇▇▇▇▇.
(3)(A)Expenses of mediation shall be borne by AmeriNet, if
successful.
(B)Expenses of mediation, if unsuccessful and of arbitration
shall be borne by the Party or Parties against whom the arbitration
decision is rendered.
(C)If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful mediation and
arbitration shall be borne equally by the Parties.
5.8 Benefit of Agreement.
(a)This Agreement may not be assigned by ▇▇. ▇▇▇▇▇▇ without the
prior written consent of AmeriNet.
(b)Subject to the restrictions on transferability and assignment
contained herein, the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the Parties, their
successors, assigns, personal representative, estate, heirs and
legatees.
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5.9 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; but, rather,
the relationship established hereby is that of employer-employee in AmeriNet.
5.13 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(b)Execution by exchange of facsimile transmission shall be
deemed legally sufficient to bind the signatory; however, the Parties
shall, for aesthetic purposes, prepare a fully executed original
version of this Agreement, which shall be the document filed with the
Securities and Exchange Commission.
5.14 License.
(a)This Agreement is the property of Yankees and the use hereof
by the Parties is authorized hereby solely for purposes of this
transaction.
(b)The use of this form of agreement or of any derivation thereof
without Yankees' prior written permission is prohibited.
(c)This Agreement shall not be more strictly interpreted against
any Party as a result of its authorship.
In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
▇▇. ▇▇▇▇▇▇
--------------------------
--------------------------
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Jordan
Dated:August ___, 1999
AmeriNet ▇▇▇▇▇.▇▇▇, Inc.
a Delaware corporation
--------------------------
__________________________ By: ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Director Specifically authorized
to act as the agent of AmeriNet for
purposes of executing this Agreement
(CORPORATE SEAL)
Attest:________________________
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esquire
General Counsel & Secretary
Dated:August ___, 1999
37