Affiliate Agreement
This Affiliate Agreement (this "Agreement") is made and entered into by and
between Vista Vacations International, Inc., a Florida corporation ("Vista
Vacations"), AmeriNet ▇▇▇▇▇.▇▇▇, Inc., a publicly held Delaware corporation with
a class of securities registered under Section 12(g) of the Securities Act of
1934, as amended ("AmeriNet" and the "Exchange Act," respectively), and person
identified in the signature page of this Agreement as the Affiliate (the
"Affiliate").
Preamble:
WHEREAS, concurrently with the execution of this Agreement, Vista Vacations
and AmeriNet have entered into a Reorganization Agreement dated February 28,
2000, (the "Reorganization Agreement") which contemplates that Vista Vacations
will become a wholly owned subsidiary of AmeriNet and all outstanding capital
stock of Vista Vacations will be converted into AmeriNet common stock (the
"Merger"); and
WHEREAS, the Affiliate is either an officer or director of Vista Vacations
or is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
such quantity of common stock in Vista Vacations as requires that the Affiliate
to be deemed an "affiliate" of Vista Vacations (within the meaning of Rule 405
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), as a result of
which the Affiliate will be subject to restrictions on disposition of the shares
of AmeriNet's common stock received as a result of the Reorganization; and
WHEREAS, the determination of the accounting and tax treatment of the
Reorganization will depend, in part, upon the accuracy of certain of the
representations and warranties made by the Affiliate in this Agreement, as well
as upon the Affiliate's compliance with certain of the agreements set forth
herein; and
WHEREAS, Affiliate and AmeriNet further desire to provide for an
arrangement under which Affiliate will grant to AmeriNet an irrevocable proxy to
vote all of the Affiliate's shares of Vista Vacations's common stock in favor of
the Reorganization at a special meeting of the stockholders of Vista Vacations
to be held for the purpose of voting on the Reorganization.
NOW, THEREFORE, the Parties agree as follows:
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Article I
Agreement to Retain Shares.
1.1 Transfer and Encumbrance.
(A) As used herein, the term "Determination Date" shall mean the earlier of:
(1) The date AmeriNet shall have publicly released a report
including the combined financial results of AmeriNet and Vista
Vacations for a period of at least thirty (30) days of
combined operations of AmeriNet and Vista Vacations; or
(2) The date the Reorganization Agreement shall be terminated
pursuant to Article VIII thereof.
(B) The Affiliate agrees not to transfer, sell, exchange, pledge or
otherwise dispose of or encumber the Affiliates Vista Vacations common
stock or the shares of AmeriNet common stock received in exchange
therefor as a result of the Reorganization (collectively or generically
hereinafter referred to as the "Shares") or any New Shares (as defined
in Section 1.2) acquired or to make any offer or agreement relating
thereto:
(1) At any time prior to the Determination Date;
(2) Except in full compliance with the requirements of Rule 144
promulgated by the Commission under authority granted by the
Securities Act;
(3) Except in full compliance with the requirements of Sections 13
and 16 of the Exchange Act, including requirements pertaining
to timely filing of Commission Forms 3, 4 and 5 or Schedule
13-D; and
(4) In full compliance with the procedures established by AmeriNet
(including requirements imposed upon its transfer agent) to
assure compliance with the foregoing.
1.2 New Shares.
The Affiliate agrees that any shares of capital stock of Vista Vacations or
AmeriNet that Affiliate purchases or with respect to which Affiliate otherwise
acquires beneficial ownership after the date of this Agreement ("New Shares")
shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares.
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Article II
Agreement to Vote Shares.
2.1 Voting
At every meeting of the stockholders of Vista Vacations called with respect
to any of the following, and at every adjournment thereof, and on every action
or approval by written consent of the stockholders of Vista Vacations with
respect to any of the following, the Affiliate shall vote the Shares and any New
Shares, including, with respect to stock options held by Affiliate, only those
stock options immediately exercisable:
(A) In favor of approval of the Reorganization Agreement and any matter
that could reasonably be expected to facilitate the Reorganization; and
(B) Against approval of any proposal made in opposition to or competition
with consummation of the Reorganization and against any merger,
consolidation, sale of assets, reorganization or recapitalization, with
any party other than AmeriNet and its affiliates and against any
liquidation or winding up of Vista Vacations (each of the foregoing is
hereinafter referred to as an "Opposing Proposal").
2.2 Actions
In amplification of the obligations assumed by this Agreement, the
Affiliate agrees not to take any actions contrary to Vista Vacations's
obligations under the Reorganization Agreement or the Affiliate's obligations
under this Agreement.
Article III
Irrevocable Proxy.
Concurrently with the execution of this Agreement, the Affiliate agrees to
deliver to AmeriNet a proxy in the form attached hereto as Exhibit A (the
"Proxy"), which shall be irrevocable to the extent permissible under Florida
law, with the total number of Shares beneficially owned (as such term is defined
in Rule 13d-3 under the Exchange Act) by the Affiliate set forth therein.
Article IV
Tax Treatment.
The Affiliate understands and agrees that it is intended that the
Reorganization will be treated as a "reorganization" within the meaning of Code
Section 368(a)(1)(B) for federal income tax purposes.
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Article V
Reliance Upon Representations, Warranties and Covenants.
(A) The Affiliate has been informed that the treatment of the
Reorganization for federal income tax purposes requires that a
sufficient number of former stockholders of Vista Vacations maintain a
meaningful continuing equity ownership interest in AmeriNet after the
Reorganization.
(B) The Affiliate understands that the representations, warranties and
covenants of the Affiliate set forth herein will be relied upon by
AmeriNet, Vista Vacations and their respective legal counsel and
accounting firms.
Article VI
Representations, Warranties and Covenants of Affiliate.
The Affiliate represents, warrants and covenants to AmeriNet as follows:
6.1 Power and Authority.
The Affiliate has full power and authority to execute this Agreement, to
make the representations, warranties and covenants herein contained and to
perform Affiliate's obligations hereunder.
6.2 Shares Owned.
Set forth following the Affiliate's signature below is the number of Shares
owned by the Affiliate, including all Shares as to which the Affiliate has sole
or shared voting or investment power and all rights, options and warrants to
acquire Shares owned or held by the Affiliate.
6.3 Restrictions on Transfer.
The Affiliate will not sell, transfer, exchange, pledge or otherwise
dispose of, or make any offer or agreement relating to any of the foregoing with
respect to, any shares of common stock of AmeriNet (the "AmeriNet Common Stock")
that the Affiliate may acquire in connection with the Merger, or any securities
that may be paid as a dividend or otherwise distributed thereon or with respect
thereto or issued or delivered in exchange or substitution therefor (all such
shares and other securities of AmeriNet are sometimes collectively referred to
as "Restricted Securities"), or any option, right or other interest with respect
to any Restricted Securities, unless:
(A) Such transaction is permitted pursuant to Rule 145(c) and 145(d) under the
Securities Act;
(B) (1) Legal counsel representing the Affiliate (which legal counsel is
reasonably satisfactory to AmeriNet), shall have advised AmeriNet in a
written opinion letter satisfactory to AmeriNet and AmeriNet's legal
counsel, and upon which AmeriNet and its legal counsel may rely, that
no registration under the Securities Act would be required in
connection with the proposed sale, transfer or other disposition and
that all requirements under the Exchange Act, including Sections 13
and 16 thereof have been complied with; or
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(2) A registration statement under the Securities Act covering AmeriNet's
Stock proposed to be sold, transferred or otherwise disposed of,
describing the manner and terms of the proposed sale, transfer or
other disposition, and containing a current prospectus, shall have
been filed with the Securities and Exchange Commission (the
"Commission") and made effective under the Securities Act; or
(3) An authorized representative of the Commission shall have rendered
Vista written advice to the Affiliate (sought by Affiliate or
Affiliate's legal counsel, with a copy thereof and all other related
communications delivered to AmeriNet) to the effect that the
Commission would take no action, or that the staff of the Commission
would not recommend that the Commission take any action, with respect
to the proposed disposition if consummated.
6.4 No Present Plan of Disposition.
(A) The Affiliate has, and as of the Effective Time (as defined in the
Reorganization Agreement) will have, no present plan or intention (a
"Plan") to sell, transfer, exchange, pledge or otherwise dispose of,
including by means of a distribution by a partnership to its partners,
or a corporation to its stockholders, or any other transaction which
results in a reduction in the risk of ownership (any of the foregoing
being hereinafter referred to generically as a "Sale") of any of the
shares of AmeriNet common stock that the Affiliate may acquire in
connection with the Merger, or any securities that may be paid as a
dividend or otherwise distributed thereon with respect thereto or
issued or delivered in exchange or substitution therefor, which, when
taking into account those Vista Vacations stockholders who dissent
from the Merger, will reduce the Vista Vacations stockholders'
ownership of AmeriNet Stock, in the aggregate, to less than fifty
(50%) of the number of shares of AmeriNet Common Stock issued in the
Merger.
(B) (1) The Affiliate is not aware of, or participating in, any Plan on
the part of Vista Vacations stockholders to engage in Sales of
the shares of AmeriNet Stock to be issued in the Reorganization.
(2) For purposes Section 6.4(B)(1), Shares with respect to which a
pre-Reorganization Sale occurs in a Related Transaction (as
defined below), shall be considered to be Shares that are
exchanged for AmeriNet Stock in the Merger and then disposed of
pursuant to a Plan.
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(3) A Sale of AmeriNet Stock shall be considered to have occurred
pursuant to a Plan if, among other things, such Sale occurs in a
Related Transaction.
(4) For purposes of this Section 6.4, a "Related Transaction" shall
mean a transaction that is in contemplation of, or related or
pursuant to, the reorganization or the Reorganization Agreements.
(C) If any of the Affiliate's representations in this Section 6.4 cease to
be true at any time prior to the Effective Time, the Affiliate will
deliver to each of Vista Vacations and AmeriNet, prior to the Effective
Time, a written statement to that effect, signed by the Affiliate.
6.5 Consultation with Counsel.
(A) The Affiliate has carefully read this Agreement and discussed its
requirements and other applicable limitations upon the sale, transfer
or other disposition of AmeriNet Shares to be acquired by Affiliate in
the Reorganization, to the extent the Affiliate felt necessary, with
legal counsel for the Affiliate.
(B) The Affiliate has carefully read the Reorganization Agreement and
discussed its requirements and its impacts upon Affiliate's ability to
sell, transfer, encumber, pledge or otherwise dispose of the AmeriNet
Shares to be acquired by Affiliate in the Reorganization, to the extent
Affiliate felt necessary, with legal counsel for Affiliate.
6.6 Ownership of Shares.
The Affiliate is the record owner of the Shares shown on the signature page
hereto, which at the date hereof and at all times up until the Determination
Date will be free and clear of any liens, claims, options, charges or other
encumbrances; does not beneficially own any shares of capital stock of Vista
Vacations other than such Shares; and, has full power and authority to make,
enter into and carry out the terms of this Agreement and the Proxy.
6.7 No Proxy Solicitations.
The Affiliate will not, and will not permit any entity under Affiliate's
control to:
(A) Solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) with
respect to an Opposing Proposal or otherwise encourage or assist any
party in taking or planning any action that would compete with,
restrain or otherwise serve to interfere with or inhibit the timely
consummation of the Merger in accordance with the terms of the Merger
Agreement;
(B) Initiate a stockholders' vote or action by consent of Vista Vacations
stockholders with respect to an Opposing Proposal; or
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(C) Become a member of a "group" [as such term is used in Section 13(d) of
the Exchange Act] with respect to any voting securities of Vista
Vacations with respect to an Opposing Proposal.
Article VII
No Limitation on Discretion as Director.
This Agreement is intended solely to apply to the exercise by the Affiliate
in his individual capacity of rights attaching to ownership of the Shares, and
nothing herein shall be deemed to apply to, or to limit in any manner the
discretion of the Affiliate with respect to, any action which may be taken or
omitted by him acting in his fiduciary capacity as a director of Vista
Vacations.
Article VIII
Rules 144 and 145.
From and after the Effective Time and for so long as is necessary in order
to permit the Affiliate to sell AmeriNet's Stock held by Affiliate pursuant to
Rule 145 and, to the extent applicable, Rule 144 under the Securities Act,
AmeriNet will use its reasonable efforts to file on a timely basis all reports
required to be filed by it pursuant to Sections 13 or 15(d) of the Exchange Act
referred to in paragraph (c)(1) of Rule 144 under the Securities Act, in order
to permit the Affiliate to sell AmeriNet's Stock held by it pursuant to the
terms and conditions of Rule 145 and the applicable provisions of Rule 144.
Article IX
Limited Resales.
The Affiliate understands that, in addition to the restrictions imposed
under Section 6 of this Agreement, the provisions of Rule 145 limit Affiliate's
public resales of Restricted Securities, in the manner set forth in subsections
(a), (b) and (c) below:
9.1 Rule 145(d)(1).
(A) Unless and until the restriction "Cut-off" provisions of Rule 145(d)(2)
or Rule 145(d)(3) set forth below become available, public resales of
Restricted Securities may only be made by the Affiliate in compliance
with the requirements of Rule 145(d)(1).
(B) Rule 145(d)(1) permits such resales only:
(1) While AmeriNet meets the public information requirements of Rule
144(c); (iii) in brokers' transactions or in transactions with a
market maker; and
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(2) Where the aggregate number of Restricted Securities sold at any
time together with all sales of restricted AmeriNet Stock sold
for Affiliate's account during the preceding three-month period
does not exceed the greater of
(a) One percent (1%) of AmeriNet's Common Stock outstanding; or
(b) The average weekly volume of trading in AmeriNet Common
Stock on all national securities exchanges, or reported
through the automated quotation system of a registered
securities association, during the four calendar weeks
preceding the date of receipt of the order to execute the
sale.
9.2 Rule 145(d)(2).
The Affiliate may make unrestricted sales of Restricted Securities
pursuant to Rule 145(d)(2) if:
(A) The Affiliate has beneficially owned (within the meaning of Rule 144(d)
under the Securities Act) the Restricted Securities for at least one
year after the Effective Time of the Merger;
(B) The Affiliate is not an affiliate of AmeriNet; and
(C) AmeriNet meets the public information requirements of Rule 144(c).
9.3 Rule 145(d)(3).
The Affiliate may make unrestricted sales of Restricted Securities pursuant
to Rule 145(d)(3) if the Affiliate has beneficially owned (within the meaning of
Rule 144(d) under the Securities Act) the Restricted Securities for at least two
years and is not, and has not been for the three months preceding the date of
sale, an affiliate of AmeriNet.
9.4 Acknowledgment.
AmeriNet acknowledges that the provisions of Section 6.3 of this Agreement
will be satisfied as to any sale by the holder of the Restricted Securities
pursuant to Rule 145(d), by a broker's letter and a letter from the undersigned
with respect to that sale stating that each of the above-described requirements
of Rule 145(d)(1) has been met or is inapplicable by virtue of Rule 145(d)(2) or
Rule 145(d)(3); provided, however, that AmeriNet has no reasonable basis to
believe that such sales were not made in compliance with such provisions of Rule
145(d).
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Article X
Legends.
(A) The Affiliate also understands and agrees that stop transfer
instructions will be given to AmeriNet's transfer agent with respect to
certificates evidencing the Restricted Securities and that there will
be placed on the certificates evidencing the Restricted Securities
legends stating in substance:
"The shares represented by this certificate were issued pursuant to a
business combination which was structured to comply with the tax free
reorganization provisions of Section 368(a) of the Internal revenue
Code of 1986, as amended (the "Code") and was not registered under the
Securities Act of 1933, as amended (the "Securities Act") in reliance
on applicable exemptions therefrom and from comparable provisions of
the securities laws of the recipients state of domicile, and may not be
sold, nor may the owner thereof reduce his or her risks relative
thereto in any way, until such time as AmeriNet ▇▇▇▇▇.▇▇▇, Inc.
("AmeriNet"), has published the financial results covering at least
thirty (30) days of combined operations after the effective date of the
merger through which the business combination was effected. In
addition, the shares represented by this certificate may not be sold,
transferred or otherwise disposed of except or unless (1) covered by an
effective registration statement under the Securities Act, (2) in
accordance with Commission Rule 145(d) (in the case of shares issued to
an individual who is not an affiliate of AmeriNet) or Commission Rule
144 (in the case of shares issued to an individual who is an affiliate
of AmeriNet) of the rules and regulations of such act, or (3) in
accordance with a legal opinion satisfactory to counsel for AmeriNet
that such sale or transfer is otherwise exempt from the registration
requirements of such act."
(B) (1) Upon the request of the Affiliate, AmeriNet shall cause
the certificates resenting the Restricted Securities to be
reissued free of any legend relating to restrictions on
transfer by virtue of ASR 130 and 135 as soon as practicable
after the requirements of ASR 130 and 135 have been met.
(2) In addition, if the provisions of Rules 144 and 145 are
amended to eliminate restrictions applicable to the Restricted
Securities received by Affiliate pursuant to the Merger, or at
the expiration of the restrictive period set forth in Rule
145(d), or upon registration of my such shares, AmeriNet, upon
the request of Affiliate, will cause the certificates
representing the Restricted Securities to be reissued free of
any legend relating to the restrictions set forth in Rules 144
and 145(d).
Article XI
Miscellaneous Provisions.
11.1 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.
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11.2 Consent and Waiver.
The Affiliate hereby gives any consents or waivers that are reasonably
required for the consummation of the Merger under the terms of any agreements to
which Affiliate is a party or pursuant to any rights Affiliate may have.
11.3 Binding Agreement.
This Agreement will inure to the benefit of and be binding upon and
enforceable against the Parties and their successors and assigns, including
administrators, executors, representatives, heirs, legatees and devisees of the
Affiliate and any pledgee holding Restricted Securities as collateral.
11.4 Waiver.
No waiver by any party hereto of any condition or of any breach of any
provision of this Agreement shall be effective unless in writing and signed by
each party hereto.
11.5 Governing Law.
This Agreement shall be governed by and construed, interpreted and enforced
in accordance with the laws of the State of Delaware, except for any choice of
law provisions that would result in the application of the law of another
jurisdiction, and except for laws involving the fiduciary obligations of Vista
Vacations's officers and directors, which shall be governed under Florida law.
11.6 Third Party Reliance.
Legal counsel to and accountants for the Parties shall be entitled to rely
upon this Agreement.
11.7 Amendments and Modification.
This Agreement may not be modified, amended, altered or supplemented except
upon the execution and delivery of a written agreement executed by the Parties.
11.8 Specific Performance: Injunctive Relief.
The Parties acknowledge that AmeriNet will be irreparably harmed and that
there will be no adequate remedy at law for a violation of any of the covenants
or agreement of Affiliate set forth herein; therefore, it is agreed that, in
addition to any other remedies that may be available to AmeriNet upon any such
violation, AmeriNet shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to AmeriNet at law or in equity.
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11.9 Notices.
All notices, requests, claims, demands and other communications hereunder
shall be in writing and sufficient if delivered in person, by cable, telegram or
telex, or sent by mail (registered or certified mail, postage prepaid, return
receipt requested) or overnight courier (prepaid) to the respective Parties as
follows:
(1) To the Affiliate:
At the contact information provided to the registrar of Vista Vacations's shares
of common stock and, after the Reorganization, at the contact information
provided to and maintained by AmeriNet's transfer agent.
(2) To AmeriNet:
AmeriNet ▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇; ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Fax (▇▇▇) ▇▇▇-▇▇▇▇; and, e-mail
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; with a copy to
General Counsel
AmeriNet ▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Fax (▇▇▇) ▇▇▇-▇▇▇▇; and, e-mail, ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
(3) To Vista Vacations:
Vista Vacations International, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ President
Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Fax (▇▇▇) ▇▇▇-▇▇▇▇;
and, web site: ▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
(4) To Yankees:
The Yankee Companies, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇; ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, President
Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Fax (▇▇▇) ▇▇▇-▇▇▇▇;
and, e-mail ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇;
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, except that notices of change of address shall only be effective
upon receipt.
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11.10 Interpretation.
(A) When a reference is made in this Agreement to Schedules or Exhibits,
such reference shall be to a Schedule or Exhibit to this Agreement
unless otherwise indicated.
(B) The words "include," "includes" and "including" when used herein shall
be deemed in each case to be followed by the words "without
limitation."
(C) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(D) The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this
Agreement or the intent of any provisions hereof.
(E) All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the
Party or Parties, or their personal representatives, successors and
assigns may require.
(F) The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
11.11 Merger of All Prior Agreements Herein.
(A) This instrument, together with the instruments referred to herein,
contains all of the understandings and agreements of the Parties with
respect to the subject matter discussed herein.
(B) All prior agreements whether written or oral are merged herein and
shall be of no force or effect.
11.12 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and the 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.
11.13 Severability.
If any provision or any portion of any provision of this Agreement, other
than one of the conditions precedent or subsequent, or the application of such
provision or any portion thereof to any person or circumstance shall be held
invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Agreement or the application of such provision or
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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.
11.14 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 con sequence of the failure of the
indemnifying Party to act, whether pursuant to requirements of this
Agreement or otherwise.
(B) In the event it becomes necessary to enforce this indemnity through an
attorney, with or without litigation, the successful Party shall be
entitled to recover from the indemnifying Party, all costs incurred
including reasonable attorneys' fees throughout any negotiations,
trials or appeals, whether or not any suit is instituted.
11.15 Dispute Resolution.
(A) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement any
proceedings pertaining directly or indirectly to the rights or
obligations of the Parties hereunder shall, to the extent legally
permitted, be held in Broward County, Florida, and the prevailing Party
shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials
and appeals, whether or not any formal proceedings are initiated.
(B) Except for the arbitration procedures outlined in paragraphs 7.2(G)(2)
and 7.2(G)(3) which shall govern any arbitration proceeding described
therein, 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, two by the Affiliate, two by AmeriNet and
two by Vista Vacations.
(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, two by the Affiliate, two
by AmeriNet and two by Vista Vacations.
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(3) (a) Expenses of mediation shall be borne equally by the
Parties, if successful.
(b) Expenses of mediation, if unsuccessful and of
arbitration shall be borne by the Party or Parties
against whom the arbitration decision is rendered.
(c) If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful
mediation and arbitration shall be borne equally by
the Parties involved.
11.16 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees but are not intended to confer upon
any other person any rights or remedies hereunder.
11.17 Counterparts.
(A) This Agreement may be executed in any number of counterparts.
(B) All executed counterparts shall constitute one Agreement
notwithstanding that all signatories are not signatories to the
original or the same counterpart.
(C) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Agreement which shall be the document filed with the Commission.
11.18 License.
(A) This form of agreement is the property of Yankees and has been
customized for this transaction with the consent of Yankees by G.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esquire.
(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 Vista Vacationstten permission is prohibited.
11.19 Information Concerning the Affiliate's Share Ownership.
(A) Shares beneficially owned:
(1) 375 shares of Vista Vacations Common Stock; and
(2) 0 shares of Vista Vacations Common Stock subject to
options, warrants or other rights.
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Execution Pages
In Witness Whereof, the Affiliate, AmeriNet, and Vista Vacations 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:
The Affiliate
----------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------- ------------------------
Signature
Dated: March 11, 2000 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Print name
AmeriNet ▇▇▇▇▇.▇▇▇, Inc.
----------------------------
____________________________ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
(Corporate Seal)
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Dated: March 11, 2000
Vista Vacations International, Inc.
----------------------------
____________________________ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
(Corporate Seal)
Attest: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary
Dated: March 11, 2000
367
Exhibit "A"
Irrevocable Proxy
The undersigned stockholder of Vista Vacations International, Inc., a
Florida corporation ("Vista Vacations"), hereby irrevocably to the extent
provided by Florida law) appoints the directors on the Board of Directors of
AmeriNet, ▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("AmeriNet"), and each of
them, as the sole and exclusive attorneys and proxies of the undersigned, with
full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of Vista
Vacations beneficially owned by the undersigned, which shares are listed on the
final page of this Proxy (the "Shares"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof,
until such time as that certain Reorganization dated February 28, 2000"), among
AmeriNet, and Vista Vacations, shall be terminated in accordance with its terms
or the Reorganization Agreement is effective.
Terms:
1. Upon the execution hereof, all prior proxies given by the undersigned
with respect to the Shares and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given.
2. This proxy is irrevocable (to the extent provided by Florida law), is
granted pursuant to the Affiliate Agreement dated as of February 28, 1
2000, between AmeriNet, Vista Vacations, and the undersigned
stockholder, (the "Affiliate Agreement"), and is granted in
consideration of AmeriNet entering into the Reorganization Agreement.
3. The attorneys and proxies named above will be empowered at any time
prior to termination of the Reorganization Agreement in accordance
with Article VIII thereof to exercise all voting and other rights
(including, without limitation, the power to execute and deliver
written consents with respect to the Shares) of the undersigned at
every annual, special or adjourned meeting of Vista Vacations's
stockholders, and in every written consent in lieu of such a meeting,
or otherwise, in favor of approval of the Reorganization Agreement and
any matter that could reasonably be expected to facilitate the
Reorganization, and against any proposal made in opposition to or
competition with the consummation of the Reorganization and against
any merger, consolidation, sale of assets, reorganization or
recapitalization of Vista Vacations with any party other than AmeriNet
and its affiliates and against any liquidation or winding up of Vista
Vacations.
4. The attorneys and proxies named above may only exercise this proxy to
vote the Shares subject hereto at any time prior to termination of the
Reorganization Agreement in accordance with Article VIII thereof at
every annual, special or adjourned meeting of the stockholders of
Vista Vacations and in every written consent in lieu of such meeting,
in favor of approval of the Reorganization Agreement and any matter
that could reasonably be expected to facilitate the Reorganization,
and against any merger, consolidation, sale of assets, reorganization
or recapitalization of Vista Vacations with any party other than
AmeriNet and its affiliates, and against any liquidation or winding up
of Vista Vacations, and may not exercise this proxy on any other
matter.
368
5. The undersigned stockholder may vote the Shares on all other matters.
6. Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
7. This proxy is irrevocable and coupled with an interest.
8. Stockholder Data:
A. Full name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________ _______________ _____________
First Middle Last
B. Tax identification number: Social Security number ommitted for
reasons of personal privacy
C. Domicile Address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇;
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
D. Telephone, fax and e-mail: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ fax
E. Shares Information:
(1) Number of Vista Vacations Shares owned or controlled as to
voting matters:
375
Signed, sealed and delivered
In Our Presence:
Stockholder:
----------------------------
____________________________ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
Dated: March 10, 2000
369