UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
March 13, 2000
Date of Report (Date of earliest reported event)
AmeriNet Group.com, Inc.
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(Exact name of registrant as specified in its chapter)
Delaware
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(State or other jurisdiction of incorporation
000-03718
(Commission File Number)
11-2050317
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(IRS Employer Identification No.)
Crystal Corporate Center; 2500 North Military Trail, Suite 225-C;
Boca Raton, Florida 33431
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(Address of principal executive offices) (Zip Code)
(561) 998-3435
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Registrant's telephone number, including area code
(Not Applicable)
(Former name or former address, if changed since last report)
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INFORMATION INCLUDED IN THE REPORT
Item 1. Acquisition or Disposition of Assets.
On March 13, 2000, the Registrant completed the acquisition of all of
the capital stock (being 1,265 shares of common stock, without par value) of
Vista Vacations International, Inc., a Florida corporation engaged in the travel
industry ("Vista," see Item 5 for a more complete description of Vista
business). Vista was acquired by the Registrant in a reorganization designed to
comply with Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended (the "Code"), in exchange for:
* 220,000 shares of the Registrant's common stock, $0.01 par value per
share (the "AmeriNet Stock"), issued in reliance on the exemption from
registration under the Securities Act of 1933, as amended (the
"Securities Act") provided by Section 4(6) thereof; and
* Up to 219,999 additional shares of AmeriNet Stock to be issued to the
former stockholders of Vista during the period ending on June 30, 2003,
based on the following performance thresholds:
(1) If Vista earns net, pre tax profits, determined in accordance
with generally accepted accounting principles, consistently
applied ("GAAP"), of at least $400,000 during the period
starting on July 1, 2000 and ending on June 30, 2001, then
Vista's former stockholders will be issued an aggregate of
36,667 additional shares of AmeriNet Stock;
(2) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $1,200,000 during the period starting
on July 1, 2001 and ending on June 30, 2002, then Vista's
former stockholders will be issued an aggregate 102,666
additional shares of AmeriNet Stock (including the 36,667 that
either were or could have been earned as of June 30, 2001);
(3) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $2,800,000 during the period starting
on July 1, 2000 and ending on June 30, 2003, then Vista's
former stockholders will be issued all 219,999 of the
additional shares of AmeriNet Stock (including the 102,666
that either were or could have been earned as of June 30,
2002); however, all rights to any of the AmeriNet Stock not
earned as of such date will thereupon expire.
(4) The additional shares of AmeriNet Stock will be allocated
among the former Vista stockholder's, pro rata, based on their
ownership of Vista's common stock immediately preceding the
closing on March 13, 2000, were reserved for future issuance
immediately following the closing and will be issued within 30
days after AmeriNet's audit for the subject fiscal year
confirming the calculations called for.
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In addition to consideration provided to the former Vista stockholders
for their Vista capital stock, the Registrant also agreed to:
* Invest up to $650,000 in Vista within 300 days after completion of the
reorganization and the filing of required reports with the United
States Securities and Exchange Commission (the "Commission"), and,
* To reserve an additional 931,000 shares of AmeriNet Stock for future
issuance through incentive stock options (as defined in Section 422 of
the Code) to be granted to Vista employees, provided, however, that
rights to such shares will vest on an annual basis, subject to
attainment of the following net, pre-tax profit projections determined
in accordance with GAAP:
(1) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $400,000 during the period starting on
July 1, 2000 and ending on June 30, 2001, then the first
163,333 shares of AmeriNet Stock reserved for issuance in the
event of exercise of the subject incentive stock options will
vest;
(2) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $1,200,000 during the period starting
on July 1, 2000 and ending on June 30, 2002, then all rights
to 457,333 (including the 163,333 shares vested, if any, on
June 30, 2001) of the shares of AmeriNet Stock reserved for
issuance in the event of exercise of the subject incentive
stock options will vest; and
(3) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $2,800,000 during the period starting
on July 1, 2000 and ending on June 30, 2003, then all rights
to all of the shares (including the shares vested, if any, on
June 30, 2001 and June 30, 2002) of AmeriNet Stock reserved
for issuance in the event of exercise of the subject incentive
stock options will vest.
(4) All rights to the incentive stock options in the subject
employment agreements that have not vested as of July 1, 2003
will expire on such date, and no further rights of any kind
thereto or to the underlying shares of AmeriNet Stock reserved
for such purpose will exist thereafter, the reservation
therefor terminating on such date.
Concurrently with the closing on the acquisition of Vista, the
Registrant and Ms. Nellie Tippery, a creditor of Vista, entered into an
agreement pursuant to which all obligations of Vista, including loans in the
aggregate amount of $180,000, were extinguished in consideration for 66,667
shares of AmeriNet Stock.
The exchange ratio for Vista's capital stock was determined by arms
length negotiation by the parties based on the approximate market price of the
Registrant's common stock during the period preceding March 13, 2000, the value
that Vista's management felt was reflective of its operating performance since
its inception, and the anticipated future value of Vista. The use of contingent
consideration seeks to make the component of the valuation based on future
performance more objectively ascertainable.
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The names of the former Vista stockholders are Teri E. Nadler, Scott B.
Ugell, Jean Hickman, Alicia Torrealba, Jean Hickman, Ken Nelson and Carol
Nelson, his spouse, and, Ms. Karyn McKnight. To the best of the Registrant's
knowledge, no material relationship existed between any such person and the
Registrant or any of its affiliates, any director or officer of the Registrant,
or any associate of any such director or officer.
No funds were used directly to acquire Vista, however, the Registrant
obtains the funds it uses to capitalize its acquisitions through private
placements to a group of accredited investors who already held shares of its
common stock. Such persons include the Yankee Companies, Inc., Xcel Associates,
Inc., Ms. Debra Elenson, Mr. Scott Heicken, Mr. Jonathan Eichner, Mr. Joseph D.
Radcliffe, K. Walker, Ltd. ( a corporation associated with Edward
Granville-Smith, Jr., the Registrant's former president) and Bolina Trading
Corp., S.A. (a corporation associated with Mr. Jerry C. Spellman, an associate
of Mr. Granville-Smith).
Vista assets include leased facilities and equipment and other physical
property currently used in conjunction with its travel business. Such use will
be continued and Vista will continue to be operated by its current management,
unless it fails to meet at least 65% of its operating projections.
Copies of the reorganization agreement, the agreement with Ms. Tippery, the
employment agreements with Vista employees and in one case, with a third party
consultant, and the related schedules and exhibits are filed as exhibits to this
current report (see "Item 7(c), exhibit Index"). See Item 5 for a more complete
description of Vista business
Item 5. Other Events.
Material Information Concerning Vista
Business
General
Vista Vacations International, Inc., a Florida corporation was organized in
November of 1998 by Ms. Teri E. Nadler, its current president, and a group of
her former co-workers, who in the aggregate, have more than one hundred years of
professional travel experience. Vista's management developed its strategic plan
based on the following observations:
* Decreasing airline commissions were causing traditional brick and
mortar travel agents to reevaluate their competitive prospects and to
seek ways to stay in business while reducing or eliminating traditional
overhead;
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* Increasingly available communications technology and the evolution of
the Internet were making home based businesses increasingly competitive
with traditional office based enterprises;
* The incidental benefits of the travel industry (e.g., the opportunity
to travel and lodge at interesting locations at discount prices) made
it attractive to people who valued quality of life as well as economic
opportunities;
* Travel companies had developed specializing in making travel industry
benefits available to large groups of independent contractors ("host
companies" and "member-agents," respectively), but without the training
and support to make their business operations economically viable or of
real service to the consuming public.
* There was a substantial niche for a host company that would provide
independent contractors with travel industry benefits and with the
educational and travel package support necessary to make them
competitive with traditional travel agencies.
Based on such observations, Ms. Nadler and her associates organized
Vista as an education oriented travel industry host company with a wide variety
of quality travel options including cruise vacations, vacation packages, auto
rentals, hotels and incentive travel programs from multiple travel providers at
competitive prices., providing its independent contractor member-agents with the
option of working from home without compromising on the quality of their product
inventory, services or training. However, it also intends to expand through
acquisition of existing travel agencies and travel service companies giving it
multiple travel service and travel product delivery outlets.
Vista agents are required to participate in Vista's ongoing training
programs and to attain proficiency in all phases of the travel industry. Vista's
exclusive Seminar at Sea program provides member-agents with professional travel
training classes, including travel industry product knowledge, winning sales
techniques and the industry's most respected educational tool, the Cruise Line
International Association ["CLIA"] accreditation masters program (which provides
specialized expertise in the cruise segment of the travel industry). Upon
completion, member-agents earn accreditation that grants them the opportunity of
sailing on most cruise lines for only $35.00 dollars a day. More importantly,
they acquire in-depth knowledge about alternative products from multiple travel
providers permitting them to compete successfully with traditional brick and
mortar travel agencies that have neither the staff nor financial resources to
maintain internal sales departments trained to work with specific travel
providers. Because its highly trained member-agents become more effective
consumer service providers, leading cruise lines, tour operators, hotels and
auto rentals grant Vista preferred pricing and inventory options.
As a result of its association with the Registrant, Vista expects to
negotiate with the Registrant's other subsidiaries for development of technology
applications to facilitate and enhance the selling process for Vista's's home
based independent sales agents. Vista has already entered into an agreement with
Wriwebs.com, Inc. ("WRI") to update Vista's website with cutting edge,
interactive technologies that will provide Vista member-agents, with the ability
to search and purchase over $40 million of secured travel inventory, including
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discounted cruises, tours and packages, hotels, and car rentals, on a 24 hours a
day, 7 days a week basis. The application, expected to be designated as "The
Cruise Navigation System" is scheduled for introduction by April 30, 2000. The
website will also provide sight training tutorials for Vista agents,
concentrating on travel product knowledge, sales techniques, world wide
geography and proprietary operations. Each of the applications developed by WRI
for Vista will use web-based technologies that restrict access to Vista approved
member-agents and their clients. Vista is also exploring licensing access to
portions of its website and other Vista related opportunities to third parties.
Vista currently has approximately 400 independent home-based agents
located nationwide who serve as its principal marketing source. The
member-agents not only service their local markets but are encouraged to recruit
other member-agents and are compensated for doing so. Vista is currently engaged
in a national marketing campaign designed to increase public awareness of its
services, through newspapers, magazines, radio and infomercials. Vista intends
to follow up the national marketing campaign with a similar one on an
international basis. Vista will also market its services over the Internet using
the website being developed by WRI, which:
* Can be accessed from replicated websites of its independent home based
member-agents; and
* Directs visitors to Vista's website to member-agents within their zip code.
Currently, Vista does not have any material portion of its assets,
operations or customers located outside of the United States. Substantially all
of Vista's revenues are from customers based within the United States, where all
of Vista's services are provided.
Industry Overview
Domestic travel and tourism spending by United States travelers was an
estimated $408 billion in 1997 and is forecasted to increase at a compound
annual growth rate of 6.7% through the year 2000. The market for specialized
distributors of leisure travel services is highly fragmented. Many of these
specialized distributors are small and generally have made little investment in
technology to improve their selling effectiveness, efficiencies and access to
information. Furthermore, most of these companies lack the volume and financial
security necessary to obtain preferential pricing and inventory from travel
providers or to create effective national marketing campaigns. For Vista's
purposes, the travel and tourism industry is divided into the following
segments:
Cruise Industry: The number of North American cruise passengers is expected
to increase from 5.1 million in 1997 to 7.0 million by the
year 2000, an 11.5% compound annual growth rate. In
addition, industry analysts forecast a 10.3% compound annual
growth rate in capacity over the same period, with a total
of 40 new vessels, contracted or planned, adding a net
supply of approximately 40,000 berths. The character of a
cruise varies significantly among the different cruise lines
and cruise ships. In addition, a cruise vacation, which
consists of lodging, entertainment, dining and travel,
typically represents a large portion of a traveler's
vacation budget. As a result, cruise sales require
significant marketing time and effort in comparison with
sales of other travel products. Cruise lines traditionally
have relied primarily on third party distributors to sell
virtually all of their berth capacity. It is estimated that
only 6% of cruise vacations are sold directly by the
internal sales departments of the cruise lines. While travel
agents remain an important channel of distribution for
cruise lines, specialized cruise vacation distributors (like
Vista) have become an increasingly significant source of
capacity utilization and, accordingly, are given
preferential pricing, cooperative advertising dollars and
access to preferred berth inventory and locations.
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Lodging Industry: Average daily room rates in the United States lodging
industry increased 6.2% to $75.16 in 1997 from $70.81 in
1996. Average daily room nights sold increased 2.3% to 2.3
million in 1997 from 2.2 million in 1996. Average daily
rates and average daily rooms sold are expected to increase
5.3% and 2.2%, respectively, in 1998.
Vacation and Tour
Packages Industry: Sales of vacation and tour packages was estimated to be a
$20 billion market in 1997. In 1997, 104.2 million United
States adults traveled with other family members, an
increase of 11% over the prior year. The market is expected
to grow at 6% a year for the next several years. Vacation
packages include a combination of two or more travel
services (e.g., hotel accommodations, ground transportation,
air transportation, cruises) that are offered at a package
price. Many vacation packages offer a choice of components
and options, thereby enabling the customer to customize the
package.
Incentive Travel
Programs Industry: The travel incentive industry is estimated to be a $6
billion market. Travel promotion agencies range from
sophisticated companies offering a broad range of service to
boutique shops, specializing in one or few specific types of
promotions. The industry is fragmented, with over 1000
travel promotion companies; however less than 100 companies
are believed to have sales in excess of $1 million.
Strategic Plans
Operating Strategy
Vista seeks to provide comprehensive, quality leisure travel products
and services, while improving efficiencies in its operations. Vista is a
specialist in several leisure travel products and services. By leveraging this
specialized knowledge, Vista provides a higher level of expertise and
information for a broader array of travel products and services than may be
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available through traditional distribution channels. Vista continues to make
significant investments in development of technology that will improve and
enhance the ability of its independent home-base travel agents to convert travel
inquiries into sales and make the selling and service processes more efficient.
WRI's technology applications which are being developed for Vista are Internet
web-based. The specifications for Vista's technology applications are designed
by subject matter experts who are best able to identify the necessary tools.
Vista's management believes that:
* Its strategic relationships with travel providers are integral to its
success. Vista has negotiated with many travel providers for pricing
that is often lower than published fares and for preferred access to
capacity. Vista has also initiated discussions with cruise industry
travel providers regarding access to direct electronic interfaces to
the cruise lines reservation systems. These strategic relationships
enable Vista to access multiple providers within each travel segment
and to offer value and service that is generally better than would be
available to travelers through travel agents.
* Utilizing multiple distribution channels provides it with additional
sales opportunities, decreases its reliance on any one channel and
differentiates it from competitors who offer their products through a
single channel.
* Maintaining high levels of customer service is essential to its
ability to generate significant repeat business. In addition to
Vista's competitive prices, customer service is an important
differentiating factor for leisure travelers who are making a
significant investment in a vacation; for travel agents who seek to
make reliable, quality travel arrangements quickly, efficiently and
without complicated processes; for independent hotels seeking to
market their products efficiently through global distribution systems;
and, for corporations that require innovative, turn-key travel
products, either for use by their personnel or as marketing
incentives.
Comprehensive Brand Strategy
During 1998 Vista's management reviewed various strategies in
connection with brand recognition and marketing of its services. In the first
half of 1998, Vista began implementation of a comprehensive brand and marketing
plan that called for development of a new, identifiable national brand name to
be used initially in marketing cruises to consumers, while continuing to use
existing product provider brands with strong identity and loyal customer
following in other segments. Vista is currently revisiting its brand strategy at
the Registrant's request and is considering revising its name to develop a
closer identification with the Registrant. As currently contemplated, such
strategy would involve continued use of the "Vista Vacations" name concurrently
with a new "AmeriNet" oriented name, and, based on market response, phasing one
out over a period of time. Vista seeks to develop a nationally recognized and
respected consumer brand, initially in the cruise segment and to aggressively
market its brands, through traditional marketing and sales initiatives, as well
as through opportunities that may arise in other business of Vista, such as
collateral materials that may also be utilized to promote Vista's other brands.
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Growth Strategy
Vista has a multi pronged approach to expansion of its operations:
growth through expansion of its network of independent member-agents by
providing them with economic incentives to recruit new member-agents; growth
through acquisition of existing travel agencies (which can either convert to
home based operations or remain as office based facilities); and, through
recruitment of personnel from existing travel agencies who are dissatisfied with
their existing arrangements, either because of an absence of training,
inadequate products or support, or, a desire to work at home. To date, Vista has
concentrated on the first element of its growth strategy but expects significant
growth from the other two elements within the next two fiscal years.
Investment in Technology
Vista plans to capitalize on the Internet as a major distribution
channel for its products and services. According to Forrester Research, the
on-line travel market is the second largest by dollar volume and the fastest
growing area of Internet commerce. The Internet represents a substantial
opportunity as a very important distribution channel for leisure travel in the
future. Vista promotes itself and the vista-vacation.com website through
advertising and promotional alliances on the Internet. Many of Vista's
independent home based travel agents will be operating their own replica sights
of Vista through our specialized website program. Vista has assigned personnel
also operating from their homes to handle its Internet sales leads and
inquiries, supervised by office based management personnel with significant
experience in e-commerce and Internet marketing. Vista, with the assistance of
other AmeriNet subsidiaries, is developing state-of-the-art information and
on-line reservations e-commerce website technology for use by Vista's
independent home based member-agents and their clients. In addition, Vista may
in the future consider pursuing licensing or other opportunities with respect to
the use of its technology by third parties. Vista has contracted with WRI, a
subsidiary of AmeriNet, to expend at least $360,000 on development and operation
of a cutting edge on-line reservations system over the next three years. Vista's
"Cruise Navigator" and online reservation systems are expected to permit Vista
to increase its productivity and net revenue per transaction by: (i) allowing
Vista agents to process reservations on-line in a more efficient fashion than
the current manually-intensive processes employed; (ii) enabling Vista agents to
offer their customers more comprehensive product information and automated
access to special pricing and inventory opportunities; (iii) providing Vista
agents additional up-selling (upgrading) capabilities; (iv) allowing Vista
agents real time access to customer information; (v) capitalizing on revenue
management opportunities; (vi) using the Internet to provide information and
book reservations; (vii) enabling consolidation of cruise back-office functions,
including reconciliation, accounting, documents management and financial
reporting; and (viii) new agent enrollment.
Economies of Scale and Best Practices
Vista's management believes that it can achieve significant economies
of scale and that its sales volumes and relationships with travel providers will
enable it to obtain preferential pricing and preferred access to travel provider
inventories. Vista's management believes that its member-agents and consumers
will benefit from Vista's increasing purchasing power in important expense
areas, and from the reduction in total operating expenses anticipated as it
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implements improved technology consolidating duplicative back-office and
administrative functions. Beginning in the second quarter of 2000, Vista expects
to realize these economies by selecting best practices, including marketing
techniques, revenue management processes, operations and call center management
strategies and cost efficiencies, that can be implemented to generate
incremental revenue and enhance profitability. The implementation of Vista's
information technologies is expected to further enhance Vista's performance by
allowing the most qualified sales agents to handle each customer lead and to
reduce the amount of time required to train new sales agents and process and
close sales transactions.
Expansion Through Acquisitions
In the second half of 2000, Vista will seek to acquire operating travel
companies in order to gain market share, add new areas of expertise, access new
geographic markets and enter complementary business lines. In the future, Vista
expects to focus on acquisitions that are larger in size or offer significant
strategic opportunities. Vista seeks acquisition candidates that have
long-standing reputations and demonstrated growth and profitability. As of the
date of this Report Vista is not a party to a binding agreement regarding any
acquisition.
Products and Services
Vista currently provides its products and services throughout the
United States through use of toll-free telephone numbers, home-based
member-agents, and the Internet. Product information and customer communication
capacity via email is provided through Vista's website, www.vista-
vacations.com. Typically, potential independent member-agents and customers call
Vista, often in response to a referral or in response to information seen on the
Internet. Vista's sales personnel assist potential independent member-agents or
consumers who wish to be independent member-agents in understanding the mission
and goals of Vista. Once enrolled, in-house reservations specialist assist
member-agents in selecting appropriate travel arrangements for themselves and
their clients and in making the required reservations. All reservations are made
by in-house reservations specialists as Vista member-agents are asked not to
call vendors directly in order to preserve quality control.
Cruises
Vista seeks to become one of the largest distributors of cruises in the
world, selling cruises on all major cruise lines. Typically, berths are booked
on behalf of customers at specified discounts from the published cruise line
prices. In addition, Vista is permitted to reserve more desirable berths on a
number of cruises, which gives Vista an "exclusive" right to sell these berths
for a period of time. If Vista does not sell these reserved berths, they are
returned to the cruise lines at a specified time, generally 90 to 150 days prior
to sailing, at no cost to Vista. Vista also advises large groups, such as
affinity groups, corporate groups and business seminars, in selecting
appropriate cruises and sells Alaskan land tour packages directly to travelers
and to travel agents.
Vista assists its independent home based member-agents in selecting
cruises that best fit their clients' particular needs and desires. This requires
Vista's sales personnel to have extensive knowledge about the various cruise
lines and the differences in their ships and the cruises offered. Vista's sales
personnel undergo extensive in-house training and participate in frequent
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seminars conducted by cruise lines. Sales personnel endeavor to develop
relationships with the independent home-based member-agents and their customers
in order to encourage repeat and referral business. In addition to reserving
berths on cruises, reservation agents can provide member-agents' customers with
information about the activities, shopping, sightseeing and restaurants
available at the various ports at which cruises stop and can make reservations
(where available) for such activities. Vista also provides its independent
member-agents with travel industry as well as inter and intra company
information on its website, with periodic mailings of information, weekly
blast-faxes disclosing cruise line and industry specials, reviews of various
cruises and ships, advice regarding planning for specific cruises and assistance
in preparing necessary travel documents. Through Vista's new cruise reservation
technology, detailed information about ships, itineraries, destinations and
other data will be available to sales personnel at their desktops.
Lodging, Vacations And Tour Packages
Vista is developing a program that will provide electronic reservation
services to over 2,500 independent and chain hotels located in 59 countries
worldwide. Vista's lodging service revenues are generally commission based and,
therefore, largely depend on the volume of reservations processed on behalf of
its hotel customers. Vista also plans to publish a hotel directory featuring
over 5,000 participating hotels worldwide which Vista's independent
member-agents can use as a guide to obtain special rates, access to block spaces
and other benefits. Vista sells vacation packages and all-inclusive vacations
world wide.. Vista is in the process of completing exclusive agreements with
chosen tour operators that will allow them to become exclusive Vista travel
partners. Vista is also in the process of creating an incentive travel
department that will provide incentive travel promotion services primarily to
corporations.
Technology
Information Technology
Vista has adopted an information technology strategy focused on
delivering value to Vista's independent home-based sales agents and travel
providers, while enabling efficient and effective back office processes and
providing necessary management information. The core of Vista's evolving
information technology strategy is the Cruise Navigator system, Vista's on-line
cruise reservation system being developed with the assistance of WRI. The series
of applications that comprise the system and their supporting infrastructure are
expected to include: (i) web-based applications that take advantage of
client/server processing structures; (ii) a multi-tier architecture for easy
changes, enhancements and maximum reuse potential; (iii) Microsoft standard
development tools, including XML-based message exchange architectures; (iv) the
Microsoft Windows NT operating system for the applications environment; and (v)
an SQL server relational database management system operating in the Windows NT
environment.
The Cruise Navigator technology is expected to increase productivity
and net revenue per transaction by: (i) allowing Vista's independent
member-agents to process reservations on-line in a fashion more efficient than
the current manually-intensive processes; (ii) enabling Vista independent
member-agents to offer customers more comprehensive product information and
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automated access to special pricing and inventory opportunities; (iii) providing
Vista agents additional up-selling capabilities; (iv) allowing Vista agents real
time access to customer information via an on-line database facility; (v)
capitalizing on revenue management opportunities; (vi) using the Internet to
provide information and book reservations; and (vii) enabling consolidation of
cruise back office functions, including reconciliation, accounting, documents
management and financial reporting.
Among Vista's technological goals is development of the most
comprehensive collection of customer information in the leisure travel industry.
Access to such information would enable Vista to develop a more accurate
customer relationship model, permitting it to refine its direct mail,
advertising and other marketing activities. Consequently, Vista's technology
will include a comprehensive customer information database comprised of
extensive customer data such as profiles, preferences, travel history,
memberships, passport information, and future travel desires. The customer
information database is expected to be a common repository, shared across all
Vista's applications permitting Vista personnel to become instantly familiar
with customers' buying patterns across travel segments.
Internet Distribution Channel
Vista plans to capitalize on the Internet as a major distribution
channel for its products and services. On-line travel accounted for
approximately one percent of the $101 billion in travel products sold by travel
agents and specialized distributors in 1997, with 84% of on-line travel
transactions being airline tickets. With over 43 million United States
households owning a personal computer and with over 22 million households
on-line in 1998, the new digital economy is growing at double the rate of the
overall economy. According to Forrester Research, the on-line travel market is
the second largest by dollar volume and the fastest growing area of Internet
commerce. Vista's management believes that while the Internet will never surpass
knowledgeable travel specialists as the primary mode of selling travel products,
the Internet represents a very important distribution channel for leisure travel
in the future.
Vista currently markets on the Internet in several ways. The website,
www.vista- vacation.com was launched in 2000 and provides information on
vacation products, and particularly in-depth information on cruises, offered by
Vista. For example, the cruise section of the site includes pages on hot deals,
cruise quotes, ships, cruise lines and cruise reviews. There is also a feature
to request cruise information and quotes on-line. The air section features an
airfare request capability. The toll free phone numbers for Vista's products are
promoted on each page. In addition, Vista promotes itself and the
www.vista-vacation.com website through advertising and promotional alliances on
the Internet and promotes its website in its other advertising media. Vista has
dedicated in-house agents to handle Internet sales leads and inquiries, as well
as management personnel who have significant experience in the areas of
e-commerce and Internet marketing.
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Sales and Marketing
Vista utilizes a multi-faceted marketing and sales approach depending on
the particular travel products and services being promoted and depending on the
type of customer being targeted. An essential element of Vista's marketing
strategy is developing a nationally recognized consumer brand, initially for
cruises. In addition, Vista intends to develop other national brands to
consumers, travel agents and independent hotels, respectively.
Vista markets cruises to consumers through its independent member-agents
who engage in marketing programs based on their own unique talents and marketing
theories. Vista is currently implementing an aggressive marketing campaign that
will include newspapers, radio, direct mail television commercials and
infomercials each of which contain extensive product offerings and special
travel offers. The marketing program highlights the advantage of becoming an
independent member-agents with access to Vista's toll-free numbers and website
as instruments for closing travel sale transactions. Vista is also in the
process of finalizing its "Adventure Club", a new division of Vista designed to
appeal to multi-level marketing companies seeking to increase benefit programs
to their distributors.
Vista operates in-house reservation centers to respond to calls generated
by its marketing programs. Vista also has a network of over 400 home-based
independent contractor member-agents who actively market and sell cruises in
their local areas. Direct mail campaigns include brochure and vacation directory
mailings to existing and new customers. Point of purchase sales promotions are
being developed, including tie-ins with other retailers such as fast food chains
and supermarkets.
Travel Provider Relationships
Because of Vista's reputation, historical relationships, expertise, and
substantial volume of business conducted with the travel providers, it receives
preferential pricing from certain travel providers, which frequently enables
Vista to offer prices lower than those generally available to travelers and
travel agents. Vista's agreements with travel providers are generally short-term
agreements cancelable on relatively short notice and, therefore, travel
providers can, and often do, modify the terms of contracts as industry
conditions change, including terms relating to commissions, access to inventory
and pricing. Such agreements generally permit Vista to sell the travel products
at either preferred prices or with preferred commission structures. However,
such contracts generally do not create commitments by the travel providers for
fixed capacity or inventory. Other distributors, including Vista's competitors,
may have similar arrangements with travel providers, some of which may provide
better availability or more competitive pricing than that offered by Vista.
Vista also works with a consortium, Vacation.com, that holds contracts and
overrides with specific vendors that Vista is not currently able to obtain on
its own. As its revenue grows with particular participants, Vista expects that
it will be able to obtain such benefits directly.
Competition
The travel service industry is extremely competitive and has traditionally
had low barriers to entry. Vista competes with other distributors of travel
services, travel providers, travel agents, tour operators, group travel
sponsors, Internet companies, and global distribution system providers, some of
which have greater experience, brand name recognition and/or financial resources
than Vista. Vista competes for customers based upon service, price, specialized
in-depth knowledge and, with respect to sales to travel agents, attractive
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commission structures. Travel providers may decide to compete more directly with
Vista and restrict the availability and/or preferential pricing of their
capacity. In addition, other distributors may have relationships with certain
travel providers, providing better availability or more competitive pricing than
that offered by Vista. Furthermore, some travel agents and group travel sponsors
have a strong presence in their geographic area, which may make it difficult for
Vista to attract customers in those areas.
Employees
As of March 14, 2000, Vista had 6 full-time in-house employees and 417
independent member-agents nationwide. Vista's management believes that its
relations with its employees and independent member-agent contractors are good
but that it will have to continually expand its employee and independent
contractor base to meet the demands of its projected growth. Management believes
that required full and part time personnel can be recruited from within it group
of member agents and through its proposed acquisition strategy, on acceptable
terms.
No employees are represented by any labor unions but all of the
employees are parties to one year employment agreements, providing for automatic
renewals unless cancelled within a reasonable time prior to expiration of the
then current term.
Properties
Vista's principal place of business is located at 5653 Northwest 29th
Street; Margate, Florida 33063. This is in a office park type setting where the
other tenants are professional or traditional office based businesses. The space
occupied is approximately 1,150 square feet of office space. Vista has a two
year lease which began on January 1, 1999 and ends on December 31, 2000. There
are several short term options which allow it to extend the term of the lease.
Visa pays approximately $11.50 per square foot and pays a pro-rata share of real
estate taxes and maintenance costs. There are no present plans for any
renovation, improvement, or development of the property. The leased property is
in the opinion of Vista's management adequately covered by insurance.
Vista believes that its current premises will not be adequate for its
anticipated requirements and it is discussing consolidation of facilities with
other AmeriNet subsidiaries, either in a building that AmeriNet may seek to
purchase or through a lease for new premises providing adequate room for
expansion.
Legal Proceedings
Vista is not aware of any legal claims or actions arising in the
ordinary course of business. Therefore, Vista does not believe that there are
not any actions to be concerned about that would have a material adverse effect
on its business or financial condition and results of operations.
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Risk Factors
Qualification of Forward-looking Statements
The statements contained in this Report that are not purely historical
are forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934,
including without limitation statements regarding Vista's expectations, beliefs,
intentions or strategies regarding the future. All forward-looking statements
included in this document are based on information available to Vista on the
date hereof, and Vista assumes no obligation to update any such forward-looking
statements. The forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause actual results, experience and
the performance or achievements of Vista to be materially different from those
anticipated, expressed or implied by the forward-looking statements. In
evaluating Vista's business, the following factors, in addition to the Risk
Factors set forth below and other information set forth herein, should be
carefully considered: successful deployment and integration of systems; factors
affecting internal growth and management of growth; Vista's ability to implement
its technology strategy; success of marketing, integration and operational
initiatives, including Internet marketing initiatives; dependence on technology;
labor and technology costs; cost and availability of advertising and promotional
efforts; success of the acquisition strategy and availability of acquisition
financing; success in entering new segments of the travel market and new
geographic areas; dependence on travel providers; risks associated with the
travel industry generally; seasonality and quarterly fluctuations; competition;
and general economic conditions. In addition, Vista's operating strategy and
growth strategy involve a number of risks and challenges, and there can be no
assurance that these risks and other factors will not have a material adverse
effect on Vista.
Limited Operating History; Risks of Integration.
Vista was founded in November of 1998 but conducted no operations and
generated no revenues prior until February of 1999. There can be no assurance
that Vista will be able to succeed on a profitable basis. Vista's executive
management team was assembled at its inception and there can be no assurance
that the management team will be able to effectively implement Vista's internal
growth strategy, operating strategy or technology strategy.. The financial
statements cover certain start up periods and therefore, may not be indicative
of Vista's future financial or operating results. The inability of Vista to
expand aggressively would have a material adverse effect on Vista's business,
financial condition, and results of operations.
While Vista's management believes that there are substantial
opportunities to cross-market and integrate all phases of the travel industry
through independent home-based independent agents, there can be no assurance
that Vista's goal of becoming a leading specialized distributor of leisure
travel services will be successful, or that Vista's independent member-agents
and their clients and or travel providers will accept Vista as a distributor of
a variety of specialized travel services.
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Management of Growth; Factors Affecting Internal Growth.
Vista expects to grow internally, through increase in independent
home-based travel agents, multilevel distributors and acquisitions of existing
travel agencies that are looking for a responsible, reliable and profitable host
company to put their business through. Vista expects to spend significant time
and effort exploring this endeavor. There can be no assurance that Vista's
systems, procedures or controls will be adequate to support Vista's operations
as they expand. Any future growth also will impose significant added
responsibilities on members of senior management, including the need to
identify, recruit and integrate new senior level managers and executives. There
can be no assurance that such additional management will be identified or
retained by Vista. To the extent that Vista is unable to manage its growth
efficiently and effectively, or is unable to attract and retain qualified
management, Vista's business, financial condition and results of operations
could be materially adversely affected. While Vista has experienced revenue and
earnings growth over the past year, there can be no assurance that Vista will
continue to experience internal growth comparable to these levels, if at all.
Factors affecting the ability of Vista to continue to experience internal growth
include, but are not limited to, the ability to expand the travel services
offered, the continued relationships with certain travel providers and their
independent home-based travel agents, the public's acceptance of and response to
Vista's national brand names, the ability to recruit and retain qualified sales
personnel and continued access to capital.
Dependence on Travel Providers.
Vista is dependent upon travel providers for access to their capacity.
Vista receives from certain travel providers pricing and capacity that is
preferential to published fares which enables Vista to offer consistently
competitive products and services. Other distributors may have similar
arrangements with travel providers, some of which may provide better
availability or more competitive pricing than that offered by Vista. Vista
anticipates that a significant portion of Vista's revenues will continue to be
derived from the sale of capacity for relatively few travel providers.
Vista's agreements with its travel providers can generally be cancelled
or modified by the travel provider upon relatively short notice. The loss of a
contract, changes in Vista's pricing agreements, commission schedules, or
cooperative marketing arrangements or more restricted access to travel
providers' capacity could have a material adverse effect on Vista's business,
financial condition and results of operations. In addition, the lodging and
cruise industries have experienced a period of consolidation. Continued
consolidation could reduce Vista's ability to increase its secured inventory
which could, in turn, have a material adverse effect on Vista's financial
condition and results of operations.
Deployment of New Technology.
Vista is in the process of, and expects that it will continue over the
coming years, to replace many of its existing hardware and software systems
(e.g., its new "Cruise Navigator" architecture). There can be no assurance that
these new systems will be successfully completed, installed according to the
expected time frame or within the anticipated budget, implemented without any
disruption to Vista's business or result in the intended operational benefits
and cost efficiencies.
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Risks Related to Vista's Acquisition Strategy.
Acquisitions involve a number of special risks, including possible
adverse effects on Vista's operating results, diversion of management's
attention, failure to retain key personnel, risks associated with unanticipated
events or liabilities and amortization of acquired intangible assets, some or
all of which could have a material adverse effect on Vista's business, financial
condition and results of operations. Customer dissatisfaction or performance
problems at a single acquired company could also have an adverse effect on the
reputation of Vista. Further, there can be no assurance that businesses acquired
will achieve anticipated revenues and earnings. In addition, to the extent that
Vista intends to increase its revenues, expand the markets it serves and
increase its service offerings through the acquisition of additional companies,
there can be no assurance that Vista will be able to identify, acquire or
profitably manage additional businesses or successfully integrate acquired
businesses into Vista without substantial costs, delays or other operational or
financial problems. Increased competition for acquisition candidates may also
develop, in which event there may be fewer acquisition opportunities available
to Vista, as well as higher acquisition prices. Vista may also seek
international acquisitions that may be subject to additional risks associated
with doing business in foreign countries. Vista continually reviews various
strategic acquisition opportunities and has held discussions with a limited
number of such acquisition candidates. As of the date of this Report, Vista is
not party to a binding agreement with respect to any acquisition.
Risks Related to Acquisition Financing and Possible Need for Additional
Capital.
Vista plans to finance future acquisitions by using shares of the
Registrant's common stock ("AmeriNet Stock") for all of the consideration to be
paid. In some cases, however, it is probable that Vista would be required to
make cash investments in the acquired businesses, as AmeriNet is making in
Vista. Vista would be charged against earnings for any AmeriNet Stock used to
effect acquisitions, consequently, it must take care to assure that the benefits
of the acquisitions exceed the cost of the AmeriNet Stock used as consideration
and the cash investment required, if any. In the event that the AmeriNet Stock
does not maintain a sufficient market value, or potential acquisition candidates
are otherwise unwilling to accept AmeriNet Stock as consideration for the sale
of their businesses, Vista may be required to utilize more of its cash
resources, if available, in order to maintain its acquisition program. If Vista
has insufficient cash resources, its growth could be limited unless it is able
to obtain additional capital through debt or equity financing. There can be no
assurance that AmeriNet will make required capital available or that other
financing will be available on terms Vista deems acceptable. If Vista is unable
to obtain financing sufficient for all of its desired acquisitions, it may be
unable to fully carry out its acquisition strategy. In addition, to maintain
historical levels of growth, Vista may need to seek additional funding. Adequate
funds for these purposes may not be available when needed or may not be
available on terms acceptable to Vista. If funding is insufficient, Vista may be
required to delay, reduce the scope of or eliminate some or all of its expansion
programs.
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Dependence Upon Technology.
Vista's business is currently dependent upon its website
www.vista-vaction.com and its on- line reservation system beginning with "Cruise
Navigator" to facilitate, access information and manage a high volume of secured
inventory.. Any failure of this technology would have a material adverse effect
on Vista's business, financial condition and results of operations. Because
technological change has been extremely dynamic, technological obsolescence has
become an increasingly important decision when making capital expenditures. No
assurances can be provided that the state of the arts systems being developed
for Vista will remain state of the art for a period sufficient to justify their
development.
Risks Associated with the Travel Industry; General Economic Conditions.
Vista's results of operations are dependent upon factors generally
affecting the travel industry. Vista's revenues and earnings are especially
sensitive to events that affect domestic and international air travel, cruise
travel, auto rentals and hotel room nights. A number of factors could result in
an overall decline in demand for travel, including political instability, armed
hostilities, international terrorism, extreme weather conditions, a rise in fuel
prices, a decline in the value of the United States dollar, labor disturbances,
excessive inflation, a general weakening in economic activity and reduced
employment in the United States These types of events could have a material
adverse effect on Vista's business, financial condition and results of
operations.
Seasonality and Quarterly Fluctuations.
The domestic and international leisure travel industry is seasonal.
Vista's results have been subject to quarterly fluctuations caused primarily by
the seasonal variations in the travel industry, especially the leisure travel
segment. Seasonality depends on the particular leisure travel product or service
sold. Vista expects seasonality to continue in the future. Vista's quarterly
results of operations may also be subject to fluctuations as a result of changes
in the mix of services offered by Vista as a result of acquisitions, internal
growth rates among various travel segments, fare wars by travel providers,
changes in relationships with certain travel providers, the timing of the
payment of overrides by travel providers, extreme weather conditions or other
factors affecting travel and the timing and cost of acquisitions. Unexpected
bankruptcy of tour operators or travel companies coupled with variations in
quarterly results could also adversely affect the price of the AmeriNet Stock,
which in turn could limit the ability of Vista to make acquisitions.
Substantial Amount of Goodwill.
Because the acquisition of Vista dis not qualify for pooling of
interest accounting treatment, it is expected to result in a substantial amount
of good will, which has to be written off against future income, making
operating results appear less positive (or more negative) than they actually
were, from a cash flow perspective. Such results and could have a material and
adverse impact upon the market price of the AmeriNet Stock.
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Substantial Competition.
The travel service industry is extremely competitive and traditionally
has low barriers to entry. Vista competes with other distributors of travel
services, travel providers, travel agents, tour operators, Internet companies
and central reservation service providers, some of which have greater
experience, brand name recognition and/or financial resources than Vista. Travel
providers may decide to compete more directly with Vista and restrict the
availability and/or preferential pricing of their capacity. In addition, other
distributors may have relationships with certain travel providers providing
better availability or more competitive pricing than that offered by Vista.
Furthermore, some travel agents have a strong presence in their geographic area
which may make it difficult for Vista to attract customers or employees in those
areas.
Reliance on Key Personnel.
Vista's operations are dependent on the efforts and relationships of
Teri E. Nadler and Vista's other executive officers. Furthermore, Vista will
likely be dependent on the senior management of any businesses acquired in the
future. If any of these individuals become unable to continue in their role
Vista's business or prospects could be adversely affected. Although Vista has
entered into an employment agreement with each of Vista's executive officers,
there can be no assurance that such individuals will continue in their present
capacity for any particular period of time. Vista does not maintain key man life
insurance covering any of its executive officers or other members of senior
management.
Control of Existing Management.
Pursuant to the terms of the reorganization agreement between Vista
and the Registrant, Vista's current management will have the right to elect a
majority of the members of its board of directors for the foreseeable future,
unless Vista fails to attain at least 65% of its net, pre-tax profit
projections. Such requirement may prevent or delay AmeriNet from taking actions
to correct problems with Vista's management, and such inability may materially
impair Vista's operations.
Directors and Executive Officers of Registrant
Ms. Teri E. Nadler and Scott B. Ugell are expected to be elected as
members of the Registrant's board of directors at the annual meeting of
stockholders currently expected to be held during May of 2000. The following
table sets forth information concerning Vista's directors and executive
officers.
Name Age Position
Teri E. Nadler 48 President & chief executive officer
Scott B. Ugell 40 General counsel
Jean Hickman 60 Treasurer and chief financial officer
Alicia Torrealba 38 Secretary
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All officers and directors are parties to employment agreements on a
revolving one year basis, which call for them to be elected to their current
positions. In addition, pursuant to the terms of the reorganization agreement
between Vista and the Registrant, Vista's current management will have the right
to elect a majority of the members of its board of directors for the foreseeable
future, unless Vista fails to attain at least 65% of its net, pre-tax profit
projections
Biographies of Executive Officers and Directors
Scott B. Ugell: Scott B. Ugell, age 40, has since November 1998, served as a
member of Vista's Board of Directors, and also as its
general counsel. Mr. Ugell is a practicing attorney, a
member of the New York Bar, (since 1986) and a member of the
Bar for the United States District Courts for the Southern
and Eastern Districts of New York (since 1986). He is a
graduate of Syracuse University, Syracuse, New York (B.S.,
1982); and Hofstra University School of Law, (J.D., 1985).
From 1986 to 1988 he served as Deputy Town Attorney in the
town of Hempstead, New York. In 1989 he served as General
Counsel for Autospa Corporation, a publicly held trading
company, headquartered in Great Neck, New York. In 1990 he
was the Assistant General Counsel for Pyramid Companies
headquartered in Syracuse, New York. From 1989 to 1993 he
served as General Counsel for Wavecrest Management, Ltd.
headquartered in Whitestone, New York. From 1986 to the
present he is a practicing attorney in New City, New York
where he handles criminal law, real estate law, corporate
law, family law, bankruptcy law, commercial and civil
litigation. Since 1991 he has served as the Town Justice for
Town of Clarkstown, Rockland County, New York where he
handles various criminal, civil and commercial cases. At the
Registrant's next monthly board of directors meeting it is
anticipated that Mr. Ugell will be elected as a new member
of the board of directors.
Teri E. Nadler: Teri E. Nadler, age 48, has since November 1998, served as a
member of Vista's Board of Directors, and also as its
president and chief executive officer. She is a graduate of
Nassau Community College, Long Island, New York (Associates
Degree in Education, 1971); and attended Queens College,
Queens, New York. From 1981 to 1991 she owned and operated
Starship Travel, headquartered in East Setauket, New York.
Starship was an independent retail agency which started one
of the first "Cruise only" divisions within a full service
agency. Mrs. Nadler was a founding member of NACOA, National
Association of Cruise Only Agents and served as the vice
president from 1984 to 1990. She was one of the first women
to serve on the Cruise Lines Advisory Board and help create
today's cruise market. From 1991 to 1994 she served as
executive vice president of sales and marketing for South
Florida Cruises, headquartered in Ft. Lauderdale, Florida.
From 1994 to 1995 she served as executive vice president of
sales and operations for 1-800-TAKE OFF, headquartered in
Ft. Lauderdale, Florida. From 1995 to 1998 she served as
executive vice president cruise department for Inteletravel,
Inc., headquartered in Boca Raton and Ft. Lauderdale,
Florida where she created and developed the cruise
department. At the Registrant's next monthly board of
directors meeting it is anticipated that Mrs. Nadler will be
elected as a new member of the board of directors.
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Jean Hickman: Jean Hickman, age 60, has since November 1998, served as
executive vice president of operations and finance and
Treasurer for the Registrant's subsidiary, Vista. From 1983
to 1985 she served as executive secretary and inside sales
support for British Caledonian Airways, headquartered in
Dallas, Texas. From 1985 to 1989 she served as assistant
manger and senior travel consultant for American Express
Travel headquartered in Plano, Texas. From 1989 to 1993 she
was the owner of All Around Travel, headquartered in Plano,
Texas. From 1993 to 1995 she served as floor manager for
1-800- TAKE OFF, headquartered in Ft. Lauderdale, Florida.
From 1995 to 1998 she served as Executive Director of
Operations for Inteletravel, Inc., headquartered in Boca
Raton and Ft. Lauderdale, Florida where she was in charge of
25 in-house full travel sales personnel and developed and
implemented all procedures and operations functions.
Alicia Torrealba: Alicia Torrealba, age 38, has since November 1998, served as
vice president of Vista's training program, and secretary
for the Registrant's subsidiary, Vista. From 1984 to 1992
she served as Group and Tour representative for American
Express Travel, headquartered in Caracas Venezuela. From
1993 to 1994 she served as travel agent for Travel
Impressions, Inc., headquartered in Farmingdale, New York.
From 1994to 1995 she served as cruise and travel agent for
1-800-TAKE OFF, headquartered in Ft. Lauderdale, Florida.
From 1995 to 1996 she served as tour director for Nice
Florida Tours, headquartered in Ft. Lauderdale, Florida.
Relationships Among Officers and Directors
Teri E. Nadler and Scott B. Ugell are brother and sister. No other
relationships are known to exist among Vista officers and directors, or between
any Vista officer or directors and any officers or directors of the Registrant.
Executive Compensation
The following table sets forth the aggregate compensation paid to
Vista's Chief Executive Officer and four of Vista's other most highly
compensated executive officers whose total annualized salary and bonus was
$100,000 or more (the Chief Executive Officer and such other executive officers
are sometimes referred to herein as the "Named Executive Officers") with respect
to the years ended December 31, 1997 and 1998:
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Summary Compensation Table
The following compensation was received from Vista during calendar year
1999.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Annual Compensation Awards Payouts
Securities
Name and Other Restricted Underlying Long Term All
Principal Annual Stock Options & Stock Incentive Other
Position Year Salary Bonus Compensation Awards Appreciation RighPayouts Compensation
- -------- ---- ------ ----- ------------ ------ ------------------------ ------------
1. 1999 (1) (1) 765 shares * * * *
(2) 1999 * * 400 shares * * $8,000 (2)
(3) 1999 (3) * 180 shares * * * *
(4) 1999 (4) * 60 shares * * * *
- ------
</TABLE>
(1) Teri E. Nadler, president and chief executive officer. Ms. Nadler was paid
$29,368.32 in salary during calendar year 1999, and also received
substantial loans which were paid back at closing on the reorganization
agreement with AmeriNet.
(2) Scott B. Ugell, general counsel. Mr. Ugell received an $8,000 fee in
conjunction with the organization of Vista.
(3) Jean Hickman, treasurer. Ms. Hickman was paid $21,201.66 in salary during
calendar year 1999, and also received substantial loans which were paid
back at closing on the reorganization agreement with AmeriNet.
(4) Alicia Torrealba, secretary. Ms. Torrealba was paid $10,917.26 in salary
during calendar year 1999, and also received substantial loans which were
paid back at closing on the reorganization agreement with AmeriNet.
* None.
Executive Compensation; Employment Agreements; Covenants-not-to-compete
All of Vista's officers have employment agreements with Vista. Each of
the agreements provides that the employee will not enter the employ of or serve
as a consultant to, or in any way perform any services with or without
compensation to, any other persons, business or organization without the prior
consent of the President of Vista. They also contain non competition, non-
circumvention and confidentiality covenants during the term of the agreement,
all renewals thereof and for a period of two years after its termination.
Teri E. Nadler: Ms. Nadler's employment agreement expires on June 30, 2001
but is automatically renewed unless specifically canceled by
Vista or Ms. Nadler. Ms. Nadler has an annual base salary of
$75,000, plus an annual bonus in a sum equal to 5% of
Vista's pre-tax, net profits. Ms. Nadler is entitled to an
aggregate of up to $12,000 per year in benefits comprised of
car allowance, health insurance and disability insurance.
Unless specifically otherwise authorized by Vista's board of
directors, on a case by case basis, devote all of her
business time exclusively to the affairs of Vista. Vista
will defend, indemnify and hold Ms. Nadler 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 Ms. Nadler in good faith on behalf of
Vista, its affiliates or for other persons or entities at
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the request of the board of directors of Vista, to the
fullest extent legally permitted, and in conjunction
therewith, will assure that all required expenditures are
made in a manner making it unnecessary for Ms. Nadler to
incur any out of pocket expenses; provided, however, that
Ms. Nadler permits the majority stockholders of Vista to
select and supervise all personnel involved in such defense
and that Ms. Nadler waive any conflicts of interest that
such personnel may have as a result of also representing
Vista, its stockholders or other personnel and agrees to
hold them harmless from any matters involving such
representation, except such as involve fraud or bad faith.
Scott B. Ugell: Mr. Ugell's agreement is materially similar to Ms. Nadler's
except that he does not receive any benefits, is permitted
to engage in other business and professional activities
dedicating only such time as is reasonable required for
Vista's legal affairs and his compensation is the sum of
$1,200 per month.
Jean Hickman: Ms. Hickman's agreement is materially similar to Ms.
Nadler's except that she receives only $8,000 in benefits
per year comprised of car allowance and health insurance and
her compensation is the sum of $60,000 per year.
Alicia Torrealba: Ms. Hickman's agreement is materially similar to Ms.
Nadler's except that she receives only $8,000 in benefits
per year comprised of car allowance and health insurance and
her compensation is the sum of $40,000 per year.
In addition to the compensation described, each of the four officers is
entitled to incentive stock options, as described below.
Indemnification Agreements
Vista has entered into employment agreements with each of its executive
officers which contain indemnification provisions. The provisions require, among
other things, that Vista indemnify its directors and executive officers to the
fullest extent permitted by law, and advance to the directors and executive
officers all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. Although the indemnification
provisions offer substantially the same scope of coverage afforded by provisions
in Vista's charter and bylaws, it provides greater assurance to directors and
executive officers that indemnification will be available, because, as a
contract, it cannot be modified unilaterally in the future by the board of
directors or by AmeriNet as Vista's stockholder, to eliminate the rights it
provides.
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Vista has authority under Section 607.0850 of the Florida Business
Corporation Act to indemnify its directors and officers to the extent provided
in such statute. In general, Florida law permits a Florida corporation to
indemnify its directors, officers, employees and agents, and persons serving at
the corporation's request in such capacities for another enterprise, against
liabilities arising from conduct that such persons reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Florida law. In addition,
each director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; (b)
deriving an improper personal benefit from a transaction; (c) voting for or
assenting to an unlawful distribution; and (d) willful misconduct or a conscious
disregard for the best interests of Vista in a proceeding by or in the right of
Vista to procure a judgment in its favor or in a proceeding by or in the right
of a shareholder. The statute does not affect a director's responsibilities
under any other law, such as the federal securities laws or state or federal
environmental laws
Vista's articles of incorporation provide that it shall indemnify its
officers, directors, advisory directors and employees to the fullest extent
permitted by law.
Long-term Incentive Plan
Pursuant to the terms of the reorganization agreement, AmeriNet has
reserved 931,000 shares of AmeriNet Stock for future issuance through incentive
stock options (as defined in Section 422 of the Code) granted in the employment
agreements, provided, however, that rights to such shares will vest on an annual
basis, subject to attainment of the following net, pre-tax profit projections
determined in accordance with generally accepting accounting principles,
consistently applied ("GAAP"):
(1) If Vista earns net, pre tax profits, determined in accordance with
GAAP, of at least $400,000 during the period starting on July 1, 2000
and ending on June 30, 2001, then the first 163,333 shares of AmeriNet
Stock reserved for issuance in the event of exercise of the subject
incentive stock options will vest;
(2) If Vista earns net, pre tax profits, determined in accordance with
GAAP, of at least $1,200,000 during the period starting on July 1, 2000
and ending on June 30, 2002, then all rights to 457,333 (including the
163,333 shares vested, if any, on June 30, 2001) of the shares of
AmeriNet Stock reserved for issuance in the event of exercise of the
subject incentive stock options will vest; and
(3) If Vista earns net, pre tax profits, determined in accordance with
GAAP, of at least $2,800,000 during the period starting on July 1, 2000
and ending on June 30, 2003, then all
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rights to all of the shares (including the shares vested, if any, on
June 30, 2001 and June 30, 2002) of AmeriNet Stock reserved for
issuance in the event of exercise of the subject incentive stock
options will vest.
(4) All rights to the incentive stock options in the subject employment
agreements that have not vested as of July 1, 2003 will expire on such
date, and no further rights of any kind thereto or to the underlying
shares of AmeriNet common stock reserved for such purpose will exist
thereafter, the reservation therefor terminating on such date.
The 931,000 shares of AmeriNet Stock have been allocated as follows:
Teri E. Nadler, 499,800 shares; Scott B. Ugell, 261,600 shares; Jean Hickman,
117,600 shares; Alicia Torrealba, 39,200 shares.
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information regarding the
beneficial ownership of the AmeriNet Stock received by the former Vista
stockholders, as of March 14. 2000, individually and as a group, as well as
shares issued to a former creditor of Vista in consideration for extinguishment
of all claims against Vista, including a $180,000 loan. All persons listed have
sole voting and investment power with respect to their shares, unless otherwise
indicated.
Name and Address (1)(2) Percentage
Of Beneficial Owner Shares Owned
- ------------------- ------ -----
Teri E. Nadler 112,200 1.05%
6645 NW 48th Manor;
Coral Springs, Florida 33062
Scott Ugell 58,674 0.55%
155 N. Main Street;
New City, New York 10956
Jean Hickman 26,400 0.24%
3780 SW 19th Street;
Fort Lauderdale, Florida 33312
Alicia Torrealba 8,800 0.08%
1985 South Ocean Drive, Apartment 11-A;
Hallendale, Florida 33309
Karyn McKnight 2,926 0.02%
10020A Main Street, Suite 177;
Bellevue, Washington 98004
Kenneth & Carol Nelson 11,000 0.10%
1625 3rd Street South;
Naples, Florida 33942
Nellie Tippery 66,667 0.62%
219 E. Wiser Lake Road;
Lyndon, Washington 98264
All former Vista stockholders and
creditors as a group 286,667 2.66%
25
<PAGE>
- ------
(1) In addition to the foregoing, the former Vista stockholders have the
contingent right to receive up to 219,999 shares of AmeriNet Stock,
subject to the following requirements:
(A) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $400,000 during the period starting on
July 1, 2000 and ending on June 30, 2001, then Vista's former
stockholders will be issued an aggregate of 36,667 of the
additional shares;
(B) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $1,200,000 during the period starting
on July 1, 2001 and ending on June 30, 2002, then Vista's
former stockholders will be issued an aggregate 102,666 of the
additional shares (including the 36,667 that either were or
could have been earned as of June 30, 2001);
(C) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $2,800,000 during the period starting
on July 1, 2000 and ending on June 30, 2003, then Vista's
former stockholders will be issued all of 219,999 of the
additional shares (including the 102,666 that either were or
could have been earned as of June 30, 2002); however, all
rights to any of the additional shares not earned as of such
date will thereupon expire.
(D) The additional shares will be allocated among the Vista's
Stockholder's, pro rata, based on their ownership of Vista's
common stock immediately preceding the closing on the
reorganization Agreement with AmeriNet.
(2) In addition to the foregoing, 931,000 shares of AmeriNet Stock have
been reserved for future issuance through incentive stock options (as
defined in Section 422 of the Code) granted in Vista's officers'
employment agreements, provided, however, that rights to such shares
will vest on an annual basis, subject to attainment of the following
net, pre-tax profit projections determined in accordance with GAAP:
(A) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $400,000 during the period starting on
July 1, 2000 and ending on June 30, 2001, then the first
163,333 shares of AmeriNet Stock reserved for issuance in the
event of exercise of the subject incentive stock options will
vest;
(B) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $1,200,000 during the period starting
on July 1, 2000 and ending on June 30, 2002, then all rights
to 457,333 (including the 163,333 shares vested, if any, on
June 30, 2001) of the shares of AmeriNet Stock reserved for
issuance in the event of exercise of the subject incentive
stock options will vest; and
26
<PAGE>
(C) If Vista earns net, pre tax profits, determined in accordance
with GAAP, of at least $2,800,000 during the period starting
on July 1, 2000 and ending on June 30, 2003, then all rights
to all of the shares (including the shares vested, if any, on
June 30, 2001 and June 30, 2002) of AmeriNet Stock reserved
for issuance in the event of exercise of the subject incentive
stock options will vest.
(D) All rights to the incentive stock options in the subject
employment agreements that have not vested as of July 1, 2003
will expire on such date, and no further rights of any kind
thereto or to the underlying shares of AmeriNet common stock
reserved for such purpose will exist thereafter, the
reservation therefor terminating on such date.
(E) The rights to the 931,000 shares of AmeriNet Stock have been
allocated among Vista's officers, as follows: Teri E. Nadler,
499,800 shares; Scott B. Ugell, 261,600 shares; Jean Hickman,
117,600 shares; Alicia Torrealba, 39,200 shares.
Certain Relationships and Related Transactions
Since Vista's inception, it was a party to the following transactions
in which:
* a director or executive officer of Vista,
* a nominee for election as a director,
* a beneficial owner of ten percent or more of Vista's common
stock, or
* any member of the immediate family of any of the foregoing;
had or will have a direct or indirect interest, and did not involve: rates or
charges determined by competitive bids; services at rates or charges fixed by
law or governmental authority; services as a bank depository of funds, transfer
agent, registrar, trustee under a trust indenture; or, similar services:
Relationship Nature of Interest Amount of
Name To Vista In the Transaction Such Interest
- ---- -------- ------------------ ------------
Scott A. Ugell Director Receipt of legal fees for $8,000
and general counsel organizational work
Resignation of Ms. Penny Adams Field as a Member of the Registrant's Board of
Directors
Ms. Penny Adams Field, a member of the Registrant's board of directors
and of its audit committee, submitted a letter of resignation dated March 1,
2000, which was addressed to Michael Harris Jordan, the Registrant's president.
The board of directors intends to accept such resignation at its next meeting.
Because it did not involve any disputes with the Registrant, Ms. Field's
resignation is not reported under Item 6. The following is the text of Ms.
Field's resignation letter:
27
<PAGE>
"Dear Michael:
As we discussed at the first of the year, I cannot continue to
participate on the board of Amerinet Group due to the extreme demands that
have been placed on me at Cigarette racing Team. I cannot predict when my
responsibilities or schedule will lighten and therefore have had to discontinue
all outside activity and devote myself to the corporate transition.
I wish you and all of the board at Amerinet the best and success in all
your endeavors."
Item 7. Financial Statements and Exhibits.
List below the financial statements, pro forma financial information
and exhibits, if any, filed as a part of this report.
(a) Financial statements of businesses acquired.
As permitted by subsection (a)(4) of this Item, the Registrant will
file the financial statements required by this item by amendment not later than
60 days after the date that this report on Form 8-K is being filed. The
Registrant is including a minimal unaudited balance sheet and operating
statement provided by Vista as an exhibit to the reorganization agreement as a
component of such agreement, filed as an exhibit to this current report.
(b) Pro forma financial information.
As permitted by subsection (a)(4) of this Item, the Registrant will
file the pro forma financial information required by this item by amendment not
later than 60 days after the date that this report on Form 8-K is being filed.
(c) Exhibits.
Designation Page
of Exhibit Number
as Set Forth or Source of
in Item 601 of Incorporation
Regulation S-B By Reference Description
(2) Plan of acquisition, reorganization,
arrangement, liquidation or
succession:
.17 32 Reorganization Agreement dated March 12,
2000 between the Registrant and Vista.
28
<PAGE>
(3) (i) Certificate or Articles of Incorporation:
.4.vv 139 Current articles of incorporation for
Vista, as amended to date.
(ii) Bylaws:
.5.vv 145 Current bylaws for Vista, as amended to
date.
(10) Material Contracts
* Material agreements to which Vista is a
party or by which its is bound:
.1.vv 172 Commercial Lease dated December 9, 1998
between John A. Roschman and Vista for
property located at 5653 NW 29th Street,
Margate: Two year term ending December 31,
2000.
.2.vv 182 BSFS Equipment Leasing of ICS phone system
.3.vv 183 Xerox Equipment Lease dated 3/16/99.
.4.vv 184 Xerox Equipment Lease dated 3/16/99
.5.vv 185 Xerox Equipment Lease dated 3/16/99
.6.vv 186 Shareholders Agreement and
Irrevocable Proxy for Vista, dated
November 13, 1998.
.7.vv 200 Amended Shareholders Agreement dated
September 28, 1999.
.8.vv 202 Letter agreement removing security
interest in Vista shares by Nellie
Tippery, dated January 20, 2000.
.9.vv 203 Security and Pledge Agreement dated
November 14, 1998.
.10.vv 207 Shareholders Agreement and
Irrevocable Proxy dated January 17, 2000.
.11.vv 218 Carnival Cruise Override Commission
Agreement dated March 18, 1999.
.12.vv 221 Letter, application and membership
agreement form with Vacation.com.
.13.vv 224 Agreement with Dale Everly Colson as
Public Relations Consultant .
.14.vv 225 Agreement for Professional Services
between Vista and Wriwebs.com, Inc.
.15.vv 229 Superseder & Conversion Agreement
with Nellie Tippery.
.16.vv 242 Promissory Note in favor of Nellie
Tippery
.16.vv 243 Cancellation of Promissory Note in
favor of Nellie Tippery
29
<PAGE>
Designation Page
of Exhibit Number
as Set Forth or Source of
in Item 601 of Incorporation
Regulation S-B By Reference Description
.17.vv 244 Premium Finance Agreement dated February
2, 2000.
.18.vv 248 Summary of the following insurance
policies:
Preferred National Insurance Company
dated February 3, 2000.
Group Health Insurance Policy with
United Wisconsin Life Insurance
Company dated June 1, 1999, through
June 1,2000.
Comp Options Workers Compensation
and Employers Liability Policy dated
December 12, 1999.
.19.vv 250 Scott Ugell's Malpractice Insurance and
Professional Liability Policy dated May
5, 1999 to May 1, 2000.
.20.vv 251 Affiliate Agreement with Teri E. Nadler
.21.vv 268 Affiliate Agreement with Alicia Torrealba
.22.vv 285 Affiliate Agreement with Scott B. Ugell
.23.vv 302 Affiliate Agreement with Ken Nelson &
Carol Nelson
.24.vv 319 Affiliate Agreement with Jean Hickman
.25.vv 336 Affiliate Agreement with Karyn McKnight
.26.vv 353 Affiliate Agreement with Nellie Tippery
.27.vv 370 Employment Agreement with Teri Nadler
.28.vv 381 Employment Agreement with Scott B. Ugell
.29.vv 392 Employment Agreement with Alicia Torrealba
.30.vv 403 Employment Agreement with Jean Hickman
.31.vv 414 Independent Contractor Agreement with
Karyn McKnight
.32.vv 426 Confidentiality Agreement with Jay Lovins
.33.vv 430 Confidentiality Agreement with Karyn
McKnight
.34.vv 434 Confidentiality Agreement with Trevor
Grafflin
(99) Additional Exhibits:
.50 438 Resignation letter from Penny Adams Field
- -------
* Included as exhibits to or in the schedules to the Reorganization
Agreement dated March 12, 2000 between the Registrant and Vista filed
herewith as exhibit 2.16.
30
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: March 28, 2000
AmeriNet Group.com, Inc
/s/ Michael Jordan
---------------------------------
Michael Jordan
President
31
Reorganization Agreement
By & Among
AmeriNet Group.com, Inc., a Delaware corporation,
and Vista Vacations International, Inc., a
Florida corporation
Table of Contents
Article I: Plan of Reorganization
1.1 Definitions
1.2 Reorganization
1.3 Effect of the Reorganization
1.4 Articles of Incorporation & Bylaws
1.5 Directors and Officers
1.6 Maximum Shares to Be Issued & Effect on
Capital Stock
1.7 Exchange of Certificates
1.8 No Further Ownership Rights in Vista Vacations'
Securities
1.9 Lost, Stolen or Destroyed Certificates
1.10 Tax Consequences and Accounting Treatment
1.11 Taking of Necessary Action & Further Action
Article II: Representations and Warranties of
Vista Vacations
2.1 Organization of Vista Vacations
2.2 Vista Vacations' Capital Structure
2.3 Subsidiaries
2.4 Authority
2.5 Vista Vacations' Financial Statements
2.6 No Undisclosed Liabilities
2.7 No Changes
2.8 Tax and Other Returns and Reports
2.9 Restrictions on Business Activities
2.10 Title of Properties, Absence of Liens and
Encumbrances and Condition of Equipment
2.11 Intellectual Property
2.12 Agreements, Contracts and Commitments
2.13 Interested Party Transactions
2.14 Governmental Authorization
2.15 Litigation
2.16 Accounts Receivable
2.17 Minute Books
2.18 Environmental and OSHA
2.19 Brokers' and Finders' Fees
2.20 Labor Matters
2.21 Insurance
2.22 Compliance with Laws
2.23 Complete Copies of Materials
2.24 Binding Agreements & No Default
2.25 Current Report on Form 8-K
2.26 FIRPTA
2.27 Employee Benefit Plans
2.28 Distribution Agreements
2.29 Vista Vacations' Stockholders
2.30 Representations Complete
32
<PAGE>
Article III Representations And Warranties of
AmeriNet
3.1 Organization, Standing and Power
3.2 Capital Structure
3.3 Authority
3.4 Exchange Act Reports & AmeriNet's Financial
Statements
3.5 Broker's and Finders' Fees
3.6 Ownership of Vista Vacations' Common Stock
3.7 Litigation
3.8 Limited Activities
3.9 No Undisclosed Liabilities
3.10 No Changes
3.11 Tax and Other Returns and Reports
3.12 Environmental and OSHA
3.13 Representations Complete
Article IV Conduct Prior to the Closing
4.1 Conduct of Business of Vista Vacations
4.2 No Solicitation
4.3 Conduct of Business of AmeriNet
Article V Additional Agreements
5.1 Report on Form 8-K
5.2 No Meeting of Vista Vacations' Stockholders
5.3 Access to Information
5.4 Confidentiality
5.5 Expenses
5.6 Public Disclosure
5.7 Consents
5.8 Affiliate Agreements
5.9 Legal Requirements
5.10 Blue Sky Laws
5.11 Best Efforts, Additional Documents and Further
Assurances
5.12 Employment Agreements
5.13 Investment by AmeriNet in Vista Vacations
5.14 Vista Vacations' Board of Directors
5.15 Additional Vista Vacations' Covenants
Article VI Conditions to The Reorganization
6.1 Conditions to Obligations of Each Party to Effect
the Reorganization
6.2 Additional Conditions to Obligations of Vista
Vacations
6.3 Additional Conditions to the Obligations of
AmeriNet
Article VII Survival of Condition Subsequent,
Representations and Warranties,
Covenants and Escrow
7.1 Survival of Condition Subsequent,
Representations and Warranties & Covenants
7.2 Escrow Arrangements
33
<PAGE>
Article VIII Termination, Amendment And
Waiver
8.1 Termination
8.2 Effect of Termination
8.3 Amendment
8.4 Extension & Waiver
Article IX General Provisions
9.1 Interpretation
9.2 Notice
9.3 Merger of All Prior Agreements Herein
9.4 Survival
9.5 Severability
9.6 Governing Law
9.7 Indemnification
9.8 Dispute Resolution
9.9 Benefit of Agreement
9.10 Further Assurances
9.11 Counterparts
9.12 License
Schedules
Schedule 1.4 Vista Vacations' Constituent
Documents
Schedule 1.7(C) Vista Vacations' Final
Stockholder Data
Schedule 2.4(D) Conflicts with Obligations
Schedule 2.5(A) Vista Vacations' Financial
Statements
Schedule 2.7 Changes Since Vista
Vacations' Financial
Statements
Schedule 2.8(A) Tax Disclosure Schedule
Schedule 2.10(A) Leased Real Property
Schedule 2.10(C) Equipment
Schedule 2.11 Intellectual Property
Schedule 2.12 Contracts and Agreements
Schedule 2.12(A)(12) Debt & Guarantee Instruments
Schedule 2.13 Related Party Transactions
Schedule 2.14 Governmental Authorization
Schedule 2.15 Litigation
Schedule 2.19 Brokers' and Finders' Fee
Schedule 2.20 List of Employees
Schedule 2.21 Insurance
Schedule 2.27 Employee Benefit Plans
Schedule 2.28 Distribution Agreements
Schedule 4.1 Exceptions to Prohibited Pre-
Closing Actions
Schedule 5.7 Consents
Schedule 5.8 Affiliates
Schedule 5.12 List and Summary of
Employment Agreements
Schedule 5.13 Use of Proceeds
Schedule 5.14 Projections
Schedule 6.3(M) Non-accredited investors
Exhibits
Exhibit 1.2(D) Superseder & Conversion Agreement
Exhibit 2.25 The Form 8-K Information
Exhibit 5.8 Affiliate Agreements
Exhibit 5.12 Copies of Employment Agreements
Exhibit 6.2(D) AmeriNet Legal Opinion
Exhibit 6.3(E) Vista Vacations Legal Opinion
Exhibit 6.3(L) Confidentiality Agreements
Exhibit 7.2(A) Escrow Allocation Information
34
<PAGE>
Reorganization Agreement
This Reorganization Agreement (the "Agreement") is made and entered into by
and among AmeriNet Group.com, Inc., a publicly held Delaware corporation with a
class of securities registered under Section 12(g) of the Securities Exchange
Act of 1934, as amended ("AmeriNet" and the "Exchange Act," respectively); Vista
Vacations International, Inc., a Florida corporation ("Vista Vacations"); and,
Teri Nadler, a Florida resident ("Ms. Nadler") on her own behalf and on behalf
of all other holders of the common stock of Vista Vacations, each of whom has
granted Ms. Nadler an irrevocable power of attorney coupled with an interest to
execute this Agreement on their behalf (each such person being hereinafter
collectively referred to with Ms. Nadler as the "Former Vista Vacations
Stockholders" or generically as a "Former Vista Vacations Stockholder");"
AmeriNet, Vista Vacations and the Former Vista Vacations Stockholders being
sometimes hereinafter collectively referred to as the "Parties" or generically
as a "Party").
Preamble:
WHEREAS, the board of directors of AmeriNet and Vista Vacations believe it
is in the best interests of each corporation and their respective stockholders
that Vista Vacations become a wholly owned subsidiary of AmeriNet and, in
furtherance thereof, have approved the Reorganization; and
WHEREAS, pursuant to the terms of the Reorganization, as hereinafter set
forth, among other things, all of the outstanding and reserved securities of
Vista Vacations ("Vista Vacations' Securities") shall be exchanged for between
220,000 and 439,999 shares of AmeriNet's common stock, $0.01 par value
("AmeriNet's Common Stock"), depending on Vista Vacations' net, pre-tax profits
during the fiscal period starting on July 1, 2000 and ending on June 30, 2003,
as hereinafter described; and
WHEREAS, the Parties intend that AmeriNet invest up to $650,000 within 300
days after completion of the Reorganization and the filing of required reports
with the United States Securities and Exchange Commission (the "Commission");
and
WHEREAS, Vista Vacations, AmeriNet and the Former Vista Vacations
Stockholders desire to make certain representations and warranties and other
agreements in connection with the Reorganization and their subsequent operating
and business relationships; and
WHEREAS, the Parties intend, by executing this Agreement, to adopt a plan
of reorganization within the meaning of Section 368 of the Internal Revenue Code
of 1986, as amended (the "Code"):
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
Plan of Reorganization
1.1 Definitions
The following terms, whether or not initially capitalized, will have the
meanings set forth below:
35
<PAGE>
(A) 1999 10-KSB:
AmeriNet's report on Commission Form 10-KSB for the fiscal year
ended June 30, 1999.
(B) Accredited Investor:
A person or entity that meets the asset or income requirements
for treatment as an accredited investor specified in Rule 501 of
Commission Regulation D promulgated under the Securities Act
(C) AmeriNet Exchange Share Number:
220,000 shares of AmeriNet's common stock, $0.01 par value, to be
exchanged for 1,265 shares of Vista Vacations' Common stock,
without par value.
(D) Affiliate:
An entity or person that controls, is controlled by or is under
common control with another person.
(E) AmeriNet Financial Statements:
Financial statements, including all related schedules and the
notes thereto, of AmeriNet included in the report on Commission
Form 10-KSB for the period ended June 30, 1999, as amended; the
reports on Commission Form 10-QSB filed subsequent to June 30,
1999 and the financial statements for subsidiaries subsequently
acquired by AmeriNet included in current reports on Commission
Form 8-K filed since the dates of the Subsequent Quarterly
Reports (the "Subsequent Current Reports"); all such financial
statements being hereinafter collectively and generically
referred to as the "AmeriNet Financial Statements,"
(F) AmeriNet Schedules:
The schedules referenced by the Section designations of this
Agreement as to which they apply, annexed at the direction of
AmeriNet to this Agreement and constituting a material component
of this Agreement.
(G) Capital Stock:
The generic term used for equity securities, whether common,
preferred or otherwise.
(H) Closing:
The event at which the exchange of all of the Vista Vacations
securities will be exchanged for the AmeriNet Exchange Share
Number of AmeriNet's Common Stock.
(I) Closing Date: The date that the Closing takes place.
(J) Commission: The United States Securities and Exchange Commission.
(K) Code: The Internal Revenue Code of 1986, as amended.
(L) Commercial Software Rights:
Packaged commercially available software programs generally
available to the public through retail dealers in computer
software which have been licensed to end-user licenses and which
are used in the licensee's business but are in no way a component
of or incorporated in any of its products and related trademarks,
technology and know-how.
36
<PAGE>
(M) Escrow Number:
The number of shares of AmeriNet Common Stock equal to the
AmeriNet Exchange Share Number multiplied by twenty percent.
(N) Escrow Agent:
The Yankee Companies, Inc., a Florida corporation, or such other
person designated for such role by AmeriNet.
(O) Exchange Act: The Securities Exchange Act of 1934, as amended.
(P) Exchange Act Reports:
All reports filed by AmeriNet with the Commission pursuant to
Sections 12(g), 13 and 15(d) of the Exchange Act.
(Q) Exchange Agent:
The person or entity responsible, following the Closing, for
issuing and delivering the Initial AmeriNet Stock Exchanged to
Vista Vacations' Stockholders.
(R) Exchange Ratio:
The quotient obtained by dividing the AmeriNet Exchange Share
Number by the Vista Vacations Exchange Share Number.
(S) GAAP: Generally accepted accounting principles, consistently applied.
(T) Initial AmeriNet Stock Exchanged:
The 220,000 shares of AmeriNet's Common Stock to be issued to
Vista Vacations' Stockholders immediately following the Closing,
without regard to Vista Vacations' future performance.
(U) Initial Funding Installment:
The sum of $125,000 payable to the order of Vista Vacations in
satisfaction of AmeriNet's commitment under Section 5.13(A) of
this Agreement but to be expended solely as provided for in such
Section.
(V) IRS: The United States Internal Revenue Service.
(W) Knowledge:
When used to qualify a representation or warranty, the word
"knowledge" or any derivations or variations thereof, whether in
the form of a word or phrase, shall mean knowledge after
reasonable inquiry by an executive officer of the legal entity on
whose behalf the assertion is made and will include information
that such legal entity should have had in the exercise of
reasonable diligence.
(X) Material:
When used to qualify a representation or warranty, the word
"material" or any derivations or variations thereof, whether in
the form of a word or phrase, shall mean a variance that could
have negatively affected a decision by a reasonably prudent
person to engage in the transactions contemplated by this
Agreement, and shall be measured both on the occasion in which
such term is referenced as well as on an aggregate basis with
other similar matters.
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<PAGE>
(Y) NASD:
The National Association of Securities Dealers, Inc., a Delaware
corporation and self regulatory organization registered with the
Commission.
(Z) OTC Bulletin Board:
The over the counter electronic securities market operated by the
NASD.
(AA) Performance Shares:
Up to 219,999 shares of AmeriNet's Common Stock to be issued to
Vista Vacations' Stockholders in the future, based on the
performance of Vista Vacations during the period Starting on July
1, 2000 and ending on June 30, 2003.
(BB) Securities Act: The Securities Act of 1933, as amended.
(CC) Subsequent Current Reports:
AmeriNet's reports on Commission Form 8-K filed after the
Subsequent Quarterly Reports but prior to the date of this
Agreement.
(DD) Subsequent Quarterly Reports:
AmeriNet's reports on Commission Form 10-QSB for the quarterly
periods following the 1999 10-KSB filed prior to the date of this
Agreement.
(EE) Substantial Compliance:
Compliance which the Party for whose benefit or at whose request
an act is performed, or for whose benefit or at whose request an
act is refrained from could under the circumstances be reasonably
expected to accept as full compliance.
(FF) Tax: For the purposes of this Agreement, a "Tax" or, collectively,
"Taxes," means any and all federal, state, local and foreign
taxes, assessments and other governmental charges, duties,
impositions and liabilities, including taxes based upon or
measured by gross receipts, income, profits, sales, use and
occupation, and value added, ad valorem, transfer, franchise,
withholding, payroll, recapture, employment, excise and property
taxes, together with all interest, penalties and additions
imposed with respect to such amounts and any obligations under
any agreements or arrangements with any other person with respect
to such amounts.
(GG) Ten-Day Average Price:
The average closing transaction price of a share of AmeriNet's
publicly traded Common Stock for the ten most recent days that
AmeriNet Common Stock has traded ending on the trading day prior
to the date in question, as reported on the OTC Bulletin.
(HH) Vista Vacations Exchange Share Number:
The 1,265 shares of Vista Vacations' Common Stock outstanding
immediately prior to the Closing.
(II) Vista Vacations' Financial Statements:
Vista Vacations's unaudited financial statements (balance sheets,
income statements and related schedules and footnotes) as of and
for the fiscal year ending December 31, 1999, prepared in
conformity with GAAP.
38
<PAGE>
(JJ) Vista Vacations Schedules:
The schedules referenced by the Section designations of this
Agreement as to which they apply, annexed at the direction of
Vista Vacations to this Agreement and constituting a material
component of this Agreement.
(KK) Vista Vacations Stockholders:
Stockholders of Vista Vacations at the time immediately preceding
the Closing, collectively and generically, despite the fact that
after the Closing they will not hold any Vista Vacations
securities.
(LL) Additional defined terms are specified in certain sections and
subsections below and are characterized by the use of initial letter
capitalization.
1.2 Reorganization
(A) The Reorganization.
(1) At the Closing on this Agreement all of the Vista Vacations'
Stockholders will exchange all of their Vista Vacations
securities, being an aggregate of 1,265 shares of common
stock, without par value (the remaining 235 shares being
unreserved treasury shares), for 220,000 shares of AmeriNet
Common Stock.
(2) The Initial AmeriNet Stock Exchanged shall be allocated among
Vista Vacations' Stockholders in proportion to their holdings
of Vista Vacations common stock immediately prior to the
Closing.
(3) (a) In addition to the Initial AmeriNet Stock Exchanged,
AmeriNet shall reserve 219,999 shares of its common stock,
$0.01 par value (the Performance Shares), to be issued to
the former Vista Vacations Stockholders, on the following
terms and subject to the following requirements:
(i) If Vista Vacations earns net, pre tax
profits, determined in accordance with GAAP,
of at least $400,000 during the period
starting on July 1, 2000 and ending on June
30, 2001, then Vista Vacations' Stockholders
shall be issued an aggregate of 36,667 of
the Performance Shares;
(ii) If Vista Vacations earns net, pre tax
profits, determined in accordance with GAAP,
of at least $1,200,000 during the period
starting on July 1, 2001 and ending on June
30, 2002, then Vista Vacations' Stockholders
shall be issued an aggregate 102,666 of the
Performance Shares (including the 36,667
that either were or could have been earned
as of June 30, 2001);
(iii) If Vista Vacations earns net, pre tax
profits, determined in accordance with GAAP,
of at least $2,800,000 during the period
starting on July 1, 2000 and ending on June
30, 2003, then Vista Vacations' Stockholders
shall be issued all of 219,999 of the
Performance Shares (including the 102,666
that either were or could have been earned
as of June 30, 2002); however, all rights to
any of the Performance Shares not earned as
of such date shall thereupon expire.
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(b) The Performance Shares will be allocated among the
Vista Vacations' Stockholder's, pro rata, based on
their ownership of Vista Vacations' Common Stock
immediately preceding the Closing, will be reserved
for future issuance immediately following the Closing
and will be issued within 30 days after AmeriNet's
audit for the subject fiscal year confirming the
calculations called for.
(B) As promptly as practicable after the satisfaction or waiver of the
conditions set forth in Article VI, the Parties shall cause the
Reorganization to be consummated by effecting the exchange all of Vista
Vacations' Common Stock for the Initial AmeriNet Stock Exchanged.
(C) The Closing Date and time of the Reorganization shall be the date and
time on which the Closing of this Reorganization Agreement is
consummated.
(D) (1) At the Closing the Parties shall exchange all closing
documentation, certificates, resolutions, exhibits, schedules and
opinions called for by this Agreement, and
(a) Ms. Nellie Tippery, a creditor of Vista Vacations, will
irrevocably convert all of Vista Vacations' liabilities to
her or her affiliates, including, without limitation, loans
aggregating at least $180,000, into the right to receive
66,667 shares of AmeriNet Common Stock, as provided for in
the form of superseder and conversion agreement annexed
hereto and made a part hereof as exhibit 1.2(D);
(b) All stockholders of Vista Vacations other than Ms. Nadler
shall have repaid Vista Vacations all debts theretofore owed
by them to Vista Vacations (either in the form of loans to
stockholders or advances to employees, consultants or
independent contractors), including debts aggregating at
least $86,000 as heretofore represented to AmeriNet by
having tendered an aggregate of 235 shares of their Vista
Vacations Common Stock back to Vista Vacations prior to
closing;
(c) Ms. Nadler shall repay her $25,000 debt to Vista Vacation
from an equivalent debt owed to her by Vista Vacations using
a portion of the hereinafter defined Initial Funding
Installment by AmeriNet;
(d) The Honorable Scott Ugell, who serves as a director of Vista
Vacations and as its general counsel, shall be paid the sum
of $25,000 using a portion of the hereinafter defined
Initial Funding Installment by AmeriNet, representing a one
time payment for his agreement to serve as Vista Vacations's
general counsel and to provide all legal services that it
may require until June 30, 2005, at a monthly fee of $1,200;
(e) All of Vista Vacations' outstanding securities (being solely
1,265 shares of its Common Stock) shall be exchanged with
AmeriNet for 220,000 shares of AmeriNet Common Stock;
provided that delivery of the certificates for the Initial
AmeriNet Stock Exchanged shall be made directly to Vista
Vacations' Stockholders by AmeriNet's stock transfer agent
after the Closing; and
(f) AmeriNet will tender its check for the Initial Funding
Installment.
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1.3 Effect of the Reorganization.
At the Closing, the effect of the Reorganization shall be that Vista
Vacations' shall become a wholly owned subsidiary of AmeriNet and that the
stockholders of Vista Vacations immediately prior to the Closing shall become
stockholders of AmeriNet at the Closing, with no further rights, title or
interest in Vista Vacations, other than indirectly as stockholders of AmeriNet.
1.4 Articles of Incorporation & Bylaws.
Unless otherwise determined by AmeriNet prior to the Closing Date, the
articles of incorporation and bylaws of Vista Vacations shall be amended to
conform with those included in Schedule 1.4.
1.5 Directors and Officers.
Subject to the requirements of Section 5.14, the directors of Vista
Vacations shall continue in office following the Reorganization until their
respective successors are duly elected or appointed and qualified, in accordance
with the requirements of this Agreement.
1.6 Maximum Shares to Be Issued & Effect on Capital Stock.
(A) The number of shares of AmeriNet Common Stock to be issued in exchange
for all of the Vista Vacations Common Stock (the only Vista Vacations
securities to be outstanding or reserved at the Closing) shall be
439,999, 220,000 of which shall be issued by the Exchange Agent
following the Closing, and up to 219,999 may be issued, subject to
Vista Vacations' net, pre tax profits during the period starting on
July 1, 2000 and ending on June 30, 2003 (as hereinbefore established).
(B) Adjustments to Exchange Ratio.
The Exchange Ratio shall be adjusted to reflect fully the effect of any
stock split, reverse split, stock dividend (including any dividend or
distribution of securities convertible into AmeriNet Common Stock or
Vista Vacations' Common Stock), reorganization, recapitalization or
other like change with respect to AmeriNet Common Stock or Vista
Vacations' Common Stock occurring after the date hereof and prior to
the Closing.
(C) Fractional Shares.
No fraction of a share of AmeriNet Common Stock will be issued, but in
lieu thereof each holder of shares of Vista Vacations' Common Stock who
will otherwise be entitled to a fraction of a share of AmeriNet Common
Stock (after aggregating all fractional shares of AmeriNet Common Stock
to be received by such holder) shall be entitled to receive from
AmeriNet a whole share of AmeriNet Common Stock.
1.7 Exchange of Certificates.
(A) Exchange Agent.
Unless modified by AmeriNet prior to the Closing Date, Liberty
Transfer Co., Inc., of Huntington, New York, AmeriNet's current
transfer agent, shall serve as the Exchange Agent.
(B) AmeriNet to Provide Common Stock.
Promptly after the Closing, AmeriNet shall make available to the
Exchange Agent for exchange in accordance with this Article I the
shares of AmeriNet Common Stock issuable pursuant to Section 1.6 in
exchange for all of the outstanding shares of Vista Vacations' Common
Stock.
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(C) Exchange Procedures.
(1) All certificates for shares of Vista Vacations' outstanding
common Stock shall be tendered to AmeriNet at the Closing,
with medallion signature guarantees or otherwise in proper
form for immediate transfer to the order of AmeriNet,
whereupon AmeriNet shall issue instructions to the Exchange
Agent to issue shares of AmeriNet's Common Stock, in the
quantities and names set forth in Schedule 1.7(C), subject to
the escrow requirements of Article VII.
(2) As soon as practicable after the Closing, and subject to and
in accordance with the provisions of Article VII hereof,
AmeriNet shall cause to be distributed to the Escrow Agent a
certificate or certificates representing that number of
shares of AmeriNet Common Stock equal to the Escrow Number
which shall be registered in the name of the Escrow Agent.
(4) Such shares shall be beneficially owned by the holders on
whose behalf such shares were deposited in the Escrow Fund but
shall be available to compensate AmeriNet for certain damages
as provided in Article VII.
(D) Transfers of Ownership.
If any certificate for shares of AmeriNet Common Stock is to be issued
in a name other than that in which the certificate surrendered in
exchange therefor is registered, it will be a condition of the issuance
thereof that the certificate so surrendered will be properly endorsed
and otherwise in proper form for transfer and that the person
requesting such exchange will have paid to AmeriNet or any agent
designated by it any transfer or other Taxes required by reason of the
issuance of a certificate for shares of AmeriNet Common Stock in any
name other than that of the registered holder of the certificate
surrendered, or established to the satisfaction of AmeriNet or any
agent designated by it that such Tax has been paid or is not payable.
(E) No Liability.
Notwithstanding anything to the contrary in this Section 1.7, none of
the Exchange Agent, AmeriNet, Vista Vacations or any other Party shall
be liable to a holder of shares of AmeriNet Common Stock or Vista
Vacations' Capital Stock for any amount properly paid to a public
official pursuant to any applicable abandoned property, escheat or
similar law.
1.8 No Further Ownership Rights in Vista Vacations' Securities.
(A) All shares of AmeriNet Common Stock issued upon the surrender for
exchange of shares of Vista Vacations' Common Stock in accordance with
the terms hereof shall be deemed to have been issued in full
satisfaction of all rights pertaining to such shares of Vista
Vacations' Common Stock, and there shall be no further registration of
transfers on the records of Vista Vacations, of shares of Vista
Vacations' Capital Stock which were outstanding immediately prior to
the Closing.
(B) If, after the Closing, Certificates are presented to Vista Vacations,
for any reason, they shall be canceled and exchanged as provided in
this Article I.
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1.9 Lost, Stolen or Destroyed Certificates.
In the event any certificates evidencing shares of Vista Vacations'
Common Stock shall have been lost, stolen or destroyed, Vista
Vacations' transfer agent or share registrar shall, prior to the
Closing, have issued in exchange for such lost, stolen or destroyed
certificates, upon the making of an affidavit of that fact by the
holder thereof, such shares of its Common Stock as may have been
required pursuant to Section 1.6; provided, however, that AmeriNet may,
in its discretion and as a condition precedent to the issuance of the
shares of AmeriNet Common Stock to be exchanged therefor, require the
owner of such lost, stolen or destroyed certificates to deliver a bond
in such sum as it may reasonably direct as indemnity against any claim
that may be made against AmeriNet or the Exchange Agent with respect to
the certificates alleged to have been lost, stolen or destroyed.
1.10 Tax Consequences and Accounting Treatment.
(A) It is intended by the Parties that the Reorganization shall constitute
a reorganization within the meaning of Section 368(a)(1)(B) of the
Code and the Parties agree that if modification of the terms of this
Agreement in a non-material manner to attain such qualification is
necessary, they will negotiate in good faith to make such required
modifications.
(B) The Parties understand that because of the inclusion of contingencies
in determining the quantity of AmeriNet's Common Stock being exchanged
for Vista Vacations' Common Stock, the reorganization will not qualify
for accounting as a pooling of interests but rather, must be accounted
for under the purchase method.
1.11 Taking of Necessary Action: Further Action.
If, at any time after the Closing, any such further action is necessary
or desirable to carry out the purposes of this Agreement including,
without limitation the vesting in AmeriNet of full right, title and
possession to all of Vista Vacations' Capital Stock; or, compliance
with the requirements of Code Section 368(a)(1)(B); the officers and
directors of AmeriNet and Vista Vacations are fully authorized in the
name of their respective corporations or otherwise to take, and will
take, all such lawful and necessary action.
Article II
Representations and Warranties of Vista Vacations
Vista Vacations hereby represents and warrants to AmeriNet, as a material
inducement to its entry into this Agreement, subject to the exceptions
specifically disclosed in the Vista Vacations Schedules, as follows:
2.1 Organization of Vista Vacations.
(A) Vista Vacations is a corporation duly organized, validly existing and
in good standing under the laws of the State of Florida.
(B) Vista Vacations has the corporate power to own its property and to
carry on its business as now being conducted and as proposed to be
conducted by Vista Vacations.
(C) Vista Vacations is duly qualified to do business and in good standing
as a foreign corporation in each jurisdiction in which the failure to
be so qualified would have a material adverse effect on the business,
assets (including intangible assets), financial condition, or results
of operations of Vista Vacations.
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(D) Vista Vacations has delivered a true and correct copy of its articles
of incorporation and bylaws (or similar governing instruments), each as
amended to date, to counsel for AmeriNet.
2.2 Vista Vacations' Capital Structure.
(A) The authorized Capital Stock of Vista Vacations consists of 1,500
shares of Common Stock, without par value;
(B) There are 1,265 shares of Vista Vacations Common Stock issued and
outstanding, held by the persons, and in the amounts, set forth on
Schedule 1.7(C), 235 shares previously outstanding having been returned
to Vista Vacations' treasury by the holders as payment for the $61,000
owed by them to Vista Vacations.
(C) All outstanding shares of Vista Vacations Capital Stock are duly
authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights created by statute, the articles of
incorporation or bylaws of Vista Vacations or any agreement to which
Vista Vacations is a party or is bound.
(D) Vista Vacations has no other outstanding or securities reserved for
issuance for any purpose, there being no other obligations directly or
indirectly obligating Vista Vacations to issue any of its securities
to any person for any purpose, there are no other options, warrants,
calls, rights, commitments or agreements of any character to which
Vista Vacations is a party or by which it is bound obligating Vista
Vacations to issue, deliver, sell, repurchase or redeem, or cause to
be issued, delivered, sold, repurchased or redeemed, any shares of the
Vista Vacations Capital Stock or obligating Vista Vacations to grant,
extend or enter into any such option, warrant, call, right, commitment
or agreement.
2.3 Subsidiaries.
Vista Vacations has no subsidiaries or affiliated companies and does
not otherwise own any shares of stock or any interest in, or control,
directly or indirectly, any other corporation, partnership,
association, joint venture or business entity.
2.4 Authority.
(A) Vista Vacations has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby.
(B) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Vista Vacations.
(C) This Agreement has been duly executed and delivered by Vista Vacations
and subject to the proper authorization of this Agreement by AmeriNet's
board of director and its due execution and delivery by AmeriNet to
Vista Vacations, constitutes the valid and binding obligation of Vista
Vacations.
(D) The execution and delivery of this Agreement by Vista Vacations does
not, and the consummation of the transactions contemplated hereby will
not, conflict with, or result in any violation of, or default under
(with or without notice or lapse of time, or both), or give rise to a
right of termination, cancellation or acceleration of any obligation or
loss of a material benefit under (i) any provision of the articles of
incorporation or bylaws of Vista Vacations or (ii) any material
mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Vista
Vacations or its properties or assets.
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(E) No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality
("Governmental Entity"), is required by or with respect to Vista
Vacations in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby,
except for such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under
applicable state and federal securities laws (notification on Form D)
and the laws of any foreign country.
2.5 Vista Vacations' Financial Statements.
(A) Schedule 2.5(A) includes Vista Vacations' Financial Statements.
(B) Vista Vacations' Financial Statements are complete and correct in all
material respects and have been prepared in accordance GAAP throughout
the periods indicated.
(C) Vista Vacations' Financial Statements present fairly the financial
condition and operating results of Vista Vacations as of the dates and
during the periods indicated therein, subject to normal year-end audit
adjustments, which will not be material in the aggregate.
(D) The unaudited balance sheet of Vista Vacations as of December 31, 1999
is hereinafter referred to as "Vista Vacations' Balance Sheet."
(E) Vista Vacations' financial statements can and will be audited, at Vista
Vacations' expense, as required to comply with the requirements for
material acquisitions under Commission Regulation S-B in a manner
permitting AmeriNet to comply with its obligation under the Securities
Act and the Exchange Act in conjunction therewith.
2.6 No Undisclosed Liabilities.
Vista Vacations does not have any material liabilities or obligations,
either accrued or contingent (whether or not required to be reflected in
financial statements in accordance with generally accepted accounting
principles), and whether due or to become due, which individually or in the
aggregate, (i) have not been reflected in the Vista Vacations Balance Sheet
(including the notes thereto) or (ii) have not been specifically described in
this Agreement or in the Vista Vacations Schedules.
2.7 No Changes.
Except as specifically disclosed in Schedule 2.7, since the date of Vista
Vacations' Financial Statements there has not been, occurred or arisen any:
(A) Transaction by Vista Vacations except in the ordinary course of business as
conducted on that date;
(B) Capital expenditure by Vista Vacations, either individually or in the
aggregate, exceeding $5,000;
(C) Destruction, damage to, or loss of any assets (including without limitation
intangible assets) of Vista Vacations (whether or not covered by
insurance), either individually or in the aggregate, exceeding $5,000;
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(D) Labor trouble or claim of wrongful discharge, sexual harassment or other
unlawful labor practice or action;
(E) Change in accounting methods or practices (including any change in
depreciation or amortization policies or rates, any change in policies in
making or reversing accruals, or any change in capitalization of software
development costs) by Vista Vacations;
(F) Declaration, setting aside, or payment of a dividend or other distribution
in respect to the shares of Vista Vacations, or any direct or indirect
redemption, purchase or other acquisition by Vista Vacations of any of its
shares;
(G) Increase in the salary or other compensation payable or to become payable
by Vista Vacations to any of its officers, directors or employees, or the
declaration, payment, or commitment or obligation of any kind for the
payment, by Vista Vacations, of a bonus or other additional salary or
compensation to any such person;
(H) Acquisition, sale or transfer of any asset of Vista Vacations except in the
ordinary course of business;
(I) Formation, amendment or termination of any distribution agreement or any
material contract, agreement or license to which Vista Vacations is a
party, other than termination by Vista Vacations pursuant to the terms
thereof;
(J) Loan by Vista Vacations to any person or entity, or guaranty by Vista
Vacations of any loan except for expense advances in the ordinary course of
business consistent with past practice;
(K) Waiver or release of any material right or claim of Vista Vacations,
including any write-off or other compromise of any material account
receivable of Vista Vacations;
(L) The notice or, to Vista Vacations' knowledge, commencement or threat of
commencement of any governmental proceeding against or investigation of
Vista Vacations or its affairs;
(M) Other event or condition of any character that has or would, in Vista
Vacations' reasonable judgment, be expected to have a Material Adverse
Effect on Vista Vacations;
(N) Issuance, sale or redemption by Vista Vacations of any of its shares or of
any other of its securities other than issuances of shares of Common Stock
pursuant to outstanding Options and Warrants;
(O) Change in pricing or royalties set or charged by Vista Vacations except for
discounts extended in the ordinary course of business consistent with past
practice; or
(P) Negotiation or agreement by Vista Vacations to do any of the things
described in the preceding clauses (A) through (O) (other than negotiations
with AmeriNet and its representatives regarding the transactions
contemplated by this Agreement).
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2.8 Tax and Other Returns and Reports.
(A) Tax Returns and Audits.
(1) Vista Vacations has accurately prepared and timely filed all
required federal, state, local and foreign returns, estimates,
information statements and reports ("Returns") relating to any
and all Taxes relating or attributable to Vista Vacations or
its operations
(2) The Returns are true and correct in all material respects and
have been completed in accordance with applicable law in all
material respects.
(3) Vista Vacations has timely paid all Taxes required to be paid
with respect to such Returns and has withheld with respect to
its employees all federal and state income Taxes, FICA, FUTA
and other Taxes it is required to withhold.
(4) The accruals for Taxes on the books and records of Vista
Vacations are sufficient to discharge the Taxes for all
periods (or the portion of any period) ending on or prior to
the Closing Date.
(5) Vista Vacations has not been delinquent in the payment of any
Tax nor, except as set forth in Schedule 2.8(A), is there any
Tax deficiency outstanding, proposed or assessed against Vista
Vacations, nor has Vista Vacations executed any waiver of any
statute of limitations on or extending the period for the
assessment or collection of any Tax.
(6) (a) No audit or other examination of any Return of Vista
Vacations is presently in progress. Except as set forth in
Schedule 2.8(A), Vista Vacations does not have any
liabilities for unpaid federal, state, local and foreign
Taxes, whether asserted or unasserted, known or unknown,
contingent or otherwise and Vista Vacations has no knowledge
of any basis for the assertion of any such liability
attributable to Vista Vacations, or their respective assets
or operations.
(b) Vista Vacations is not (nor has it ever been) required to
join with any other entity in the filing of a consolidated
Tax return for federal Tax purposes or a consolidated or
combined return or report for state Tax purposes.
(7) Vista Vacations is not a party to or bound by any Tax
indemnity, Tax sharing or Tax allocation agreement.
(8) Vista Vacations has provided, or made available, to AmeriNet
or its legal counsel copies of all federal, provincial and
state income and all sales and use Tax Returns of Vista
Vacations for all periods since its date incorporation.
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(9) There are (and as of immediately following the Closing Date
there will be) no liens on the assets of Vista Vacations
relating to or attributable to Taxes.
(10) Vista Vacations has no knowledge of any basis for the
assertion of any Tax claim which, if adversely determined,
would result in liens on the assets of Vista Vacations.
(11) Vista Vacations has no property which is being sold, conveyed
or transferred pursuant to this Agreement which in the hands
of AmeriNet would be treated as being owned by persons other
than AmeriNet pursuant to Section 168(f)(8) of the Internal
Revenue Code of 1954 as in effect immediately prior to the
enactment of the Tax Reform Act of 1986, or any analogous
provisions of any state law.
(12) None of the assets of Vista Vacations are treated as
"Tax-exempt use property" within the meaning of Section 168(h)
of the Code.
(13) There is no contract, agreement, plan or arrangement,
including but not limited to the provisions of this Agreement,
covering any employee or former employee of Vista Vacations
that, individually or collectively, could give rise to the
payment of any amount that would not be deductible pursuant to
Sections 280G, 162 or 404 of the Code.
(B) No Penalty.
Vista Vacations is not subject to any penalty by reason of a violation
of any order, rule or regulation of, or a default with respect to any
return, report or declaration required to be filed with, any
Governmental Entity to which it is subject, which violations or
defaults, individually or in the aggregate, would have a material
adverse effect on Vista Vacations.
2.9 Restrictions on Business Activities.
There is no agreement (assuming the Parties thereto other than Vista
Vacations performed their respective obligations thereunder as required),
judgment, injunction, order or decree binding upon Vista Vacations which has or
could reasonably be expected to have the effect of materially prohibiting or
materially impairing any business practice of Vista Vacations, any acquisition
of property by Vista Vacations or the conduct of business by Vista Vacations as
currently conducted or as currently proposed to be conducted.
2.10 Title of Properties: Absence of Liens and Encumbrances:
Condition of Equipment.
(A) (1) Vista Vacations owns no real property.
(2) Schedule 2.10(A) sets forth a true and complete list of all
real property leased by Vista Vacations and the aggregate
annual rental or other fee payable under any such lease.
(3) To the knowledge of Vista Vacations, all such leases are in
good standing, valid and effective in accordance with their
respective terms, and there is not with respect to Vista
Vacations under any of such leases, any existing default or
event of default (or event which with notice or lapse of time,
or both, would constitute a default and in respect of which
Vista Vacations has not taken adequate steps to prevent such
default from occurring), except where the lack of such good
standing, validity and effectiveness or the existence of such
default or event of default would not have a material adverse
effect on Vista Vacations.
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(B) Vista Vacations holds good and valid title to, or, in the case of
leased properties and assets, valid leasehold interests in, all of its
tangible properties and assets, real, personal and mixed, used in its
business, free and clear of any liens, charges, pledges, security
interests or other encumbrances, except as reflected in Vista
Vacations' Financial Statements and except for such imperfections of
title and encumbrances, if any, which are not substantial in character,
amount or extent, and which do not materially detract from the value,
or interfere with the present use, of the property subject thereto or
affected thereby.
(C) (1) The equipment owned or leased by Vista Vacations is listed
in Schedule 2.10(C) (the "Equipment"), except individual
pieces of equipment owned by Vista Vacations with an
individual value of less than $100.
(2) To the knowledge of Vista Vacations, the Equipment is, taken
as a whole:
(a) Adequate for the conduct of the business of Vista Vacations
consistent with its past practice;
(b) Suitable for the uses to which it is currently employed;
(c) In good operating condition;
(d) Regularly and properly maintained, reasonable wear and tear
excepted; and
(e) Not obsolete, dangerous or in need of renewal or
replacement, except for renewal or replacement in the
ordinary course of business.
2.11 Intellectual Property.
(A) (1) Vista Vacations owns, or is licensed to use, all patents,
trademarks, trade names, service marks, copyrights, and any
applications therefor, maskworks, net lists, schematics,
technology, know-how, computer software programs or
applications and tangible or intangible proprietary
information or material (excluding Commercial Software Rights
as defined in paragraph [B] below) that are used or currently
proposed to be used in the business of Vista Vacations as
currently conducted or as currently proposed to be conducted
("Vista Vacations' Intellectual Property Rights").
(2) Schedule 2.11 sets forth a complete list of all patents,
trademarks, registered and material unregistered copyrights,
trade names and service marks, and any applications therefor,
included in Vista Vacations Intellectual Property Rights, and
specifies the jurisdictions in which each such Vista
Vacations' Intellectual Property Right has been issued or
registered or in which an application for such issuance and
registration has been filed, including the respective
registration or application numbers and the names of all
registered owners, together with a list of all of Vista
Vacations' currently marketed software products and an
indication as to which, if any, of such software products have
been registered for copyright protection with the United
States Copyright Office and any foreign offices and by whom
such items have been registered.
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(3) (a) Schedule 2.11 also sets forth a complete list of (i) any
requests Vista Vacations has received to make any such
registration, including the identity of the requestor and
the item requested to be so registered, and the jurisdiction
for which such request has been made and (ii) all licenses,
sublicenses and other agreements as to which Vista Vacations
is a party and pursuant to which Vista Vacations or any
other person is authorized to use any Vista Vacations'
Intellectual Property Right or other trade secret material
to Vista Vacations, and includes the identity of all parties
thereto, a description of the nature and subject matter
thereof, the applicable royalty and the term thereof.
(b) Vista Vacations is not, nor will it be as a result of the
execution and delivery of this Agreement or the performance
of its obligations hereunder, in violation of any license,
sublicense or agreement described on such list.
(4) Vista Vacations is the sole and exclusive owner or licensee
of, with all right, title and interest in and to (free and
clear of any liens or encumbrances), Vista Vacations
Intellectual Property Rights, and has sole and exclusive
rights (and is not contractually obligated to pay any
compensation to any third party in respect thereof) to the use
thereof or the material covered thereby in connection with the
services or products in respect of which Vista Vacations
Intellectual Property Rights are being used.
(5) To the knowledge of Vista Vacations, no claims with respect to
Vista Vacations Intellectual Property Rights have been
asserted or are threatened by any person, nor, to the
knowledge of Vista Vacations, is there any valid grounds for
any bona fide claims (i) to the effect that the manufacture,
sale, licensing or use of any product as now used, sold or
licensed or proposed for use, sale or license by Vista
Vacations infringes on any copyright, patent, trade mark,
service mark or trade secret, (ii) against the use by Vista
Vacations of any trademarks, trade names, trade secrets,
copyrights, patents, technology, know-how or computer software
programs and applications used in Vista Vacations' business as
currently conducted or as proposed to be conducted, or (iii)
challenging the ownership, validity or effectiveness of any of
Vista Vacations Intellectual Property Rights.
(6) All trademarks, service marks and copyrights held by Vista
Vacations are valid and subsisting.
(7) To the knowledge of Vista Vacations, there is no material
unauthorized use, infringement or misappropriation of any of
Vista Vacations Intellectual Property Rights by any third
party, including any employee or former employee of Vista
Vacations.
(8) Vista Vacations has not been sued or charged as a defendant in
any claim, suit, action or proceeding which involves a claim
of infringement of any patents, trademarks, service marks,
copyrights or violation of any trade secret or other
proprietary right of any third party and which has not been
finally terminated prior to the date hereof nor does it have
any knowledge of any such charge or claim, and there is not
any infringement liability with respect to, or infringement or
violation by, Vista Vacations of any patent, trademark,
service mark, copyright, trade secret or other proprietary
right of another.
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(9) To Vista Vacations' knowledge, no Vista Vacations'
Intellectual Property Right or product of Vista Vacations is
subject to any outstanding order, judgment, decree,
stipulation or agreement restricting in any manner the
licensing thereof by Vista Vacations.
(10) There is no outstanding order, judgment, decree or stipulation
on Vista Vacations, and Vista Vacations is not party to any
agreement, restricting in any manner the licensing of Vista
Vacations' products by Vista Vacations.
(11) Vista Vacations has not entered into any agreement to
indemnify any other person against any charge of infringement
of any Vista Vacations' Intellectual Property Right.
(12) Each current and former employee of and consultant to Vista
Vacations has signed a confidentiality agreement substantially
in Vista Vacations' standard form as certified by Vista
Vacations, delivered to AmeriNet and included in Schedule
2.12.
(B) (1) To the best of Vista Vacations' knowledge, Vista Vacations
has not breached or violated the terms of its license,
sublicense or other agreement relating to any Commercial
Software Rights and has a valid right to use such Commercial
Software Rights and has a valid right to use such Commercial
Rights under such license and agreements.
(2) Vista Vacations is not, nor will it be as a result of the
execution and delivery of this Agreement or the performance of
its obligations hereunder, in violation of any license,
sublicense or agreement relating to Commercial Software
Rights.
(3) No claims with respect to the Commercial Software Rights have
been asserted or, to the knowledge of Vista Vacations, are
threatened by any person against Vista Vacations, nor to the
knowledge of Vista Vacations is there any valid grounds for
any bona fide claims (i) to the effect that the manufacture,
sale, licensing or use of any product as now used, sold or
licensed or proposed for use, sale or license by Vista
Vacations infringes on any copyright, patent, trade mark,
service mark or trade secret, (ii) against the use by Vista
Vacations of any trademarks, trade names, trade secrets,
copyrights, patents, technology, know-how or computer software
programs and applications used in Vista Vacations' business as
currently conducted or as proposed to be conducted, or (iii)
challenging the validity or effectiveness of any of Vista
Vacations' rights to use Commercial Software Rights.
(4) To the knowledge of Vista Vacations, there is no material
unauthorized use, infringement or misappropriation of any of
the Commercial Software Rights by Vista Vacations or any
employee or former employee of Vista Vacations during the
period of their employment.
(5) To the knowledge of Vista Vacations, no Commercial Software
Right is subject to any outstanding order, judgment, decree,
stipulation or agreement restricting in any manner the use
thereof by Vista Vacations.
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2.12 Agreements, Contracts and Commitments.
(A) Except as specifically disclosed in Schedule 2.12, Vista Vacations does
not have, is not a party to nor is it bound by:
(1) Any collective bargaining agreements;
(2) Any agreements that contain any unpaid severance liabilities
or obligations;
(3) Any bonus, deferred compensation, incentive compensation,
pension, profit-sharing or retirement plans, or any other
employee benefit plans or arrangements;
(4) Any employment or consulting agreement, contract or commitment
with an employee or individual consultant or salesperson or
consulting or sales agreement, contract or commitment with a
firm or other organization, not terminable by Vista Vacations
on thirty days notice without liability, except to the extent
general principles of wrongful termination law may limit Vista
Vacations' ability to terminate employees at will;
(5) Any agreement or plan, including, without limitation, any
stock option plan, stock appreciation right plan or stock
purchase plan, any of the benefits of which will be increased,
or the vesting of benefits of which will be accelerated, by
the occurrence of any of the transactions contemplated by this
Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions
contemplated by this Agreement;
(6) Any fidelity or surety bond or completion bond;
(7) Any lease of personal property having a value individually in
excess of $2,000;
(8) Any agreement of indemnification or guaranty not entered into
in the ordinary course of business;
(9) Any agreement, contract or commitment containing any covenant
limiting the freedom of Vista Vacations to engage in any line
of business or compete with any person;
(10) Any agreement, contract or commitment relating to capital
expenditures and involving future obligations in excess of
$2,000 in any single instance or $10,000 in the aggregate;
(11) Any agreement, contract or commitment relating to the
disposition or acquisition of assets not in the ordinary
course of business or any ownership interest in any
corporation, partnership, joint venture or other business
enterprise;
(12) Any mortgages, indentures, loans or credit agreements,
security agreements or other agreements or instruments
relating to the borrowing of money or extension of credit,
including guaranties referred to in Schedule 2.12(A)(12)
hereof;
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(13) Any purchase order or contract for the purchase of raw
materials or acquisition of assets involving $1,000 or more in
any single instance or $10,000 or more in the aggregate;
(14) Any construction contracts;
(15) Any distribution, joint marketing or development agreement;
(16) Any other agreement, contract or commitment which involves
$1,000 or more in any single instance or more than $10,000 in
the aggregate and is not cancelable without penalty within
thirty (30) days other than standard end-user licenses of
Vista Vacations' products and services in the ordinary course
of business consistent with past practice, or
(17) Any agreement which is otherwise material to Vista Vacations'
business.
(B) (1) Vista Vacations has not breached, or received any claim or
threat that it has breached, any of the terms or conditions of
any agreement, contract or commitment to which it is bound
(including those set forth in any of Vista Vacations
Schedules) in such manner as would permit any other party to
cancel or terminate the same.
(2) Each agreement, contract or commitment required to be set
forth in any of Vista Vacations Schedules is in full force and
effect (assuming such agreement, contract or commitment has
been duly authorized, executed and delivered by the other
party or parties thereto) and, except as otherwise disclosed
or defaults fully remedied or resolved, is not subject to any
material default thereunder of which Vista Vacations has
knowledge by any party obligated to Vista Vacations pursuant
thereto.
2.13 Interested Party Transactions.
Except as specifically disclosed in Schedule 2.13, no officer, director or
stockholder of Vista Vacations (nor any parent, sibling, descendant or spouse of
any of such persons, or any trust, partnership, corporation or other entity
(provided, that ownership of no more than one percent of the outstanding voting
stock of a publicly traded corporation shall not be deemed an "interest in any
entity" for purposes of this Section 2.13) in which any of such persons has or
has had an interest), has or has had, directly or indirectly:
(A) An interest in any entity which furnished or sold, or furnishes or
sells, services or products which Vista Vacations furnishes or sells,
or proposes to furnish or sell;
(B) Any interest in any entity which purchases from or sells or furnishes
to, Vista Vacations, any goods or services; or
(C) A beneficial interest in any contract or agreement required to be set
forth in Schedule 2.12.
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2.14 Governmental Authorization.
(A) Schedule 2.14 accurately lists each material federal, state, county,
local or foreign governmental consent, license, permit, grant, or other
authorization issued to Vista Vacations:
(1) Pursuant to which Vista Vacations currently operates or holds
any interest in any of its properties; or
(2) Which is required for the operation of its business or the
holding of any such interest (hereinafter collectively
referred to as the "Vista Vacations Authorizations").
(B) Vista Vacations Authorizations are in full force and effect and
constitute all the material authorizations required to permit Vista
Vacations to operate or conduct its business or hold any interest in
its properties.
2.15 Litigation.
(A) Schedule 2.15 annexed hereto accurately lists all suits, actions and
legal, administrative, arbitration or other proceedings and
governmental investigations and all other claims, pending or, to Vista
Vacations' knowledge, threatened or which Vista Vacations expects will
ultimately be threatened or commenced.
(B) None of such suits, actions, proceedings, investigations or claims seek
to prevent the consummation of the Reorganization.
(C) There is no judgment, decree or order enjoining Vista Vacations in
respect of, or the effect of which is to prohibit, any business
practice or the acquisition of any property or the conduct of business
of Vista Vacations.
(D) Schedule 2.15 also lists all suits and legal actions initiated by
Vista Vacations.
2.16 Accounts Receivable.
(A) All receivables of Vista Vacations arose in the ordinary course of
business and the aggregate amounts thereof, are to the best of Vista
Vacations' knowledge collectible (except to the extent reserved against
as reflected in Vista Vacations' Financial Statements) and are carried
at values determined in accordance with generally accepted accounting
principles consistently applied.
(B) To the knowledge of Vista Vacations, none of the receivables of Vista
Vacations is subject to any claim of offset, recoupment, setoff or
counterclaim and there are no facts or circumstances (whether asserted
or unasserted) that would give rise to any such claim.
(C) No receivables are contingent upon the performance by Vista Vacations
of any obligation or contract except for Vista Vacations' maintenance
obligations under its maintenance agreements (although no customer has
claimed that Vista Vacations has failed to perform its maintenance
obligations).
(D) No person has any lien, charge, pledge, security interest or other
encumbrance on any of such receivables and no agreement for deduction
or discount has been made with respect to any of such receivables.
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2.17 Minute Books.
The minute books of Vista Vacations made available to counsel for AmeriNet
contain a complete and accurate summary of all meetings of directors and
stockholders since the time of incorporation of Vista Vacations, and reflect all
transactions referred to in such minutes accurately in all material respects.
2.18 Environmental and OSHA.
(A) Hazardous Material.
(1) As of the Closing Date, no material amount of any substance
that is regulated by any Governmental Entity or that has been
designated by any Governmental Entity to be radioactive,
toxic, hazardous or otherwise a danger to health or the
environment, including, without limitation, PCBs, asbestos,
urea-formaldehyde and all substances listed pursuant to the
United States Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time
to time, and the United States Resource Recovery and
Conservation Act of 1976, as amended from time to time, and
the regulations and publications promulgated pursuant to said
laws (a "Hazardous Material"), is present, as a result of the
actions of Vista Vacations (excluding failure of Vista
Vacations to remedy the presence of a Hazardous Material
resulting from the actions of any previous owner or occupier
of Vista Vacations' Property of which presence Vista Vacations
does not have knowledge) in violation of any law in effect on
or before the Closing Date, in, on or under any property,
including the land and the improvements, ground water and
surface water thereof, that Vista Vacations or any of its past
or present subsidiaries has at any time owned, operated,
occupied or leased (collectively, "Vista Vacations'
Property").
(2) In any event, Vista Vacations does not know of the presence of
any Hazardous Material in, on or under any Vista Vacations'
Property.
(B) Hazardous Materials Activities.
At no time prior to the Closing Date has Vista Vacations transported,
stored, used, manufactured, released or exposed its employees or others
to Hazardous Materials in violation of any law in effect on or before
the Closing Date, nor has Vista Vacations disposed of, transferred,
sold, or manufactured any product containing a Hazardous Material
(collectively "Hazardous Materials Activities") in violation of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Resource Conservation and Recovery Act of 1976,
the Toxic Substances Control Act of 1976 and any other applicable state
or federal acts (including the rules and regulations thereunder) as in
effect on or before the Closing Date.
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(C) Permits.
Vista Vacations currently holds no environmental approvals, permits,
licenses, clearances and consents and none are necessary for the
conduct of Vista Vacations' Hazardous Material Activities and other
businesses of Vista Vacations as such activities and businesses are
currently being conducted.
2.19 Brokers' and Finders' Fees.
Except as set forth in Schedule 2.19, Vista Vacations has not incurred, nor
will it incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
2.20 Labor Matters.
(A) Vista Vacations is in compliance in all material respects with all
currently applicable laws and regulations respecting employment,
discrimination in employment, terms and conditions of employment and
wages and hours and occupational safety and health and employment
practices, and is not engaged in any unfair labor practice.
(B) Vista Vacations has not received any notice from any Governmental
Entity, and to the knowledge of Vista Vacations, there has not been
asserted before any Governmental Entity, any claim, action or
proceeding to which Vista Vacations is a party or involving Vista
Vacations, and there is neither pending nor, to the knowledge of Vista
Vacations, threatened, any investigation or hearing concerning Vista
Vacations arising out of or based upon any such laws, regulations or
practices.
(C) Vista Vacations has not received notice of and to the best of its
knowledge, there are no pending claims against Vista Vacations under
any workers compensation plan or policy or for long term disability.
(D) To the best of Vista Vacations' knowledge, it has complied in all
material respects with all applicable provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985 and has no obligations with
respect to any former employees or qualifying beneficiaries thereunder.
(E) Schedule 2.20 lists all current employees of Vista Vacations and their
current salary and vacation accruals.
2.21 Insurance.
(A) Schedule 2.21 lists all insurance policies and fidelity bonds covering
the assets, business, equipment, properties, operations, software
errors and omissions, employees, officers and directors of Vista
Vacations as well as all claims made under any insurance policy by
Vista Vacations since its incorporation.
(B) There is no claim by Vista Vacations pending under any of such policies
or bonds as to which coverage has been questioned, denied or disputed
by the underwriters of such policies or bonds.
(C) All premiums payable under all such policies and bonds have been paid
and Vista Vacations is otherwise in compliance in all material respects
with the terms of such policies and bonds (or other policies and bonds
providing substantially similar insurance coverage).
(D) Such policies of insurance and bonds are of the type and in amounts
customarily carried by persons conducting businesses similar to those
of Vista Vacations.
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(E) Vista Vacations does not know of any threatened termination of or
material premium increase with respect to any of such policies.
(F) Vista Vacations has never been denied insurance coverage nor has any
insurance policy of Vista Vacations ever been canceled for any reason.
2.22 Compliance with Laws.
Vista Vacations has not received any notices of violation with respect to
and to the best of its knowledge has complied in all material respects with and
is not in violation in any material respect of any federal, state or local
statute, law or regulation with respect to the conduct of its business, or the
ownership or operation of its business, assets or properties.
2.23 Complete Copies of Materials.
Vista Vacations has delivered or made available true and complete copies of
each document (or summaries of same) which has been requested by AmeriNet or its
counsel.
2.24 Binding Agreements: No Default.
Each of the contracts, agreements and other instruments shown on the
Exhibits and Schedules referred to in this Agreement to which Vista Vacations is
a party is a legal, binding and enforceable obligation in favor of or against
Vista Vacations (assuming that such contracts, agreements and instruments are
binding on all other parties thereto, Vista Vacations having no reason to
believe that they are not), in accordance with its terms, and no party with whom
Vista Vacations has an agreement or contract is, to Vista Vacations' knowledge,
in default thereunder or has breached any material terms or provisions thereof
(subject to all applicable bankruptcy, insolvency, reorganization and other laws
applicable to creditors' rights and remedies and to the exercise of judicial
discretion in accordance with general principles of equity).
2.25 Current Report on Form 8-K
(A) The information supplied by Vista Vacations for inclusion in the
current report on Commission Form 8-K within 15 days after the Closing
Date annexed hereto as Exhibit 2.25 and in all other reports which
AmeriNet will file thereafter pursuant to Sections 12(g), 13 and 15(d)
of the Exchange Act, shall not contain any statement which, at such
time and in light of the circumstances under which it shall be made, is
false or misleading with respect to any material fact, or shall omit to
state any material fact necessary in order to make the statements made
therein not false or misleading; or omit to state any material fact
necessary to correct any statement which has become false or
misleading.
(B) If at any time prior to the Closing Date any event relating to Vista
Vacations or any of its affiliates, officers or directors should be
discovered by Vista Vacations which should be set forth in the Current
Report on Form 8-K, Vista Vacations shall promptly inform AmeriNet.
2.26 FIRPTA.
Vista Vacations is not, and has not been at any time, a "United States real
property holding corporation" within the meaning of Section 897(c)(2) of the
Code.
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2.27 Employee Benefit Plans.
(A) Schedule 2.27 lists all employee benefit plans [as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended,
"ERISA"] and all bonus, stock option, stock purchase, incentive, deferred
compensation, supplemental retirement, severance and other similar fringe
or employee benefit plans, programs or arrangements, and any current or
former employment or executive compensation or severance agreements,
written or otherwise, for the benefit of, or relating to, any employee of
Vista Vacations, any trade or business (whether or not incorporated) which
is a member or which is under common control with Vista Vacations (an
"ERISA Affiliate") within the meaning of Section 414 of the Code, or any
subsidiary of Vista Vacations (together, the "Employee Plans"), and a copy
of each such Employee Plan has been provided to AmeriNet.
(B) (1) None of the Employee Plans promises or provides retiree medical or
other retiree welfare benefits to any person except as required by
applicable law, including but not limited to COBRA;
(2) (a) To the best of Vista Vacations' knowledge: all Employee Plans are
in compliance in all material respects with the requirements
prescribed by any and all applicable statutes (including ERISA
and the Code), orders, or governmental rules and regulations
currently in effect with respect thereto (including all
applicable requirements for notification to participants or
beneficiaries or the Department of Labor, the IRS or Secretary of
the Treasury), and Vista Vacations has performed in all material
respects all obligations required to be performed by it under, is
not in default under or violation of, and has no knowledge of any
default or violation by any other party to, any of the Employee
Plans;
(b) Each Employee Plan intended to qualify under Section 401(a) of
the Code and each trust intended to qualify under Section 501(a)
of the Code either has received a favorable determination letter
with respect to each such Employee Plan from the IRS or still has
a remaining period of time under applicable Treasury Regulations
or IRS pronouncements in which to apply for such a determination
letter and to make any amendments necessary to obtain a favorable
determination;
(c) No Employee Plan is or within the prior six years has been
subject to, and Vista Vacations has not incurred and does not
expect to incur any liability under, Title IV of ERISA or Section
412 of the Code; and
(d) To the best of Vista Vacations' knowledge, nothing in any
Employee Plan precludes or interferes with AmeriNet's ability to
cause Vista Vacations to terminate (or consolidate, at AmeriNet's
option) any Employee Plan after the Closing Date; provided that:
(i) the Employee Plans may be terminated prospectively only,
subject to rights accrued by Vista Vacations' employees at the
time of such termination and (ii) not more than sixty days notice
may be required to terminate certain Employee Plans.
(3) None of the following now exists or has existed within the six-year
period ending on the date hereof with respect to any Employee Plan:
(a) Any act or omission by Vista Vacations constituting a violation
of Section 402, 403, 404 or 405 of ERISA;
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(b) Any act or omission by Vista Vacations which constitutes a
violation of Sections 406 and 407 of ERISA and is not exempted by
Section 408 of ERISA or which constitutes a violation of Section
4975(c) of the Code and is not exempted by Section 4975(d) of the
Code;
(c) Any act or omission by Vista Vacations constituting a violation
of Section 503, 510 or 511 of ERISA; or (IV) any act or omission
by Vista Vacations which could give rise to liability under
Section 502 of ERISA or under Sections 4972 or 4975 through 4980
of the Code.
(4) (a) Each Employee Plan has been maintained in substantial compliance
with its terms, and all contributions, premiums or other payments
due from Vista Vacations or any of its subsidiaries to (or under)
any such Employee Plan have been fully paid or adequately
provided for on the audited Vista Vacations' Financial Statements
for the most recently-ended fiscal year.
(b) To the best of Vista Vacations' knowledge, all accruals thereon
(including, where appropriate proportional accruals for partial
periods) have been made in accordance with generally accepted
accounting principles consistently applied on a reasonable basis.
(c) There has been no amendment, written interpretation or
announcement (whether or not written) by Vista Vacations with
respect to, or change in employee participation or coverage
under, any Employee Plan that would increase materially the
expense of maintaining such plans or arrangements, individually
or in the aggregate, above the level of expense incurred with
respect thereto for the most recently-ended fiscal year.
(5) Vista Vacations has made available to AmeriNet complete, accurate and
current copies of all Employee Plans and all amendments, documents,
correspondence and filings relating thereto, including but not limited
to any statements, filings, reports or returns filed with any
governmental agency with respect to the Employee Plans at any time
within the three-year period ending on the date hereof.
2.28 Distribution Agreements.
No third party or parties have the right to distribute Vista Vacations'
products or to market its services except as disclosed in Schedule 2.28, which
discloses the names, addresses, telephone numbers, fax numbers, e-mail addresses
and federal Tax identification numbers of each such person, together with a
summary of the agreements pursuant to which Vista Vacations' products are
distributed or its services are marketed.
2.29 Vista Vacations' Stockholders
All of Vista Vacations' Stockholders qualify as Accredited Investors and
each Vista Vacations' Stockholder hereby represents and warrants that he, she or
it:
(A) Has had access through the Commission's Internet web site at
www.sec.gov, in the EDGAR Archives sub-cite, to all of AmeriNet's
reports filed with the Commission during the past two fiscal years, has
reviewed all such reports and has, either directly or through a
representative, been granted access to all of AmeriNet's officers and
directors, and to all officers and directors of AmeriNet's operating
subsidiaries, for purposes of providing all disclosure required under
applicable federal and state securities laws in conjunction with the
exchange contemplated by this Agreement;
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(B) Has been advised that:
(1) The securities to be issued to them by AmeriNet in exchange
for their shares of Vista Vacations' Common Stock have not
been registered under the Exchange Act or any comparable state
securities laws, but rather, are being issued in reliance on
the exemption from registration under the Securities Act
provided by Section 4(6) thereof;
(2) All certificates for their shares of AmeriNet Common Stock
will bear legends restricting any transactions therein,
directly or indirectly, unless they are first registered under
applicable federal and state securities laws or the proposed
transaction is exempt from such registration requirements, and
such facts are demonstrated to the satisfaction of AmeriNet
and its legal counsel, based on such third party legal
opinions, affidavits and transfer agency procedures as
AmeriNet shall reasonably require or have in place generally;
(3) AmeriNet's transfer agent has been instructed to decline
transfers of certificates for their shares of AmeriNet Common
Stock, unless the foregoing requirements have been met and
have been confirmed as having been met by a duly authorized
officer of AmeriNet.
(C) Has independently determined through his, her or its own legal counsel,
that all requirements of their states of domicile for the issuance of
the shares of AmeriNet's Common Stock called for by this Agreement have
been met, or will have been met, prior to Closing, by such legal
counsel acting on behalf of the Parties to this Agreement.
2.30 Representations Complete.
None of the representations or warranties made by Vista Vacations or its
stockholders, nor any statement made in any Schedule, Exhibit or certificate
furnished by Vista Vacations pursuant to this Agreement, when read in its
entirety, contains or will contain any untrue statement of a material fact at
the time the Closing takes place, or omits or will omit to state any material
fact necessary in order to make the statements contained herein or therein, in
the light of the circumstances under which made, not misleading.
Article III
Representations and Warranties of AmeriNet
AmeriNet represents and warrants to Vista Vacations as a material
inducement to its entry into this Agreement, subject to the exceptions
specifically disclosed in the AmeriNet Schedules or in AmeriNet's Exchange Act
Reports, as follows:
3.1 Organization, Standing and Power.
(A) AmeriNet is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(C) AmeriNet has the corporate power to own its properties and to carry on
its business as now being conducted and is duly qualified to do
business and is in good standing in each jurisdiction in which the
failure to be so qualified would have a material adverse effect on
AmeriNet taken as a whole.
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(D) A true and correct copy of its articles of incorporation and bylaws, as
amended to date, are available at the Commission's web site in the
EDGAR archives, filed as exhibit's to the report on Form 10-KSB for the
year ended June 30, 1999 and any future modifications thereof will be
filed with the Commission and will also be available at such site.
3.2 Capital Structure.
(A) (1) The authorized stock of AmeriNet consists of 20,000,000
shares of Common Stock, par value $0.01 per share, and
5,000,000 shares of Preferred Stock, $0.01 par value per
share, the attributes of which are to be determined on a case
by case basis by AmeriNet's board of directors.
(2) AmeriNet had 10,663,460 shares of Common Stock issued and
outstanding as of February 29, 2000 and no shares of Preferred
Stock have ever been issued.
(3) As of February 29, 2000, AmeriNet had reserved 4,876,814
shares of Common Stock (excluding those issuable pursuant to
the terms of this Agreement) for issuance as described in
AmeriNet's annual report on Form 10-KSB for the year ended
June 30, 1999 and the quarterly reports on Form 10-QSB for the
calendar quarters ended September 30, 1999 and December 31,
1999 and any Subsequent Current Reports.
(4) There are no other options, warrants, calls, rights,
commitments or agreements of any character to which AmeriNet
is a party or by which it is bound obligating AmeriNet to
issue, deliver, sell, repurchase or redeem, or cause to be
issued, delivered, sold, repurchased or redeemed, any shares
of the Capital Stock of AmeriNet or obligating AmeriNet to
grant, extend or enter into any such option, warrant, call,
right, commitment or agreement, other than as may be required
in conjunction with other acquisitions under negotiation,
rights granted to investors under common stock purchase
warrants since December 31, 2000 and as disclosed in the
Exchange Act Reports.
(5) Pursuant to AmeriNet's articles of incorporation, they may be
amended by action of the board of directors without
stockholder approval to increase the amount of authorized
Capital Stock.
(B) All of AmeriNet's shares of common and preferred stock have been duly
authorized, and all of their issued and outstanding shares of common
stock have been validly issued, are fully paid and nonassessable and
are free of any liens or encumbrances other than any liens or
encumbrances created by or imposed upon the holders thereof.
(C) The shares of AmeriNet Common Stock to be issued pursuant to the
Reorganization will be duly authorized, validly issued, fully paid, and
nonassessable.
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3.3 Authority.
(A) AmeriNet has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby.
(B) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of AmeriNet.
(C) This Agreement has been duly executed and delivered by AmeriNet and,
subject to having also been approved by Vista Vacations' board of
directors and properly executed and delivered by Vista Vacations,
constitutes a valid and binding obligation of AmeriNet.
(D) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict
with, or result in any violation of, or default (with or without notice
or lapse of time, or both), or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material
benefit under:
(1) Any provision of the articles of incorporation or bylaws of
AmeriNet; or
(2) Any mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation
applicable to AmeriNet or its properties or assets, other than
any such conflicts, violations, defaults, terminations,
cancellations or accelerations which individually or in the
aggregate would not have a material adverse effect on the
ability of AmeriNet to consummate the transactions
contemplated hereby.
(E) No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity, is required by or
with respect to AmeriNet in connection with the execution and delivery
of this Agreement by AmeriNet or the consummation by AmeriNet of the
transactions contemplated hereby, except for:
(1) Such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required
under applicable state and federal securities laws (a Form D
Notification Statement) and the laws of any foreign country;
and
(2) Such other consents, authorizations, filings, approvals and
registrations which if not obtained or made would not have a
material adverse effect on the ability of AmeriNet to
consummate the transactions contemplated hereby.
3.4 Exchange Act Reports; AmeriNet Financial Statements.
(A) All materials required to be filed by AmeriNet with the Commission
pursuant to Sections 13 or 15(d) of the Exchange Act since current
management took office starting in November of 1998, have been filed
and are available on the Commission's Internet web site at www.sec.gov
in its EDGAR Archives sub-site.
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(B) To the best of AmeriNet's knowledge, the Exchange Act Reports comply in
all material respects with the requirements of the Exchange Act and do
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they
were made, not misleading, except to the extent corrected by a
subsequently filed document with the Commission or by information
provided by AmeriNet to Vista Vacations.
(C) The AmeriNet Financial Statements comply as to form in all material
respects with applicable accounting requirements and with the published
rules and regulations of the Commission with respect thereto, have been
prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the consolidated financial
position of AmeriNet at the date thereof and of its operations and cash
flows for the period then ended, subject to normal year end audit
adjustments.
(D) There has been no change in AmeriNet accounting policies or estimates
except as described in the notes to AmeriNet's Financial Statements or
in subsequently filed Exchange Act Reports.
(E) AmeriNet has no material obligations, other than:
(1) Those set forth in AmeriNet's Financial Statements
(obligations not required to be set forth in AmeriNet's
Financial Statements under generally accepted accounting
principles being deemed not material);
(2) Those resulting from ongoing acquisition activities which
developed after the date of AmeriNet's Financial Statements
but are not yet definite enough to require filing in the
Exchange Act Reports;
(3) Those pertaining to confidential letters of intent; or
(4) Those disclosed by AmeriNet to Vista Vacations in writing.
(F) The information supplied by AmeriNet for inclusion in the Current
Report on Form 8-K pertaining to this Reorganization will not contain
any statement which, at such time and in light of the circumstances
under which it shall be made, is false or misleading with respect to
any material fact, or shall omit to state any material fact necessary
in order to make the statements therein not false or misleading.
(G) If at any time prior to the Closing Date any event relating to AmeriNet
or any of its affiliates, officers or directors should be discovered by
AmeriNet which should be set forth in a current report on Form 8-K,
AmeriNet will promptly inform Vista Vacations.
(H) Notwithstanding the foregoing, AmeriNet makes no representation or
warranty with respect to any information supplied by Vista Vacations
which is contained in any of the foregoing documents.
(I) To the best of AmeriNet's knowledge, there are no currently outstanding
comment letters from the Commission that have not been responded to and
complied with.
3.5 Broker's and Finders' Fees.
Except as disclosed in the Exchange Act Reports, AmeriNet has not incurred,
and will not incur, directly or indirectly, any liability for brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Agreement, the Reorganization or any transaction contemplated hereby.
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3.6 Ownership of Vista Vacations' Capital Stock.
As of the date of execution of this Agreement, AmeriNet does not own any
shares of Vista Vacations' Capital Stock.
3.7 Litigation.
There are no suits, actions or legal, administrative, arbitration or other
proceedings or governmental investigations against AmeriNet pending or, to
AmeriNet's knowledge, threatened, which (i) if determined adversely to AmeriNet,
could be expected to result in a material adverse effect on the financial
condition or results of operations of AmeriNet, or (ii) seek to prevent the
consummation of the Reorganization.
3.8 Limited Activities
(A) AmeriNet is a holding company with no material operations or assets other
than the shares of its subsidiaries common stock and operations pertaining
to supervision and coordination of the activities of its subsidiaries,
provision of support services for its subsidiaries, acquisition related
activities and compliance with applicable laws, including federal
securities and internal revenue laws.
(B) AmeriNet currently has two operating subsidiaries, Wriwebs.com, Inc., and
Trilogy International, Inc., both Florida corporations, and is a party to a
letter of intent to acquire Custom Software Systems, Inc., a Virginia
corporation currently headquartered in Houston, Texas.
3.9 No Undisclosed Liabilities.
AmeriNet does not have any material liabilities or obligations, either
accrued or contingent (whether or not required to be reflected in financial
statements in accordance with generally accepted accounting principles), and
whether due or to become due, which individually or in the aggregate, (i) have
not been reflected in the AmeriNet Financial Statements (including the notes
thereto) or (ii) have not been specifically described in this Agreement or in
the Exchange Act Reports.
3.10 No Changes.
Since the date of the latest AmeriNet Exchange Act Report there has not
been, occurred or arisen any:
(A) Destruction, damage to, or loss of any assets (including without
limitation intangible assets) of AmeriNet or its subsidiaries (whether
or not covered by insurance), either individually or in the aggregate,
exceeding $30,000, other than losses by subsidiaries in the ordinary
course of business.
(B) Labor trouble or claim of wrongful discharge, sexual harassment or
other unlawful labor practice or action;
(C) Change in accounting methods or practices (including any change in
depreciation or amortization policies or rates, any change in policies
in making or reversing accruals, or any change in capitalization of
software development costs) by AmeriNet or its subsidiaries;
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(D) Declaration, setting aside, or payment of a dividend or other
distribution in respect to the shares of AmeriNet or its subsidiaries,
or any direct or indirect redemption, purchase or other acquisition by
AmeriNet or its subsidiaries of any of their shares;
(E) Other event or condition of any character that has or would, in
AmeriNet or its subsidiaries' reasonable judgment, be expected to have
a material adverse effect on AmeriNet or its subsidiaries;
(F) Negotiation or agreement by AmeriNet or its subsidiaries to do any of
the things described in the preceding clauses (A) through (F) other
than negotiations with AmeriNet or its subsidiaries and their
representatives regarding the transactions contemplated by this
Agreement or other acquisitions.
3.11 Tax and Other Returns and Reports.
(A) Tax Returns and Audits.
(1) AmeriNet and its subsidiaries have accurately prepared and
filed all required federal, state, local and foreign returns,
estimates, information statements and reports ("Returns")
relating to any and all Taxes relating or attributable to
AmeriNet or its subsidiaries or their operations and such
Returns are true and correct in all material respects and have
been completed in accordance with applicable law in all
material respects.
(2) AmeriNet and its subsidiaries have timely paid all Taxes
required to be paid with respect to such Returns and have
withheld with respect to its employees all federal and state
income taxes, FICA, FUTA and other Taxes they are required to
withhold.
(3) The accruals for Taxes on the books and records of AmeriNet
and its subsidiaries are sufficient to discharge the Taxes for
all periods (or the portion of any period) ending on or prior
to the Closing Date.
(4) AmeriNet and its subsidiaries have not been delinquent in the
payment of any Tax nor, except as disclosed in the Exchange
Act Reports, is there any Tax deficiency outstanding, proposed
or assessed against AmeriNet or its subsidiaries, nor has
AmeriNet or its subsidiaries executed any waiver of any
statute of limitations on or extending the period for the
assessment or collection of any Tax.
(5) Except as disclosed in the Exchange Act Reports:
(a) No audit or other examination of any Return of AmeriNet or
its subsidiaries is presently in progress.
(b) AmeriNet and its subsidiaries do not have any liabilities
for unpaid federal, state, local and foreign Taxes, whether
asserted or unasserted, known or unknown, contingent or
otherwise and AmeriNet and its subsidiaries have no
knowledge of any basis for the assertion of any such
liability attributable to AmeriNet or its subsidiaries, or
their respective assets or operations.
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(6) AmeriNet and its subsidiaries are not parties to or bound by
any tax indemnity, tax sharing or tax allocation agreement.
(7) AmeriNet and its subsidiaries have provided, or made available
to Vista Vacations or its legal counsel copies of all federal,
provincial and state income and all sales and use Tax Returns
of AmeriNet or its subsidiaries for all periods since January
1, 1998.
(8) There are (and as of immediately following the Closing Date
there will be) no liens on the assets of AmeriNet or its
subsidiaries relating to or attributable to Taxes.
(9) AmeriNet and its subsidiaries have no knowledge of any basis
for the assertion of any Tax claim which, if adversely
determined, would result in liens on the assets of AmeriNet or
its subsidiaries.
(10) There is no contract, agreement, plan or arrangement,
including but not limited to the provisions of this Agreement,
covering any employee or former employee of AmeriNet or its
subsidiaries that, individually or collectively, could give
rise to the payment of any amount that would not be deductible
pursuant to Sections 280G, 162 or 404 of the Code.
(B) No Penalty.
Neither AmeriNet nor its subsidiaries are subject to any penalty by
reason of a violation of any order, rule or regulation of, or a default
with respect to any return, report or declaration required to be filed
with, any Governmental Entity to which it is subject, which violations
or defaults, individually or in the aggregate, would have a material
adverse effect on AmeriNet or its subsidiaries.
3.12 Environmental and OSHA.
(A) Hazardous Material.
(1) As of the Closing Date, no material amount of any substance
that is regulated by any Governmental Entity or that has been
designated by any Governmental Entity to be radioactive,
toxic, hazardous or otherwise a danger to health or the
environment, including, without limitation, PCBs, asbestos,
urea-formaldehyde and all substances listed pursuant to the
United States Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time
to time, and the United States Resource Recovery and
Conservation Act of 1976, as amended from time to time, and
the regulations and publications promulgated pursuant to said
laws (a "Hazardous Material"), is present, as a result of the
actions of AmeriNet or its subsidiaries (excluding failure of
AmeriNet or its subsidiaries to remedy the presence of a
Hazardous Material resulting from the actions of any previous
owner or occupier of AmeriNet or its subsidiaries' property of
which presence AmeriNet or its subsidiaries do not have
knowledge) in violation of any law in effect on or before the
Closing Date, in, on or under any property, including the land
and the improvements, ground water and surface water thereof,
that AmeriNet or its subsidiaries own, operate, occupy or
lease.
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(2) In any event, AmeriNet and its subsidiaries do not know of the
presence of any Hazardous Material in, on or under any of
their property.
(B) Hazardous Materials Activities.
At no time prior to the Closing Date has AmeriNet or its subsidiaries
transported, stored, used, manufactured, released or exposed its
employees or others to Hazardous Materials in violation of any law in
effect on or before the Closing Date, nor has AmeriNet or its
subsidiaries disposed of, transferred, sold, or manufactured any
product containing a Hazardous Material (collectively "Hazardous
Materials Activities") in violation of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the
Resource Conservation and Recovery Act of 1976, the Toxic Substances
Control Act of 1976 and any other applicable state or federal acts
(including the rules and regulations thereunder) as in effect on or
before the Closing Date.
(C) Permits.
AmeriNet or its subsidiaries currently holds no environmental approvals,
permits, licenses, clearances and consents and none are necessary for the
conduct of AmeriNet or its subsidiaries' Hazardous Material Activities and other
businesses of AmeriNet or its subsidiaries as such activities and businesses are
currently being conducted.
3.13 Representations Complete.
None of the representations or warranties made by AmeriNet or its
subsidiaries, nor any statement made in any Schedule, Exhibit or certificate
furnished by AmeriNet or its subsidiaries pursuant to this Agreement, when read
in its entirety, contains or will contain any untrue statement of a material
fact at the Closing Date, or omits or will omit to state any material fact
necessary in order to make the statements contained herein or therein, in the
light of the circumstances under which made, not misleading.
Article IV
Conduct Prior to the Closing
4.1 Conduct of Business of Vista Vacations.
(A) During the period from the date of this Agreement and continuing until
the earlier of the termination of this Agreement or the Closing, Vista
Vacations agrees (except to the extent that AmeriNet shall otherwise
consent in writing), to carry on its business in the usual, regular
and ordinary course in substantially the same manner as heretofore
conducted and, to the extent consistent with such business, use all
reasonable efforts consistent with past practice and policies to
preserve intact Vista Vacations' present business organizations, keep
available the services of its present officers and key employees and
preserve their relationships with customers, suppliers, distributors,
licensors, licensees, and others having business dealings with it, to
the end that Vista Vacations' goodwill and ongoing businesses shall be
unimpaired at the Time of Closing.
(B) Vista Vacations shall promptly notify AmeriNet of any event or
occurrence or emergency not, in the reasonable judgment of Vista
Vacations, in the ordinary course of business of Vista Vacations, and
any event which could, in the reasonable judgment of Vista Vacations,
have a material adverse effect on Vista Vacations.
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(C) Except as expressly contemplated by this Agreement or set forth in
Schedule 4.1, Vista Vacations shall not, without the prior written
consent of AmeriNet:
(1) Enter into any commitment or transaction not in the ordinary
course of business (i) to be performed over a period longer
than six (6) months in duration, or (ii) to purchase fixed
assets for a purchase price in excess of $1,000;
(2) Grant any severance or termination pay to any director,
officer or employee except (i) payments made pursuant to
standard written agreements outstanding on the date hereof or
(ii) in the case of employees who are not officers, grants
which are made in the ordinary course of business in
accordance with Vista Vacations' standard past practices;
(3) Except for licenses granted to end-users pursuant to Vista
Vacations' standard license agreements, transfer to any person
or entity any rights to Vista Vacations' Intellectual
Property;
(4) Enter into or amend any agreements pursuant to which any other
party is granted exclusive marketing or other rights of any
type or scope with respect to any products of Vista Vacations;
(5) Violate, amend or otherwise modify the terms of any of the
contracts or agreements required to be set forth in Vista
Vacations Schedules;
(6) Commence any litigation;
(7) Declare or pay any dividends on or make any other
distributions (whether in cash, stock or property) in respect
of any of its Capital Stock, or split, combine or reclassify
any of its Capital Stock or issue or authorize the issuance of
any other securities in respect of, in lieu of or in
substitution for shares of Capital Stock of Vista Vacations,
or repurchase or otherwise acquire, directly or indirectly,
any shares of its Capital Stock except from former employees,
directors and consultants in accordance with agreements
providing for the repurchase of shares at cost in connection
with any termination of service to Vista Vacations;
(8) Issue, deliver or sell or authorize or propose the issuance,
delivery or sale of, or purchase or propose the purchase of,
any shares of its Capital Stock or securities convertible
into, or subscriptions, rights, warrants or options to
acquire, or other agreements or commitments of any character
obligating it to issue any such shares or other convertible
securities;
(9) Cause or permit any amendments to its articles of
incorporation or bylaws;
(10) Acquire or agree to acquire by merging or consolidating with,
or by purchasing a substantial portion of the assets of, or by
any other manner, any business or any corporation,
partnership, association or other business organization or
division thereof, or otherwise acquire or agree to acquire any
assets which are material, individually or in the aggregate,
to the business of Vista Vacations;
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(11) Sell, lease, license or otherwise dispose of any of its
properties or assets which are material, individually or in
the aggregate, to the business of Vista Vacations, except in
the ordinary course of business;
(12) Incur any indebtedness for borrowed money or guarantee any
such indebtedness or issue or sell any debt securities of
Vista Vacations or guarantee any debt securities of others;
(13) Adopt or amend any employee benefit plan, or enter into any
employment contract, pay any special bonus or special
remuneration to any director or employee, or increase the
salaries or wage rates of its employees;
(14) Revalue any of its assets, including without limitation
writing down the value of inventory or writing off notes or
accounts receivable other than in the ordinary course of
business;
(15) Pay, discharge or satisfy in an amount in excess of $1,000 in
any one case any claim, liability or obligation (absolute,
accrued, asserted or unasserted, contingent or otherwise),
other than the payment, discharge or satisfaction in the
ordinary course of business of liabilities reflected or
reserved against in Vista Vacations' Financial Statements (or
the notes thereto);
(16) Make or change any material election in respect of Taxes,
adopt or change any accounting method in respect of Taxes,
file any material Return or any amendment to a material
Return, enter into any closing agreement, settle any claim or
assessment in respect of Taxes, or consent to any extension or
waiver of the limitation period applicable to any claim or
assessment in respect of Taxes; or
(17) Take, or agree in writing or otherwise to take, any of the
actions described in Sections 4.1(C)(1) through 4.1(C)(16)
above, or any action which would make any of the
representations or warranties or covenants of Vista Vacations
contained in this Agreement materially untrue or incorrect.
4.2 No Solicitation.
(A) Prior to the Closing Vista Vacations will not (nor will Vista Vacations
permit any of Vista Vacations' officers, directors, stockholders
affiliated with any officer or director or Vista Vacations' agents,
representatives or affiliates to) directly or indirectly, take any of
the following actions with any party other than AmeriNet and its
designees:
(1) Solicit, encourage, initiate or participate in any
negotiations or discussions with respect to, any offer or
proposal to acquire all or substantially all of Vista
Vacations' business and properties or Capital Stock whether by
merger, purchase of assets, tender offer or otherwise;
(2) Except as required by law and except for disclosures made to
financial institutions and others in the ordinary course of
business, disclose any information not customarily disclosed
to any person other
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than its attorneys or financial advisors concerning Vista
Vacations' business and properties or afford to any person or
entity access to its properties, books or records; or
(3) Assist or cooperate with any person to make any proposal to
purchase all or any part of Vista Vacations' Capital Stock or
of its assets (other in the ordinary course of business).
(B) In the event Vista Vacations shall receive any offer or proposal,
directly or indirectly, of the type referred to in Section 4.2(A)(1)
and (3) above, or any request for disclosure or access pursuant to
clause 4.2(A)(2) above, Vista Vacations shall immediately inform
AmeriNet as to any such offer or proposal and will cooperate with
AmeriNet by furnishing any information it may reasonably request.
4.3 Conduct of Business of AmeriNet.
During the period from the date of this Agreement and continuing until the
earlier of the termination of this Agreement or the Closing, as the case may be,
AmeriNet agrees (except to the extent that Vista Vacations shall otherwise
consent in writing), that AmeriNet shall promptly notify Vista Vacations of any
event or occurrence or emergency which is not in the ordinary course of business
of AmeriNet and which is material and adverse to the business of AmeriNet and
its subsidiaries taken as a whole.
Article V
Additional Agreements
5.1 Report on Form 8-K.
(A) Within fifteen days following the Closing Date, AmeriNet, with the
assistance and cooperation of Vista Vacations' current officers, will
prepare and file with the Commission a current report on Commission
Form 8-K (the "8-K Report") disclosing the Reorganization and
containing information concerning Vista Vacations required by
Commission Regulation S-B, except for audited financial statements that
may be filed within 75 days after the Closing Date.
(B) Within sixty days following the Closing Date Vista Vacations, at its
own expense, shall provide AmeriNet with audited financial statements
prepared in accordance with GAAP and meeting all requirements of the
Commission for reports of material acquisitions under the Securities
Act and the Exchange Act, including the requirements imposed by
Commission Regulation S-B.
(B) AmeriNet and Vista Vacations will use their best efforts to secure the
Commission's acceptance of Vista Vacations' audited financial
statements, as complying with the requirements of Regulation S-B, and
Vista Vacations will make any modification's to its financial
statements suggested by the Commission; and, if required, will use best
efforts to secure required extensions from the Commission of time in
which to provide materials complying with Commission Regulation S-B.
5.2 No Meeting of Vista Vacations' Stockholders.
Because each Vista Vacations Stockholders has independently made the
decision to exchange all of his, her or its Vista Vacations Securities for
shares of AmeriNet's Common Stock, no formal stockholder action by Vista
Vacations shall be required in conjunction with authorization of this Agreement
or the Closing; however, each Vista Vacations Stockholder must have become a
party to this Agreement either by direct execution hereof or by having granted a
duly executed and notarized power of attorney to Ms. Nadler, as contemplated by
this Agreement, permitting her to execute this Agreement on his, her or its
behalf.
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5.3 Access to Information.
(A) Vista Vacations shall afford AmeriNet and its accountants, counsel and
other representatives, reasonable access during normal business hours
during the period prior to the Closing to all:
(1) Of its properties, books, contracts, commitments and records;
and
(2) Other information concerning the business, properties and
personnel of Vista Vacations as AmeriNet may reasonably
request.
(B) Vista Vacations agrees to provide to AmeriNet and its accountants,
counsel and other representatives copies of internal financial
statements promptly upon request.
(C) No information or knowledge obtained in any investigation pursuant to
this Section 5.3 shall affect or be deemed to modify any representation
or warranty contained herein or the conditions to the obligations of
the Parties to consummate the Reorganization.
5.4 Confidentiality.
(A) From the date hereof to and including the Closing Date, the Parties
shall maintain, and cause their directors, employees, agents and
advisors to maintain, in confidence and not disclose or use for any
purpose, except the evaluation of the transactions contemplated hereby
and the accuracy of the respective representations and warranties of
the Parties contained herein, information concerning the other Parties
and obtained directly or indirectly from such Parties, or their
directors, employees, agents or advisors, or as was in the possession
of such Party prior to obtaining such information from such other Party
as to which the fact of prior possession such possessing Party shall
have the burden of proof and such information as is or becomes:
(1) Available to the non-disclosing Party from third parties not
subject to an undertaking of confidentiality or secrecy;
(2) Generally available to the public other than as a result of a
breach by the non-disclosing party hereunder; or
(3) Required to be disclosed under applicable law.
(B) In the event that the transactions contemplated hereby shall not be
consummated, all such information which shall be in writing shall be
returned to the party furnishing the same, including to the extent
reasonably practicable, copies or reproductions thereof which may have
been prepared.
5.5 Expenses.
Whether or not the Reorganization is consummated, all expenses incurred in
connection with the Reorganization and this Agreement shall be the obligation of
the Party incurring such expenses.
5.6 Public Disclosure.
Unless otherwise required by law, prior to the Closing Date no disclosure
(whether or not in response to an inquiry) of the subject matter of this
Agreement shall be made by any Party unless approved by AmeriNet and Vista
Vacations prior to release, provided that such approval shall not be
unnecessarily withheld, subject, in the case of AmeriNet, to AmeriNet's
obligation to comply with applicable securities laws.
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5.7 Consents.
AmeriNet and Vista Vacations shall promptly apply for or otherwise seek,
and use their best efforts to obtain, all consents and approvals required to be
obtained by them for the consummation of the Reorganization, and Vista Vacations
shall use its best efforts to obtain all consents, waivers and approvals under
any of Vista Vacations' agreements, contracts, licenses or leases in order to
preserve the benefits thereunder for Vista Vacations, and otherwise in
connection with the Reorganization; all of such consents and approvals being set
forth in Schedule 5.7.
5.8 Affiliate Agreements.
(A) Schedule 5.8 sets forth those persons who are, in Vista Vacations'
reasonable judgment, Affiliates" of Vista Vacations.
(B) Vista Vacations shall provide AmeriNet such information and documents
as AmeriNet shall reasonably request for purposes of reviewing such
list.
(C) Vista Vacations shall use its best efforts to deliver or cause to be
delivered to AmeriNet, concurrently with the execution of this
Agreement (and in any case prior to the Closing Date) from each of the
Affiliates of Vista Vacations, an executed Affiliate Agreement in the
form annexed hereto as Exhibit 5.8.
(D) AmeriNet shall be entitled to place appropriate legends on the
certificates evidencing any AmeriNet Common Stock to be received by
such Affiliates pursuant to the terms of this Agreement, and to issue
appropriate stop transfer instructions to the transfer agent for
AmeriNet Common Stock, consistent with the terms of such Affiliate
Agreements, in addition to the legends and stop transfer instructions
placed and issues on all certificates to be issued to Vista Vacations'
stockholders in conjunction with the Reorganization based on the
Parties reliance on Section 4(2) of the Securities Act
5.9 Legal Requirements.
AmeriNet and Vista Vacations will take all reasonable actions necessary to
comply promptly with all legal requirements which may be imposed on them with
respect to the consummation of the transactions contemplated by this Agreement
and will promptly cooperate with and furnish information to any Party in
connection with any such requirements imposed upon such other Party in
connection with the consummation of the transactions contemplated by this
Agreement and will take all reasonable actions necessary to obtain (and will
cooperate with the other Parties in obtaining) any consent, approval, order or
authorization of, or any registration, declaration or filing with, any
Governmental Entity or other person, required to be obtained or made in
connection with the taking of any action contemplated by this Agreement.
5.10 Blue Sky Laws.
Legal counsel to Vista Vacations has taken such steps as may be necessary
to comply with the securities and blue sky laws of all jurisdictions which are
applicable to the issuance of AmeriNet Common Stock to the Former Vista
Vacations Stockholders.
5.11 Best Efforts: Additional Documents and Further Assurances.
(A) Each of the Parties to this Agreement shall use its best efforts to
effectuate the transactions contemplated hereby and to fulfill and
cause to be fulfilled the conditions to the Reorganization and the
condition subsequent under this Agreement.
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(B) Each Party, at the request of another Party, shall execute and deliver
such other instruments and do and perform such other acts and things as
may be reasonably necessary or desirable for effecting completely the
consummation of this Agreement and the transactions contemplated
hereby.
5.12 Employment Agreements.
(A) The individuals set forth on Schedule 5.12 will as of the Closing Date
be parties to the employment agreements included in composite Exhibit
5.12 hereto (the "Employment Agreements"), which shall supersede all
prior employment agreements or arrangements with any such persons, and
which will conform to the forms of employment agreements established by
AmeriNet for use by all material employees of AmeriNet and its
subsidiaries.
(B) AmeriNet shall, immediately following the Closing, reserve 931,000
shares of its Common Stock for future issuance through incentive stock
options (as defined in Section 422 of the Code) granted in certain of
the Employment Agreements, provided, however, that rights to such
shares shall vest on an annual basis, subject to attainment of the
following net, pre-tax profit projections determined in accordance with
GAAP:
(1) If Vista Vacations earns net, pre tax profits, determined in
accordance with GAAP, of at least $400,000 during the period
starting on July 1, 2000 and ending on June 30, 2001, then the
first 163,333 shares of AmeriNet's Common stock reserved for
issuance in the event of exercise of the subject incentive
stock options shall vest;
(2) If Vista Vacations earns net, pre tax profits, determined in
accordance with GAAP, of at least $1,200,000 during the period
starting on July 1, 2000 and ending on June 30, 2002, then all
rights to 457,333 (including the 163,333 shares vested, if
any, on June 30, 2001) of the shares of AmeriNet's Common
stock reserved for issuance in the event of exercise of the
subject incentive stock options shall vest; and
(3) If Vista Vacations earns net, pre tax profits, determined in
accordance with GAAP, of at least $2,800,000 during the period
starting on July 1, 2000 and ending on June 30, 2003, then all
rights to all of the shares (including the shares vested, if
any, on June 30, 2001 and June 30, 2002) of AmeriNet's Common
stock reserved for issuance in the event of exercise of the
subject incentive stock options shall vest.
(4) All rights to the incentive stock options in the subject
employment agreements that have not vested as of July 1, 2003
shall expire on such date, and no further rights of any kind
thereto or to the underlying shares of AmeriNet common stock
reserved for such purpose shall exist thereafter, the
reservation therefor terminating on such date.
5.13 Investment by AmeriNet in Vista Vacations.
Subject to Vista Vacations' substantial compliance with its material
obligations under this Agreement, including those involving provision of audited
financial statements for its operations for the time period and in the form
required by Commission Regulation S-B for purposes of the Reorganization,
AmeriNet hereby covenants and agrees to provide the following funds, to be
expended solely for the purposes set forth in Schedule 5.13, to Vista Vacations:
(A) As provided in Section 1.2(C), the sum of $125,000;
(B) Within 60 days after the audited financial statements for Vista
Vacations required pursuant to Commission Regulation S-B have been
provided to AmeriNet, filed with the Commission and not found deficient
by the Commission (the "Funding Trigger Date"), the sum of $125,000;
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(C) Within 120 days after the Funding Trigger Date, the sum of $100,000;
(D) Within 180 days after the Funding Trigger Date, the sum of $100,000;
(E) Within 240 days after the Funding Trigger Date, the sum of $100,000;
and
(F) Within 300 days after the Funding Trigger Date, the sum of $100,000.
5.14 Vista Vacations' Board of Directors.
(A) Subject to (i) compliance with all of obligations under this Agreement by
the Former Vista Vacations Stockholders and Vista Vacations, including,
without limitation, those involving provision of audited financial
statements for Vista Vacations' operations for the time period and in the
form required by Commission Regulation S-B for purposes of the
Reorganization, (ii) compliance by the members of the board of directors of
Vista Vacations with their fiduciary obligations to AmeriNet as Vista
Vacations' Stockholders and with applicable laws and (iii) the attainment
by Vista Vacations, on a quarterly basis of at least net pre tax profits
during the fiscal year starting on July 1, 2000 and ending on June 30, 2001
of $70,000; net pre tax profits during the fiscal year starting on July 1,
2001 and ending on June 30, 2002 of $185,000; and, net pre tax profits
during the fiscal year starting on July 1, 2002 and ending on June 30, 2003
of $312,000, AmeriNet hereby covenants and agrees that it will maintain
membership on the board of directors of Vista Vacations in the following
ratio: two thirds of the members will be nominees of Ms. Teri Nadler and
one third will be nominees of AmeriNet, provided, however, that:
(1) A quorum for meetings of the board of directors of Vista
Vacations and action by such board of directors will require
the participation of AmeriNet's nominees; provided, however,
that, if a meeting deemed to involve material issues is
adjourned due to the inability to attain a quorum as a result
of the absence of the AmeriNet nominees, then, upon receipt of
written notice from Vista Vacations' board of directors,
AmeriNet must assure that its nominees attend the reconvened
meeting, which will be held by telephone conference at a time
during a business day designated by AmeriNet within three days
after AmeriNet is provided with the written notice of the
adjourned meeting;
(2) The board of directors of Vista Vacations will not, without
AmeriNet's prior written consent specifying the action
authorized, be authorized to engage in any material change in
Vista Vacations' business not contemplated by the Projections,
to sell a material portion of Vista Vacations' assets outside
the normal course of business, to issue any securities, to
authorize the borrowing of any funds or pledge of any assets,
for so long as Vista Vacations remains a subsidiary of
AmeriNet; and
(3) (a) The initial determination by AmeriNet as to the
attainment of the minimum acceptable net pre-tax
profits shall not be made until a complete fiscal
quarter has passed since the Closing Date;
(b) After the first year following the Closing Date, the
minimum acceptable net pre-tax profits may be
modified periodically by unanimous action (including
the affirmative votes of all AmeriNet nominees) of
the board of directors of Vista Vacations; provided
that after the third year, unless new minimum
acceptable net pre-tax profits are agreed to, the
net, pre tax profit portion of the minimum acceptable
net pre-tax profits will increase annually to 150% of
the net, pre-tax profit projected for the immediately
preceding year.
(c) In the event that the right of Ms. Nadler to
designate two thirds of the membership on the board
of directors of Vista Vacations is suspended due to
failure to meet the minimum acceptable net pre-tax
profits, such right shall be reinstated at such time
as the deficiency in meeting the minimum acceptable
net pre-tax profits, on a cumulative basis, has been
cured.
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5.15 Additional Vista Vacations' Covenants
(A) (1) Vista Vacations shall have signed a multi year Internet site
design and hosting agreement with Wriwebs.com, Inc., a Florida
corporation and wholly owned subsidiary of AmeriNet ("WRI" and
the "WRI Web Design & Hosting Agreement"), pursuant to which
Vista Vacations shall pay WRI a monthly fee of at least $10,000
throughout the term of the WRI Web Design & Hosting Agreement, in
form and substance acceptable to AmeriNet and to AmeriNet's
strategic planning consultant, the Yankee Companies, Inc., a
Florida corporation ("Yankees") and shall faithfully comply with
all of its material obligations thereunder throughout the term
thereof.
(2) In the event that Vista Vacations fails to make payments to WRI
called for by the WRI Web Design & Hosting Agreement, AmeriNet
may, at its sole option, tender the required payments to WRI on
Vista Vacations' behalf, and deduct such sums, together with
interest thereon at the rate of 8% per annum, from any funds
which it has agreed to provide to Vista Vacations under this
Agreement, all such payments to be deemed advances to Vista
Vacations under this Agreement.
(B) Ms. Nellie Tippery, a creditor of Vista Vacations, will, at or prior to
the Closing irrevocably convert all of Vista Vacations' liabilities to
her or her affiliates, including, without limitation, loans aggregating
at least $180,000, into the right to receive 66,667 shares of AmeriNet
Common Stock.
(C) All accrued obligations by Vista Vacations to its employees,
consultants and independent contractors involving payments due for
services rendered, whether in the form of salaries, bonuses, benefits,
benefit plans, or other fees or consideration of any kind, will be
fully and irrevocably discharged as of the Closing date.
Article VI
Conditions to the Reorganization
6.1 Conditions to Obligations of Each Party to Effect the Reorganization.
The respective obligations of each party to this Agreement to effect the
Reorganization shall be subject to the satisfaction at or prior to the Closing
Date of the following conditions:
(A) No Injunctions or Restraints: Illegality.
No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Reorganization shall
be in effect, nor shall any proceeding brought by an administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, seeking any of the foregoing be pending; nor shall there be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the Reorganization, which makes the consummation of the
Reorganization illegal.
(B) Vista Vacations Information Required by Commission Regulation S-B
The provision by Vista Vacations on a timely basis in full compliance with
the requirements of Commission Regulation S-B of all information concerning its
past operations, including audited financial statements, shall constitute a
condition subsequent to the obligations of AmeriNet under this Agreement and in
the event of the failure of such condition subsequent, then, at AmeriNet's sole
option:
(1) The Reorganization may be rescinded, and all funds advanced by
AmeriNet to Vista Vacations shall be repaid, with interest at
the annual rate of 8%, to AmeriNet within 30 days after such
rescission; or
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(2) The Escrow Shares shall be deemed defaulted to AmeriNet and
the Reorganization shall be restructured in a manner complying
with AmeriNet's reporting and other obligations under the
Exchange Act, including the sale by AmeriNet of Vista
Vacations.
6.2 Additional Conditions to Obligations of Vista Vacations.
The obligations of Vista Vacations to consummate and effect this Agreement
and the transactions contemplated hereby shall be subject to the satisfaction at
or prior to the Closing Date of each of the following conditions, any of which
may be waived, in writing, exclusively by Vista Vacations:
(A) Representations, Warranties and Covenants.
The representations and warranties of AmeriNet in this Agreement shall
be true and correct in all material respects on and as of the Closing
Date as though such representations and warranties were made on and as
of such time and AmeriNet shall have performed and complied in all
material respects with all covenants, obligations and conditions of
this Agreement required to be performed and complied with by it as of
the Closing Date.
(B) Certificate of AmeriNet.
Vista Vacations shall have been provided with a certificate executed on
behalf of AmeriNet by its President and its Chief Financial Officer,
Treasurer or officer exercising such functions to the effect that, as
of the Closing Date:
(1) All representations and warranties made by AmeriNet under this
Agreement are true and complete in all material respects; and
(2) All covenants, obligations and conditions of this Agreement to
be performed by AmeriNet on or before such date have been so
performed in all material respects.
(C) Satisfactory Form of Legal Matters.
The form, scope and substance of all legal and accounting matters
contemplated hereby and all documents and other papers delivered
hereunder prior to and on the Closing Date shall be reasonably
acceptable to counsel to Vista Vacations.
(D) Legal Opinion.
Vista Vacations shall have received a legal opinion from legal counsel
to AmeriNet, substantially in the form of Exhibit 6.2(D) hereto.
(E) No Material Adverse Changes.
There shall not have occurred any event, fact or condition that has had
or reasonably would be expected to have a material adverse effect on
AmeriNet.
(F) Tax Opinion.
(1) Vista Vacations shall have received a written opinion from
AmeriNet's Counsel to the effect that the Reorganization will
constitute a reorganization within the meaning of Section
368(a)(1)(B) of the Code.
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(2) In rendering such opinion counsel may rely on (and to the
extent reasonably required, the Parties and Vista Vacations'
stockholders shall make) reasonable representations related
thereto.
6.3 Additional Conditions to the Obligations of AmeriNet.
The obligations of AmeriNet to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing Date of each of the following conditions, any of which may
be waived, in writing, exclusively by AmeriNet:
(A) Representations, Warranties and Covenants.
(1) The representations and warranties of Vista Vacations in this
Agreement shall be true and correct in all material respects
on and as of the Closing Date as though such representations
and warranties were made on and as of such time and Vista
Vacations shall have performed and complied in all material
respects with all covenants, obligations and conditions of
this Agreement required to be performed and complied with by
it as of the Closing Date.
(2) AmeriNet shall have no remedy against the Escrow Fund in
respect of an untrue representation or warranty if prior to
the Closing Date Vista Vacations delivers to AmeriNet in
accordance with Section 9.2 a written statement:
(a) Advising AmeriNet that an event (a "Post-Execution
Event") has occurred (specifying in reasonable detail
such event) subsequent to the date of execution of
this Agreement that would render any representation
or warranty made by Vista Vacations in this Agreement
untrue if such representation or warranty were made
as of the Closing; and
(b) Confirming that such representation or warranty was
true as of the date of execution of this Agreement,
and
(c) AmeriNet subsequently waives the failure to satisfy
the condition set forth in Section 6.3(A) with
respect to such representation or warranty.
(B) Certificate of Vista Vacations.
AmeriNet shall have been provided with a certificate executed on behalf
of Vista Vacations by its President and Chief Financial Officer to the
effect that, as of the Closing Date, all:
(1) Representations and warranties made by Vista Vacations under
this Agreement are true and complete in all material respects;
and
(2) Covenants, obligations and conditions of this Agreement to be
performed by Vista Vacations on or before such date have been
so performed in all material respects.
(C) Third Party Consents.
Any and all consents, waivers and approvals required from third Parties
relating to the contracts and agreements of Vista Vacations so that the
Reorganization and other transactions contemplated hereby do not
adversely affect the rights of, and benefits to, Vista Vacations
thereunder shall have been obtained.
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(D) Satisfactory Form of Legal and Accounting Matters.
The form, scope and substance of all legal and accounting matters
contemplated hereby and all documents and other papers delivered
hereunder prior to and on the Closing Date shall be reasonably
acceptable to AmeriNet's counsel (provided that the condition
subsequent concerning the compliance of information provided by Vista
Vacations with the requirements of Commission Regulation S-B, on a
timely basis, shall survive the Reorganization).
(E) Legal Opinion.
AmeriNet shall have received a legal opinion from legal counsel to
Vista Vacations, in substantially the form of Exhibit 6.3(E) hereto.
(F) No Material Adverse Changes.
There shall not have occurred any event, fact or condition which has
had or reasonably would be expected to have a material adverse effect
on Vista Vacations.
(G) Affiliate Agreements.
AmeriNet shall have received from each of the Affiliates of Vista
Vacations an executed Affiliate Agreement which shall be in full force
and effect.
(H) Dissenters.
The number of shares of Vista Vacations' Common Stock held by holders
who either (i) have exercised appraisal rights or (ii) retain the
ability to exercise such appraisal rights shall not exceed nineteen
percent of Vista Vacations' outstanding Common Stock, by class and
series, in the aggregate.
(I) Employment Agreements.
The Employment Agreements shall have been duly executed and delivered
and shall be in full force and effect.
(J) Minimum Net Worth.
Vista Vacations shall on the Closing Date have stockholders equity of
at least $180,000, not more than $20,000 in net current payables, not
more than $50,000 in net long term payables, at least $640,000 in
annualized gross sales and not less than $7,000 in annualized, net pre
tax profits, all determined in conformity with GAAP.
(K) Tax Opinion.
(1) AmeriNet shall have received a written opinion of Vista
Vacations Counsel, to the effect that the Reorganization will
constitute a reorganization within the meaning of Section
368(a)(1)(B) of the Code.
(2) In rendering such opinion, counsel may rely on (and to the
extent reasonably required, the Parties and Vista Vacations'
stockholders shall make) reasonable representations related
thereto.
(L) Confidentiality Agreements.
Each current employee, consultant or other person having access to
Vista Vacations' confidential information shall have executed a
confidentiality agreement in the form annexed hereto as Exhibit 6.3(L).
(M) There shall be no stockholders of Vista Vacations who are not
Accredited Investors.
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(N) Vista Vacations shall have signed the WRI Web Design & Hosting
Agreement, a fully executed copy of which shall be delivered by Vista
Vacations to AmeriNet at the Closing.
(O) Ms. Nellie Tippery, a creditor of Vista Vacations, shall have
irrevocably converted all of Vista Vacations' liabilities to her or her
affiliates, including, without limitation, loans aggregating at least
$180,000, into the right to receive 66,667 shares of AmeriNet Common
Stock.
(P) All obligations by Vista Vacations to its employees, consultants and
independent contractors involving payments due for services rendered
have been fully discharged, as of the Closing date.
Article VII
Survival of Condition Subsequent, Representations and Warranties,
Covenants & Escrow
7.1 Survival of Condition Subsequent, Representations and Warranties and
Covenant.
(A) All conditions subsequent to the Reorganization and covenants to be
performed prior to the Closing, and all representations and warranties
in this Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Reorganization and continue until the date
the audit of AmeriNet's financial statements for the year ending June
30, 2000 has been completed and AmeriNet has received a signed opinion
from its independent auditors certifying such financial statements (the
"2000 Audit Date").
(B) All covenants to be performed after the Closing shall continue
indefinitely.
7.2 Escrow Arrangements.
(A) Escrow Fund.
(1) As soon as practicable after the Closing Date, a portion of
the shares of AmeriNet's Common Stock to be issued in the
Reorganization equal to the Escrow Number plus any additional
New Shares (as defined below) as may be issued in respect
thereof after the Closing Date) (collectively, the "Escrow
Shares"), without any act of any stockholder, will be
registered in the name of Yankees, AmeriNet's strategic
planning consultant, or such other person or legal entity as
may otherwise be selected by AmeriNet prior to the Closing, as
escrow agent (the "Escrow Agent"), and will be deposited with
a financial institution acceptable to AmeriNet and the Agent
[as defined in Section 7.2(H) below)], such deposit to
constitute an escrow fund (the "Escrow Fund") to be governed
by the terms set forth herein and at AmeriNet's sole cost and
expense.
(2) (a) The portion of AmeriNet Common Stock in the
Escrow Fund contributed on behalf of each stockholder
of Vista Vacations is listed opposite such
stockholders' name on Exhibit 7.2(A).
(b) The Escrow Fund shall be available to compensate
AmeriNet and its affiliates for any claim, loss,
expense, liability or other damage, including
reasonable attorneys' fees that AmeriNet or any of
its affiliates has incurred or reasonably anticipates
incurring by reason of the breach by Vista Vacations
of any representation, warranty, covenant or
agreement of Vista Vacations contained herein,
("Losses"), but only to the extent that such Losses
exceed $20,000.
(c) AmeriNet and Vista Vacations each acknowledge that
such Losses, if any, would relate to unresolved
contingencies existing at the Time of Closing, which
if resolved at the Closing would have led to a
reduction in the total number of shares of AmeriNet
Common Stock AmeriNet would have agreed to issue in
connection with the Reorganization.
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(3) Nothing herein shall limit the liability of Vista Vacations
for any breach of any representation, warranty or covenant if
the Reorganization does not close. Resort to the Escrow Fund
shall be the exclusive contractual remedy of AmeriNet and its
affiliates for any such breaches and misrepresentations if the
Reorganization does close; provided, however, that nothing
herein shall limit any noncontractual remedy for fraud.
(B) Escrow Period; Distribution upon Termination of Escrow Periods.
(1) Subject to the following requirements, the Escrow Fund shall
remain in existence until the 2000 Audit Date (the "Escrow
Period").
(2) Upon the expiration of such Escrow Period, the Escrow Fund
shall terminate with respect to all Escrow Shares; provided,
however, that the number of Escrow Shares, which, in the
reasonable judgment of AmeriNet, subject to the objection of
the Agent and the subsequent arbitration of the matter in the
manner provided in Section 7.2(G) hereof, are necessary to
satisfy any unsatisfied claims specified in any Officer's
Certificate delivered to the Escrow Agent prior to the
expiration of such Escrow Period with respect to facts and
circumstances existing on or prior to the 2000 Audit Date
shall remain in the Escrow Fund (and the Escrow Fund shall
remain in existence) until such claims have been resolved.
(3) As soon as all such claims have been resolved, the Escrow
Agent shall deliver to the Former Vista Vacations Stockholders
all AmeriNet Common Stock and other property remaining in the
Escrow Fund and not required to satisfy such claims.
(4) Deliveries of AmeriNet Common Stock and other property to the
Former Vista Vacations Stockholders pursuant to this Section
7.2(B) shall be made in proportion to their respective
original contributions to the Escrow Fund.
(C) Protection of Escrow Fund.
The Escrow Agent shall hold and safeguard the Escrow Fund during the
Escrow Period, shall treat such fund as a trust fund in accordance with
the terms of this Agreement and not as the property of AmeriNet and
shall hold and dispose of the Escrow Fund only in accordance with the
terms hereof.
(D) Distributions; Voting.
(1) (a) Any shares of AmeriNet Common Stock or other
equity securities issued or distributed by AmeriNet,
including shares issued upon a stock split or any
stock dividend or distribution ("New Shares") in
respect of AmeriNet Common Stock in the Escrow Fund
which have not been released from the Escrow Fund
shall be added to the Escrow Fund and become a part
thereof.
(b) New Shares issued in respect of AmeriNet Common Stock
which have been released from the Escrow Fund shall
not be added to the Escrow Fund, but shall be
distributed to the holders thereof.
(c) When and if cash dividends on AmeriNet Common Stock
in the Escrow Fund shall be declared and paid, they
shall not be added to the Escrow Fund but shall be
paid to those on whose behalf such AmeriNet Common
Stock is held who, prior to the Reorganization, held
Vista Vacations' Common Stock.
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(2) Each stockholder of Vista Vacations shall have voting rights
with respect to the shares of AmeriNet Common Stock
contributed to the Escrow Fund on behalf of such stockholder
(and on any voting securities added to the Escrow Fund in
respect of such shares of AmeriNet Common Stock) so long as
such shares of AmeriNet Common Stock or other voting
securities are held in the Escrow Fund.
(E) Claims Upon Escrow Fund.
Subject to the objection procedure established in Section 7.2(F) below,
the Escrow Agent shall deliver to AmeriNet out of the Escrow Fund, as
promptly as practicable, shares of AmeriNet Common Stock or other
assets held in the Escrow Fund in an amount equal to Losses by
AmeriNet, provided that
(1) A written claim of loss has been provided by AmeriNet to the
Escrow Agent at any time on or before the last day of the
Escrow Period in the form of a certificate signed by any
officer of AmeriNet (an "Officer's Certificate"), with a copy
to Vista Vacations:
(a) Stating that AmeriNet has paid or properly accrued or
reasonably anticipates that it will have to pay or
accrue Losses, and
(b) Specifying in reasonable detail the individual items
of Losses included in the amount so stated, the date
each such item was paid or properly accrued, or the
basis for such anticipated liability, and the nature
of the misrepresentation, breach of warranty or claim
to which such item is related, the Escrow Agent
shall, subject to the provisions of Section 7.2(F)
hereof.
(2) For the purposes of determining the number of shares of
AmeriNet Common Stock to be delivered to AmeriNet out of the
Escrow Fund pursuant to Section 7.2(E)(1), the shares of
AmeriNet Common Stock shall be valued at the average closing
transaction price therefor during the preceding ten trading
days, as reported on the highest rated securities market or
securities exchange on which AmeriNet's Common Stock is
actually traded.
(F) Objections to Claims.
(1) At the time of delivery of any Officer's Certificate to the
Escrow Agent, a duplicate copy of such certificate shall be
delivered to the Agent [as defined in Section 7.2(H)] and for a
period of thirty (30) days after such delivery, the Escrow Agent
shall make no delivery to AmeriNet of shares of AmeriNet Common
Stock, pursuant to Section 7.2(E) hereof unless the Escrow Agent
shall have received written authorization from the Agent to make
such delivery.
(2) After the expiration of such thirty (30) day period, the Escrow
Agent shall make delivery of the shares of AmeriNet Common Stock
or other property in the Escrow Fund in accordance with Section
7.2(E) hereof, provided that no such payment or delivery may be
made if the Agent shall object in a written statement to the
claim made in the Officer's Certificate, and such statement shall
have been delivered to the Escrow Agent prior to the expiration
of such thirty (30) day period.
(G) Resolution of Conflicts; Arbitration.
(1) (a) In case the Agent shall so object in writing to
any claim or claims made in any Officer's
Certificate, the Agent and AmeriNet shall attempt in
good faith to agree upon the rights of the respective
Parties with respect to each of such claims.
(b) If the Agent and AmeriNet should so agree, a
memorandum setting forth such agreement shall be
prepared and signed by both Parties and shall be
furnished to the Escrow Agent.
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(c) The Escrow Agent shall be entitled to rely on any
such memorandum and distribute shares of AmeriNet
Common Stock or other property from the Escrow Fund
in accordance with the terms thereof.
(2) (a) If no such agreement can be reached after good
faith negotiation, either AmeriNet or the Agent may
demand arbitration of the matter unless the amount of
the damage or loss is at issue in pending litigation
with a third party, in which event arbitration shall
not be commenced until such amount is ascertained or
both Parties agree to arbitration; and in either such
event the matter shall be settled by arbitration
conducted by three arbitrators.
(b) AmeriNet and the Agent shall each select one
arbitrator, and the two arbitrators so selected
shall select a third arbitrator.
(c) The arbitrators shall set a limited time period and
establish procedures designed to reduce the cost and
time for discovery while allowing the Parties an
opportunity, adequate in the sole judgment of the
arbitrators, to discover relevant information from
the opposing Parties about the subject matter of the
dispute.
(d) The arbitrators shall rule upon motions to compel or
limit discovery and shall have the authority to
impose sanctions, including attorneys fees and costs,
to the extent as a court of competent law or equity,
should the arbitrators determine that discovery was
sought without substantial justification or that
discovery was refused or objected to without
substantial justification.
(e) The decision of a majority of the three arbitrators
as to the validity and amount of any claim in such
Officer's Certificate shall be binding and conclusive
upon the Parties to this Agreement, and
notwithstanding anything in Section 7.2(F) hereof,
the Escrow Agent shall be entitled to act in
accordance with such decision and make or withhold
payments out of the Escrow Fund in accordance
therewith.
(f) Such decision shall be written and shall be supported
by written findings of fact and conclusions which
shall set forth the award, judgment, decree or order
awarded by the arbitrators.
(3) (a) (i) Judgment upon any award rendered by the
arbitrators may be entered in any court
having jurisdiction.
(ii) Any such arbitration shall be held in
Broward County, Florida, under the rules
then in effect of the American Arbitration
Association.
(b) For purposes of this Section 7.2(G), in any
arbitration hereunder in which any claim or the
amount thereof stated in the Officer's Certificate is
at issue, AmeriNet shall be deemed to be the
Non-Prevailing Party in the event that the
arbitrators award AmeriNet less than the sum of 50%
of the disputed amount plus any amounts not in
dispute; otherwise, the Former Vista Vacations
Stockholders as represented by the Agent shall be
deemed to be the Non-Prevailing Party.
(c) The Non-Prevailing Party to an arbitration shall pay
its own expenses, the fees of each arbitrator, the
administrative fee of the American Arbitration
Association, and the expenses, including without
limitation, reasonable attorneys' fees and costs,
incurred by the other party to the arbitration.
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(H) Agent of the Stockholders: Power of Attorney.
(1) (a) (i) Teri Nadler is hereby irrevocably appointed as the agent and
attorney-in-fact (the "Agent") for each stockholder of Vista
Vacations, for and on behalf of the Former Vista Vacations
Stockholders, to give and receive notices and
communications, to authorize delivery to AmeriNet of
AmeriNet Common Stock or other property from the Escrow Fund
in satisfaction of claims by AmeriNet, to object to such
deliveries, to agree to, negotiate, enter into settlements
and compromises of, and demand arbitration and comply with
orders of courts and awards of arbitrators with respect to
such claims, and to take all actions necessary or
appropriate in the judgment of Agent for the accomplishment
of the foregoing.
(ii) Such agency may be changed by the Former Vista Vacations
Stockholders from time to time upon not less than thirty
(30) days prior written notice to AmeriNet; provided that
the Agent may not be removed unless holders of a two-thirds
interest of the Common Stock comprising the Escrow Fund
agree to such removal and to the identity of the substituted
agent.
(iii) No bond shall be required of the Agent, and the Agent shall
not receive compensation for his or her services.
(iv) Notices or communications to or from the Agent shall
constitute notice to or from each of the Former Vista
Vacations Stockholders.
(b) The Agent shall be entitled to submit a claim and receive
reimbursement from the Escrow Fund for all reasonable,
documented out-of-pocket expenses incurred by the Agent as a
result of his acting as the Agent; provided, however, that
such right to reimbursement shall be subordinate to
AmeriNet's claims on the Escrow, if any, and shall be paid
only after all such claims have been satisfied.
(c) Any such reimbursement shall be paid in shares of AmeriNet
Common Stock out of the Escrow Fund.
(d) For purposes of such reimbursement of the Agent only, such
shares shall be valued at the average of the closing prices
of AmeriNet Common Stock for the ten trading days ending on
the day prior to the date the Escrow Agent pays such
reimbursement amount.
(2) (a) The Agent shall not be liable for any act done or omitted
hereunder as Agent while acting in good faith and in the
exercise of reasonable judgment.
(b) The Former Vista Vacations Stockholders on whose behalf
shares of AmeriNet Common Stock were contributed to the
Escrow Fund shall severally indemnify the Agent and hold the
Agent harmless against any loss, liability or expense
incurred without negligence or bad faith on the part of the
Agent and arising out of or in connection with the
acceptance or administration of the Agent's duties
hereunder, including the reasonable fees and expenses of any
legal counsel retained by the Agent.
(I) Actions of the Agent.
(1) A decision, act, consent or instruction of the Agent shall
constitute a decision of all the stockholders for whom shares
of AmeriNet Common Stock otherwise issuable to them are
deposited in the Escrow Fund and shall be final, binding and
conclusive upon each of such stockholders, and the Escrow
Agent
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and AmeriNet may rely upon any such decision, act, consent or
instruction of the Agent as being the decision, act, consent
or instruction of every such stockholder.
(2) The Escrow Agent and AmeriNet are hereby relieved from any
liability to any person for any acts done by them in
accordance with such decision, act, consent or instruction of
the Agent.
(J) Third-Party Claims.
(1) In the event AmeriNet becomes aware of a third-party claim
which AmeriNet believes may result in a demand against the
Escrow Fund, AmeriNet shall notify the Agent of such claim,
and the Agent and the Former Vista Vacations Stockholders
shall be entitled, at their expense, to participate in any
defense of such claim.
(2) AmeriNet shall have the right in its sole discretion to settle
any such claim; provided, however, that except with the
consent of the Agent, no settlement of any such claim with
third-party claimants shall alone be determinative of the
validity of any claim against the Escrow Fund.
(3) In the event that the Agent has consented to any such
settlement, the Agent shall have no power or authority to
object under any provision of this Article VII to the amount
of any claim by AmeriNet against the Escrow Fund with respect
to such settlement.
(K) Escrow Agent's Duties.
(1) (a) The Escrow Agent shall be obligated only for the performance
of such duties as are specifically set forth herein, and as
set forth in any additional written escrow instructions
which the Escrow Agent may receive after the date of this
Agreement which are signed by an officer of AmeriNet and the
Agent, and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed
to be genuine and to have been signed or presented by the
proper party or Parties.
(b) The Escrow Agent shall not be liable for any act done or
omitted hereunder as Escrow Agent while acting in good faith
and in the exercise of reasonable judgment, and any act done
or omitted pursuant to the advice of counsel shall be
conclusive evidence of such good faith.
(2) The Escrow Agent is hereby expressly authorized to disregard
any and all warnings given by any of the Parties or by any
other person, excepting only orders or process of courts of
law, and is hereby expressly authorized to comply with and
obey orders, judgments or decrees of any court. In case the
Escrow Agent obeys or complies with any such order, judgment
or decree of any court, the Escrow Agent shall not be liable
to any of the Parties or to any other person by reason of such
compliance, notwithstanding any such order, judgment or decree
being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
(3) The Escrow Agent shall not be liable in any respect on account
of the identity, authority or rights of the Parties executing
or delivering or purporting to execute or deliver this
Agreement or any documents or papers deposited or called for
hereunder.
(4) The Escrow Agent shall not be liable for the expiration of any
rights under any statute of limitations with respect to this
Agreement or any documents deposited with the Escrow Agent.
(5) The Escrow Agent may resign at any time upon giving at least
thirty (30) days written notice to AmeriNet and the Agent to
this Agreement; provided, however, that no such resignation
shall become effective until the appointment of a successor
escrow agent which shall be accomplished as follows:
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<PAGE>
(a) AmeriNet and the Agent shall use their best efforts
to mutually agree upon a successor agent within
thirty (30) days after receiving such notice.
(b) If the Parties fail to agree upon a successor escrow
agent within such time, AmeriNet shall have the right
to appoint a successor escrow agent authorized to do
business in Florida.
(c) The successor escrow agent selected in the preceding
manner shall execute and deliver an instrument
accepting such appointment and it shall thereupon be
deemed the Escrow Agent hereunder and it shall
without further acts be vested with all the estates,
properties, rights, powers, and duties of the
predecessor Escrow Agent as if originally named as
Escrow Agent.
(d) Thereafter, the predecessor Escrow Agent shall be
discharged for any further duties and liabilities
under this Agreement.
Article VIII
Termination, Amendment And Waiver
8.1 Termination.
This Agreement may be terminated and the Reorganization abandoned at any
time prior to the Closing Date, as follows:
(A) By mutual consent of Vista Vacations and AmeriNet.
(B) By AmeriNet if it is not in material breach of its obligations under
this Agreement and there has been a material breach of any
representation, warranty, covenant or agreement contained in this
Agreement on the part of Vista Vacations and such breach has not been
cured within fifteen days after notice to Vista Vacations.
(C) By Vista Vacations if it is not in material breach of its respective
obligations under this Agreement and there has been a material breach
of any representation, warranty, covenant or agreement contained in
this Agreement on the part of AmeriNet and such breach has not been
cured within 15 days after notice to AmeriNet;
(D) By any Party if:
(1) The Reorganization has not occurred by April 15, 2000;
(2) There shall be a final nonappealable order of a federal or
state court in effect preventing consummation of the
Reorganization;
(3) There shall be any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed
applicable to the Reorganization by any Governmental Entity
which would make consummation of the Reorganization illegal;
or
(4) There shall be any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed
applicable to the Reorganization by any Governmental Entity,
which would:
(a) Prohibit AmeriNet's or Vista Vacations' ownership or
operation of all or a material portion of the
business of Vista Vacations, or compel AmeriNet or
Vista Vacations to dispose of or hold separate all or
a material portion of the business or assets of Vista
Vacations or AmeriNet as a result of the
Reorganization; or
85
<PAGE>
(b) Render AmeriNet or Vista Vacations unable to
consummate the Reorganization, except for any waiting
period provisions.
(E) Where action is taken to terminate this Agreement pursuant to this
Section 8.1, it shall be sufficient for such action to be authorized by
the board of directors (as applicable) of the Party taking such action.
8.2 Effect of Termination.
In the event of termination of this Agreement as provided in Section 8.1,
this Agreement shall forthwith become void and there shall be no liability or
obligation on the part of AmeriNet or Vista Vacations or their respective
officers, directors or stockholders, except if such termination results from the
breach by a Party of any of its representations, warranties, covenants or
agreements set forth in this Agreement (it being understood that termination of
this Agreement because of failure of Vista Vacations to satisfy the condition
set forth in Section 6.3(A) as a result of the occurrence of a Post-Execution
Event shall not be deemed to be a termination resulting from such a breach of
representation or warranty.)
8.3 Amendment.
(A) This Agreement may be amended by the Parties at any time before or
after approval of matters presented in connection with the
Reorganization by the stockholders of those Parties required by
applicable law to so approve but, after any such stockholder approval,
no amendment shall be made which by law requires the further approval
of stockholders of a party without obtaining such further approval.
(B) This Agreement may not be amended except by an instrument in writing signed
on behalf of each of the Parties.
8.4 Extension & Waiver.
(A) At any time prior to the Closing any Party may, to the extent legally
allowed:
(1) Extend the time for the performance of any of the obligations
or other acts of the other Parties;
(2) Waive any inaccuracies in the representations and warranties
made to such party contained herein or in any document
delivered pursuant hereto; or
(3) Waive compliance with any of the agreements or conditions for
the benefit of such Party contained herein.
(B) Any agreement on the part of a Party to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on
behalf of such Party.
Article IX
General Provisions
9.1 Interpretation.
(A) When a reference is made in this Agreement to Schedules or Exhibits,
such reference shall be to a Schedule or Exhibit to this Agreement
unless otherwise indicated.
(B) The words "include," "includes" and "including" when used herein shall
be deemed in each case to be followed by the words "without
limitation."
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<PAGE>
(C) The table of contents and 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.
9.2 Notice.
(A) All notices, demands or other communications given hereunder shall be
in writing and shall be deemed to have been duly given on the first
business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
(1) To AmeriNet:
AmeriNet Group.com, Inc.
Crystal Corporate Center;
2500 North Military Trail, Suite 225-C; Boca Raton, Florida 33431
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-4635;
and, e-mail [email protected]; with a copy to
G. Richard Chamberlin, Esquire; General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida
34471 Telephone (352) 694-6714, Fax (352) 694-9178; and,
e-mail, [email protected].
(2) To Vista Vacations:
Vista Vacations International, Inc.
5653 Northwest 29th Street; Margate, Florida 33063
Attention: Teri Nadler, President
Telephone (954) 975-0898; Fax (954) 975-8447;
e-mail [email protected]; with a fax copy to
Scott B. Ugell
155 North Main Street; New City, New York
10956 Telephone (914) 639-7011; Fax (914) 639-7088; and,
e-mail [email protected]
(3) To Agent:
Ms. Teri Nadler
5653 Northwest 29th Street; Margate, Florida
33063 Telephone (954) 975-0898; Fax (954) 975-8447; e-mail
[email protected]; with a fax copy to
87
<PAGE>
Scott B. Ugell
155 North Main Street; New City, New York
10956 Telephone (914) 639-7011; Fax (914) 639-7088; and,
e-mail [email protected]
(4) To the Escrow Agent:
The Yankee Companies, Inc.
Crystal Corporate Center;
2500 North Military Trail, Suite 225; Boca Raton, Florida 33431
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425; and, e-mail [email protected]
or such other address or to such other person as any Party shall
designate to the other for such purpose in the manner hereinafter set
forth.
(B) At the request of any Party, notice will also be provided by overnight
delivery, facsimile transmission or e-mail, provided that a
transmission receipt is retained.
(C) (1) The Parties acknowledge that Yankees serves as a strategic
consultant to AmeriNet and has acted as scrivener for the
Parties in this transaction but that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Because of the inherent conflict of interests involved,
Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement and its
exhibits and incorporated materials on their behalf.
(3) The decision by any Party not to use the services of legal
counsel in conjunction with this transaction shall be solely
at their own risk, each Part 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.
9.3 Merger of All Prior Agreements Herein.
(A) This instrument, together with the instruments referred to herein,
contains all of the understandings and agreements of the Parties with
respect to the subject matter discussed herein.
(B) All prior agreements whether written or oral are merged herein and
shall be of no force or effect.
9.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and the Reorganization and
shall be effective regardless of any investigation that may have been made or
may be made by or on behalf of any Party.
9.5 Severability.
If any provision or any portion of any provision of this Agreement, other
than one of the conditions precedent or subsequent, or the application of such
provision or any portion thereof to any person or circumstance shall be held
invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Agreement or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby.
88
<PAGE>
9.6 Governing Law.
This Agreement shall be construed in accordance with the substantive and
procedural laws of the State of Delaware (other than those regulating Taxation
and choice of law).
9.7 Indemnification.
(A) Each Party hereby irrevocably agrees to indemnify and hold the other
Parties harmless from any and all liabilities and damages (including
legal or other expenses incidental thereto), contingent, current, or
inchoate to which they or any one of them may become subject as a
direct, indirect or incidental consequence of any action by the
indemnifying Party or as a consequence of the failure of the
indemnifying Party to act, whether pursuant to requirements of this
Agreement or otherwise.
(B) In the event it becomes necessary to enforce this indemnity through an
attorney, with or without litigation, the successful Party shall be
entitled to recover from the indemnifying Party, all costs incurred
including reasonable attorneys' fees throughout any negotiations,
trials or appeals, whether or not any suit is instituted.
9.8 Dispute Resolution.
(A) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement any
proceedings pertaining directly or indirectly to the rights or
obligations of the Parties hereunder shall, to the extent legally
permitted, be held in Broward County, Florida, and the prevailing Party
shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials
and appeals, whether or not any formal proceedings are initiated.
(B) 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, three by AmeriNet and three 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, three
by AmeriNet and Three by Vista Vacations.
(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.
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<PAGE>
9.9 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees but are not intended to confer upon
any other person any rights or remedies hereunder.
9.10 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.
9.11 Counterparts.
(A) This Agreement may be executed in any number of counterparts.
(B) All executed counterparts shall constitute one Agreement
notwithstanding that all signatories are not signatories to the
original or the same counterpart.
(C) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Agreement which shall be the document filed with the Commission.
9.12 License.
(A) This form of agreement is the property of Yankees and has been
customized for this transaction with the consent of Yankees by G.
Richard Chamberlin, Esquire, AmeriNet's acting 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.
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<PAGE>
In Witness Whereof, AmeriNet, Vista Vacations and the Escrow Agent (with
respect to the Escrow Agent, as to matters set forth in Article VII only) 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 Group.com, Inc.
_________________________________ (A Delaware corporation)
_________________________________ By: /s/ Michael H. Jordan
_____________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
_____________________________
Vanessa H. Lindsey, Secretary
Dated: March 12, 2000
State of Florida }
County of Palm Beach } ss.:
On this 12th day of March, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Michael H. Jordan and
Vanessa H. Lindsey, to me known, and known to me to be the president and
secretary of AmeriNet Group.com, 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 Group.com, Inc., for the uses and purposes therein
mentioned.
In witness whereof, I have hereunto set my hand and affixed my notarial
seal the day and year in this certificate first above written. My commission
expires the 26th day of April, 2004.
{Seal} /s/ Charles J. Scimeca
--------------------------------
Notary Public
91
<PAGE>
Vista Vacations International, Inc.
_________________________________ (a Florida corporation)
_________________________________ By: /s/ Teri E. Nadler
_____________________________
Teri Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_____________________________
Alicia Torrealba, Secretary
Dated: March 12, 2000
State of Florida }
County of Palm Beach } ss.:
On this 12th day of March, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Teri Nadler and Alicia
Torrealba, to me known, and known to me to be the president and secretary of
Vista Vacations International, 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 Vista Vacations International, Inc., for the uses and purposes therein
mentioned.
In witness whereof, I have hereunto set my hand and affixed my notarial
seal the day and year in this certificate first above written. My commission
expires the 26th day of April, 2004.
(Seal) /s/ Charles J. Scimeca
-----------------------------
Notary Public
The Yankee Companies, Inc.
_________________________________ (a Florida corporation)
_________________________________ By: /s/ Leonard M. Tucker
____________________________
Leonard Miles Tucker, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
' ____________________________
Vanessa H. Lindsey, Secretary
Dated: March 12, 2000
State of Florida }
County of Palm Beach } ss.:
On this 12th day of March, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Leonard Miles Tucker and
Vanessa H. Lindsey, 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., as the Escrow Agent, the uses and
purposes therein mentioned.
In witness whereof, I have hereunto set my hand and affixed my notarial
seal the day and year in this certificate first above written. My commission
expires the 26th day of April, 2004.
(Seal) /s/ Charles J. Scimeca
-----------------------------
Notary Public
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<PAGE>
Schedule 1.4
Vista Vacations' Constituent Documents
1. Amended Articles of Incorporation.
2. Amended Bylaws.
3. Resolution by majority of Vista Stockholders adopting Amended Articles of
Incorporation and Amended Bylaws.
4. Resolution by Vista Board of Directors adopting Amended Articles of
Incorporation and Amended Bylaws.
5. Resolution of Board of Directors dated March 7, 2000 approving and adopting
Reorganization Agreement and Affiliate Agreements with AmeriNet Group.com,
Inc., with a direction that the Secretary cancel all stock certificated
pursuant to instructions of each stockholder and the issuance of 100% of
the common stock of Vista Vacations to AmeriNet Group.com, Inc.
Items 1-2 can be found as Exhibit 3(i)vv.4 and 3(ii)vv.4 of this Form 8-K.
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<PAGE>
Vista Vacations International, Inc.
Consent in Lieu of Meeting
THE UNDERSIGNED, being the all of the Stockholders and all of the members
of the Board of Directors of Vista Vacations International, Inc.. (the
"Corporation"), pursuant to authority granted under Florida Statutes Sections
607.0704 and .0821, hereby take the following actions and adopt the following
resolutions:
Witnesseth:
WHEREAS, as a result of the Corporation's current status as a wholly owned
subsidiary of AmeriNet Group.com, Inc., a publicly held Delaware corporation
("AmeriNet"), it is appropriate to amend its articles of incorporation and
bylaws (collectively sometimes hereinafter referred to as the "Constituent
Documents") in order to effectuate the provisions of the reorganization
agreement pursuant to which the Corporation was acquired by AmeriNet, as
subsequently amended, and the provisions of the reorganization agreement
pursuant to which Vista Vacations International, Inc., a Florida corporation was
merged into the Corporation, and to reflect its current status and operational
procedures and requirements; NOW, THEREFORE, be it:
RESOLVED, that this Corporation's articles of incorporation be amended and
restated in the form heretofore circulated among the duly authorized and
empowered representatives of AmeriNet, this Corporation's sole stockholder, a
copy of which is annexed to and made a part of this written consent in lieu of
special meeting of stockholders as exhibit A, and that a restated copy thereof
be placed in the Corporation's minute book, in the place and stead of the
Corporation's articles of incorporation and subsequent amendments thereto; and
be it FURTHER
RESOLVED, that the Corporation's bylaws be, and they are hereby repealed
and replaced by the form of bylaws heretofore circulated among the duly
authorized and empowered representatives of AmeriNet, this Corporation's sole
stockholder, a copy of which is annexed to and made a part of this written
consent in lieu of special meeting of stockholders as exhibit B, and that a
restated copy thereof be placed in the Corporation's minute book, in the place
and stead of the Corporation's repealed bylaws; and be it FURTHER
RESOLVED, that the Officers of this Corporation are hereby authorized,
empowered and directed to take all actions on behalf of the Corporation
necessary or desirable to effect the foregoing.
DONE, effective as of the 7th day of March, 2000.
AmeriNet Group.com, Inc., as the sole stockholder
of Vista Vacations International, Inc.
By: /s/ Michael H. Jordan
______________________
Michael A. Jordan, President
{Seal}
Attest: /s/ Vanessa H. Lindsey
_____________________
Vanessa H. Lindsey, Secretary
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<PAGE>
RESOLUTION
BE IT RESOLVED, that by unanimous vote of the Board of Directors of Vista
Vacations International, Inc., the amended Articles of Incorporation and Amended
Bylaws have been adopted.
Dated: Margate, Florida
March 7, 2000
/s/ Alicia Torrealba, Secretary
RESOLUTION
BE IT RESOLVED, that by a vote of the Board of Directors of Vista
Vacations International, Inc., the Reorganization Agreement and Affiliate
Agreements with AmeriNetGroup.com, Inc. are hereby approved and accepted and.
Pursuant to the terms of the Reorganization Agreement the Secretary is hereby
directed to cancel all stock certified pursuant tot instructions of each
shareholder and the issuance of 100% of the common stock of Vista Vacations
International, Inc. to AmeriNetGroup.com, Inc.
Dated: Margate, Florida
March 7, 2000
/s/ Alicia Torrealba, Secretary
Schedule 1.7(C)
Vista Vacation's Final Stockholder Data
<TABLE>
<S> <C> <C> <C> <C> <C>
Name State Shares Cert No. Date Issued Consideration
- ---- ----- ------ -------- ----------- -------------
Nellie Tippery Washington 375 shares unknown 11/13/98 canceled
Teri E. Nadler Florida 765 shares 1 11/13/98 $ 765.00
Jean Hickman Florida 20 shares 4 11/13/98 $ 20.00
Alicia Torrealba Florida 20 shares 5 11/13/98 $ 20.00
Ken & Carol Nelson Florida 75 shares 3 01/21/00 $50,000.00
Jean Hickman Florida 160 Shares 6 01/21/00 $ 160.00
Alicia Torrealba Florida 40 shares 7 01/21/00 $ 20.00
Karyn McKnight Washington 20 shares 8 01/21/00 $13,333.20
Scott B. Ugell New York 400 shares 2 11/13/98 $ 400.00
(Corrected issuance)
1875 shares
</TABLE>
Schedule 2.4(D)
Conflicts with Obligations
NONE
Schedule 2.5(A)
Vista Vacations Financial Statements
1. Balance Sheet and Profit and Loss Statements thru December 31, 1999.
2. Budget
3. Quarterly Tax Returns for March/99, June/99, Sept/99, Dec/99.
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<PAGE>
Balance Sheet and Profit and Loss Statements thru December 31, 1999.
Dec 31, '99
------------
ASSETS
Current Assets
Checking/Savings
First Union Cap Account 5,775.54
First Union Operations 66,063.09
------------
Total Checking/Savings 71,838.63
Other Current Assets
Credit Card Reserve 7,077.00
Petty Cash 200.00
------------
------------
Total Other Current Assets 7,277.00
------------
Total Current Assets 79,115.63
Fixed Assets
Accumulated Depreciation -11,901.74
Computer Equipment 18,281.55
Furniture and Fixtures 13,387.28
Leasehold Improvements 1,089.00
Office Equipment 30,676.75
------------
Total Fixed Assets 51,532.84
Other Assets
Intangibles
Accumulated Amortization -561.60
Organizational Costs 400.00
Trademark 7,224.00
------------
Total Intangibles 7,062.40
Prepaid Consulting Fees 86,000.00
Prepaid Interest 684.20
Prepaid Rent 1,116.72
Recoverable Deposits 2,962.76
------------
------------
Total Other Assets 97,826.08
------------
------------
TOTAL ASSETS 228,474.55
============
LIABILITIES & EQUITY
Liabilities
Current Liabilities
Other Current Liabilities
Payroll Liabilities 12,189.88
------------
------------
Total Other Current Liabilities 12,189.88
------------
Total Current Liabilities 12,189.88
Long Term Liabilities
N/P BSFS-Telephone System 12,087.00
N/P Xerox-Copiers 12,219.32
------------
------------
Total Long Term Liabilities 24,306.32
------------
Total Liabilities 36,496.20
Equity
Additional Paid in Capital 180,000.00
Net Income 11,978.35
------------
------------
Total Equity 191,978.35
------------
------------
TOTAL LIABILITIES & EQUITY 228,474.55
96
<PAGE>
Jan - Dec '99
--------------
Ordinary Income/Expense
Income
Air Tickets 2,821.00
Car Reservations 508.95
ClLIA Fams 197,942.94
Cruises 185,826.98
Enrollment Income 103,637.96
Hotel Reservations 1,481.12
Override Commission 3,266.94
Printing Commission 14,426.49
Tours 134,595.70
Travel Insurance 2,643.90
--------------
Total Income 647,151.98
Cost of Goods Sold
CLIA Fam Expense 144,124.54
Cruise Line Expense 62,069.29
Enrollment Expense 4,284.20
Hotel Reservation Expense 182.40
Outside Printing 5,115.07
Tous Expense 71,756.70
--------------
--------------
Total COGS 287,532.20
--------------
Gross 359,619.78
Profit
Expense
Advertising 2,427.71
Automobile Expense 37,064.84
Bank Service Charges 465.23
Commissiom 49,216.54
Credit Card Expense 5,874.77
Delivery & Courier 3,223.28
Dues and Subscriptions 1,263.53
Equipment Rental 604.03
Insurance
Group Insurance 7,521.85
Workman's Compensation 1,850.00
Insurance - Other 1,880.02
--------------
Total Insurance 11,251.87
Interest Expense
Loan Interest 342.10
--------------
Total Interest Expense 342.10
Internet 1,851.80
Licenses and Permits 1,236.60
Miscellaneous 0.00
Office Expenses 15,867.30
Payroll Expenses 44,439.34
Payroll Taxes
Fica and MC 506.47
Payroll Taxes-FUTA/SUTA -1,297.35
--------------
Total Payroll Taxes -790.88
Postage 3,670.54
Printing and Reproduction 821.90
Professional Fees
Consulting 31,608.00
--------------
Total Professional Fees 31,608.00
Rent 27,747.80
97
<PAGE>
Repairs & Maintenance
Building Repairs 274.69
Computer Repairs 1,000.00
Repairs & Maintenance - Other 261.57
--------------
Total Repairs & Maintenance 1,536.26
Telephone 23,504.89
Travel & Ent
Meals & Entertainment 6,208.38
Travel 1,511.18
Travel & Ent - Other 0.00
--------------
Total Travel & Ent 7,719.56
Trip Insurance 637.00
Uncategorized Expenses 0.00
Utilities
Gas and Electric 2,030.74
Water 363.83
--------------
Total Utilities 2,394.57
Void 0.00
--------------
--------------
Total Expense 273,978.58
--------------
Net Ordinary Income 85,641.20
Other Income/Expense
Other Income
Interest 908.08
--------------
Total Other Income 908.08
Other Expense
Amortization Expense 561.60
Depreciation Expense 11,901.74
Fines & Penalties 620.35
Officer Salary 61,487.24
--------------
--------------
Total Other Expense 74,570.93
--------------
--------------
Net Other -73,662.85
Income
--------------
--------------
Net Income 11,978.35
==============
98
<PAGE>
COST ANALYSIS - YEAR 2000
<TABLE>
<S> <C> <C> <C>
ITEMS INCOME EXPENSE PROFIT
(GROSS SALES) (COST)
Enrollment $374,800 $138,500 $236,300
Renewal 30,000 30,000
Kinkos 69,600 36,888 32,712
Travel Sales 2,625,000 2,310,000 315,000
Agent Sales 0 157,500 0
Commission (157,500)
Travel Insurance 91,875 73,500 18,375
Agent Travel Ins 0 4,593 0
Commission (4,593)
Training Conferences 205,260 156,500 48,760
Website Advertising 50,000 0 50,000
Website Replica sites 100,000 84,500 15,500
Website Locater sites 472,500 236,250 236,250
(9 months)
TOTAL $4,019,035 $3,198,231 $820,804
</TABLE>
99
<PAGE>
Budget
March 2000 to March 2001
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
March April May June July August
Rent 1,359 1,359 1,359 2,600 2,600 2,600
Utlities 185 185 185 450 450 450
Telephone 1,700 1,700 1,700 2,400 2,400 2,400
Phone Sys. BS FS 503 503 503 503 503 503
Copier Xerox (lease) 550 550 550 550 550 550
Office Insurance 291 291 291 400 400 400
Health Insurance 1,105 1,700 1,700 1,700 1,700 1,700
Workmans Comp. 165 165 16 165 165 165
Security System 25 25 25 50 50 50
Internet (Verio) 215 270 290 290 290 290
Accountant 125 125 125 125 125 125
Postage 150 150 250 250 250 150
Courier & Delivery 100 100 150 100 100 100
Office Supplies 300 500 200 500 200 200
Maintenance --- 100 100 200 200 200
Web Site 10,000 10,000 10,000 10,000 10,000 10,000
Advertising --- 4,000 4,000 4,000 4,000 4,000
Travel 5,000 5,000 5,000 5,000 5,000 5,000
Meals & Enter. 600 600 600 600 600 600
Furn. & Equip. 3,500 1,500 --- 1,500 --- ---
Salary 28,332 30,065 30,065 31,798 31,798 31,798
Taxes (employee) 2,110 2,240 2,240 2,370 2,370 2,370
Auto Expense 2,000 2,000 2,000 2,000 2,000 2,000
Misc. Expense 300 300 300 300 300 300
Promotion (Dale) 225 225 225 225 225 225
Trade Show --- --- ---- --- --- 5,000
TOTAL 52,715 63,653 62,023 68,076 66,276 71,176
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
Sept. Oct. Nov. Dec. Jan. Feb. Mar.
Rent 2,600 2,600 2,600 2,600 2,600 2,600 2,600
Utlities 450 450 450 450 400 400 400
Telephone 2,400 2,400 2,400 2,400 2,400 2,400 2,400
Phone Sys. BS FS 503 503 503 500 503 503 503
Copier Xerox (lease) 550 550 550 550 550 550 550
Office Insurance 400 400 40 400 400 400 400
Health Insurance 1,105 1,700 1,700 1,700 1,700 1,700 1,700
Workmans Comp. 165 165 165 165 165 165 165
Security System 50 50 50 50 50 50 50
Internet (Verio) 290 290 290 290 290 290 290
Accountant 125 125 125 125 125 125 125
Postage 150 250 250 150 150 250 150
Courier & Delivery 100 100 100 100 150 10 100
Office Supplies 200 200 200 200 200 20 200
Maintenance 200 200 200 200 200 200 200
Web Site 10,000 10,000 10,000 10,000 10,000 10,000 10,000
Advertising 4,000 4,000 4,000 4,000 4,000 4,000 4,000
Travel 5,000 5,000 5,000 5,000 5,000 5,000
Meals & Enter. 600 600 600 600 600 600 600
Furn. & Equip. --- --- --- --- --- --- ---
Salary 31,978 31,978 31,798 31,798 31,798 31,798 31,798
Taxes (employee) 2,370 2,370 2,370 2,370 2,370 2,370 2,370
Auto Expense 2,000 2,000 2,000 2,000 2,000 2,000 2,000
Misc. Expense 300 300 300 300 300 300 300
Promotion (Dale) 225 225 225 225 225 225 225
Trade Show --- --- 5,000 --- --- --- ---
66,176 66,276 71,226 66,126 66,226 66,326 66,126
</TABLE>
100
<PAGE>
PROJECTED REVENUE FROM MEMBERSHIP
First Year 1999
Founders: 100 @ $349.00-----------------$ 34,900
Affiliates: 75 @ $ 99.00-----------------$ 7,425
Vista Agent: 400 @ $449.00-----------------$179,600
Affiliates: 200 @ $149.00-----------------$ 29,800
Club Member: 100 @ $ 79.00-----------------$ 7,900
TOTAL $262,075
COST OF MEMBERSHIP
Founders and Affiliates----------------$10,800
Vista Agent and Affiliates-------------$41,800
Club Member and Affiliates-------------$ 950
(see attached for breakdown of cost)
TOTAL $(53,550)
NET REVENUE FOR MEMBERSHIP ** TOTAL $208,525
**This is a very conservative total as we believe that the membership for the
first year will be triple the amount we are projecting. However, it is our
business philosophy to deliver much more than expected!
PROJECTED REVENUE FROM 1-1-99 THROUGH 12-31-99
INCOME
NEW MEMBER ENROLLMENT $262,075
COM. ON CRUISE SALES $784,000
INSURANCE REVENUE $ 75,421
---------
TOTAL $1,121,496
EXPENSES
MEMBERSHIP (53,550)
REFERRAL COM. AGENTS (53,415)
COM TO AGENTS (235,200)
FIXED OPERATING COSTS (386,836)
12% INCREASE OF OPERATING EXP. (2ND 6 MONTH PERIOD) (46,420)
TOTAL (775,421)
NET PROFIT 346,075 **see note on Projected Revenue from Membership
101
<PAGE>
Schedule 2.7
Changes Since Vista Vacations' Financial Statements
NONE
Schedule 2.8(A)
Tax Disclosure Schedule
No tax delinquencies.
Schedule 2.10(A)
Leased Real Property
1. Commercial Lease dated December 9, 1998 between John A. Roschman and
Vista for property located at 5653 NW 29th Street, Margate: Two year
term ending December 31, 2000. Rent is presently $1,247.00 per month.
No other Leased Real Property.
Item 1 can be found as exhibit 10vv.1 to this Form 8-K.
Schedule 2.10(C)
Equipment
Leased Equipment:
1. BSFS Equipment Leasing of ICS phone system, supplier BellSouth
Communications Systems, Inc. dated 12/31/1998 for term of 36 months at
473.8 per month.
2. Xerox Equipment Lease dated 3/16/99 36 months at $87.32.
3. Xerox Equipment Lease dated 3/16/99 36 months at $57.65.
4. Xerox Equipment Lease dated 3/16/99 36 months at $252.60.
5. Equipment and Inventory List
Items 1-4 can be found as exhibits 10vv.2 through 10vv.5 of this Form 8-K.
VISTA VACATIONS INTERNATIONAL
INVENTORY LIST
NORSTAR PLUS MODULAR COMMUNICATION SYSTEM (1)
PANASONIC FAX AND COPIER (1)
XEROX 5322 BLACK AND WHITE COPIER (1)
XEROX 5760 COLOR COPIER (1)
XEROX PRO 635 FAX WORK CENTER (1)
REFRIGERATOR (1)
TOASTER (1)
COFFEE MAKER (1)
TWO DRAWER BLACK FILE CABINETS (6)
SMALL WHITE FILE CABINET (1)
WORK TABLE (1)
STACKING SHELVES (4)
FOUR DRAWER BLACK LATERAL FILE CABINETS (3)
GRAY HIGH BACK EXECUTIVE CHAIR (1)
GRAY LOW BACK DESK CHAIRS (8)
TWO DRAW LAMINATED EXECUTIVE FILE CABINET (1)
MIRROR AND CABINET EXECUTIVE WALL UNIT (1)
GLASS AND DOUBLE PEDESTAL EXECUTIVE DESK (1)
IMPORTED WHITE AND SILVER PLATED VASES (2)
WHITE TATAN WING CHAIRS (2)
WHITE RATAN OCCASIONAL TABLE (1)
LARGE 8" GRAY FORMICA LAMINATE MULTI-SHELF UNITS (2)
BLACK BELL SOUTH TELEPHONE (1)
CITIZENS AND TRANZ VERIFONE CREDIT CARD TERMINAL (10)
PITNEY BOWES POSTAGE METER AND SCALE (1)
WHITE TWO SHELVE TABLE (1)
MONITOR, E MACHINE ETOWER 333 COMPUTER, KEYBOARD, PRINTERS (14)
SPEAKERS (10)
MISCELLANEOUS SOFTWARE PROGRAMS 10MEGA ZIP 1001 (3)
POWER BATTERY BACK UP (10)
ACCESSORIES (WALL HANGINGS, FLORAL ARRANGEMENTS, PLANTS ETC.)
DESK ACCESSORIES AND OFFICE SUPPLIES (CALCULATORS, WASTE BASKETS
STAPLERS, STACK FILES, ETC.)
SCANNERS (2)
HEWLETT PACKARD DESKJET 560C PRINTER (1)
102
<PAGE>
Schedule 2.11
Intellectual Property
1. Federal Trademark Elimination Search dated November 24, 1998.
No other Intellectual Property.
To: Richard Chamberlin
From: Scott B. Ugell
Date: March 11, 2000
Richard,
With regard to you question about the trademark relative to schedule Section
2.11, please be advised that while a trademark search was in fact completed, the
application for a trademark has not been completed. As such, we can provide a
copy of the search but nothing else related thereto.
Please call us when and if you need to discuss this.
/s/ Scott B. Ugell
Corporate Service Bureau, Inc.
283 Washington Avenue
Albany New York 12206
Phone (518) 463-8550
Fax (518) 463-3752
November 24, 1998
Scott Ugell
155 North Main Street
New City, NY 10956
Re: Federal Trademark Research for "Vista Vacations International" for Travel
Dear Mr. Ugell:
Enclosed please fine our comprehensive report on the Federal Trademark
Search performaed on the above mark.
In order to proceed with the Federal Trademark filing, we need you to
complete the attached worksheet and return it with a check payable to Corporate
Service Bureau, in the amount of $675.00 to file in one class. Attached is a
credit card authroization form for your convenience. Also enclosed is a
timetable for the application procedure.
Thank you.
Sincerely,
/s/ Scott J. Schuster
Corporate Service Bureau
Enclosures
103
<PAGE>
Corporate Service Bureau, Inc. Ref. No: 116283
283 Washington Avenue Client ID: 397011
Albany New York 12206 Inv. Date: November 24, 1998
Phone (518) 463-8550
Fax (518) 463-3752
Billed to:
Scott Ugell
155 N. Main Street
New City, New York 10956
Performed a Federal Trademark Elimination search from the u.s. patent &
trademark office for: VISTA VACATIONS INTERNATIONAL
SERVICE FEE $475.00
---------
Invoice Total $475.00
We have received your payment of $475.00, VIS74431-232 The credit will appear on
your monthly statement. The remaining balance due on this invoice is $0.00
Thank you - Pay this invoice upon receipt
Return copy of this invoice with your payment - write the invoice number on all
payments. Note: We guarantee our information to be as accurate as reasonable
care can make it. However, the ultimate responsibility for maintaining files
rests with the filing officer and/or government agency and we will accept no
liability beyond the exercise of reasonable care.
Biller: DMC
U.S.
PATENT & TRADEMARK
OFFICE
CORPORATE SERVICE BUREAU INC.
283 Washington Avenue
Albany, New Yor 12206
518-463-8550
Fax: 518-463-3762
Requested By: VISTA VACATIONS INTERNATIONAL
Type of Search STANDARD FEDERAL (USPTO) SEARCH
GOOD/SERVICES: TRAVEL SERVICES
DATE OF SEARCH: NOVEMBER 23, 1997
********
This report contains information from U.S. Patent and Trademark Office
Tapes received through 11/17.98.
If you have any questions about this Report, please write or call us at
(518) 463-8550.
********
Corporate Service Bureau
283 Washington Avenue
Albany, New York 12206
518-463-8550
Fax: 518-463-3762
104
<PAGE>
Schedule 2.12
Contracts and Agreements
1. Shareholders Agreement and Irrevocable Proxy for Vista Vacations
International, Inc., dated November 13, 1998, between Teri Nadler, Nellie
Tippery, Jean Hickman, Alicia Torrealba. (32 pages)
2. Amended Shareholders Agreement dated September 28, 1999, between Teri
Nadler, Nellie Tippery, Jean Hickman, Alicia Torrealba.(Four pages).
3. Letter agreement removing security interest in Vista shares by Nellie
Tipper, dated January 20, 2000.
4. Security and Pledge Agreement dated November 14, 1998, between Nellie
Tippery, Jean Hickman, Alicia Torrealba and Vista Vacations dated November
14, 1998.
5. Shareholders Agreement and Irrevocable Proxy dated January 17, 2000 between
Teri Nadler, Scott B. Ugell, Jean Hickman, Alicia Torrealba, Karyn
McKnight, Carol Nelson, and Ken Nelson. (28 pages).
6. Carnival Cruise Override Commission Agreement dated March 18, 1999. (2
pages).
7. Letter, application and membership agreement form with Vacation.com and
Vista Vacations International, Inc.
8. Pending Agreement with Dale Everly Colson as Public Relations Consultant
for $15,000 for 200 hours.
9. Agreement for Professional Services between Vista Vacations and
WRIwebs.com, Inc.
10. Superseder & Conversion Agreement with Nellie Tippery.
No other Contracts or Agreements except as disclosed in the Exhibits of
the Reorganization Agreement.
Items 1-10 can be found as Exhibit 10vv.6 through 10vv.15 of this Form 8-K.
Schedule 2.12(A)(12)
Debt & Guarantee Instruments
1. Promissory Note in favor of Nellie Tippery.
2. Cancellation of Promissory Note in favor of Nellie Tippery.
No other Debt & Guarantee Instruments.
Items 1-2 can be found as Exhibit 10vv.16 of this Form 8-K.
Schedule 2.13
Related Party Transactions
1. Teri Nadler and Scott Ugell are brother and sister.
No other Related Party Transactions.
105
<PAGE>
Schedule 2.14
Governmental Authorization
1. State of Florida Department of Agriculture, Sellers of Travel Registration
Certificate No. 00177 dated February 7, 2000, expires February 7, 2001.
2. State of Florida Broward County Occupational License for October 1, 1999
thru September 30, 2000.
3. Notice of Acceptance of S. Corporation dated March 22, 1999.
4. Corporate detail summary sheet as of January 1, 2000.
- --------------------------------------------------------------------------------
STATE OF FLORIDA
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Consumer Services
Tallahassee, Florida 32399-0800
POST CERTIFICATE
CONSPICUOUSLY
Certificate No.: 00177
Date Issued: 02/07/2000
Date Expires: 02/07/2001
Fee Amount: $300.00
SELLERS OF TRAVEL
REGISTRATION CERTIFICATE
Section 559.928, Florida Statutes
VISTA VACATIONS INTERNATIONAL, INC.
5653 NW 29 STREET
MARGATE, FLORIDA 33063
Registration No.: ST-30880 Bob Crawford
Commissioner of Agriculture
- --------------------------------------------------------------------------------
BROWARD COUNTY OCCUPATIONAL LICENSE TAX
FOR PERIOD OCTOBER 1, 1999 THRU SEPTEMBER 30, 2000
X Renewal SEC #32/328 TAX $81.00 Renew on or before
September 30, 2000
Date Business Opened: 01/28/99
Account Number 328-0001284
State or County Cert/Reg # ST 30880
Business Location Address:
5653 NW 29 ST.
MARGATE, FL 33063
Business Phone 954-975-0898
Tax ID#65-0877427 VISTA VACATIONS INTERNATIONAL INC
NADLER, TERI
5653 NW 29 ST
MARGATE, FL 33063
SELLER OF TRAVEL
- 6 UNITS -
1999-2000
Broward County Revenue Collector
115 S. Andrews Ave., Governmental Center Annex
Ft. Lauderdale, FL 33301
0 00000000 0000008100 0000003280001284 1001 0 8100 027373 07 91499
- --------------------------------------------------------------------------------
106
<PAGE>
Internal Revenue Service Date of this notice: Mar. 22, 1999
Atlanta, GA 39901
VISTA VACATIONS INTERNATIONAL INC
6645 NW 48TH MANOR
CORAL SPRINGS FL 33067-2104455
NOTICE OF ACCEPTANCE AS AN S-CORPORATION
Your election to be threated as an S-Corporation with an accounting
period of December is accepted. The election is effective beginning January 1,
1999, subject to verification if we examine your return.
If your effective date is not as requested, it will have been changed
for one of two reasons. Either your election was made after the 15th day of the
third month of the tax year to which it applies, but before the end of that tax
year, or the election period. In either case, your election is invalid for the
next tax year requested and has therefore, been treated as though it were made
for the next tax year.
Please keep this notice in your permanent records as verification of
your acceptance as an S-corporation.
If you have any questions about this notice or the actions we have
taken, please write to us at the address shown aboe. If you prefer, you may call
us at the IRS telephone number listed in your local directory. An employee there
may be able to help you; however, the office at the address shown on this notice
is most familiar with your case.
If you write to us, please provide your telephone number and the most
convenient time for us to call so we can contact you to resolve your inquiry.
Please return the bottom part of this notice to help us identify your case.
Thank you for your cooperation.
107
<PAGE>
CORPORATE DETAILS
As at January 1, 2000
Date of incorporation: November 12, 1998
State of Incorporation: Florida
Principal Place of Business: Florida
Chairperson: Scott Ugell Director:
Director: Teri Nadler Director: Scott Ugell
Officers:
President Teri Nadler
Vice-President: Scott Ugell
Secretary Alicia Torrealba
Treasurer Jean Hickman
Bank Accounts: 2000004895840/9982760113
Fiscal Year: January 1 - 12/31
Annual Meeting Date: Ooctober 8th
Attorney: Scott Ugell
Accountant: Howard Kent
Registered Agent: Teri Nadler
Shareholders Number of Shares
------------ ----------------
Teri Nadler 765
Scott Ugell 400
Jean Hickman 180
Alicia Terrealba 60
M/M Nelson 75
Karen McKnight 20
Schedule 2.15
Litigation
1. No Litigation Pending.
2. No Potential Litigation Pending.
Schedule 2.19
Brokers' and Finders' Fee
1. No Broker's fees or Finder's fees.
108
<PAGE>
Schedule 2.20
List of Employees and Independent Agents
Teri E. Nadler, President and Chief Executive Officer
6645 NW 45th
Coral Springs, Florida 33062
Scott Ugell, General Counsel and Chief Legal Officer
155 N. Main Street
New City, New York 10956
Jean Hickman, Executive Vice President of Operations and Finance
3780 SW 19th Street
Fort Lauderdale, Florida 33312
Alicia Torrealba, Executive Director of CLIA
1985 S. Ocean Drive, Apartment 11-A
Hallendale, Florida 33309
Karyn McKnight, Executive Director of Field Sales
10020A Main Street, Suite 177
Bellvue, Washington 98004
Trevor Grafflin, Inside Sales
22940 C. Oxford Place
Boca Raton, Florida 33433
Jay Lovins, Inside Sales
2037 Champions Way
North Lauderdale, Florida 33068
List of Independent Agents.
SOURCE CODES & DESCRIPTIONS
CODE DESCRIPTION ACTIVE
630 HOUSE ACCT YES
F111 Brant/Evelyn YES
F112 SCHWARTZ/Charles & K YES
F113 Brody/Melvin & M YES
F114 Bolich/Mayson & D YES
F115 Goldberg/Robert & T YES
F116 Fulton/Paul & Nancy YES
F117 Boyd/Bob & Deloryce YES
F118 Teitler/Herman & C YES
F119 McCormack/S & Nolan YES
F120 Janzen/Marvin & E YES
F121 Woodward/Donna YES
F122 Barker/Roy & Patty YES
F123 Gray/Kathy & David R. YES
F124 Fette/Judy YES
F125 Wallace/.Marilyn & S YES
F126 Snow/Rob & Max YES
F127 Crane/Vicky & N YES
F128 Crane/Jerry & Sue YES
F129 Ellingson/Eunice & R YES
F130 Cullen/D YES
F131 Berman/Lewis & Barbar YES
F132 Nelson/John & Sue YES
F133 McDougal/Bev YES
F134 Smith/Chris YES
F135 Longden/Albert YES
F136 Tennell/Lenoir YES
F137 Wampler/Joyce YES
F138 Maio/Don & Nancy YES
F139 Tippery/Wayne YES
F140 Horton/Art & Susan YES
F141 Levine/Doreen YES
F142 Manley/Carolyn YES
F143 Sanchez/Valentina YES
F144 Meyers/Christine YES
F145 VACANT NO
F146 Pirrie/Beth YES
F147 Kasman/Ed & Miriam YES
F148 Burns/Eugene & Doris YES
F149 Hasson/Betty & Doris YES
F150 Knorr/Mell & Betty YES
109
<PAGE>
F151 Wells/Bob & Joan YES
F152 Goodman/Harold & S YES
F153 Turner/Yvonne & G YES
F154 Green/Roz & McNab S YES
F155 Whitmer/Mary & Jim YES
F156 Thorp/Dixie YES
F157 Kelly/Bruce & Havens/D YES
F158 Feist/Gloria & Donald YES
F159 Vacant NO
F160 Vacant NO
F161 Vacant NO
F162 Sobel/Vicki & Nathan YES
F163 Knight/Arlene YES
F164 Arberle/Helen YES
F165 Pelligrini/Susan & M YES
F166 Gadman/Dan & Jacquelin YES
F167 Kiss/Louise & Charle YES
F168 Flowers/Joyce YES
F169 Bauersfield/Bunny YES
F170 Leveque/Rochelle YES
F171 Benz/Shirley & Robert YES
F172 Engelter/Barbara YES
F173 Barnett/C E YES
F174 VACANT NO
F175 VACANT NO
F176 Wagner/Doris & Ralph YES
F177 Stillwell/Veda & R YES
F178 Covey/Nancy & Christa YES
F179 VACANT NO
F180 Gooch/J & D Cook YES
F181 Hofmann/Marilyn & F YES
F182 Howe/Robert & June YES
F183 Barclay/David & J YES
F184 Brietenfeldt/Don & Bev YES
F185 Olsson/Ulla YES
F186 McCormick/Janice YES
F187 Bongolan/N& Sanchez V YES
F188 VACANT NO
F189 Stillwell/Ken & Lorrai YES
F190 Liberman/Cindy & B YES
F191 Bernstein/Edgar & Trud YES
F192 Gorham/Art YES
F193 Town/Roberta & Doug YES
F194 Voll/Nancy & Ed YES
F195 Futch/Cleveland & R YES
110
<PAGE>
F196 Criss/Marti & Loren YES
F197 Dewar/John & Irene YES
F198 VACANT NO
F199 VACANT NO
F200 VACANT NO
P101 Lange/Dean & Lois YES
P102 Markey/Jennifer YES
P103 Gunderson/Ken & Lori YES
P104 Havens/Carol & Dan YES
P105 Shumway/Rhonda YES
P106 Slof/Barbara & Marvin YES
P107 Omdal/Desiree & L YES
P108 Williamson/Darlene & B YES
P109 Tippery/Nellie YES
P110 Goodmenson/Sharon YES
TAU NO
UNI NO
V201 Vance/Betty YES
V202 Slof/Randy & Carolyn YES
V203 Matthes/Janine YES
V204 Ingram/Nancy YES
V205 Gunderson/Bernard YES
V206 Colbert/Elba & Varga YES
V207 Stonberg/Marvin & S YES
V208 Saba/Pamela & Cohn YES
V209 Dunkin/Ester & Klein YES
V210 Goodwin/James YES
V211 Nelson/Ken & Carol YES
V212 Afshar/Mahmunir YES
V213 McDevitt/Patricia YES
V214 Lawrence/Thomas YES
V215 Miller/Pamela, Dr. YES
V216 Crane/Greg & Orner/L YES
V217 Brewer/Dorothy YES
V218 Pirkle/Randle & Carol YES
V219 Abaroa/Mildred YES
V220 Nance/Donna YES
V221 Kantor/Karen & Hunte YES
V222 McKnight/Dean YES
V223 Davidoff/Sid & Rovello YES
V224 Wright/Meredith & Elsw YES
V225 Erkind/Ken & Lynnea YES
V226 Burke/Carolyn & John YES
V227 Holmes/Robert & Lore YES
V228 Zarider/Frank YES
111
<PAGE>
V229 Kay/Doug Dr. & Dixon YES
V230 Peel/Don & Carolyn YES
V231 Neilson/Rex YES
V232 Hilliard/David & Eliz YES
V233 Swords/Verla & John YES
V234 Bench/Gary YES
V235 Madsen/Shelly YES
V236 Friedman/Gary & Leiman YES
V237 Galt/Cleora & Robert YES
V238 Murakami/Masako & Stan YES
V239 Link-McDonald/Judith YES
V240 Ramsey/Linda YES
V241 McCollum/Phillip & M YES
V242 Kushner/Joseph & Dolor YES
V243 Nabatoff/Goldie & Ro YES
V244 Harris/Pamela YES
V245 Bitney/Dean YES
V246 Sherman/Colleen/John YES
V247 Hughes/Randy YES
V248 Reisman/Carl/Claire YES
V249 Zane/Alan/Susan YES
V250 Brunshow/Erik & Lorr YES
V251 Cable/Jeff/Lynne YES
V252 Doctor/Janice/Michael YES
V253 Herring/Pearson YES
V254 Caswell/Marilyn YES
V255 VACANT NO
V256 Dekoker/Maria YES
V257 King/Edward & Barbara YES
V258 Makeeff/Mary YES
V259 Maryasis/Isaac & Olg YES
V260 Armacost/Wm & Cather YES
V261 Kennedy/David & L Swe YES
V262 Hughes/Donald & Loui YES
V263 Crespin/Sol & Ruth YES
V264 Bookman/Dianne & J Hul YES
V265 Albert/Allen YES
V266 Galperine/Maria & Mich YES
V267 Bronstein/Balla & Ilya YES
V268 Martineau/Roberta YES
V269 Greenberg/Lana & Jacob YES
V270 York/Agnes & James YES
V271 Suter/Kris & Jessica YES
V272 McWhorter/Joe & Paulin YES
V273 Hutcherson/Wallace & W YES
112
<PAGE>
V274 Hogan/Felicia YES
V275 Mason/Carl YES
V276 Haley/Ana & George YES
V277 Wallace/Carlos YES
V278 Hoda/Fairideh & Linda YES
V279 Wagner/Lynn & Carol YES
V280 Wasko/Joan & Joseph YES
V281 Allison/Rosalie & Don YES
V282 Brooks/Thelma YES
V283 Applegate/Audrey YES
V284 Roseberry/Mark YES
V285 Vanier/Denis YES
V286 Klein/W Pls 3 Assoc YES
V287 Fisch/Shirley & Alvin YES
V288 Carberry/John & Katherine YES
V289 Tufford/Laverne & Phyl YES
V290 Nelson/Patsy & Gary YES
V291 Elliott/Nyta & Jerrold YES
V292 Wampler/Joyce YES
V293 Murray/Stanley & Hilde YES
V294 Ricketts/David & Jeani YES
V295 Rucker/Marcelene YES
V296 Watson/Bernice YES
V297 Wilkerson/Joyce YES
V298 Berardi/Dennis/Carol YES
V299 Leung/Susan YES
V300 Moore/Stephanie YES
V301 Vanderwalker/Sue YES
V302 Grafflin/Ray/Celia YES
V303 Grafflin/Steven/Ann YES
V304 Broadbridge/Corinne YES
V305 Grafflin/Trevor/Marl YES
V306 Grafflin/Mark/Jan YES
V307 Beven/Jason/Kate YES
V308 Broadbridge/Chris/Al YES
V309 Grafflin/Janine/Hayl YES
V310 Ladd/Ian/Ruth YES
V311 Ladd/Ken/Heather YES
V312 Ugell/Scott/Rhonda YES
V313 Ugell/Shi/Jac/Rac/Ml YES
V314 Lovins/jay YES
V315 Barbie/McKinney YES
V316 Mason/James/Tonya YES
V317 Lovins/Louis/Naomi YES
V318 Young/Mike/Tammey YES
113
<PAGE>
V319 Simpson/Jeff/Belinda YES
V320 Plough/Carol/Bob YES
V321 Adkins/Jerry/Barbara YES
V322 Lovins/Dale/Mary YES
V323 Lenihan/John YES
V324 McCary/Shann/Melissa YES
V325 Mason/Linda/James YES
V326 Schmidt/Nancy/John YES
V327 Brewer/Doris/John YES
V328 Chetti/Barbara YES
V329 Adkins/Kerry YES
V330 Wood/Donna/Russell YES
V331 Curry/Larry YES
V332 Davis/Jay/Melinda YES
V333 Mathies/Kim YES
V334 Franklin/Jodi/Todd YES
V335 Bercaw/Mike/Jodie YES
V336 Sedberry/Mike/Michel YES
V337 Clint/John/Gwen YES
V338 Clint/Dan/Dwight YES
V339 Kiedinger/Tim/Kar/Sa YES
V340 Kiedinger/Patsy YES
V341 Hickman/Kieth/Krissy YES
V342 Clay/Patsy/Keith YES
V343 Wright/Lynn/Floyd YES
V344 Ewing/Cleta YES
V345 Crane/Betty/.Melvin YES
V346 Crane/Mike/Rhonda YES
V347 Crane/Melody YES
V348 Crane/Danny YES
V349 Crane/Mike YES
V350 Davis/Stephany YES
V351 Thomas/Murphy/Mary YES
V352 Herring/Yvonne/Sharo YES
V353 Kaufman/Jack YES
V354 Ugell/Marc/Marci YES
114
<PAGE>
Schedule 2.21
Insurance
1. Premium Finance Agreement dated February 2, 2000, in the amount of
$3,420.06 financing $2,565.04 in 10 payments of $274.82. (For Preferred
National Insurance.)
2. Insurance Policies with Preferred National Insurance Company dated February
3, 2000.
3. Group Health Insurance Policy with United Wisconsin Life Insurance Company
dated June 1, 1999, through June 1,2000.
4. Comp Options Workers Compensation and Employers Liability Policy dated
December 12, 1999.
5. Scott Ugell's Malpractice Insurance and Professional Liability Policy with
Bertholan-Rowland, policy number 301691-0 dated May 5, 1999 to May 1, 2000.
No additional Insurance Policies.
Items 1-5 can be found as Exhibit 10vv.17 through 10vv.19 of this Form 8-K.
Schedule 2.27
Employee Benefit Plans
NONE
Schedule 2.28
Distribution Agreements
NONE
Schedule 4.1
Exceptions to Prohibited Pre-Closing Actions
Schedule 5.7
Consents
NONE
Schedule 5.8
Affiliates
1. Teri E. Nadler
2. Scott Ugell
3. Ken Nelson & Carol Nelson
4. Jean Hickman
5. Alicia Torrealba
6. Karyn McKnight
7. Nellie Tippery
Schedule 5.12
List and Summary of Employment Agreements
and Confidentiality Agreements.
1. Teri E. Nadler, President and Chief Executive Officer
2. Scott Ugell, General Counsel and Chief Legal Officer
3. Jean Hickman, Treasurer and Chief Financial Officer
4. Alicia Torrealba, Secretary
5. Karyn McKnight
6. Trevor Grafflin
7. Jay Lovins
115
<PAGE>
Schedule 5.13
Use of Proceeds
March 8, 2000
Re: Use of Proceeds for Vista Vacations International, Inc. for $650,000
<TABLE>
<S> <C> <C> <C>
Description First Payment Second Payment Third - Sixth Payment
Office Equipment $3,200 $2,000 $0
Payroll-Marketing $15,000 $15,000 $15,000
Public Relations $4,500 $4,500 $4,500
Entertainment $4,300 $5,000 $5,000
Audit Expense $15,000 $2,500 $2,500
Telephone Expenses $4,500 $4,500 $4,500
Advertising $6,000 $6,000 $6,000
Postage $2,500 $2,500 $2,500
Printing $3,500 $3,500 $3,500
Working Capital $11,500 $44,500 $27,500
Scott Ugell $25,000 $0 $0
WRIwebs.com $30,000 $30,000 $30,000
TOTAL $125,000 $125,000 $100,000
</TABLE>
* Teri Nadler returns $25,000 as a shareholder loan in cash immediately post
closing
116
<PAGE>
Schedule 5.14
Projections
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
APR MAY JUN JUL AUG SEP OCT NOV DEC JAN FEB MAR YEARLY TOTAL
Agents Added 19 21 30 55 40 80 124 134 78 115 135 140 971
Total Agents 438 459 489 544 584 664 788 922 1000 1115 1250 1390
REVENUES
TRAVEL:
TRAVEL 75000 70000 75000 80000 60000 70000 80000 90000 50000 110000 110000 120000 990000
CLIA 125000 112500 162500 25000 162500 162500 162500 912500
TRAVEL INS. 2625 2450 2625 2800 2100 2450 2800 3150 1750 3850 3850 4200 34650
-------------------------------------------------------------------------------------------------------
TTL TRAVEL 77625 72450 77625 82800 62100 197450 195300 255650 76750 276350 276350 286700 1787150
ENROLLMENT:
ENROLLMENT 7600 8400 12000 22000 16000 32000 49600 53600 31200 46000 54000 56000 388400
RENEWAL 11150 11570 800 2230 6100 1065 4130 37045
PRINTING 1520 1680 2400 4400 3200 6400 9920 10720 6240 9200 10800 66480
TRAINING 205260 205260
-------------------------------------------------------------------------------------------------------
TTL ENROLLMENT 7600 9920 13680 24400 31550 46770 56800 65750 41920 58340 269525 626255 1252510
WEB AND OTHERS:
WEB ADVERTISING 4000 4000 8000 8000 12000 36000
WEB REPLICA SITE 3000 5000 10000 5000 3000 10000 10000 4000 50000
WEB LOCATION SITES 5000 10000 12500 17500 22500 25000 30000 32000 37000 42000 47000 280500
--------------------------------------------------------------------------------------------------------
TTL WEB & OTHER 0 5000 10000 15500 22500 32500 30000 37000 36000 55000 60000 63000 366500
TOTAL REVENUES 85225 87370 101305 122700 116150 276720 282100 358400 154670 389690 605875 975955 975955
REVENUES COSTS:
TRAVEL:
TRAVEL COST 0 61600 66000 70400 52800 61600 70400 79200 44000 96800 96800 105600 805200
CLIA COST 0 0 0 0 0 81000 81000 81000 81000 81000 81000 486000
TRAVEL INS. 2100 1960 2100 2240 1680 1960 2240 2520 1400 3080 3080 3360 27720
COMMISSIONS 131 4323 4631 4940 3705 4323 4940 5558 3088 6793 6793 7410 56633
-------------------------------------------------------------------------------------------------------
TTL TRAVEL COSTS 2231.3 67883 72731 77580 58185 148883 158580 168278 48488 187673 187673 197370 1375553
ENROLLMENT:
CLIA 950 1050 1500 2750 2000 4000 6200 6700 3900 5750 6750 7000 48550
COMMISSIONS 1140 1260 1800 3300 2400 4800 7440 8040 4680 6900 8100 8400 58260
-------------------------------------------------------------------------------------------------------
TTL ENROLLMENT 2090 2310 3300 6050 4400 8800 13640 14740 8580 12650 14850 91410 106810
WEB AND OTHERS:
WEB ADVERTISING
WEB REPLICA SITE 0 0 0 2535 4225 8450 4225 2535 0 8450 8450 3380 42250
WEB LOCATION SITE 0 2500 5000 6250 8750 11250 12500 15000 16000 18500 21000 23500 140250
PRINTING 0 798 882 1260 2310 1680 3360 5208 5628 3276 4830 5670 34902
TRAINING CONF. 156500 156500
----------------------------------------------------------------------------------------
TTL WEB AND OTHERS 0 3298 5882 10045 15285 21380 20085 22743 21628 30226 190780 341352 373902
TOTAL COST OF REVENUES 4321.3 73491 81913 93675 77870 179063 192305 205761 78696 230549 393303 630132 630132
GROSS PROFIT 80904 13880 19392 29025 38280 97658 89795 152640 75975 159142 212573 345823 1315084
LESS: 0
OPERATING COSTS 0
FROM PAGE 2 51,343 54,584 56,797 57,823 67,144 74,864 60,241 66,312 58,112 64,928 64,554 77,309 754,011
NET INCOME 29,561 -40,705 -37,405 -28,798 -28,864 -27,207 29,581 36,327 17,863 44,213 148,018 98,001 -23,025
</TABLE>
117
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
VISTA VACATIONS
YEAR 2 4/1/01-3/31/02
APR MAY JUN JUL AUG SEP OCT NOV DEC JAN FEB MAR YEARLY
TOTAL
Agents Added 100 80 60 75 45 90 100 100 50 90 150 150 1,090
Total Agents 1,183 1,263 1,323 1,398 1,443 1,533 1,633 1,733 1,783 1,873 2,023 2,173
REVENUES
TRAVEL:
TRAVEL 177,450 189,450 198,450 209,700 216,450 153,300 244,950 259,950 178,300 280,950 303,450 325,950 2,738,350
CLIA 150,000 150,000 150,000 150,000 150,000 150,000 900,000
TRAVEL INS. 6,211 6,631 6,946 7,340 7,576 5,366 8,573 9,098 6,241 9,833 10,621 11,408 95,842
--------------------------------------------------------------------------------------------------------------------
TTL TRAVEL 183,661 196,081 355,396 217,040 224,026 158,666 403,523 419,048 184,541 440,783 464,071 487,358 3,734,192
ENROLLMENT:
ENROLLMENT 40,000 32,000 24,000 30,000 18,000 36,000 40,000 40,000 20,000 36,000 60,000 60,000 436,000
RENEWAL 1,881 2,079 1,980 5,445 14,120 18,500 9,116 8,863 3,762 13,030 9,480 13,139 101,395
PRINTING 7,280 8,000 6,400 4,800 6,000 3,600 7,200 8,000 8,000 4,000 7,200 12,000 82,480
TRAINING 205,260 205,260 410,520
--------------------------------------------------------------------------------------------------------------------
TTL ENROLLMENT 49,161 42,079 32,380 40,245 38,120 58,100 261,576 56,863 31,762 53,030 281,940 85,139 1,030,395
WEB AND OTHERS:
WEB ADVERTISING 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 144,000
WEB REPLICA SITE 5,000 4,000 3,000 3,750 2,250 4,500 5,000 5,000 2,500 4,500 7,500 7,500 54,500
WEB LOCATION
SITES 11,830 12,630 13,230 13,980 14,430 15,330 16,330 17,330 17,830 18,730 20,230 21,730 193,610
--------------------------------------------------------------------------------------------------------------------
TTL WEB & OTHER 28,830 28,630 28,230 29,730 28,680 31,830 33,330 34,330 32,330 35,230 39,730 41,230 392,110
TOTAL REVENUES 261,652 266,790 416,006 287,015 290,826 248,596 698,429 510,241 248,633 529,043 785,741 613,727 5,156,697
REVENUES COSTS:
TRAVEL:
TRAVEL COST 156,156 166,716 174,636 184,536 190,476 134,904 215,556 228,756 156,904 247,236 267,036 286,836 2,409,748
CLIA COST - - 108,000 - - - 108,000 108,000 - 108,000 108,000 108,000 648,000
TRAVEL INS. 4,969 5,305 5,557 5,872 6,061 4,292 6,859 7,279 4,992 7,867 8,497 9,127 76,674
COMMISSIONS 10,958 11,699 12,254 12,949 13,366 9,466 15,126 16,052 11,010 17,349 18,738 20,127 169,093
------------------------------------------------------------------------------------------------------------------
TTL TRAVEL COSTS 172,082 183,719 300,447 203,357 209,902 148,663 345,540 360,087 172,906 380,451 402,271 424,090 3,303,515
ENROLLMENT:
CLIA 4,550 5,000 4,000 3,000 3,750 2,250 4,500 5,000 5,000 2,500 4,500 7,500 51,550
COMMISSIONS 6,000 4,800 3,600 4,500 2,700 5,400 6,000 6,000 3,000 5,400 9,000 9,000 65,400
-------------------------------------------------------------------------------------------------------------------
TTL ENROLLMENT 10,550 9,800 7,600 7,500 6,450 7,650 10,500 11,000 8,000 7,900 13,500 16,500 116,950
WEB AND OTHERS:
WEB ADVERTISING
WEB REPLICA SITE 4,225 3,380 2,535 3,169 1,901 3,803 4,225 4,225 2,113 3,803 6,338 6,338 46,053
WEB LOCATION SITE 5,915 6,315 6,615 6,990 7,215 7,665 8,165 8,665 8,915 9,365 10,115 10,865 96,805
PRINTING 3,822 4,200 3,360 2,520 3,150 1,890 3,780 4,200 4,200 2,100 3,780 6,300 43,302
TRAINING CONF. 156,500 156,500 313,000
------------------------------------------------------------------------------------------------------------------
TTL WEB AND
OTHERS 13,962 13,895 12,510 12,679 12,266 13,358 172,670 17,090 15,228 15,268 176,733 23,503 499,160
TOTAL COST OF
REVENUES 196,594 207,414 320,557 223,535 228,619 169,670 528,710 388,177 196,134 403,619 592,503 464,093 3,919,624
GROSS PROFIT 65,058 59,376 95,449 63,479 62,207 78,925 169,719 122,065 52,499 125,424 193,238 149,635 1,237,073
LESS:
OPERATING COSTS
FROM PAGE 2 68,595 77,505 80,145 77,175 82,015 79,986 79,966 85,606 76,406 83,766 80,736 80,006 951,906
NET INCOME (3,537) (18,129) 15,304 (13,696)(19,808) (1,061) 89,753 36,459 (23,907) 41,658 112,502 69,629 285,166
</TABLE>
118
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
VISTA VACATIONS
YEAR 3 4/1/02-3/31/03
APR MAY JUN JUL AUG SEP OCT NOV DEC JAN FEB MAR YEARLY
TOTAL
Agents Added 70 90 60 60 90 90 80 60 50 90 90 120 950
Total Agents 2,259 2,349 2,409 2,469 2,559 2,649 2,729 2,789 2,839 2,929 3,019 3,139
REVENUES
TRAVEL:
TRAVEL 250,600 210,800 230,400 245,300 383,850 175,200 285,000 290,000 190,500 310,000 375,000 350,000 3,296,650
CLIA 75,000 200,000 250,000 150,000 150,000 150,000 150,000 1,125,000
TRAVEL INS. 8,771 7,378 8,064 8,586 13,435 6,132 9,975 10,150 6,668 10,850 13,125 12,250 115,383
----------------------------------------------------------------------------------------------------------------------
TTL TRAVEL 259,371 218,178 313,464 253,886 397,285 381,332 544,975 450,150 197,168 470,850 538,125 512,250 4,537,033
ENROLLMENT:
ENROLLMENT 33,530 43,110 28,740 28,740 43,110 43,110 38,320 28,740 23,950 43,110 43,110 57,480 455,050
RENEWAL 9,900 7,920 5,940 7,425 4,455 8,910 9,900 9,900 4,950 8,910 14,850 13,139 106,199
PRINTING 10,500 5,600 7,200 4,800 4,800 7,200 7,200 6,400 4,800 4,000 7,200 7,200 76,900
TRAINING 375,000 205,260 205,260 785,520
----------------------------------------------------------------------------------------------------------------------
TTL ENROLLMENT 53,930 431,630 41,880 40,965 52,365 59,220 260,680 45,040 33,700 56,020 270,420 77,819 1,423,669
WEB AND OTHERS:
WEB ADVERTISING 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 12,000 144,000
WEB REPLICA SITE 9,500 4,500 4,000 5,000 8,500 9,500 8,000 6,000 4,000 6,000 8,000 9,000 82,000
WEB LOCATION
SITES 22,590 23,490 24,090 24,690 25,590 26,490 27,290 27,890 28,390 29,290 30,190 31,390 321,380
----------------------------------------------------------------------------------------------------------------------
TTL WEB & OTHER 44,090 39,990 40,090 41,690 46,090 47,990 47,290 45,890 44,390 47,290 50,190 52,390 547,380
TOTAL REVENUES 357,391 689,798 395,434 336,541 495,740 488,542 852,945 541,080 275,258 574,160 858,735 642,459 6,508,082
REVENUES COSTS:
TRAVEL:
TRAVEL COST 220,528 185,504 202,752 215,864 337,788 154,176 250,800 255,200 167,640 272,800 330,000 308,000 2,901,052
CLIA COST - - 54,000 - - 144,000 180,000 108,000 - 108,000 108,000 108,000 810,000
TRAVEL INS. 7,017 5,902 6,451 6,868 10,748 4,906 7,980 8,120 5,334 8,680 10,500 9,800 92,306
COMMISSIONS 15,475 13,017 14,227 15,147 23,703 10,819 17,599 17,908 11,763 19,143 23,156 21,613 203,568
-----------------------------------------------------------------------------------------------------------------------
TTL TRAVEL
COSTS 243,019 204,423 277,430 237,880 372,239 313,900 456,379 389,228 184,737 408,623 471,656 447,413 4,006,926
ENROLLMENT:
CLIA 4,550 3,500 4,500 3,000 3,000 4,500 4,500 4,000 3,000 2,500 4,500 4,500 46,050
COMMISSIONS 4,200 5,400 3,600 3,600 5,400 5,400 4,800 3,600 3,000 5,400 5,400 7,200 57,000
-----------------------------------------------------------------------------------------------------------------------
TTL ENROLLMENT 8,750 8,900 8,100 6,600 8,400 9,900 9,300 7,600 6,000 7,900 9,900 11,700 103,050
WEB AND OTHERS:
WEB ADVERTISING
WEB REPLICA SITE 8,028 3,803 3,380 4,225 7,183 8,028 6,760 5,070 3,380 5,070 6,760 7,605 69,290
WEB LOCATION
SITE 11,295 11,745 12,045 12,345 12,795 13,245 13,645 13,945 14,195 14,645 15,095 15,695 160,690
PRINTING 5,513 2,940 3,780 2,520 2,520 3,780 3,780 3,360 2,520 2,100 3,780 3,780 40,373
TRAINING CONF. 281,250 156,500 156,500 594,250
----------------------------------------------------------------------------------------------------------------------
TTL WEB AND
OTHERS 24,835 299,738 19,205 19,090 22,498 25,053 180,685 22,375 20,095 21,815 182,135 27,080 864,603
TOTAL COST
OF REVENUES 276,604 513,061 304,735 263,570 403,136 348,853 646,364 419,203 210,832 438,338 663,691 486,193 4,974,579
GROSS PROFIT 80,787 176,737 90,699 72,971 92,604 139,689 206,581 121,878 64,425 135,823 195,044 156,267 1,533,503
LESS: -
OPERATING COSTS -
FROM PAGE 2 76,195 85,245 87,225 86,083 91,523 86,908 86,708 92,788 83,278 95,602 90,652 90,462 1,052,669
NET INCOME 4,592 91,492 3,474 (13,112) 1,081 52,781 119,873 29,090 (18,853) 40,221 104,392 65,805 480,834
</TABLE>
119
<PAGE>
Schedule 6.3(M)
Non-Accredited Investors
NONE
Exhibit 2.25
The Form 8-K Information
This exhibit has been provided to AmeriNet's General Counsel and
President under separate cover, and by their initials on the bottom of this
page, such receipt is hereby acknowledged.
No later than March 17, 2000 Vista Vacations, Inc., by and through
their General Counsel will provide any additional information necessary for the
timely filing of the Form 8-K that it is to filed with the Securities and
Exchange Commission no later than March 27, 2000.
Exhibit 5.8
Affiliate Agreements
Signed Affiliate Agreements for the following persons are attached.
1. Teri E. Nadler
2. Scott Ugell
3. Ken Nelson & Carol Nelson
4. Jean Hickman
5. Alicia Torrealba
6. Karyn McKnight
7. Nellie Tippery
Items 1-7 can be found as exhibit 10vv.20 through 10vv.26 of this Form 8-K.
Exhibit 5.12
Employment Agreements
1. Teri E. Nadler
2. Scott Ugell
3. Jean Hickman
4. Alicia Torrealba
5. Karyn McKnight
Items 1-5 can be found as exhibit 10vv.27 through 10vv.31 of this Form 8-K.
120
<PAGE>
Exhibit 6.2(D)
AmeriNet Legal Opinion
1. Legal Opinion by G. Richard Chamberlin, Esq.
2. Tax Opinion by G. Richard Chamberlin, Esq.
AmeriNet Group.com, Inc.
A publicly held Delaware corporation
Michael Harris Jordan
President & Chief Executive Officer
Vanessa H. Lindsey
Secretary
G. Richard Chamberlin, Esquire
Acting General Counsel
Michael Harris Jordan G. Richard Chamberlin
Anthony Q. Joffe Saul B. Lipson
Edward C. Dmytryk Penny L. Adams Field
J. Bruce Gleason Michael A. Caputa
Carol A. Berardi Dennis A. Berardi
------
Board of Directors
Wriwebs.com, Inc.
245 North Ocean Boulevard, Suite 201
Deerfield Beach, Florida 33441
Telephone (954) 360-0636; Fax (954) 943-4046
Web site and e-mail www.wriwebs.com
---------------
Trilogy International, Inc.
526 Southeast Dixie Highway; Stuart, Florida 34494
Telephone (561) 781-7278; Fax (561) 781-7282
Web site and e-mail www.trilogyonline.com;
----------------------
Operating Subsidiaries
1941 Southeast 51st Terrace
Ocala, Florida 34471
Telephone (352) 694-6714
Fax (352) 694-9178
e-mail, [email protected]
Crystal Corporate Center
2500 North Military Trail, Suite 225-C
Boca Raton, Florida 33487
Telephone (561) 998-3435
Fax (561) 998-3425
e-mail [email protected]
Respond to Boca Raton address
March 10, 2000
Teri Nadler, President
Vista Vacations International, Inc.
5653 NW 29th Street
Margate, Florida 33063
Fax (954-975-8447)
Re: Opinion of Counsel
Dear Ms. Nadler:
We have acted as counsel to AmeriNet Group.com, Inc., a Delaware
corporation ("AmeriNet") in connection with the Reorganization Agreement between
AmeriNet, (the "Acquiror"), and Vista Vacation International, Inc. ("Vista
Vacation") dated February 28, 2000. We are providing this opinion to you
pursuant to Section 6.2(D) of the Reorganization Agreement. Capitalized terms
used but not otherwise defined herein shall have the meanings given them in the
Reorganization Agreement.
A. Basis of Opinion
In rendering the following options, we have reviewed copies of each of the
following documents:
1. The Reorganization Agreement, including the disclosure schedules and
exhibits thereto;
121
<PAGE>
2. The Certificate of Incorporation, as amended, and the Bylaws of
AmeriNet;
3. The Company is in Good Standing pursuant to Certificate of Good
Standing issued by the Delaware Secretary of State, dated February 23,
2000;
4. Minutes of proceedings of the Board of Directors of AmeriNet with
respect to the Reorganization Agreement duly adopted at a meeting of
the Board of Directors of the AmeriNet held on February 24, 2000.
5. Minutes of proceedings of the Board of Directors of AmeriNet with
respect to the form for the Vista Stockholder Affiliate Agreements
duly adopted at a meeting of the Board of Directors of the AmeriNet
held on March 8, 2000.
6. Certificate of Counsel for Vista Vacation dated as of the date of this
letter;
7. Officers' representations found in the body of the Reorganization
Agreement.
8. Such other agreements and documents and such matters of law as we have
considered necessary or appropriate for the expression of the opinions
contained herein.
The Reorganization Agreement and the other documents and information
referred to in this Section A are collectively referred to as the "Transaction
Documents."
B. Assumptions
This opinion has been prepared and is to be construed in accordance with
the Report on Standards for Florida Opinions dated April 8, 1991, as amended and
supplemented, issued by the Business Law Section of the Florida Bar, 46 The
Business Lawyer, No. 4 (the "Report"). The Report is incorporated by reference
into this opinion letter.
In rendering the following opinions, we have made no assumptions other than
those set forth in the Report, the assumption that the Company complies with all
laws and regulations relating to multi-level marketing, or those in the opinions
below.
C. Opinions
Based solely upon our examination and consideration of the foregoing
Transaction Documents, and in reliance thereon, and subject to the comments,
assumptions, exceptions, qualifications and limitations set forth in the Report,
we are of the opinion that:
1. AmeriNet is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware. AmeriNet is
duly authorized to conduct business and is in good standing under the
laws of each jurisdiction where such qualification is required, and
where, to our knowledge, the lack of such qualification would not have
a material adverse effect on the financial condition of AmeriNet and
its subsidiaries taken as a whole (a "Material Adverse Effect"). We do
not pass upon qualification in any other state where the Agreement is
void or voidable due to lack of qualification.
2. AmeriNet has the corporate power and authority to carry on the
business in which it is engaged and to own and use the properties
owned and used by it.
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<PAGE>
3. As of the date hereof, AmeriNet has two subsidiaries, Wriwebs.com,
Inc., f/k/a American Internet Technical Center, Inc., a Florida
corporation, and Trilogy International, Inc. a Florida corporation.
AmeriNet is the sole stockholder of both subsidiaries..
4. The authorized capital stock of AmeriNet consists of 20,000,000 shares
of Common Stock and 5,000,000 of Preferred Stock, of which there are
outstanding 10,663,460 shares of Common Stock shares of Common Stock
and 0 shares of Preferred Stock. There are 5,876,814 shares of common
stock reserved for future issuances.
5. All of the issued and outstanding shares of Common Stock have been
duly authorized and are validly issued, fully paid, and nonassessable.
6. The Reorganization Agreement and the transactions contemplated thereby
have been duly authorized by all necessary corporate action on the
part of AmeriNet. AmeriNet has the full power and authority, corporate
and otherwise, to execute and deliver the Reorganization Agreement and
to assume and perform all of its obligations thereunder. The
Reorganization Agreement has been duly executed and delivered by
AmeriNet and constitutes a legal, valid, and binding obligation of
AmeriNet, enforceable against AmeriNet in accordance with its terms. .
7. Neither the execution and the delivery of the Reorganization
Agreement, nor the consummation of the transactions contemplated
thereby, will (i) to our knowledge, violate any material statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which AmeriNet is subject (ii) violate any provision of the
Certificate of Incorporation or Bylaws of AmeriNet or (iii) to our
knowledge, conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under
any agreement, contract, lease, license, instrument or other
arrangement to which AmeriNet is a party or by which it is bound or to
which any of its assets is subject (or result in the imposition of any
security interest upon any of the assets), except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, or failure to give notice would not have a Material
Adverse Effect. Other than in connection with the provisions of the
Florida Business Corporation Act, or as otherwise contemplated by the
Reorganization Agreement, AmeriNet is not required to give any notice
to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for
AmeriNet to consummate the transactions contemplated by the
ReorganizationAgreement.
8. To our knowledge, no judgment is presently filed of record against
AmeriNet and there is no litigation, arbitration, investigation,
inquiry or other proceedings by or before any federal, state, county
or other local governmental agency or authority, or by any other
person or entity pending, or that would materially adversely affect
AmeriNet's ability to perform its obligations as set forth in the
Transaction Documents and we have no knowledge of any material basis
for any such litigation, proceeding, arbitration, claim,
investigation, inquiry or proceeding that would materially adversely
affect AmeriNet; and
9. To the best of our knowledge after due inquiry, no representation,
warranty or statement by AmeriNet in the Transaction Documents
contains any untrue statement of a material fact, or omits or will
omit to state a fact necessary in order to make such representations,
warranties or statements not materially misleading.
Without our prior written consent, this opinion letter may not be quoted in
whole or in part or otherwise referred to in any document or report and may not
be furnished to any person or entity including any governmental agency.
Very truly yours
AmeriNet Group.com, Inc.
G. Richard Chamberlin, Esquire
General Counsel
cc: Michael H. Jordan
Leonard M. Tucker
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AmeriNet Group.com, Inc.
A publicly held Delaware corporation
Michael Harris Jordan
President & Chief Executive Officer
Vanessa H. Lindsey
Secretary
G. Richard Chamberlin, Esquire
Acting General Counsel
Michael Harris Jordan G. Richard Chamberlin
Anthony Q. Joffe Saul B. Lipson
Edward C. Dmytryk Penny L. Adams Field
J. Bruce Gleason Michael A. Caputa
Carol A. Berardi Dennis A. Berardi
------
Board of Directors
Wriwebs.com, Inc.
245 North Ocean Boulevard, Suite 201
Deerfield Beach, Florida 33441
Telephone (954) 360-0636; Fax (954) 943-4046
Web site and e-mail www.wriwebs.com
Trilogy International, Inc.
526 Southeast Dixie Highway; Stuart, Florida 34494
Telephone (561) 781-7278; Fax (561) 781-7282
Web site and e-mail www.trilogyonline.com;
Operating Subsidiaries
1941 Southeast 51st Terrace
Ocala, Florida 34471
Telephone (352) 694-6714
Fax (352) 694-9178
e-mail, [email protected]
Crystal Corporate Center
2500 North Military Trail, Suite 225-C
Boca Raton, Florida 33487
Telephone (561) 998-3435
Fax (561) 998-3425
e-mail [email protected]
Respond to Boca Raton address
March 10, 2000
Teri Nadler, President
Vista Vacations International, Inc.
5653 NW 29th Street
Margate, Florida 33063
Fax (954-975-8447)
Re: Tax Opinion of Counsel
Ladies and Gentlemen:
We have acted as counsel to AmeriNet Group.com, Inc., a Delaware
corporation ("AmeriNet") in connection with the Reorganization Agreement dated
February 28, 2000, AmeriNet (Acquirer" or the "Parent"), wherein the Parent
proposes to acquire Vista Vacations International, Inc. ("Vista Vacation) in
conjunction with Code Section 368(a)(1)(B).
In this transaction Vista Vacation will transfer 100% of the common and
preferred stock of all stockholders of Vista Vacations to the Parent in exchange
for common stock in the Parent.
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If this transaction meets the statutory qualification as a tax free
reorganization, the acquiring corporation and its subsidiary recognize no gain
or loss upon the issuance of stock as consideration in the acquisition. The
target's shareholders do not recognize gain or loss upon the exchange of stock
and securities in the target corporation for stock and securities in the
acquiring corporations, except to the extent that boot is received. The
controlled subsidiary receives a carryover basis in the assets or stock of the
target that is acquired.
Statutory requirements for Section B Reorganizations
A B reorganization, defined in Code Section 368(a)(1)(B), is an acquisition
by one corporation, in exchange solely for its voting stock, of a controlling
stock interest in another corporation. Control means ownership of stock of the
acquired corporation possessing at least 80 percent of the total combined voting
power of all classes of stock entitled to vote and at least 80 percent of the
total number of shares of all other classes of stock of the acquired
corporation.
This reorganization transaction is defined in Section 368(a)(1)(B) of the
Code as an acquisition by one corporation, in exchange solely for its voting
stock, of a controlling stock interest in another. In this transaction, known as
a B reorganization, the acquiring corporation becomes the parent of the acquired
corporation and the acquired corporation becomes a subsidiary.
Unlike a statutory merger or consolidation (an A reorganization) in which
the assets of two or more corporations are combined into a single corporation, a
B reorganization involves an acquisition of stock of one corporation by another.
The statute defines a B reorganization as "the acquisition by one
corporation, in exchange solely for all or a part of its voting stock (or in
exchange solely for all or a part of the voting stock of a corporation which is
in control of the acquiring corporation), of stock of another corporation, if
immediately after the acquisition, the acquiring corporation has control of such
other corporation (whether or not such acquiring corporation had control
immediately before the acquisition).
This definition will be satisfied and the exchanges it contemplates will be
entitled to non recognition if all of the following conditions are met:
(1) The acquiring corporation must acquire stock rather than assets.
(2) As in other reorganizations, the acquisition must be made by a
corporation.
(3) The acquisition must be made in exchange solely for voting stock of
the acquiring corporation or its parent.
(4) The acquiring corporation must be in "control" of the acquired
corporation immediately after the acquisition, whether or not the
acquiring corporation possessed control of or owned an interest in the
acquired corporation before the acquisition.
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The term "control" means ownership of stock of the acquired corporation
possessing at least 80 percent of the total combined voting power of all classes
of stock entitled to vote and at least 80 percent of the total number of shares
of all other classes of stock of the acquired corporation.
1) The Requirement That "Stock" of Another Corporation Be Acquired By a
Corporation.
The acquiring corporation must acquire stock rather than assets. In
this instance, AmeriNet is acquiring 100% of the stock of Vista
Vacations. There is no assets or boot accompanying the acquisition of
stock.
2) The Requirement That "Stock" of Another Corporation Be Acquired By a
Corporation
In a B reorganization a corporation must acquire "stock" of another
corporation. The acquiring corporation exchanges its voting stock, or the voting
stock of its parent, for stock owned by the shareholders of the acquired
corporation. In this instance, AmeriNet is exchanging its voting stock for 100%
of the stock owned by the shareholders of Vista Vacations.
3. The Consideration That May Be Used Is Limited "Solely" to Voting Stock
The consideration that may be used in a B reorganization is limited to
voting stock of the acquiring corporation (or only the voting stock of a
corporation under its "control"). "Voting stock" refers to stock of the
acquiring corporation, the ownership of which entitles its holder to be present
and to vote at stockholders' meetings. The courts have construed "voting stock"
literally. In this instance only voting stock is subject to the transaction.
If consideration other than voting stock is used, the transaction will no
qualify as a B reorganization. In some circumstances, as, for example, where
taxpayers desire recognition of losses, the strictness of the B reorganization
definition may work to their advantage. In this instance there is no
consideration other than voting stock.
4. Special Considerations Arising from the Solely-for-Voting-Stock Requirement
In a B reorganization, where only voting stock is permissible
consideration, questions arise as to the availability of B reorganization
treatment where the acquiring corporation pays the incidental expenses of the
acquisition, where it pays the cost of registering securities, or where there is
a deferred stock payment and where there is a preliminary dividend or
redemption.
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Incidental expenses, including legal and accounting fees, appraisal fees
and the like, may be paid directly or assumed by the acquiring corporation
without violating the "solely for voting stock" requirement. However, expenses
not solely and directly related to the reorganization cannot be paid or assumed
by the acquiring corporation. In this instance, AmeriNet expenses not solely and
directly related to the reorganization will not be paid or assumed by AmeriNet.
The Service has ruled that B reorganization status will not be denied as a
result of the payment by the acquiring corporation of the cost of registering
its own stock which it issues to the stockholders of the acquired corporation.
Where a deferred stock payment is tied to the future earnings of the
acquired corporation, the transaction may, nonetheless, qualify, for ruling
purposes, as a B reorganization where the deferral period is not more than five
years, the maximum number of shares payable is stated in the plan, there is a
business reason for the deferral, the initial distribution includes a least
fifty percent of the shares issuable, the right to receive additional shares is
non-assignable, and the additional shares issuable are those of the acquiring
corporation or its parent.
In this instance there is no deferred stock payment tied to future earnings
i the reorganization agreement.
Preliminary dividends and redemptions raise serious questions as to whether
a transaction will qualify as a B reorganization. A dividend distributed to its
shareholders by the acquired corporation prior to closing might be separate from
the qualifying exchange. A redemption financed by the acquired corporation out
of its own funds might also not affect reorganization treatment. However, the
acquiring corporation cannot pay cash directly to the shareholders of the
acquired corporation who seek redemption of their shares. In this instance,
there are neither preliminary dividends or redemptions.
Representations and warranties do not, in themselves, constitute
additional, impermissible consideration.
Generally, employment agreements with the former officers of the acquired
corporation will not affect the qualification of a transaction as a B
reorganization. The result would be otherwise if the employment agreement called
for payments that did not bear a reasonable relationship to the work to be
performed by the employee. In this instance, the employment agreement called for
payments bear a reasonable relationship to the work to be performed by each
signing employee.
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Tax Treatment of "Parties to Reorganization" in a B Reorganization
If an acquisition qualifies for tax free reorganization treatment, the
parties to the reorganization are protected from the recognition of gain or loss
by Section 361 and 1032. The controlled subsidiary receives a carryover basis in
the acquired stock or assets. The subsidiary's parent receives a corresponding
basis step-up in its stock in the subsidiary.
If the acquisition qualifies as a tax free reorganization, neither of the
corporate parties to the reorganization should be subject to the recognition of
gain or loss, with two exceptions,. The acquiring corporation or it's controlled
subsidiary may recognize gain or loss if appreciated property is used as
consideration in the acquisition, I.R.C. Section 311(b). Also, the target
corporation may recognize gain upon the distribution of appreciated property to
its shareholders. I.R.C. Section 361(c).
The issuance of stock and securities by either the parent corporation or
its controlled subsidiary as consideration in exchange for property is protected
form gain or loss recognition by Section 1032, and see Rev. Rul. 57-278, 1957-1
CB 124. The target corporation does not recognize gain or loss upon the
distribution to its shareholders of stock or securities received from the
acquirer or its subsidiary in the reorganization. I.R.C. Section 361(b)(3). The
parent does not recognize gain or loss upon the acquiring of 80% or more of the
stock of the subsidiary.
The controlling corporation's basis in the subsidiaries stock will be the
aggregate of the controlling corporation's basis in such stock prior to the
transaction, the "net basis" (i.e. the basis net of liabilities) of property
acquired from the target and the net basis of the property acquired by the
controlled corporation from its parent which property is distributed to the
target or to its shareholders in the transaction. Reg. Section 1.358-6(a)(5)
ex.(1).
Tax Treatment of Shareholders in a B Reorganization
The subsidiary shareholders receive stock in the controlling corporation
(plus, perhaps, other consideration in exchange for their stock in the target.
If the stock and the securities received are stock and securities "in a
corporation a party to a reorganization", the non-recognition provisions of
Section 354 and Section 356 apply. I.R.C. Section 354(a). See Section
4.08(5)(a).. According to these provisions, stock and securities of the target
may be exchanged solely for stock in the controlling corporation without the
recognition of gain or loss. I.R.C. Section 354(a). If a shareholder receives
securities with a greater principal amount then the securities given up in the
exchange, the fair market value of such excess principal amount is treated as
recognition property received by the shareholder. is treated as recognition of
property received by the shareholders. I.R.C. Section 356(d). A shareholder
recognizes gain to the extent of the amount of money and the fair market value
of recognition property received in the exchange. I.R.C. Section 356(a)(2(1). If
the exchange has the effect of a dividend distribution, any gain recognized will
be taxed as ordinary income to the extent of the shareholder's share of the
target corporation's earnings and profits. I.R.C. Section 356(a)(2).
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The shareholder's bases in the stock, securities and other property
received in the exchange will be governed by Section 358(a) which generally
provides for fair market value bases for all recognition property and
substituted bases for all non-recognition property, in the exchange and decrease
by the fair market value of recognition property received in the exchange and by
the amount of loss recognized, if any. I.R.C. Section 358(a).
The basis of the Subsidiary's shares held by the controlling corporation
will increase, generally by the net basis of the assets and the stock acquired.
See Section 4.05(e).
The controlling corporation will not experience any other tax consequences
in its capacity as shareholder of the subsidiary, other than a change in value.
Neither is the B reorganization a taxable event for the shareholders of the
controlling corporation.
Assumptions
This opinion has been prepared and is to be construed in accordance with
the Report on Standards for Florida Opinions dated April 8, 1991, as amended and
supplemented, issued by the Business Law Section of the Florida Bar, 46 The
Business Lawyer, No. 4 (the "Report"). The Report is incorporated by reference
into this opinion letter.
Opinions
Based solely upon our examination and consideration of the Reorganization
Agreement and the Representations made therein, and in reliance thereon, and
subject to the comments, assumptions, exceptions, qualifications and limitations
set forth in the Report, we are of the opinion that: To the best of our
knowledge the contemplated transaction constitutes a reorganization within the
meaning of Section 368 of the Code.
Disclaimer
Without our prior written consent, this opinion letter may not be quoted in
whole or in part or otherwise referred to in any document or report and may not
be furnished to any person or entity including any governmental agency.
Very truly yours
G. Richard Chamberlin, Esquire
Interim General Counsel
cc: Michael H. Jordan
Leonard M. Tucker
129
<PAGE>
Exhibit 6.2(E)
Vista Vacations Legal Opinion
1. Legal Opinion by Scott Ugell, Esq.
2. Tax Opinion by Scott Ugell, Esq.
Vista Vacations International
Experience the Journey
Ladies and Gentlemen:
We have acted as counsel to Vista Vacations International, Inc ., a Florida
corporation ("AmeriNet") in connection with the Reorganization Agreement between
AmeriNet, (the "cquirer"), and Vista Vacation International, Inc. ("Vista
Vacationsl") dated February 28, 2000. We are providing this opinion to you
pursuant to Section 6.2(D) of the Merger Agreement. Capitalized terms used but
not otherwise defined herein shall have the meanings given them in the Merger
Agreement.
A. Basis of Opinion
In rendering the following options, we have reviewed copies of each of the
following documents:
1. The Reorganization Agreement, including the disclosure schedules
and exhibits thereto;
2. The Certificate of Incorporation, as amended, and the Bylaws of
Vista Vacations International;
3. The Company is in Good Standing pursuant to Certificate of Good
Standing issued by the Florida Secretary of State, dated February
24, 2000;
4. Minutes of proceedings of the Executive Committee of the Board of
Directors of Vista Vacations International with respect to the
Reorganization Agreement duly adopted at a meeting of the Board
of Directors of the Vista Vacations International held on
February 25, 2000 and Board resolution for February 25, 2000.
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7. Certificate of Counsel for AmeriNet dated as of the date of this
letter;
8. Officers' Certificate delivered to Counsel as of the date of this
letter.
9. Such other agreements and documents and such matters of law as we
have considered necessary or appropriate for the expression of
the opinions contained herein.
The Reorganization Agreement and the other documents and information
referred to in this Section A are collectively referred to as the "Transaction
Documents."
B. Assumptions
This opinion has been prepared and is to be construed in accordance with
the Report on Standards for Florida Opinions dated April 8, 1991, as amended and
supplemented, issued by the Business Law Section of the Florida Bar, 46 The
Business Lawyer, No. 4 (the "Report"). The Report is incorporated by reference
into this opinion letter.
In rendering the following opinions, we have made no assumptions other than
those set forth in the Report, the assumption that the Company complies with all
laws and regulations relating to multi-level marketing, or those in the opinions
below.
C. Opinions
Based solely upon our examination and consideration of the foregoing
Transaction Documents, and in reliance thereon, and subject to the comments,
assumptions, exceptions, qualifications and limitations set forth in the Report,
we are of the opinion that:
1. Vista Vacations International, Inc is a corporation duly
organized, validly existing, and in good standing under the laws
of the State of Florida. Vista Vacations International, Inc is
duly authorized to conduct business and is in good standing under
the laws of each jurisdiction where such qualification is
required, and where, to our knowledge, the lack of such
qualification would not have a material adverse effect on the
financial condition of Vista Vacations International and its
subsidiaries taken as a whole (a "Material Adverse Effect"). We
do not pass upon qualification in any other state where the
Agreement is void or voidable due to lack of qualification.
2. Vista Vacations International, Inc has the corporate power and
authority to carry on the business in which it is engaged and to
own and use the properties owned and used by it.
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3. As of the date hereof, Vista Vacations International, Inc has no
subsidiaries.
4. The authorized capital stock of Vista Vacations International,
Inc consists of 1,500 shares of Common Stock and no Preferred
Stock, of which there are outstanding 1,500 shares of Common
Stock. There are no shares of common stock reserved for future
issuances.
5. All of the issued and outstanding shares of Common Stock have
been duly authorized and are validly issued, fully paid, and non
assessable. Except as set forth in the Reorganization Agreement,
to our knowledge there are no outstanding Options, Warrants, or
other outstanding or authorized purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or
commitments that could require Vista Vacations International, Inc
to issue, sell, or otherwise cause to become outstanding any
shares of its capital stock. To our knowledge, there are no
outstanding or authorized stock appreciation, phantom stock,
profit participation, or similar rights with respect to Vista
Vacations International, Inc.
6. The Reorganization Agreement and the transactions contemplated
thereby have been duly authorized by all necessary corporate
action on the part of Vista Vacations International, Inc. Vista
Vacations International, Inc has the full power and authority,
corporate and otherwise, to execute and deliver the
Reorganization Agreement and to assume and perform all of its
obligations thereunder. The Reorganization Agreement has been
duly executed and delivered by Vista Vacations International, Inc
and constitutes a legal, valid, and binding obligation of Vista
Vacations International, Inc enforceable against Vista Vacations
International, Inc in accordance with its terms. .
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7. Neither the execution and the delivery of the Reorganization
Agreement, nor the consummation of the transactions contemplated
thereby, will (i) to our knowledge, violate any material statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency, or court to which Vista Vacations International, Inc is
subject (ii) violate any provision of the Certificate of
Incorporation or Bylaws of Vista Vacations International, Inc or
(iii) to our knowledge, conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract,
lease, license, instrument or other arrangement to which Vista
Vacations International, Inc is a party or by which it is bound
or to which any of its assets is subject (or result in the
imposition of any security interest upon any of the assets),
except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, or failure
to give notice would not have a Material Adverse Effect. Other
than in connection with the provisions of the Florida Business
Corporation Act, or as otherwise contemplated by the Merger
Agreement, Vista Vacations International, Inc is not required to
give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order for Vista Vacations International,
Inc to consummate the transactions contemplated by the Merger
Agreement.
8. To our knowledge, no judgment is presently filed of record
against Vista Vacations International, Inc and there is no
litigation, arbitration, investigation, inquiry or other
proceedings by or before any federal, state, county or other
local governmental agency or authority, or by any other person or
entity pending, or that would materially adversely affect Vista
Vacations International, Inc ability to perform its obligations
as set forth in the Transaction Documents and we have no
knowledge of any material basis for any such litigation,
proceeding, arbitration, claim, investigation, inquiry or
proceeding that would materially adversely affect Vista Vacations
International Inc.; and
9. To the best of our knowledge after due inquiry, no
representation, warranty or statement by Vista Vacations
International, Inc in the Transaction Documents contains any
untrue statement of a material fact, or omits or will omit to
state a fact necessary in order to make such representations,
warranties or statements not materially misleading.
10. To the extent that the preparer of this opinion has used a
similar form of opinion of that of AmeriNetGroup.com's Counsel,
the preparer did not in any way relay on AmeriNetGoup.com's
counsel opinion to make any conclusions herein
11. Furthermore, the preparer of this opinion has done his own
research, and has applicable additions and modifications where
necessary.
Without our prior written consent, this opinion letter may not be quoted in
whole or in part or otherwise referred to in any document or report and may not
be furnished to any person or entity including any governmental agency.
Very truly yours
Vista Vacations International, Inc.
/s/ Scott B. Ugell
Scott B. Ugell, Esquire
General Counsel
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Ugell Law Firm , P.C.
155 North main Street
New City, New York 10956
Tel (914) 639-7011
Fax (914) 639-7088
Re: Vista Vacations International, Inc.
Ladies and Gentlemen:
We have acted as counsel to Vista Vacations International, Inc., a Florida
corporation ("Vista") in connection with the Reorganization Agreement dated
February 28, 2000, Vista, (Acquired" or the subsidiary"), wherein the Parent ,
Amerinet group.com, Inc. proposes to acquire Vista Vacations International, Inc.
("Vista Vacation) in conjunction with Code Section 368(a)(1)(B).
In this transaction Vista Vacation will transfer 100% of the common and
preferred stock of all stockholders of Vista Vacations to the Parent in exchange
for common stock in the Parent.
If this transaction meets the statutory qualification as a tax free
reorganization, the acquiring corporation and its subsidiary recognize no gain
or loss upon the issuance of stock as consideration in the acquisition. The
target's shareholders do not recognize gain or loss upon the exchange of stock
and securities in the target corporation for stock and securities in the
acquiring corporations, except to the extent that boot is received. The
controlled subsidiary receives a carryover basis in the assets or stock of the
target that is acquired.
Statutory requirements for Section B Reorganizations
A B reorganization, defined in Code Section 368(a)(1)(B), is an acquisition
by one corporation, in exchange solely for its voting stock, of a controlling
stock interest in another corporation. Control means ownership of stock of the
acquired corporation possessing at least 80 percent of the total combined voting
power of all classes of stock entitled to vote and at least 80 percent of the
total number of shares of all other classes of stock of the acquired
corporation.
This reorganization transaction is defined in Section 368(a)(1)(B) of the
Code as an acquisition by one corporation, in exchange solely for its voting
stock, of a controlling stock interest in another. In this transaction, known as
a B reorganization, the acquiring corporation becomes the parent of the acquired
corporation and the acquired corporation becomes a subsidiary.
Unlike a statutory merger or consolidation (an A reorganization) in which
the assets of two or more corporations are combined into a single corporation, a
B reorganization involves an acquisition of stock of one corporation by another.
The statute defines a B reorganization as "the acquisition by one
corporation, in exchange solely for all or a part of its voting stock (or in
exchange solely for all or a part of the voting stock of a corporation which is
in control of the acquiring corporation), of stock of another corporation, if
immediately after the acquisition, the acquiring corporation has control of such
other corporation (whether or not such acquiring corporation had control
immediately before the acquisition).
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This definition will be satisfied and the exchanges it contemplates will be
entitled to non recognition if all of the following conditions are met:
(1) The acquiring corporation must acquire stock rather than assets.
(2) As in other reorganizations, the acquisition must be made by a
corporation.
(3) The acquisition must be made in exchange solely for voting stock
of the acquiring corporation or its parent.
(4) The acquiring corporation must be in "control" of the acquired
corporation immediately after the acquisition, whether or not the
acquiring corporation possessed control of or owned an interest
in the acquired corporation before the acquisition.
The term "control" means ownership of stock of the acquired corporation
possessing at least 80 percent of the total combined voting power of all classes
of stock entitled to vote and at least 80 percent of the total number of shares
of all other classes of stock of the acquired corporation.
1) The Requirement That "Stock" of Another Corporation Be Acquired By a
Corporation.
The acquiring corporation must acquire stock rather than assets. In this
instance, AmeriNet is acquiring 100% of the stock of Vista Vacations. There
is no assets or boot accompanying the acquisition of stock.
2) The Requirement That "Stock" of Another Corporation Be Acquired By a
Corporation In a B reorganization a corporation must acquire "stock" of
another corporation. The acquiring corporation exchanges its voting stock,
or the voting stock of its parent, for stock owned by the shareholders of
the acquired corporation. In this instance, AmeriNet is exchanging its
voting stock for 100% of the stock owned by the shareholders of Vista
Vacations.
3. The Consideration That May Be Used Is Limited "Solely" to Voting Stock
The consideration that may be used in a B reorganization is limited to
voting stock of the acquiring corporation (or only the voting stock of a
corporation under its "control"). "Voting stock" refers to stock of the
acquiring corporation, the ownership of which entitles its holder to be present
and to vote at stockholders' meetings. The courts have construed "voting stock"
literally. In this instance only voting stock is subject to the transaction.
If consideration other than voting stock is used, the transaction will not
qualify as a B reorganization. In some circumstances, as, for example, where
taxpayers desire recognition of losses, the strictness of the B reorganization
definition may work to their advantage. In this instance there is no
consideration other than voting stock.
4. Special Considerations Arising from the Solely-for-Voting-Stock Requirement
In a B reorganization, where only voting stock is permissible
consideration, questions arise as to the availability of B reorganization
treatment where the acquiring corporation pays the incidental expenses of the
acquisition, where it pays the cost of registering securities, or where there is
a deferred stock payment and where there is a preliminary dividend or
redemption.
Incidental expenses, including legal and accounting fees, appraisal fees
and the like, may be paid directly or assumed by the acquiring corporation
without violating the "solely for voting stock" requirement. However, expenses
not solely and directly related to the reorganization cannot be paid or assumed
by the acquiring corporation. In this instance, AmeriNet expenses not solely and
directly related to the reorganization will not be paid or assumed by AmeriNet.
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The Service has ruled that B reorganization status will not be denied as a
result of the payment by the acquiring corporation of the cost of registering
its own stock which it issues to the stockholders of the acquired corporation.
Where a deferred stock payment is tied to the future earnings of the
acquired corporation, the transaction may, nonetheless, qualify, for ruling
purposes, as a B reorganization where the deferral period is not more than five
years, the maximum number of shares payable is stated in the plan, there is a
business reason for the deferral, the initial distribution includes a least
fifty percent of the shares issuable, the right to receive additional shares is
non-assignable, and the additional shares issuable are those of the acquiring
corporation or its parent.
In this instance there is no deferred stock payment tied to future earnings
in the reorganization agreement.
Preliminary dividends and redemptions raise serious questions as to whether
a transaction will qualify as a B reorganization. A dividend distributed to its
shareholders by the acquired corporation prior to closing might be separate from
the qualifying exchange. A redemption financed by the acquired corporation out
of its own funds might also not affect reorganization treatment. However, the
acquiring corporation cannot pay cash directly to the shareholders of the
acquired corporation who seek redemption of their shares. In this instance,
there are neither preliminary dividends or redemptions.
Representations and warranties do not, in themselves, constitute
additional, impermissible consideration.
Generally, employment agreements with the former officers of the acquired
corporation will not affect the qualification of a transaction as a B
reorganization. The result would be otherwise if the employment agreement called
for payments that did not bear a reasonable relationship to the work to be
performed by the employee. In this instance, the employment agreement called for
payments bear a reasonable relationship to the work to be performed by each
signing employee.
Tax Treatment of "Parties to Reorganization" in a B Reorganization
If an acquisition qualifies for tax free reorganization treatment, the
parties to the reorganization are protected from the recognition of gain or loss
by Section 361 and 1032. The controlled subsidiary receives a carryover basis in
the acquired stock or assets. The subsidiary's parent receives a corresponding
basis step-up in its stock in the subsidiary.
If the acquisition qualifies as a tax free reorganization, neither of the
corporate parties to the reorganization should be subject to the recognition of
gain or loss, with two exceptions,. The acquiring corporation or it's controlled
subsidiary may recognize gain or loss if appreciated property is used as
consideration in the acquisition, I.R.C. Section 311(b). Also, the target
corporation may recognize gain upon the distribution of appreciated property to
its shareholders. I.R.C. Section 361(c).
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The issuance of stock and securities by either the parent corporation or
its controlled subsidiary as consideration in exchange for property is protected
form gain or loss recognition by Section 1032, and see Rev. Rul. 57-278, 1957-1
CB 124. The target corporation does not recognize gain or loss upon the
distribution to its shareholders of stock or securities received from the
acquirer or its subsidiary in the reorganization. I.R.C. Section 361(b)(3). The
parent does not recognize gain or loss upon the acquiring of 80% or more of the
stock of the subsidiary.
The controlling corporation's basis in the subsidiaries stock will be the
aggregate of the controlling corporation's basis in such stock prior to the
transaction, the "net basis" (i.e. the basis net of liabilities) of property
acquired from the target and the net basis of the property acquired by the
controlled corporation from its parent which property is distributed to the
target or to its shareholders in the transaction. Reg. Section 1.358-6(a)(5)
ex.(1).
Tax Treatment of Shareholders in a B Reorganization
The subsidiary shareholders receive stock in the controlling corporation
(plus, perhaps, other consideration in exchange for their stock in the target.
If the stock and the securities received are stock and securities "in a
corporation a party to a reorganization", the non-recognition provisions of
Section 354 and Section 356 apply. I.R.C. Section 354(a). See Section
4.08(5)(a).. According to these provisions, stock and securities of the target
may be exchanged solely for stock in the controlling corporation without the
recognition of gain or loss. I.R.C. Section 354(a). If a shareholder receives
securities with a greater principal amount then the securities given up in the
exchange, the fair market value of such excess principal amount is treated as
recognition property received by the shareholder. is treated as recognition of
property received by the shareholders. I.R.C. Section 356(d). A shareholder
recognizes gain to the extent of the amount of money and the fair market value
of recognition property received in the exchange. I.R.C. Section 356(a)(2(1). If
the exchange has the effect of a dividend distribution, any gain recognized will
be taxed as ordinary income to the extent of the shareholder's share of the
target corporation's earnings and profits. I.R.C. Section 356(a)(2).
The shareholder's bases in the stock, securities and other property
received in the exchange will be governed by Section 358(a) which generally
provides for fair market value bases for all recognition property and
substituted bases for all non-recognition property, in the exchange and decrease
by the fair market value of recognition property received in the exchange and by
the amount of loss recognized, if any. I.R.C. Section 358(a).
The basis of the Subsidiary's shares held by the controlling corporation
will increase, generally by the net basis of the assets and the stock acquired.
See Section 4.05(e).
The controlling corporation will not experience any other tax consequences
in its capacity as shareholder of the subsidiary, other than a change in value.
Neither is the B reorganization a taxable event for the shareholders of the
controlling corporation.
Assumptions
This opinion has been prepared and is to be construed in accordance with
the Report on Standards for Florida Opinions dated April 8, 1991, as amended and
supplemented, issued by the Business Law Section of the Florida Bar, 46 The
Business Lawyer, No. 4 (the "Report"). The Report is incorporated by reference
into this opinion letter.
Opinions
Based solely upon our examination and consideration of the Reorganization
Agreement and the Representations made therein, and in reliance thereon, and
subject to the comments, assumptions, exceptions, qualifications and limitations
set forth in the Report, we are of the opinion that: To the best of our
knowledge the contemplated transaction constitutes a reorganization within the
meaning of Section 368 of the Code.
Disclaimer
Without our prior written consent, this opinion letter may not be quoted in
whole or in part or otherwise referred to in any document or report and may not
be furnished to any person or entity including any governmental agency.
Very truly yours
Vista Vacations International, Inc.
/s/ Scott B. Ugell
Scott B. Ugell, Esquire
Vice President and General Counsel
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Exhibit 6.3(L)
Confidentiality Agreements
1. Karyn McKnight
2. Trevor Grafflin
3. Jay Lovins
Items 1-3 can be found as exhibit 10vv.32 and 10vv.34 of this Form 8-K.
Exhibit 7.2(A)
Escrow Allocation Agreement
To be provided by Scott B. Ugell, Esquire no later than 5:00 p.m. on March
20, 2000.
Dear Richard,
As per your request and following Scott Ugells instructions. Please find
below the requests for the 7.2 and 7.4 of the Reorganization Agreeemnts on the
distribution of shares. The rest will follow.
220,000 Shares
Teri Nadler 112,200 51%
Scott Ugell 58,674 26.67%
Jean Hickman 26,400 12%
Ken Nelson 11,000 5%
Alicia Torrealba 8,800 4%
Karyn McKnight 2,926 1.33%
--------- ---------
220,000 100%
/s/ Alicia Torrealba
138
Articles of Amendment
to Articles of Incorporation of
Vista Vacations International, Inc.
Pursuant to the provisions of Section 607.1006, Florida Statutes, Vista
Vacations International, Inc., a Florida corporation for profit (the
"Corporation") does hereby adopt the following articles of amendment and
restatement to its articles of incorporation, certifying as follows:
Witnesseth:
FIRST: AMENDMENTS ADOPTED:
(A) The following articles are hereby repealed: Articles 2, 3, 4 & 5.
(B) The following articles are hereby renumbered:
(1) Article 1 is hereby renumbered as Article I.
(2) The following new articles are hereby adopted:
ARTICLE II
DURATION
This Corporation shall have perpetual existence commencing on the date of
the filing of these Articles of Incorporation with the Department of State of
Florida.
ARTICLE III
PURPOSES
This Corporation is organized for the purpose of transacting any and all
lawful business; provided, however, that it shall not:
(A) Engage in any activities that would subject it to regulation as an
investment company under the Federal Investment Company Act of 1940
(the "Investment Company Act"), as amended, unless it shall have first
qualified and elected to be regulated as a small business development
company pursuant to Sections 54 et. seq., thereof, and limits its
investment company activities to those permitted thereby; or
(B) Engage in any activities which would subject the Corporation to
regulation as a broker dealer in securities subject to regulation under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
as an investment advisor subject to regulation under the Investment
Advisors Act of 1940, as amended (the "Investment Advisor's Act"); or
This instrument is the property of The Yankee Companies, Inc., a Florida
corporation, and has been licensed for use by Vista Vacations International,
Inc., only for its own corporate governance purposes. No one may utilize this
form or any derivations thereof without the prior written consent of The Yankee
Companies, Inc.
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(C) Engage in any other activities requiring the Corporation to comply with
governmental registration and supervision, unless it has completed such
registration and conducts itself in full compliance with such
supervisory requirements.
ARTICLE IV
CAPITAL STOCK
1.2 Capital Stock
This Corporation is authorized to issue 2,000 shares, $0.01 par value, all
of which shall be designated as common stock.
ARTICLE V
QUORUM FOR MEETINGS
(A) A simple majority of the shares entitled to vote, represented in person
or by proxy, shall be required to constitute a quorum at a meeting of
stockholders.
(B) A simple majority of the persons then comprising the entire membership
of the board of directors, but including all persons elected as members
of the board of directors by the stockholders who were not required to
be nominated and elected as directors pursuant to contractual
obligations, shall constitute at quorum at a meeting of the board of
directors.
ARTICLE VI
REGISTERED OFFICE, REGISTERED AGENT & PRINCIPAL
6.1 Registered Office & Registered Agent,
The street address of the registered office of this Corporation is 1941
Southeast 51st Terrace; Ocala, Florida 34471, and the name of the initial
registered agent of this corporation at such address is Vanessa H. Lindsey.
6.2 Principal Office & Mailing Address
(A) The Corporation's principal office and principal mailing address is
5653 NW 29th Street; Margate, Florida 33063
(B) The Corporation's telephone number is (954) 975-0898, its fax number is
(954) 975-8447 and its e-mail address is [email protected].
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ARTICLE VII
BOARD OF DIRECTORS
7.1 Initial Board of Directors
(A) This Corporation shall have one Director initially.
(B) The number of Directors may be either increased or diminished from time
to time in the manner provided in the Bylaws, but shall never be less
than one.
(C) The name and address of the initial Director of this Corporation is
as follows:
Teri Nadler
5653 NW 29th Street, Margate, Florida 33063
7.2 Contractual Obligation to Elect Directors:
The obligations of the Corporation's stockholder to elect members to the
Corporation's Board of Directors in the manner reflected in the agreement and
plan of merger (the "Merger Agreement") between Wriwebs.com, Inc., a Florida
corporation that has been merged into this Corporation ("Old WRI"), AmeriNet
Group.com, Inc., a Delaware corporation and the Corporation's sole stockholder,
and this Corporation, then operating under the name American Internet Technical
Center, Inc., ("American Internet"), shall be complied with in conjunction with
all elections of members to the Corporation's Board of Directors during the term
of such obligations and no election in contravention of such terms shall be
valid.
ARTICLE VIII
INCORPORATOR
The name and street address of the incorporator of this Corporation was:
Teri Nadler
5653 NW 29th Street, Margate, Florida 33063
ARTICLE IX
AFFILIATED TRANSACTIONS
This Corporation shall not be subject to the restrictions or requirements
for affiliated transactions imposed by Sections 607.0901, Florida Statutes, as
permitted by the waiver provisions of Section 607.0901(5)(b) thereof.
SECOND: RESTATEMENT OF ARTICLES OF INCORPORATION:
The Corporation's articles of incorporation, as amended to date, are hereby
restated, as follows:
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ARTICLE I
NAME
The name of this Corporation is "Vista Vacations International, Inc."
ARTICLE II
DURATION
This Corporation shall have perpetual existence commencing on the date of
the filing of these Articles of Incorporation with the Department of State of
Florida.
ARTICLE III
PURPOSES
This Corporation is organized for the purpose of transacting any and all
lawful business; provided, however, that it shall not:
(A) Engage in any activities that would subject it to regulation as an
investment company under the Federal Investment Company Act of 1940
(the "Investment Company Act"), as amended, unless it shall have first
qualified and elected to be regulated as a small business development
company pursuant to Sections 54 et. seq., thereof, and limits its
investment company activities to those permitted thereby; or
(B) Engage in any activities which would subject the Corporation to
regulation as a broker dealer in securities subject to regulation under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
as an investment advisor subject to regulation under the Investment
Advisors Act of 1940, as amended (the "Investment Advisor's Act"); or
(C) Engage in any other activities requiring the Corporation to comply with
governmental registration and supervision, unless it has completed such
registration and conducts itself in full compliance with such
supervisory requirements.
ARTICLE IV
CAPITAL STOCK
1.3 Capital Stock
This Corporation is authorized to issue 2,000 shares, $0.01 par value, all
of which shall be designated as common stock.
ARTICLE V
QUORUM FOR MEETINGS
(A) A simple majority of the shares entitled to vote, represented in person
or by proxy, shall be required to constitute a quorum at a meeting of
stockholders.
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(B) A simple majority of the persons then comprising the entire membership
of the board of directors, but including all persons elected as members
of the board of directors by the stockholders who were not required to
be nominated and elected as directors pursuant to contractual
obligations, shall constitute at quorum at a meeting of the board of
directors.
ARTICLE VI
REGISTERED OFFICE, REGISTERED AGENT & PRINCIPAL
6.1 Registered Office & Registered Agent,
The street address of the registered office of this Corporation is 1941
Southeast 51st Terrace; Ocala, Florida 34471, and the name of the initial
registered agent of this corporation at such address is Vanessa H. Lindsey.
6.2 Principal Office & Mailing Address
(A) The Corporation's principal office and principal mailing address is
5653 NW 29th Street; Margate, Florida 33063
(B) The Corporation's telephone number is (954) 975-0898, its fax number is
(954) 975-8447 and its e-mail address is [email protected].
ARTICLE VII
BOARD OF DIRECTORS
7.1 Initial Board of Directors
(A) This Corporation shall have one Director initially.
(B) The number of Directors may be either increased or diminished from time
to time in the manner provided in the Bylaws, but shall never be less
than one.
(C) The name and address of the initial Director of this Corporation is
as follows:
.
7.2 Contractual Obligation to Elect Directors:
The obligations of the Corporation's stockholder to elect members to the
Corporation's Board of Directors in the manner reflected in the Reorganization
Agreement between Vista Vacations International, Inc., and AmeriNet Group.com,
Inc., a Delaware corporation, and others, shall be complied with in conjunction
with all elections of members to the Corporation's Board of Directors during the
term of such obligations and no election in contravention of such terms shall be
valid.
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ARTICLE VIII
INCORPORATOR
The name and street address of the incorporator of this Corporation is:
Teri Nadler
5653 NW 29th Street, Margate, Florida 33063
ARTICLE IX
AFFILIATED TRANSACTIONS
This Corporation shall not be subject to the restrictions or requirements
for affiliated transactions imposed by Sections 607.0901, Florida Statutes, as
permitted by the waiver provisions of Section 607.0901(5)(b) thereof.
ARTICLE X
AMENDMENT
The Corporation reserves the right to amend, alter, change or repel any
provision contained in these Articles of Incorporation, or in any amendment
hereto, or to add any provision to these Articles of Incorporation or to any
amendment hereto, in any manner now or hereafter prescribe or permitted by the
provisions of any applicable statute of the State of Florida, and all rights
conferred upon shareholders in these Articles of Incorporation or any amendment
hereto are granted subject to this reservation.
THIRD: THE DATE EACH AMENDMENT WAS ADOPTED WAS:
March 7, 2000.
FOURTH: ADOPTION OF AMENDMENTS:
The amendments were unanimously adopted by the Corporation's stockholders
and board of directors by written consent in lieu of special meeting dated March
7, 2000, the number of votes cast for the amendments being sufficient for
approval.
IN WITNESS WHEREOF, the Corporation, through its duly elected, serving and
authorized president, has subscribed its name this 7th day of March, 2000.
Vista Vacations International, Inc.
By: /s/ Teri Nadler
________________________
Teri Nadler
President
144
Restated Bylaws of
Vista Vacations International, Inc.
ARTICLE I
STOCKHOLDERS
SECTION 1. Annual Meetings
(a) (1) The annual meeting of the stockholders of the Corporation
shall be held at the principal office of the Corporation in
the State of Florida or at such other place within or without
the State of Florida as may be determined by the Board of
Directors and as may be designated in the notice of such
meeting; provided that, whenever this Corporation is the
subsidiary of another corporation that holds a majority of
this Corporation's common stock (a "Parent Corporation"), then
the annual meeting shall be held at the place where the Parent
Corporation holds its annual meeting.
(2) The meeting shall be held on the 15th day of July of each year
or on such other day as the Board of Directors may specify;
provided that, whenever this Corporation is the subsidiary of
a Parent Corporation, then the annual meeting shall be held
immediately after the organizational meeting of the Parent
Corporation's Board of Directors immediately following the
Parent Corporation's annual meeting.
(3) If said day is a legal holiday, the meeting shall be held on
the next succeeding business day not a legal holiday.
(b) Business to be transacted at such meeting shall be the election of
members of the Corporation's Board of Directors to succeed those whose
terms are expiring and such other business as may be properly brought
before the meeting.
(c) In the event that the annual meeting, by mistake or otherwise, shall
not be called and held as herein provided, a special meeting may be
called as provided for in Section 2 of this Article I in lieu of and
for the purposes of and with the same effect as the annual meeting.
(d) In the event that the Corporation becomes subject to compliance with
requirements imposed under Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), proposals by stockholders
for action at an annual meeting must be submitted to the Corporation's
principal executive offices so that they are received thereat on or
before the 120th day prior to the annual anniversary of the last
preceding annual meeting, unless such proposal relates to the
nomination of members of the Corporation's Board of Directors, in
which case it must be submitted to the Corporation's principal
executive offices so that the name, address, telephone number and if
available, fax number and e-mail address of the nominee, together with
biographical data covering the nominees activities during the
preceding five years satisfying the disclosure requirements of
Regulation SB are received thereat on or before the 60th day prior to
the time that the Corporation first files materials with the
Commission pertaining to such meeting on either Schedule 14A or 14C
promulgated under authority of the Exchange Act.
This instrument is the property of The Yankee Companies, Inc., a Florida
corporation, and has been licensed for use by Vista Vacations, Inc., only for
its own corporate governance purposes. No one may utilize this form or any
derivations thereof without the prior written consent of The Yankee Companies,
Inc..
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SECTION 2. Special Meetings
(a) A special meeting of the stockholders of the Corporation may be called
for any purpose or purposes at any time by the Chairman or President of
the Corporation, by the Board of Directors or by the holders of not
less than 10% of the outstanding capital stock of the Corporation
entitled to vote at such meeting.
(b) (1) At any time, upon the written direction of any person or
persons entitled to call a special meeting of the
stockholders, it shall be the duty of the Secretary to send
notice of such meeting pursuant to Section 4 of this Article
I.
(2) It shall be the responsibility of the person or persons
directing the Secretary to send notice of any special meeting
of stockholders to deliver such direction and a proposed form
of notice to the Secretary not less than 15 days prior to the
proposed date of said meeting.
(c) Special meetings of the stockholders of the Corporation shall be held
at such place, within or without the State of Florida, on such dates,
and at such time as shall be specified in the notice of such special
meeting.
SECTION 3. Adjournment
(a) When the annual meeting is convened, or when any special meeting is
convened, the presiding officer may adjourn it for such period of time
as may be reasonably necessary to reconvene the meeting at another
place and time.
(b) The presiding officer shall have the power to adjourn any meeting of
the stockholders for any proper purpose, including, but not limited to,
lack of a quorum, securing a more adequate meeting place, electing
officials to count and tabulate votes, reviewing any stockholder
proposals or passing upon any challenge which may properly come before
the meetings.
(c) (1) When a meeting is adjourned to another time or place, it
shall not be necessary to give any notice of the adjourned
meeting if the time and place to which the meeting is
adjourned are announced at the meeting at which the
adjournment is taken, and any business may be transacted at
the adjourned meeting that might have been transacted on the
original date of the meeting.
(2) If, however, after the adjournment the Board fixes a new
record date for the adjourned meeting, a notice of the
adjourned meeting shall be given in compliance with Section
4(a) of this Article I to each stockholder of record on the
new record date entitled to vote at such meeting.
SECTION 4. Notice of Meetings; Purpose of Meeting; Waiver
(a) (1) Each stockholder of record entitled to vote at any meeting
shall be given in person, or by first class mail, postage
prepaid, written notice of such meeting which, in the case of
a special meeting, shall set forth the purpose(s) for which
the meeting is called, not less than 20 or more than 60 days
before the date of such meeting.
(2) If mailed, such notice is to be sent to the stockholder's
address as it appears on the stock transfer books of the
Corporation, unless the stockholder shall be requested of the
Secretary in writing at least 15 days prior to the
distribution of any required notice that any notice intended
for him or her be sent to some other address, in which case
the notice may be sent to the address so designated.
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(3) Notwithstanding any such request by a stockholder, notice sent
to a stockholder's address as it appears on the stock transfer
books of this Corporation as of the record date shall be
deemed properly given.
(4) Any notice of a meeting sent by United States mail shall be
deemed delivered when deposited with proper postage thereon
with the United States Postal Service or in any mail
receptacle under its control.
(b) (1) A stockholder waives notice of any meeting by attendance,
either in person or by proxy, at such meeting or by waiving
notice in writing either before, during or after such meeting.
(2) Attendance at a meeting for the express purpose of objecting
that the meeting was not lawfully called or convened, however,
will not constitute a waiver of notice by a stockholder who
states at the beginning of the meeting, his or her objection
that the meeting is not lawfully called or convened.
(c) A waiver of notice signed by all stockholders entitled to vote at a
meeting of stockholders may also be used for any other proper purpose
including, but not limited to, designating any place within or without
the State of Florida as the place for holding such a meeting.
(d) Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of stockholders need be specified in any
written waiver of notice.
SECTION 5. Closing of Transfer Books; Record Date; Stockholders' List
(a) In order to determine the holders of record of the capital stock of the
Corporation who are entitled to notice of meetings, to vote a meeting
or adjournment thereof, or to receive payment of any dividend, or for
any other purpose, the Board of Directors may fix a date not more than
60 days prior to the date set for any of the above-mentioned activities
for such determination of stockholders.
(b) If the stock transfer books shall be closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting
of stockholders, such books shall be closed for at least 25 days
immediately preceding such meeting, as required in order to permit the
Corporation to obtain the names of all stockholders entitled to notice
in time to provide such notice.
(c) In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the date for any such determination of
stockholders, such date in any case to be not less than 25 nor more
than 60 days prior to the date on which the particular action,
requiring such determination of stockholders, is to be taken.
(d) If the stock transfer books are not closed and no record date is fixed
for the determination of stockholders entitled to notice or to vote at
a meeting of stockholders, or to receive payment of a dividend, the
fifth date prior to the date on which notice of the meeting is mailed
or the date on which the resolution of the Board of Directors declaring
such dividend is adopted, as the case may be, shall be the record date
for such determination of stockholders.
(e) When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, unless the Board
of Directors fixes a new record date under this Section for the
adjourned meeting.
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(f) (1) The officer or agent having charge of the stock transfer
books of the Corporation shall make, as of a date at least 10
days before each meeting of stockholders, a complete list of
the stockholders entitled to vote at such meeting or any
adjournment thereof, with the address of each stockholder and
the number and class and series, if any, of shares held by
each stockholder.
(2) Such list shall be kept on file at the registered office of
the Corporation, at the principal place of business of the
Corporation or at the office of the transfer agent or
registrar of the Corporation for a period of 10 days prior to
such meeting and shall be available for inspection by any
stockholder at any time during usual business hours.
(3) Such list shall also be produced and kept open at the time and
place of any meeting of stockholders and shall be subject to
inspection by any stockholder at any time during the meeting.
(g) The original stock transfer books shall be prima facie evidence as to
the stockholders entitled to examine such list or stock transfer books
or to vote any meeting of stockholders.
(h) If the requirements of Section 5(f) of this Article I have not been
substantially complied with, then, on the demand of any stockholder in
person or by proxy, the meeting shall be adjourned until such
requirements are complied with.
(i) If no demand pursuant to Section 5(h) of this Article I is made,
failure to comply with the requirements of this Section shall not
affect the validity of any action taken at such meeting.
(j) Section 5(g) of this Article I shall be operative only at such time(s)
as the Corporation shall have 6 or more stockholders.
SECTION 6. Quorum
(a) At any meeting of the stockholders of the Corporation, the presence, in
person or by proxy, of stockholders holding a majority of the issued
and outstanding shares of the capital stock of the Corporation entitled
to vote thereat shall be necessary to constitute a quorum for the
transaction of any business.
(b) If a quorum is present, the vote of a majority of the shares
represented at such meeting and entitled to vote on the subject matter
shall be the act of the stockholders.
(c) If there shall not be a quorum at any meeting of the stockholders of
the Corporation, then the holders of a majority of the shares of the
capital stock of the Corporation who shall be present at such meeting,
in person or by proxy, may adjourn such meeting from time to time until
holders of a quorum of the shares of the capital stock shall attend.
(d) At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting as originally scheduled.
SECTION 7. Presiding Officer; Order of Business
(a) (1) Meetings of the stockholders shall be presided over by the
Chairman of the Board, or, if he or she is not present or
there is no Chairman of the Board, by the President or, if he
or she is not present, by the senior Vice President present
or, if neither the Chairman of the Board, the President, nor a
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Vice President is present, the meeting shall be presided over
by a chairman to be chosen by a plurality of the stockholders
entitled to vote at the meeting who are present, in person or
by proxy.
(2) The presiding officer of any meeting of the stockholders may
delegate his or her duties and obliga tions as the presiding
officer as he or she sees fit.
(b) The Secretary of the Corporation, or, in his or her absence, an
Assistant Secretary shall act as Secretary of every meeting of
stockholders, but if neither the Secretary nor an Assistant Secretary
is present, the presiding officer of the meeting shall choose any
person present to act as secretary of the meeting.
(c) The order of business shall be as follows:
Call of meeting to order.
Proof of notice of meeting.
Reading minutes of last previous stockholders' meeting or a waiver thereof.
Reports of Officers.
Reports of committees.
Mandatory nominations for election to the Board of Directors
based on contractual obligations. Election of members
of the Corporation's Board of Directors.
Regular and miscellaneous business.
Special matters.
Adjournment.
(d) (1) Notwithstanding the provisions of Section 7(c) of this
Article I, the order and topics of business to be transacted
at any meeting shall be determined by the presiding officer of
the meeting in his or her sole discretion.
(2) In no event shall any variation in the order of business or
additions and deletions from the order of business as
specified in Section 7(c) of this Article I invalidate any
actions properly taken at any meeting.
SECTION 8. Voting
(a) Unless otherwise provided for in the Certificate of Incorporation, each
stockholder shall be entitled, at each meeting and upon each proposal
to be voted upon, to one vote for each share of voting stock recorded
in his name on the books of the Corporation on the record date fixed as
provided for in Section 5 of this Article I.
(b) (1) The presiding officer at any meeting of the stockholders
shall have the power to determine the method and means of
voting when any matter is to be voted upon.
(2) The method and means of voting may include, but shall not be
limited to, vote by ballot, vote by hand or vote by voice.
(3) No method of voting may be adopted, however, which fails to
take account of any stockholder`s right to vote by proxy as
provided for in Section 10 of this Article I.
(4) In no event may any method of voting be adopted which would
prejudice the outcome of the vote.
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SECTION 9. Action Without Meeting
(a) (1) Any action required to be taken at any annual or special meeting
of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may
be taken without a meeting and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by
the holders of a majority of the Corporation's outstanding voting
stock; provided that, if the Corporation is then subject to
compliance with Section 14 of the Exchange Act, it must prior to
such action have filed with the Commission and delivered to the
stockholders an information statement and annual report in the
form required thereby.
(2) Such instrument may be executed in counterparts or as a unitary
document.
(b) In the event that the action to which the stockholders consent is such
as would have required the filing of a certificate under the Florida
Business Corporation Act, the effect of such consent shall be as if
such action had been voted on by stockholders at a meeting thereof,
however, the certificate filed under such other section shall state
that written consent has been given in accordance with the provisions
of Section 9 of this Article I.
(c) If the Corporation no longer has a class of securities registered under
Section 12 of the Exchange Act and stockholder action is taken by
written consent in lieu of meeting without prior notice, signed by less
than all of the Corporation's stockholders, then all non participating
stockholders shall be provided with written notice of the action taken
within 10 days after the effective date of the written instrument
taking such action.
(d) No action by written consent in lieu of meeting shall be valid if it is
in contravention of applicable proxy or informational rules adopted
pursuant to the Exchange Act including, without limitation, the
requirements of Section 14 thereof.
SECTION 10. Proxies
(a) Every stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent without a meeting, or his or her duly
authorized attorney-in-fact, may authorize another person or persons to
act for him or her by proxy.
(b) (1) Every proxy must be signed by the stockholder or his or her
attorney-in-fact.
(2) No proxy shall be valid after the expiration of 11 months from
the date thereof unless otherwise provided in the proxy.
(3) Every proxy shall be revocable at the pleasure of the stockholder
executing it, except as otherwise provided in this Section 10.
(c) The authority of the holder of a proxy to act shall not be revoked by
the incompetence or death of the stockholder who executed the proxy
unless, before the authority is exercised, written notice of any
adjudication of such incompetence or of such death is received by the
corporate officer responsible for maintaining the list of stockholders.
(d) Except when other provisions shall have been made by written agreement
between the parties, the record holder of shares held as pledges or
otherwise as security or which belong to another, shall issue to the
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pledgor or to such owner of such shares, upon demand therefor and
payment of necessary expenses thereof, a proxy to vote or take other
action thereon.
(e) A proxy which states that it is irrevocable is irrevocable when it is held
by any of the following or a nominee of any of the following: (i) a
pledgee; (ii) a person who has purchased or agreed to purchase the shares:
(iii) a creditor or creditors of the Corporation who extend or continue to
extend credit to the Corporation in consideration of the proxy, if the
proxy states that it was given in consideration of such extension or
continuation of credit, the amount thereof, and the name of the person
extending or continuing credit; (iv) a person who has contracted to perform
services as an officer of the Corporation, if a proxy is required by the
contract of employment, if the proxy states that it was given in
consideration of such contract of employment and states the name of the
employee and the period of employment contracted for; and (v) a person
designated by or under an agreement as provided in Article XI hereof.
(f) (1) Notwithstanding a provision in a proxy stating that it is irrevocable,
the proxy becomes revocable after the pledge is redeemed, the debt of
the Corporation is paid, the period of employment provided for in the
contract of employment has terminated, or the agreement under Article
XI hereof has terminated and, in a case provided for in Section 10(e)
(iii) or Section 10(e) (iv) of this Article I, becomes revocable three
years after the date of the proxy or at the end of the period, if any,
specified therein, whichever period is less, unless the period of
irrevocability of the proxy as provided in this Section 10.
(2) This Section 10(f) does not affect the duration of a proxy under
Section 10(b) of this Article I.
(g) A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a purchaser of shares without knowledge of the
existence of the provisions unless the existence of the proxy and its
irrevocability is noted conspicuously on the face or back of the
certificate representing such shares.
(h) (1) If a proxy for the same shares confers authority upon two
or more persons and does not otherwise provide, a majority of
such persons present at the meeting, or if only one is present
then that one, may exercise all the powers conferred by the
proxy.
(2) If the proxy holders present at the meeting are equally
divided as to the right and manner of voting in any particular
case, the voting of such shares shall be prorated.
(i) If a proxy expressly so provides, any proxy holder may appoint in
writing a substitute to act in his or her place.
(j) Notwithstanding anything in the Bylaws to the contrary, no proxy shall
be valid if it was obtained in violation of any applicable requirements
of Section 14 of the Exchange Act or the Rules and Regulations
promulgated thereunder.
SECTION 11. Voting of Shares by Stockholders
(a) (1) Shares standing in the name of another corporation, domestic or
foreign, may be voted by the officer, agent, or proxy designated
by the bylaws of the corporate stockholder; or, in the absence of
any applicable bylaw, by such person as the Board of Directors of
the corporate stockholder may designate.
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(2) Proof of such designation may be made by presentation of a
certified copy of the bylaws or other instrument of the corporate
stockholder.
(3) In the absence of any such designation, or in case of conflicting
designation by the corporate stockholder, the chairman of the
board, president, any vice president, secretary and treasurer of
the corporate stockholder, in that order, shall be presumed to
possess authority to vote such shares.
(b) (1) Shares held by an administrator, executor, guardian or
conservator may be voted by him or her, either in person or by
proxy, without a transfer of such shares into his or her name.
(2) Shares standing in the name of a trustee may be voted as shares
held by him or her without a transfer of such shares into his
name.
(c) (1) Shares standing in the name of a receiver may be voted by such
receiver.
(2) Shares held by or under the control of a receiver but not
standing in the name of such receiver, may be voted by such
receiver without the transfer thereof into his name if authority
to do so is contained in an appropriate order of the court by
which such receiver was appointed.
(d) A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the
pledgee.
(e) Shares of the capital stock of the Corporation belonging to the
Corporation or held by it in a fiduciary capacity shall not be voted,
directly or indirectly, at any meeting, and shall not be counted in
determining the total number of outstanding shares.
(f) In the event that a stockholder is party to an agreement to which the
Corporation is also a party that requires such stockholder to vote his,
her or its shares in a specified manner, then, absent an order by a
court of competent jurisdiction directing the Corporation to act
otherwise, the stockholder may only vote his, her or its common stock
in full compliance with such obligations.
ARTICLE II
DIRECTORS
SECTION 1. Board of Directors; Exercise of Corporate Powers
(a) (1) All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation
shall be managed under the direction of, the Board of
Directors except as may be otherwise provided in the
Certificate of Incorporation or in a stockholders' agreement.
(2) If any such provision is made in the Certificate of
Incorporation or in a stockholders' agreement, the powers and
duties conferred or imposed upon the Board of Directors shall
be exercised or performed to such extent and by such person or
persons as shall be provided in the Certificate of
Incorporation or stockholders' agreement.
(b) Directors need not be residents of this state or stockholders of the
Corporation unless the Certificate of Incorporation so requires.
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(c) The Board of Directors shall have authority to fix the compensation of
members of the Corporation's Board of Directors unless otherwise provided
in the Certificate of Incorporation.
(d) A Director shall perform his or her duties as a Director, including his or
her duties as a member of any committee of the Board upon which he may
serve, in good faith, in a manner he or she reasonably believes to be in
the best interests of the Corporation, and with such care as an ordinarily
prudent person in a like position would use under similar circumstances.
(e) In performing his or her duties, a Director shall be entitled to rely on
information, opinions, reports or statements, including without limitation,
financial statements and other financial data, in each case prepared or
presented by: (i) one or more officers or employees of the Corporation whom
the Director reasonably believes to be reliable and competent in the
matters presented; (ii) legal counsel, public accountants or other persons
as to matters which the Director reasonably believes to be within such
persons' professional or expert competence; or (iii) a committee of the
Board upon which he or she does not serve, duly designated in accordance
with a provision of the Certificate of Incorporation or these Bylaws, as to
matters within its designated authority, which committee the Director
reasonably believes to merit confidence.
(f) A Director shall not be considered to be acting in good faith if he or she
has knowledge concerning the matter in question that would cause such
reliance described in Section 1(e) of this Article II to be unwarranted.
(g) A person who performs his or her duties in compliance with Section 1 of
this Article II shall have no liability by reason of being or having been a
Director of the Corporation.
(h) A Director of the Corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless he or she votes
against such action or abstains from voting in respect thereto because of
an asserted conflict of interest.
SECTION 2. Number; Election; Classification of members of the Corporation's
Board of Directors Vacancies
(a) (1) The Board of Directors of this Corporation shall consist of
not less than one Director.
(2) The Board shall have authority, from time to time, to increase
the number of members of the Corporation's Board of Directors
or to decrease it to not less than one member, provided that
no decrease in the number of members of the Corporation's
Board of Directors shall deprive a serving Director of the
right to serve throughout the term of his or her election.
(3) In the event that the Corporation is party to an agreement to
which a majority of its stockholders are also parties and
which requires that one or more persons or their designees be
elected as members of the Corporation's board of directors,
then, absent an order by a court of competent jurisdiction
directing the Corporation to act otherwise, such persons shall
serve as members of the Corporation's Board of Directors, in
full compliance with such obligations.
(b) Each person named in the Certificate of Incorporation as a member of
the initial Board of Directors shall serve until his or her successor
shall have been elected and qualified or until his or her earlier
resignation, removal from office, or death.
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(c) (1) At the first annual meeting of stockholders and at each
annual meeting thereafter, the stockholders shall elect
Directors to hold office until the next succeeding annual
meeting, except in case of the classification of members of
the Corporation's Board of Directors as permitted by the
Florida Business Corporation Act.
(2) Each Director shall hold office for the term for which he or
she is elected and until his or her successor shall have been
elected and qualified or until his or her earlier resignation,
removal from office, or death.
(d) (1) The stockholders, by amendment to these Bylaws, may
provide that the Directors be divided into not more than four
classes, as nearly equal in number as possible, whose terms of
office shall respectively expire at different times, but no
such term shall continue longer than four years, and at least
one fourth of the Directors shall be elected annually.
(2) If members of the Corporation's Board of Directors are
classified and the number of members of the Corporation's
Board of Directors is thereafter changed, any increase or
decrease in Directorship shall be so apportioned among the
classes as to make all classes as nearly equal in number as
possible.
(e) (1) Any vacancy occurring in the Board of Directors, including
any vacancy created by reason of an increase in the number of
members of the Corporation's Board of Directors, may be filled
only by the Board of Directors.
(2) A Director elected to fill a vacancy shall hold office only
until the next election of Directors by the stockholders.
SECTION 3. Removal of Directors
(a) At a meeting of stockholders called expressly for that purpose, any
Director or the entire Board of Directors may be removed, with or
without cause, by the vote of the holders of 60% of the shares then
entitled to vote at an election of members of the Corporation's Board
of Directors; provided that at least one Director remains in office or
one Director is elected as a replacement Director concurrently with
such removal and provided further that such removal does not contravene
contractual obligations binding on the Corporation and the holders of
more than 40% of the Corporation's common stock.
(b) In the event that the number of members of the Corporation's Board of
Directors is reduced below that number mandated in the Certificate of
Incorporation as a result of the removal of one or more Directors by
the stockholders, then the remaining Directors or the contemporaneously
elected replacement Director will promptly elect replacement Directors,
to serve until the next meeting of the Corporation's stockholders, and
until their replacements have been elected, qualified and assume their
office.
SECTION 4. Director Quorum and Voting
(a) A majority of the Directors fixed in the manner provided in these
Bylaws shall constitute a quorum for the transaction of business;
provided that, in the event that the Corporation is a party to an
agreement that requires the presence and participation of specified
directors, either generally or as to specific matters, then a quorum
will require the participation of such person or persons, in the manner
called for by such agreement.
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(b) A majority of the members of an Executive Committee or other committee
shall constitute a quorum for the transaction of business at any
meeting of such Executive Committee or other committee; provided that,
in the event that the Corporation is a party to an agreement that
requires the presence and participation of specified directors, either
generally or as to specific matters, then a quorum will require the
participation of such person or persons, in the manner called for by
such agreement.
(c) The act of a majority of the members of the Corporations Board of
Directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors; provided that, in the event that the
Corporation is a party to an agreement that requires the affirmative
vote of specified members, either generally or as to specific matters,
then action by the Board of Directors will require the affirmative vote
of such member or members, in the manner called for by such agreement.
(d) The act of a majority of the members of an Executive Committee present
at an Executive Committee meeting at which a quorum is present shall be
the act of the Executive Committee; provided that, in the event that
the Corporation is a party to an agreement that requires the
affirmative vote of specified members, either generally or as to
specific matters, then action by the Executive Committee of the Board
of Directors will require the affirmative vote of such member or
members, in the manner called for by such agreement.
(e) The act of a majority of the members of any other committee present at
a committee meeting at which a quorum is present shall be the act of
the committee; provided that, in the event that the Corporation is a
party to an agreement that requires the affirmative vote of specified
members, either generally or as to specific matters, then action by any
such committee of the Board of Directors will require the affirmative
vote of such member or members, in the manner called for by such
agreement.
(f) Directors may, if not contrary to applicable law, vote either in person
or by proxy, provided that the proxy holder must be either another
Director, an officer or a stockholder of the Corporation; provided that
any Director who elects to vote by proxy more than three times during
any single fiscal year shall, unless otherwise determined by the Board
of Directors, be automatically removed as a Director and provided
further, that, in the event that the Corporation is a party to an
agreement that requires the affirmative vote of specified members,
either generally or as to specific matters, then action by the Board of
Directors will require the affirmative vote of such member or members,
in the manner called for by such agreement.
SECTION 5. Director Conflicts of Interest
(a) No contract or other transaction between this Corporation and one or
more of its Directors or any other corporation, firm, association or
entity in which one or more of its Directors are Directors or officers
or are financially interested shall be either void or voidable because
of such relationship or interest or because such Director or Directors
are present at the meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or
transaction or because their votes are counted for such purpose, if:
(i) The fact of such relationship or interest is disclosed or
known to the Board of Directors or committee which authorizes,
approves or ratifies the contract or transaction by a vote or
consent sufficient for the purpose without counting the votes
or consents of such interested Directors; or
(ii) The fact of such relationship or interest is disclosed or
known to the stockholders entitled to vote and they authorize,
approve or ratify such contract or transaction by vote or
written consent; or
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(iii) The contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board, a
committee, or the stockholders.
(b) Interested Directors, whether or not voting, may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction.
SECTION 6. Executive and Other Committees; Designation; Authority
(a) The Board of Directors, by resolution adopted by the full Board of
Directors, may designate from among its Directors an Executive Committee
and one or more other committees each of which, to the extent provided in
such resolution or in the Certificate of Incorporation or these Bylaws,
shall have and may exercise all the authority of the Board of Directors,
except that no such committee shall have the authority to : (i) approve or
recommend to stockholders actions or proposals required by the Florida
Business Corporation Act to be approved by stockholders; (ii) designate
candidates for the office of Director for purposes of proxy solicitation or
otherwise; (iii) fill vacancies on the Board of Directors or any committee
thereof; (iv) amend these Bylaws; (v) authorize or approve the
re-acquisition of shares unless pursuant to a general formula or method
specified by the Board of Directors; or (vi) authorize or approve the
issuance or sale of, or any contract to issue or sell, shares or designate
the terms of a series of a class of shares, unless the Board of Directors,
having acted regarding general authorization for the issuance or sale of
shares, or any contract therefor, and, in the case of a series, the
designation thereof has specified a general formula or method by resolution
or by adoption of a stock option or other plan, authorized a committee to
fix the terms upon which such shares may be issued or sold, including,
without limitation, the price, the rate or manner of payment of dividends,
provisions for redemption, sinking fund, conversion, and voting or
preferential rights, and provisions for other features of a class of
shares, or a series of a class of shares, with full power in such committee
to adopt any final resolution setting forth all the terms of a series for
filing with the Department of State under the Florida Business Corporation
Act.
(b) The Board of Directors, by resolution adopted in accordance with Section
6(a) of this Article II, may desig nate one or more members of the Board of
Directors as alternate members of any such committee, who may act in the
place and stead of any absent member or members at any meeting of such
committee.
(c) Neither the designation of any such committee, the delegation thereto of
authority, nor action by such committee pursuant to such authority shall
alone constitute compliance by a member of the Board of Directors, not a
member of the committee in question, with his responsibility to act in good
faith, in manner he reasonably believes to be in the best interests of the
Corporation, and with such care as an ordinarily prudent person in a like
position would use under similar circumstances.
SECTION 7. Place, Time, Notice and Call of Board of Directors' Meeting.
(a) Meetings of the Board of Directors, regular or special, may be held either
within or without the State of Florida.
(b) (i) A regular meeting of the Board of Directors of the Corporation shall
be held for the election of officers of the Corporation and for the
transaction of such other business as may come before such meeting as
promptly as practicable after the annual meeting of the stockholders
of this Corporation without the necessity of notice other than this
Bylaw.
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(ii) Other regular meetings of the Board of Directors of the Corporation
may be held at such places as the Board of Directors of the
Corporation may from time to time resolve without notice other than
such resolution.
(iii)Special meetings of the Board of Directors may be held at any time
upon call of the Chairman of the Board of Directors or a majority of
the Directors of the Corporation, at such time and at such place as
shall be specified in the call thereof.
(iv) (A) Notice of any special meeting of the Board of Directors must be
given at least two days prior thereto, if by written notice
delivered personally; or at least five days prior thereto, if
mailed; or at least two days prior thereto, if by telegram; or at
least two days prior thereto, if by telephone or E-mail, receipt
confirmed.
(B) If such notice is given by mail, such notice shall be deemed to
have been delivered when deposited with the United States Postal
Service addressed to the business address of such Director with
postage thereon prepaid.
(C) If notice be given by telegram, such notice shall be deemed
delivered when the telegram is delivered to the telegraph
company.
(D) If notice is given by telephone (including facsimile
transmission), such notice shall be deemed delivered when the
call is completed.
(E) If notice is given by E-mail, such notice shall be deemed
delivered when confirmation of receipt is obtained.
(c) (1) Notice of a meeting of the Board of Directors need not be given
to any Director who signs a waiver of notice either before or
after the meeting.
(2) Attendance of a Director at a meeting shall constitute a waiver
of notice of such meeting and waiver of any and all objections to
the place of the meeting, the time of the meeting, or the manner
in which it has been called or convened, except when a Director
states, at the beginning of the meeting, any objection to the
transaction of business because the meeting is not lawfully
called or convened.
(d) Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting.
(e) (1) A majority of the Directors present, whether or not a quorum
exists, may adjourn any meeting of the Board of Directors to
another time and place.
(2) Notice of any such adjourned meeting shall be given to the
Directors who were not present at the time of the adjournment
and, unless the time and place of the adjourned meeting are
announced at the time of the adjournment, to the other Directors.
(f) (1) Members of the Board of Directors may participate in a meeting of
such Board by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can communicate with each other at
the same time.
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(2) Participation by such means shall constitute presence in person
at a meeting.
SECTION 8. Action by Directors Without a Meeting
(a) (1) Any action required by the Florida Business Corporation Act to be
taken at a meeting of the Directors of the Corporation, or any
action which may be taken at a meeting of the Directors or a
committee thereof, may be taken without a meeting if a consent in
writing, setting forth the action so to be taken, signed by all
of the Directors, or all of the members of the committee, as the
case may be, and is filed in the minutes of the proceedings of
the Board or of the committee.
(2) Such consent shall have the same effect as a unanimous vote.
(b) If not contrary to applicable law, of members of the Corporation's Board of
Directors may take action as the Board of Directors or committees thereof
through a written consent to action signed by a number of members of the
Corporation's Board of Directors sufficient to have carried a vote of the
Board of Directors or committee thereof with all members present and
voting; provided, that all Directors not joining in such written instrument
shall be deemed for all purposes to have cast dissenting votes, and that
all Directors not parties to such instrument shall receive written notice
of all action taken through such instrument within three days after such
instrument shall have been subscribed by the requisite number of members of
the Corporation's Board of Directors required for such action, provided
that, in the event that the Corporation is a party to an agreement that
requires the affirmative vote of specified members, either generally or as
to specific matters, then action by the Board of Directors will require the
affirmative vote of such member or members, in the manner called for by
such agreement.
SECTION 9. Compensation
(a) The members of the Corporation's Board of Directors and members of the
Executive and any other committee of the Board of Directors shall be
entitled to such reasonable compensation for their services and on such
basis as shall be fixed from time to time by resolution of the
Corporation's stockholders.
(b) The members of the Board of Directors and members of any committee of
that Board of Directors shall be entitled to reimbursement for any
reasonable expenses incurred in attending any Board or committee
meeting.
(c) Any member of the Corporation's Board of Directors receiving
compensation under this Section shall not be prevented from serving the
Corporation in any other capacity and shall not be prohibited from
receiving reasonable compensation for such other services.
SECTION 10. Resignation
(a) Unless he is the sole serving Director, any Director of the Corporation
may resign at any time by providing the Board of Directors with written
notice indicating the Director's intention to resign and the effective
date thereof.
(b) A sole serving Director of the Corporation must, at least concurrently
with his or her resignation, elect one or more successor Director(s) at
least one of whom must assume his or her office concurrently with the
subject resignation, and the resignation shall be effected by providing
the successor Director(s) with written notice indicating the Director's
intention to resign and the effective date thereof.
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ARTICLE III
OFFICERS
SECTION 1. Election; Number; Terms of Office
(a) (1) The officers of the Corporation shall consist of a Chairman of
the Board of Directors whose title may be designated as
"Chairman," a Chief Executive officer, a President, a Chief
Operating Officer, a Chief Financial Officer, one or more
Vice-Presidents, a Secretary and a Treasurer, each of whom shall
be elected by the Board of Directors at such time and in such
manner as may be prescribed by these Bylaws.
(2) Such other officers and assistant officers and agents as may be
deemed necessary may be elected or appointed by the Board of
Directors.
(3) The officers of the Corporation shall be hereinafter collectively
referred to as the "Officers."
(b) All Officers and agents, as between themselves and the Corporation,
shall have such authority and perform such duties in the management of
the Corporation as are provided in these Bylaws, or as may be
determined by resolution of the Board of Directors not inconsistent
with these Bylaws.
(c) Any two or more offices may be held by the same person, except for the
offices of President and Secretary.
(d) A failure to elect a Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, a Vice
President, a Secretary or a Treasurer shall not affect the existence of
the Corporation.
SECTION 2. Removal
(a) An Officer of the Corporation shall hold office until the election and
qualification of his successor; however, any Officer of the Corporation
may be removed from office by the Board of Directors whenever in its
judgment the best interests of the Corporation will be served thereby,
provided that, in the event that the Corporation is a party to an
agreement that requires the affirmative vote of specified members,
either generally or as to specific matters, then action by the Board of
Directors will require the affirmative vote of such member or members,
in the manner called for by such agreement.
(b) Such removal shall be without prejudice to the contract rights, if any,
of the person so removed.
(c) Election or appointment of an officer shall not of itself create any
contract right to employment or compensa tion or create an employer -
employee relationship.
SECTION 3. Vacancies
Any vacancy in any office from any cause may be filled for the unexpired
portion of the term of such office by the Board of Directors.
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SECTION 4. Powers and duties
(a) (1) The Chairman of the Board of Directors shall preside over
meetings of the Board of Directors and the stockholders.
(2) Unless a separate Chief Executive Officer is elected, the
Chairman shall exercise the powers hereafter granted to that
office.
(3) Unless a Chairman of the Board is specifically elected, the
President shall be deemed to be the Chairman of the Board.
(b) (1) The Chief Executive Officer shall be the principal Officer of the
Corporation to whom all other Officers shall be subordinate.
(2) In the event no Chief Executive Officer is separately elected,
such office shall be assumed by the Chairman of the Board, and if
no such office has been filled, by the President.
(3) Except where by law the signature of the President is required or
unless the Board of Directors shall rule otherwise, the Chief
Executive Officer shall possess the same power as the President
to sign all certificates, contracts and other instruments of the
Corporation which may be authorized by the Board of Directors.
(c) (1) The Chief Operating Officer of the Corporation shall be
responsible for management of the day to day affairs of the
Corporation, subject to compliance with the directions of the
Board of Directors and of the Chief Executive Officer.
(2) He shall be responsible for the general day-to-day supervision of
the business and affairs of the Corporation.
(3) He shall sign or countersign all certificates, contracts or other
instruments of the Corporation, as authorized by the Board of
Directors or as assigned by the Chief Executive Officer.
(4) He may, but need not, be a member of the Board of Directors.
(5) Unless otherwise provided by specific resolution of the Board of
Directors, the President shall be the Chief Operating Officer of
the Corporation.
(d) (1) In the absence of a separately elected or available Chief
Executive Officer or Chairman of the Board, the President shall
be the Chief Executive Officer of the Corporation and shall
preside at all meetings of the stockholders and the Board of
Directors.
(2) The Board of Directors will at all times retain the power to
expressly delegate the duties of the President to any other
Officer of the Corporation.
(e) (1) The Chief Financial Officer shall be responsible for coordinating
all financial aspects of the Corporation's operations, including
strategic financial planning, supervision of the Corporation's
Treasurer, Comptroller and outside auditors.
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(2) In the event an Audit Committee of the Board of Directors is
designated and serving, he shall be responsible for keeping
such committee fully and timely informed of all matters under
its jurisdiction.
(3) The Chief Financial Officer shall, unless otherwise
specifically provided by the Board of Directors, serve as the
Corporation's principal compliance officer and shall be
responsible for overseeing preparation and filing of all
reports of the Corporation's activities required to be filed,
either periodically or on a special basis with the United
States Internal Revenue Service, the Securities and Exchange
Commission and with other federal, state or local governmental
agencies.
(f) (1) The Vice President(s), if any, in the order designated by
the Board of Directors, shall exercise the functions of the
President in the event of the absence, disability, death, or
refusal to act of the President.
(2) During the time that any Vice President is properly exercising
the functions of the President, such Vice President shall have
all the powers of and be subject to all restrictions upon the
President.
(3) Each Vice President shall have such other duties as are
assigned to him from time to time by the Board of Directors
or by the President of the Corporation and shall be subject
to such specializing designations (e.g., "senior,"
executive," etc.) as the Board of Directors may select.
(g) (1) The Secretary of the Corporation shall keep the minutes of
the meetings of the stockholders of the Corporation, and,
unless provided otherwise by the Chairman at any meeting of
the Board of Directors, the Secretary shall keep the minutes
of the meetings of the Board of Directors of the Cor poration.
(2) The Secretary shall be the custodian of the minute books of
the Corporation and such other books and records of the
Corporation as the Board of Directors of the Corporation may
direct.
(3) The Secretary of the Corporation shall have the general
responsibility for maintaining the stock transfer books of the
Corporation, or of supervising the maintenance of the stock
transfer books of the Corporation by the transfer agent, if
any, of the Corporation.
(4) The Secretary shall be the custodian of the corporate seal of
the Corporation and shall affix the corporate seal of the
Corporation on contracts and other instruments as the Board of
Directors may direct.
(5) The Secretary shall perform such other duties as are assigned
from time by the Board of Directors, the Chief Executive
Officer, the Chairman, the Chief Operating Officer or the
President of the Corporation.
(h) (1) The Treasurer of the Corporation shall be directly subordinate
to the Chief Financial Officer.
(2) In the absence of a Chief Financial Officer, such office shall
be filled by the Treasurer.
(3) Unless otherwise specified by the Board of Directors, the
Treasurer shall have custody of all funds and securities owned
by the Corporation.
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(4) The Treasurer shall cause to be entered regularly in the
proper books of account of the Corporation full and accurate
accounts of the receipts and disbursements of the Corporation.
(5) The Treasurer of the Corporation shall render a statement of
the cash, financial and other accounts of the Corporation
whenever he is directed to render such a statement by the
Board of Directors or by the President of the Corporation.
(6) The Treasurer shall at all reasonable times make available the
Corporation's books and financial ac counts to any Director of
the Corporation during normal business hours.
(7) The Treasurer shall perform all other acts incident to the
Office of Treasurer of the Corporation, and he shall have such
other duties as are assigned to him from time to time by the
Board of Directors, the Chief Executive Officer, the Chairman,
the Chief Operating Officer or the President of the
Corporation.
(i) (1) The Corporation's Board of Directors shall designate a
person licensed to practice law in one of the states
comprising the United States as the Corporation's General
Counsel and Chief Legal Officer;
(2) The Corporation's General Counsel and Chief Legal Officer
shall coordinate the Corporation's legal affairs under the
directions of the Board of Directors and in coordination with
the Chief Executive Officer, to whom he or she shall report;
(3) The Board of Directors may appoint such subordinate legal
officers and assign them such functions as it may deem
appropriate.
(j) Other subordinate or assistant Officers appointed by the Board of
Directors or by the Chief Executive Officer, the Chairman, the Chief
Operating Officer or the President, if such authority is delegated to
them by the Board of Directors, shall exercise such powers and perform
such duties as may be delegated to them by the Board of Directors, the
Chief Executive Officer, the Chief Operating Officer or by the
President, as the case may be.
(k) In case of the absence or disability of any Officer of the Corporation
and of any person authorized to act in his place during such period of
absence or disability, the Board of Directors may from time to time
delegate the powers and duties of such Officer or any Director or any
other person whom it may select.
SECTION 5. Salaries
(a) The salaries of all Officers of the Corporation shall, except as
otherwise determined or required by an agreement entered into among all
the stockholders of the Corporation, be fixed by the Board of
Directors.
(b) No Officer shall be ineligible to receive such salary by reason of the
fact that he is also a Director of the Corporation and receiving
compensation therefor.
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ARTICLE IV
LOANS TO EMPLOYEES AND OFFICERS;
GUARANTEE OF OBLIGATIONS OF EMPLOYEES AND OFFICERS
(a) This Corporation may not lend money to, guarantee any obligation of, or
otherwise assist any Officer or other employee of the Corporation or of
a subsidiary, including any Officer or employee who is a Director of
the Corporation or of a subsidiary, unless, in the judgment of the
Directors, such loan, guarantee or assistance may reasonably be
expected to benefit the Corporation and such decision has been ratified
by the Corporation's stockholders.
(b) The loan, guarantee or other assistance may be with or without
interest, and may be unsecured, or secured in such manner as the Board
of Directors shall approve and the Corporation's stockholders shall
ratify, including, without limitation, a pledge of shares of stock of
the Corporation.
ARTICLE V
STOCK CERTIFICATES; VOTING TRUSTS; TRANSFERS
SECTION 1. Certificates Representing Shares
No certificates representing shares of this Corporation need be issued
if the Corporation elects to maintain stock ownership records on a book entry
basis, if such method is permitted under applicable law; however, in the event
that such method is not permitted under applicable law, then
(a) (1) Every holder of shares of this Corporation shall be entitled to
one or more certificates, representing all shares to which he is
entitled and such certificates shall be signed by the Chairman,
Chief Executive Officer, Chief Operating Officer, the President
or a Vice President and the Secretary or an Assistant Secretary
of the Corporation and may be sealed with the seal of the
Corporation or a facsimile thereof.
(2) The signatures of the Chairman, the Chief Executive Officer, the
Chief Operating Officer, the President or Vice President and the
Secretary or Assistant Secretary may be facsimiles if the
certificate is manually signed on behalf of a transfer agent or a
registrar other than the Corporation itself or an employee of the
Corporation.
(3) In case any Officer who signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such
Officer before such certificate is issued, it may be issued by
the Corporation with the same effect as if it were executed by
the appropriate Officer at the date of its issuance.
(b) Every certificate representing shares issued by this Corporation shall,
if shares are divided into one or more classes or series with differing
rights, state that the Corporation will furnish to any stockholder upon
request and without charge a full statement of: (i) the designations,
preferences, limitations, and relative rights of the shares of each
class or series authorized to be issued, and (ii) the variations in the
relative rights and preferences between the shares of each such series,
if the Corporation is authorized to issue any preferred or special
class in series and so far as the same have been fixed and determined,
and the authority of the Board of Directors to fix and determine, the
relative rights and preferences of subsequent series.
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(c) Every certificate representing shares which are restricted as to sale,
disposition or other transfer (including restrictions based on federal
or state securities and other laws) shall state that such shares are
restricted as to transfer and shall set forth or fairly summarize upon
the certificate, or shall state that the Corporation will furnish to
any stockholder upon request and without charge a full statement of,
such restrictions.
(d) Each certificate representing shares shall state upon the face thereof:
(i) the name of the Corporation;
(ii) that the Corporation is organized under the laws of the State
of Florida;
(iii) the name of the person or persons to whom issued;
(iv) the number and class of shares, and the designation of the
series, if any, which such certificate represents; and
(v) the par value of each share represented by such certificate,
or a statement that the shares are without par value.
(e) No certificate shall be issued for any shares until they are fully
paid for and in the event that a certificate is erroneously issued or
compensation paid is subsequently discovered to be other than as
represented (e.g., dishonored checks, securities of a corporation
acquired in a reorganization where the representations and warranties
provided prove to be materially false, etc.), then the Board of
Directors shall promulgate a certified resolution detailing the nature
of the misrepresented consideration, and shall submit such certified
resolution to the person responsible for recording and effecting
transactions in the Corporation's securities; whereupon such
securities will be restricted from transfer and treated as no longer
outstanding for all purposes unless the Corporation becomes subject to
a judgment of a court of competent jurisdiction providing otherwise.
SECTION 2. Transfer Books
(a) The Corporation shall keep at its registered office or principal place
of business or in the office of its transfer agent or registrar, a book
(or books where more than one kind, class, or series of stock is
outstanding) to be known as the Stock Book, containing the names,
alphabetically arranged, addresses and Social Security numbers of every
stockholder and the number of shares each kind, class or series of
stock held of record.
(b) Where the Stock Book is kept in the office of the transfer agent, the
Corporation shall keep at its principal office copies of the stock
lists prepared from said Stock Book and sent to it from time to time
(but not less frequently than every month) by said transfer agent.
(c) The Stock Book or stock lists shall show the current status of the
ownership of shares of the Corporation provided that, if the transfer
agent of the Corporation be located elsewhere, a reasonable time shall
be allowed for transit or mail.
SECTION 3. Transfer of Shares
(a) The name(s) and address(es) of the person(s) to whom shares of stock of
this Corporation are issued, shall be entered on the Stock Transfer
Books of the Corporation, with the number of shares and date of issue.
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(b) (1) Transfer of shares of the Corporation shall be made on the Stock
Transfer Books of the Corporation by the Secretary or the
transfer agent, subject to compliance with any restrictions
specified on such certificate, only when the holder of record
thereof or the legal representative of such holder of record or
the attorney-in-fact of such holder of record, authorized by
power of attorney duly ex ecuted and filed with the Secretary or
transfer agent of the Corporation, shall surrender the
Certificate representing such shares for cancellation.
(2) Lost, destroyed or stolen Stock Certificates shall be replaced
pursuant to Section 5 of this Article V.
(c) The person or persons in whose names shares stand on the books of the
Corporation shall be deemed by the Corporation to be the owner of such
shares for all purposes, except as otherwise provided pursuant to
Sections 10 and 11 of Article I, or Section 4 of Article V.
(d) Shares of the Corporation's capital stock shall be freely transferable
without required Board of Directors' consent, unless such shares are
subject to transfer restrictions under Securities and Exchange
Commission Rule 144 or a consent requirement has been imposed pursuant
to a binding written contract subscribed to by the holder or his or her
predecessor in interest.
(e) (1) All transactions in securities subject to any restrictions
imposed under Securities and Exchange Commission Rule 144
("restricted securities" and "Rule 144," respectively) shall, as
a condition to transfer, require the following documentation, to
be reviewed and approved by legal counsel to the Corporation:
(A) An affidavit from the holder (the "Holder") providing
details concerning acquisition of the subject shares;
providing evidence of the date when consideration for the
shares was paid in full; detailing all transactions in the
Corporation's securities during the immediately preceding 90
days; affirming a present intent to dispose of the subject
securities; affirming that a Form 144 has been filed with
the Securities and Exchange Commission covering the proposed
transaction (and providing a copy thereof); affirming
compliance with any reporting obligations under Sections
13(d), 13(g) or 16(b) of the Exchange Act and providing such
other facts or representations as legal counsel to the
Corporation may reasonably require;
(B) A written confirmation by the Corporation's transfer agent
based on records available thereto of all transactions in
the Corporation's securities by the Holder and anyone with
whom the holder is required to aggregate sales or securities
holdings for purposes of Rule 144, as well as confirmation
of the percentage of outstanding securities of the
Corporation held of record by the Holder and anyone with
whom the holder is required to aggregate sales or securities
holdings for purposes of Rule 144;
(C) Except as provided below, a written confirmation from the
broker through whom the Holder is effecting the proposed
transaction verifying that the transaction will be effected
in full compliance with Rule 144; and
(D) A legal opinion from counsel to the Holder (who may not also
be the counsel to the Corporation) specifically addressing
all aspects of Rule 144 and detailing the manner in which
they are being complied with or the reasons that they are
not applicable.
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(2) Transactions in restricted securities that are not being effected
in reliance on Rule 144 shall require, as a condition to
transfer, the following documentation, to be reviewed and
approved by legal counsel to the Corporation:
(A) An affidavit from the holder (the "Holder") providing
details concerning acquisition of the subject shares;
providing evidence of the date when consideration for the
shares was paid in full; the identity and qualifications of
the person to whom the securities are being transferred; the
manner in which such person has been provided with required
information concerning the Corporation; affirming compliance
with any reporting obligations under Sections 13(d), 13(g)
or 16(b) of the Exchange Act and providing such other facts
or representations as legal counsel to the Corporation may
reasonably require;
(B) A legal opinion from counsel to the Holder (who may not also
be the counsel to the Corporation) addressed to the
Corporation in a manner creating enforceable privity between
such legal counsel and the Corporation, specifically
addressing all aspects of the exemptions relied on to effect
the proposed transaction without registration under
applicable federal and state securities laws and
regulations, and detailing the manner in which they are
being complied with or the reasons that they are not
applicable.
(3) No transactions in the Corporation's restricted securities
failing to materially comply with the foregoing requirements will
be honored, nor will any holding period required under Rule 144
be deemed to commence until all such requirements are materially
complied with (material compliance to be determined in the sole
discretion of the Corporation's Board of Directors).
SECTION 4. Voting Trusts
(a) (1) Any number of stockholders of the Corporation may create a voting
trust for the purpose of conferring upon a trustee or trustees
the right to vote or otherwise represent their shares, for a
period not to exceed ten years, by: (i) entering into a written
voting trust agreement specifying the terms and conditions of the
voting trust; (ii) depositing a counterpart of the agreement with
the Corporation at its registered office; and (iii) transferring
their shares to such trustee or trustees for the purposes of this
Agreement.
(2) Prior to the recording of the agreement, the stockholder
concerned shall render the stock certificate(s) described therein
to the Corporate Secretary who shall note on each certificate:
"This Certificate is subject to the provisions of a voting trust
agreement dated ..........., recorded in Minute Book
............, of the Corporation.
(b) (1) Upon the transfer of such shares, voting trust certificates shall
be issued by the trustee or trustees to the stockholders who
transfer their shares in trust.
(2) Such trustee or trustees shall keep a record of the holders of
voting trust certificates evidencing a beneficial interest in the
voting trust, giving the names and addresses of all such holders
and the number and class or the shares in respect of which the
voting trust certificates held by each are issued, and shall
deposit a copy of such record with the Corporation at its
registered office.
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(c) The counterpart of the voting trust agreement and the copy of such
record so deposited with the Corporation shall be subject to the same
right of examination by a stockholder of the Corporation, in person or
by agent or attorney, as are the books and records of the Corporation,
and such counterpart and such copy of such record shall be subject to
examination by any holder of record of voting trust certificates either
in person or by agent or attorney, at any reasonable time for any
proper purpose.
(d) (1) At any time before the expiration of a voting trust agreement as
originally fixed or as extended one or more times under this
Section 4(d), one or more holders of voting trust certificates
may, by agreement in writing, extend the duration of such voting
trust agreement, nominating the same or substitute trustees, for
an additional period not exceeding 10 years.
(2) Such extension agreement shall not affect the rights or
obligations or persons not parties to the agreement, and such
persons shall be entitled to remove their shares from the trust
and promptly to have their stock certificates reissued upon the
expiration of the original term of the voting trust agreement.
(3) The extension agreement shall in every respect comply with and be
subject to all the provisions of this Section 4, applicable to
the original voting trust agreement except that the 10 year
maximum period of duration shall commence on the date of adoption
of the extension agreement.
(e) The trustees under the terms of the agreements entered into under the
provisions of this Section 4, shall not acquire the legal title to the
shares but shall be vested only with the legal right and title to the
voting power which is incident to the ownership of the shares.
(f) Notwithstanding generally applicable prohibitions against a
corporation's voting of treasury stock, if the Corporation is the
trustee under a voting trust, it shall have full authority to vote such
shares in accordance with the terms of the voting trust agreement, even
if such agreement vests absolute and unfettered voting discretion in
the trustee and notwithstanding that the voting trust was created at
the prompting or direction of the Corporation, its officers or
Directors.
SECTION 5. Lost, Destroyed, or Stolen Certificates
No Certificate representing shares of stock in the Corporation shall be
issued in place of any Certificate alleged to have been lost, destroyed, or
stolen except on production of evidence, satisfactory to the Board of Directors,
of such loss, destruction or theft, and, if the Board of Directors so requires,
upon the furnishing of an indemnity bond in such amount (but not to exceed twice
the fair market value of the shares represented by the Certificate) and with
such terms and with such surety as the Board of Directors may, in its
discretion, require.
ARTICLE VI
BOOKS AND RECORDS
(a) The Corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of its stockholders,
Board of Directors and committees of the Board of Directors.
(b) Any books, records and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable
time.
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(c) Any person who shall have been a holder of record of shares, or the
holder of record of voting trust certificates for, at least five
percent of the outstanding shares of any class or series of the
Corporation, upon written demand stating the purpose thereof, shall;
subject to the qualifications contained in subsection (d) hereof, have
the right to examine, in person or by agent or attorney, at any
reasonable time or times, for any purpose, its relevant books and
records of account, minutes and records of stockholders and to make
extracts therefrom.
(d) (1) No stockholder who within two years has sold or offered for sale
any list of stockholders or of holders of voting trust
certificates for shares of this Corporation or any other
corporation; has aided or abetted any person in procuring any
list of stockholders or of holders of voting trust certificates
for any such purpose; or has improperly used any information
secured through any prior examination of the books and records of
account, minutes, or record of stockholders or of holders of
voting trust certificates for shares of the Corporation of any
other corporation; shall be entitled to examine the documents and
records of the Corporation as provided in Section (c) of this
Article VI.
(2) No stockholder who does not act in good faith or for a proper
purpose in making his demand shall be entitled to examine the
documents and records of the Corporation as provided in Section
(c) of this Article VI.
(e) Unless modified by resolution of the stockholders and not otherwise
required by applicable laws, this Corporation shall prepare not later
than 90 days after the close of each fiscal year, audited financial
statements, including all required schedules, prepared in accordance
with Generally Accepted Accounting Principals ("GAAP") consistently
applied; and shall prepare not later than 45 days after the close of
each fiscal quarter (other than the fourth quarter), quarterly
unaudited financial statements, including all required schedules,
prepared in accordance with Generally Accepted Accounting Principals
("GAAP").
(f) Upon the written request of any stockholder or holder of voting trust
certificates for shares of the Corporation, the Corporation shall mail
to such stockholder or holder of voting trust certificates a copy of
its most recent balance sheet and profit and loss statement.
(g) Such financial statements shall be filed and kept for at least five
years in the registered office of the Corporation in the State of
Florida and shall be subject to inspection during business hours by any
stockholder or holder of voting trust certificates, in person or by
agent.
ARTICLE VII
DIVIDENDS
The stockholders of the Corporation may, from time to time, declare, and
the Corporation may pay dividends on its own shares, except when the Corporation
is insolvent or when the payment thereof would render the Corporation insolvent,
subject to the following provisions:
(a) Dividends in cash or property may be declared and paid, except as
otherwise provided in this Article VII, only out of the unreserved and
unrestricted earned surplus of the Corporation or out of capital
surplus, however arising, but each dividend paid out of capital surplus
shall be identified as a distribution of capital surplus, and the
amount per share paid from such capital surplus shall be disclosed to
the stockholders receiving the same concurrently with the distribution.
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(b) If the Corporation shall engage in the business of exploiting natural
resources or other wasting assets and if the Certificate so provides,
dividends may be declared and paid in cash out of depletion or similar
reserves, but each such dividend shall be identified as distribution of
such reserves and the amount per share paid from such reserves shall be
disclosed to the stockholders receiving the same concurrently with the
distribution thereof.
(c) Dividends may be declared and paid in the Corporation's treasury shares
(d) Dividends may be declared and paid in the Corporation's authorized but
unissued shares, out of any unreserved and unrestricted surplus of the
Corporation, upon the following conditions:
(i) If a dividend is payable in the Corporations' own shares
having a par value, such shares shall be issued at not less
than the par value thereof and there shall be transferred to
stated capital at the time such dividend is paid an amount of
surplus equal to the aggregate par value of the shares to be
issued as a dividend.
(ii) If a dividend is payable in the Corporations' own shares
without par value, such shares shall be issued at a stated
value fixed by resolution of the stockholders adopted at the
time such dividend is declared, and there shall be transferred
to stated capital at the time such dividend is paid an amount
of surplus equal to the aggregate stated value so fixed and
the amount per share so transferred to stated capital shall be
disclosed to the stockholders receiving such dividend
concurrently with the payment thereof.
(e) No dividend payable in shares of any class shall be paid to the holders
of shares of any other class unless the Certificate of Incorporation so
provides or such payment is authorized by the affirmative vote or the
written consent of the holders of at least a majority of the
outstanding shares of the class to which the payment is to be made.
(f) A split or division of the issued shares of any class into a greater
number of shares of the same class without increasing the stated
capital of the Corporation shall not be construed to be a stock
dividend within the meaning of this Article VII.
ARTICLE VIII
SEAL
The Board of Directors shall adopt a Corporate Seal which shall be circular
in form and shall have inscribed thereon the name of the Corporation, the state
of incorporation and the year of incorporation.
ARTICLE IX
AMENDMENT OF BYLAWS
The stockholders shall have the exclusive power to amend, alter, or repeal
these Bylaws, and to adopt new Bylaws.
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ARTICLE X
FISCAL YEAR
The fiscal year of this Corporation shall be determined by the Board of
Directors, unless this Corporation is a subsidiary of another Corporation which
holds more that 50% of the Corporation's common stock, in which case the
Corporation's fiscal year shall coincide with that of its Parent Corporation.
ARTICLE XI
MEDICAL REIMBURSEMENT
SECTION 1. Benefits
(a) The Corporation may, subject to approval of the Board of Directors and,
if it is a subsidiary of another Corporation which holds more that 50%
of the Corporation's common stock, subject to approval by its Parent
Corporation, reimburse all employees for expenses incurred by
themselves and their dependents, as defined in Section 152 of the
Internal Revenue Code of 1986, as amended (the "IRC"), for medical
care, as defined in IRC Section 213(e) or any successor section
thereto, subject to the conditions and limitations hereinafter set
forth.
(b) It is the intention of the Corporation that the benefits payable to
employees hereunder will be excluded from their gross income pursuant
IRC Section 105 or any successor section thereto.
(c) Notwithstanding anything in this Article to the contrary, if this
Corporation is a subsidiary of another Corporation which holds more
that 50% of the Corporation's common stock, then all actions called for
hereby requiring determination or approval by this Corporation, its
Board of Directors or officers shall be subject to such conditions or
restrictions as may be imposed by its Parent Corporation.
SECTION 2. Employees Defined
The term "employees" as used in this medical expense plan is hereby defined
to include all individuals employed by the corporation except the following:
(a) Employees who have not completed three months of service as is provided in
IRC Section 105(h)(3) (b)(i), or any successor section thereto;
(b) Employees who have not attained the age of 25 years;
(c) Employees who are part-time or seasonal as is defined in IRC Section
105(h)(3)(B)(iii) or any successor section thereto;
(d) Employees who are included in a unit of employees covered by an agreement
between employee representatives and one or more employers found to be a
collective bargaining agreement; where accident and health benefits were
the subject of good faith bargaining between such employee representatives
and such employer(s) as is defined in IRC Section 105(h)(3)(B)(iv) or any
successor section thereto;
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(e) Employees who are nonresident aliens and who receive no earned income from
the employer which constitutes income from sources within the United States
as is further defined in IRC Section 105(h)(5)(B)(v) or any successor
section thereto.
SECTION 3. Limitations
(a) The Corporation will reimburse any employee no more than $5,000.00 in any
fiscal year for medical care expenses;
(b) Reimbursement or payment provided under this plan will be made by the
Corporation only in the event and to the extent that such reimbursement or
payment is not provided under any insurance policy(ies), whether owned by
the Corporation or the employee, or under any other health and accident or
wage continuation plan;
(c) In the event that there is such an insurance policy or plan in effect
providing for reimbursement in whole or in part, then to the extent of the
coverage under such policy or plan, the Corporation will be relieved of any
and all liability hereunder.
SECTION 4. Submission of Proof
(a) Any employee applying for reimbursement under this plan will submit to the
Corporation, at least quarterly, all bills for medical care, including
premium notices for accident or health insurance, for verification by the
Corporation prior to payment.
(b) Failure to comply herewith, may at the discretion of the Board of
Directors, terminate such employee's right to said reimbursement.
SECTION 5. Discontinuation
This plan will be subject to termination at any time by vote of the Board
of Directors or at the direction of the Parent Corporation; provided, however,
that medical care expenses incurred prior to such termination will be reimbursed
or paid in accordance with the terms of this plan.
SECTION 6. Determination
(a) The Chief Executive Officer will determine all questions arising from the
administration and interpretation of the Plan except where reimbursement is
claimed by the Chief Executive Officer.
(b) Where reimbursement is claimed by the Chief Executive Officer determination
will be made by the Board of Directors.
* * *
The Undersigned, being the duly elected and acting Secretary of the
Corporation, hereby certifies that the foregoing constitute the validly adopted
and true Bylaws of the Corporation, as of the date set forth below.
Dated: March 7, 2000
/s/ Alicia Torrealba
------------------------
Secretary
(Corporate Seal)
171
COMMERCIAL LEASE
THIS LEASE made and entered into as of the 9th day of December , 1998, by
and between John A. Roschrnan hereinafter referred to as Landlord and Vista
Vacations International, Inc. Located at 6645 N. W. 48th Manor, Coral Springs,
FL 33067 hereinafter referred to as "Tenant" :
ARTICLE I. PREMISES: WITNESSETH:
That Landlord, for and in consideration of the rents, covenants and
conditions hereinafter contained to be performed and observed by Tenant, does
hereby demise and lease to Tenant the premises described in Exhibit " A "
attached hereto and made a part hereof, which premises are located at 5653 N. W.
29th Street, Margate , Broward County, Florida, .
ARTICLE 2. TERM:
The term of this Lease shall be for Two Years, commencing on January 1,
1999 and expiring on December 31. 2000.
ARTICLE 3. RENT:
A. Base Rental:
Tenant shall pay to Landlord annual base rent for the demised premises as
follows;
For the first year rent shall be in the amount of: Fourteen Thousand Two
Hundred Fifty Six Dollars ($14.256.00) to be paid in equal monthly installments
of One Thousand One Hundred Eighty Eight Dollars ($1.188.00) due on the first
day of each and every month Commencing January 1, 1999 and continuing thru
December 31, 1999.
For the second year rent shall be in the amount of: Fourteen Thousand Nine
Hundred Sixty Four Dollars ($14.,964.00) to be paid in equal monthly
installments of One Thousand Two Hundred Forty Seven Dollars ($1.247.00) due on
the first day of each and every month Commencing January 1, 2000 and continuing
thru December 31,.2000.
For purposes of this Lease, Base Rent and all other additional rent and
payments due Landlord are collectively referred to as "rent." Tenant shall pay
to Landlord monthly all sales taxes from time to time imposed by any
governmental authority in connection with rent paid by Tenant under this Lease.
If any installment of rent or any other sum payable to Landlord under the terms
of this Lease is not paid within ten days of due date, then Tenant shall pay to
Landlord a late payment and service charge covering administrative and overhead
expenses of One Hundred Dollars ($100.00). In addition, Tenant shall also pay to
Landlord an amount equal to eighteen percent ( 18% ) per annum until all
required payments are made, from the date on which any sum shall be due and
payable.
Rental shall be payable on the first day of each and every month without
demand at the address of Landlord as set forth in Article 29 or at such other
place and to such other person or entity as the Landlord may from time to time
designate in writing.. The accrual of rent hereunder shall begin with the
commencement of the term of this lease and the first rental payment shall be
adjusted for the proportionate fraction of the whole month.
B. RECEIPT OF LATE PAYMENTS:
Date of receipt of payment by Landlord will be considered to be one day
after the United States Postal Service post mark, the date payment was sent by
way of overnight carrier such as Federal Express or U. P. S., or the actual date
of delivery if Hand Delivered. Landlord's acceptance of any partial rent payment
will be treated as partial payment on account Landlord's acceptance of any
partial payment shall not be considered an accord and satisfaction. Furthermore
, Landlord shall have the right to collect the balance due in accordance with
this lease.
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ARTICLE 4. RIGHT TO RELOCATE
Provided that Tenant is not in default in any way or manner Tenant shall
have the option to relocate ( at Tenants expense) to any available suite in
Coral Gate Professional Plaza which is available for rent and remains under the
ownership of John A. Roschrnan, In such event Tenant shall not suffer any fee or
penalty under this Lease Moreover, Tenant shall receive a new lease for a
minimum of three years; under which the rental price per square foot shall be
the same as was being paid under this lease at the time o f relocation and base
rent shall be increased by five percent at the beginning of the second year and
at the beginning of the third year of the new lease agreement.
ARTICLE 5. USE OF PREMISES:
It is contemplated by Tenant hereunder that the demised premises will be
for the operation of a Travel Agency Office and Professional office use.
Premises may also be used for Travel Agency's sales, marketing and training of
its employees and members. Tenant shall be open for business during the term of
this lease, during regular, reasonable and customary hours for the aforesaid
type of business and/or all business days, unless prevented from doing so by
causes beyond Tenant's control, such as strikes, fires or acts of God, and shall
continuously conduct its business aforesaid on the Demised Premises during the
term of this lease and at all times actively, diligently and in a first class
and reputable manner and maintain a full staff of employees, as is customary to
effectively service Tenant's customers. Any change in use must be requested by
Tenant to Landlord in writing and shall not be unreasonable withheld.
ARTICLE 6. RULES AND REGULATIONS:
Tenant covenants that Tenant, its agents, employees, and invitees will at
all times observe, perform and abide by all the rules and regulations as
promulgated by Landlord from time to time.
ARTICLE 7. COVENANT OF TITLE AND OUIET ENJOYMENT:
Landlord covenants that Landlord is well seized of and has good title to
lease the premises and does warrant and will defend the title thereto and will
indemnify the Tenant for any damage and expense which Tenant may suffer by
reason of any lien, encumbrance, restriction of defect in the title or
description herein of the premises. If at any time, Landlord's title or right to
receive rent hereunder is disputed, or there is a change of ownership of
Landlord's estate by act of the parties or operation of law, Tenant may withhold
rent thereafter accruing until Tenant has been furnished proof satisfactory to
it as to the party entitled thereto.
ARTICLE 8. SUBORDINATON AND NON-DISTURBANCE:
Subject to the provisions of this Article, this Lease shall be subject and
subordinate to the lien of any mortgage which Landlord may place upon the
premises for any reason, including to finance the cost of the improvements, and
to all terms, conditions and provisions thereof, to all advances made and to any
renewals, extensions, modifications or replacements thereof provided, however
that if this Lease is in full force and effect and there are no defaults
thereunder on the part of Tenant, Tenant's right of possession to the leased
premises and Tenant's rights arising out of this Lease shall not be affected or
disturbed by the mortgage in the exercise of any of its rights under the
mortgage or the note secured thereby, nor shall Tenant be named as a party
defendant to any foreclosure of the lien of any such mortgage, nor in any other
way be deprived of its rights under this lease. In the event the mortgagee, or
any other person, acquire title to the premises, pursuant to the exercise of any
rights or remedies under the mortgage, this lease shall not be terminated or
affected by said foreclosure or sale of any such proceedings, and the mortgagee
shall agree that any sale of the premises pursuant to the exercise of any rights
or remedies under the mortgage or otherwise shall be made subject to this Lease
and the rights of the Tenant hereunder. Tenant agrees to attorn to the mortgagee
or such other person as its new Landlord and this Lease shall continue in full
force and effect as a direct lease between Tenant and such mortgagee or such
other person, upon all terms, covenants and agreements set forth in this lease.
The parties hereto agree to execute or obtain execution of such reasonable
documents as may be necessary to insure compliance with the subordination and
non-disturbance provisions of this Article, including, but not limited to a
non-disturbance agreement executed by any such mortgagee setting forth the
provisions of this Article 8.
ARTICLE 9. COMPLIANCE WITH LAWS AND ORDINANCES:
Tenant shall comply with all Federal, State, County and City laws and
ordinances and all rules and regulations of any duly constituted authority
present or future affecting or respecting the use or occupancy of the demised
premises by Tenant, or the business at any time thereon transacted by Tenant or
any assignee or sub-Tenant of Tenant, after the commencement of the term of this
Lease. Tenant shall, at all times, keep the demised premises, the building
thereon and all appurtenances, in a clean and sanitary condition, according to
the applicable statutes, city ordinances and the directions and regulations of
the proper authorities.
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ARTICLE 10. CONDITION OF PREMISES
Tenant hereby accepts the premises in the condition they are in at the
beginning of this lease. Except for Landlords Improvements described in Article
13(a) Tenant accepts the premises in its "AS I" condition.
ARTICLE 11: SECURITY DEPOSIT:
Concurrently with Tenant's execution of this lease, Tenant security in the
amount of $ 1,188.00 shall be held by Landlord as security for the faithful
performance by Tenant hereof. If Tenant defaults with respect to any provisions
of this lease, including but not limited to the provisions relating to the
payment of rent, Landlord may (but shall not be required to) use, apply or
retain all or any part of the security deposit for the payment of any rent or
any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of said deposit is so used or applied
Tenant shall, within five (5) days after written demand thereof, deposit cash
with Landlord in an amount sufficient to restore the security deposit to its
original amount and Tenant's failure to do so shall be a default under the
Lease. Landlord shall not be required to keep this security deposit separate
from its general funds, and Tenant shall not be entitled to interest on such
deposit. If Tenant shall fully and faithfully perform every provision of this
lease to be performed by it, the security deposit or any balance thereof shall
be returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) within ten (10) days following expiration of the
Lease Term. In the event of termination of Landlord's interest in this Lease,
Landlord shall transfer and deposit to Landlord's successor in interest.
ARTICLE 12: TRADE FIXTURES. MACHINERY AND EOUIPMENT:
Tenant agrees that all fixtures and furniture provided by Landlord shall
remain on the premises and the property of Landlord. Other personal property
kept or installed on the demised premises by Tenant shall not become the
property of the Landlord or a part of the realty, no matter how affixed to the
leased premises, and may be removed by Tenant in Tenant's discretion, at any
time, and from time to time, during the entire term of this Lease and any
renewals of said Lease, provided that Tenant is not in default under this Lease
and provided said removal of equipment does not damage the premises. Any
Furniture, fixtures, machinery , or equipment remaining in the building or on
the premises beyond the thirty days of the termination of the Lease shall become
property of the Landlord.
ARTICLE 13. ALTERATIONS AND IMPROVEMENTS:
Tenant may not make alterations, additions and improvements to the demised
premises without the written consent of Landlord, said consent shall not be
unreasonable withheld. 13(a) Landlord Improvements : Landlord shall provide the
premises with building standard commercial grade carpet comparable to 26 ounce
level loop . Landlord's cost for carpet under no circumstance shall exceed
$2,250.00. Should Tenant require a higher grade carpet, Tenant shall pay for any
cost exceeding Landlord's budget of$2,250.00. Landlord shall replace one office
window leading to the garden area with one glass door. Landlord shall remove
Landlord's items being stored in the premises within 15 days of execution of
this lease by both Landlord and Tenant. Landlord shall install one half swing
doors, outside the reception area in front of the sink area, and one full swing
door going into storage area. Landlord shall complete all other work within 30
days of the execution of this lease. Should Landlord require additional days to
complete Landlord's Improvements then Tenant's rent shall be abated on a daily
basis until Landlord's work is substantially complete to allow tenant to occupy
premises. 13(b) Tenant's Improvernents:
Except for Landlord's improvements described in 13(a) Tenant shall accept
the premises "AS IS". Tenant shall be responsible for all other improvements
necessary to make the premises suitable for Tenant's business.
ARTICLE 14. REPAIRS. MAINTENANCE. REPLACEMENT:
Tenant shall be solely responsible for maintaining the Leased Premises in
good, clean, safe, and attractive condition, for keeping the same clean and free
of trash and debris. Landlord shall be responsible for the repair and
maintenance of the heating, ventilation, air conditioning, plumbing and
electrical systems. In the event Landlord chooses to purchase a maintenance
contract to provide for said HV AC systems, Tenant shall share the expense of
said maintenance contracts not to exceed $500 per year . Landlord shall be
responsible for structural and roof repairs provided that repairs are not
necessary due to the negligence of Tenant. Tenant shall have the right to
replace any structures, fixtures and equipment provided by Landlord under this
Lease at such time as the same are in need of replacement (subject to Article 13
above ), and possession of all such replacement structures, fixtures and
equipment shall be surrendered up to Landlord along with delivery of the Leased
Premises and the facility at the end of the Term and/or Extended Term. Should
Landlord fail to repair any roof leak or structural defects which were not
caused by negligence of the Tenant and or it's invites then Tenant shall have
the option to make necessary repairs at Tenant's sole cost and expense or
terminate the lease by giving Landlord written notice. Tenant shall not commence
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or permit the commencement of any leasehold improvements of the Leased Premises
or the renovation, enlargement, demolition or material modification of any part
of the Facility except with the prior written approval of Landlord in each
instance; following each instance in which such approval has been granted,
Tenant shall provide copies of as-built drawings of same promptly upon
completion. Tenant shall keep premises free and clear of any and all mechanics
liens for the duration of this lease. This Article shall survive Termination or
expiration of this Lease.
Tenant shall, for the duration of the Lease term and any extensions
thereof, at its own cost and expense, keep and maintain or cause to be kept and
maintained in good condition and repair, ordinary wear and tear and the
provisions of Article 19 hereof excepted, all buildings and improvements at any
time erected on the demised premises and shall use all reasonable precaution to
prevent waste, damage or injury to said buildings and improvements. Tenant (if
third persons are not obligated with respect thereto) shall also at its own
expense maintain, keep open, free from obstruction and in good repair, all
electric, water, sewer and other utility lines and connections, conduits, pipes,
catch basins, manholes, poles, lighting fixtures and other related facilities
situated in, under or on the premises. Tenant shall also at Tenant's expense
maintain in good condition the landscaping and provide for trash removal.
ARTICLE 15. CONSTRUCTION LIENS:
A. Tenant shall not suffer or permit the interest of Landlord in the Premises
to be subject to any construction, mechanics' or materialmen's liens or
other liens of any kind.
B. In order to comply with the provisions of Section 713.10 Florida Statutes,
it is specifically provided that neither Tenant nor anyone claiming by,
through or under Tenant, including but not limited to contractors,
subcontractors, materialmen, mechanics and laborers, shall have any right
to file or place any kind of lien whatsoever upon the Premises or any
improvement thereon, and any such liens are specifically prohibited. Tenant
shall put all parties with whom Tenant may deal on notice that Tenant has
no power to subject Landlord's interest to any claim or lien of any kind or
character, and all such persons so dealing with Tenant must look solely to
the credit of Tenant, and not to Landlord's interest or assets.
C. If at any time a lien or encumbrance is filed against the Premises as a
result of Tenant's work, materials or obligations, Tenant shall cause same
to be removed within ten ( 10) days from the date it is filed. I f said
lien or encumbrance has not been removed within ten (10) days from the date
it is filed, Tenant agrees to deposit with Landlord cash in an amount equal
to one hundred fifty percent (150%) of the amount of the lien, to be held
by Landlord (without interest to Tenant, except as may be required by law)
until the lien is discharged. ARTICLE 16. TAXES:
Landlord shall be responsible for real estate/property taxes assessed
against the Premises.
ARTICLE 17. UTILITIES:
Tenant agrees that it will pay all costs for water, sewer, gas and electric
current and other utilities used, consumed or wasted upon or in connection with
the demised premises during the term hereof and of any renewals thereof, as and
when the charges for the same shall become due and payable. Landlord shall not
be held liable for any failure or interruption of utilities provided to Tenant.
ARTICLE 18. INSURANCE REOUIREMENTS:
Tenant shall maintain, at its sole cost, the insurance coverages set forth
below with companies satisfactory to Landlord with full policy limits applying,
but not less than as stated. With the exception of Workers Compensation
insurance policies, all such policies shall be endorsed to show Landlords
additionally insured and additional loss-payee. Certificates evidencing the
required insurance coverages shall be delivered to Landlord prior to the
Effective Date of this Agreement. Such certificates shall provide that any
change restricting or reducing coverage or the cancellation of any policies
under which certificates are issued shall not be valid a..' respects Landlord's
interest until Landlord has received thirty (30) days notice in writing of such
change or cancellation. Further, it shall State that it is primary coverage and
not concurrent or excess over other valid insurance which may be available to
Landlord.
Workers Compensation Insurance as required by laws and regulations
applicable to and covering employees of Tenant engaged performance of the work
under this Agreement.
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Employer's Liability Insurance protecting Tenant against common law
liability, in the absence of statutory liability, for employee bodily injury
arising out of the master-servant relationship with a limit of not less than
$1,000,000.00.
Commercial General Liability Insurance including products/completed
operations with limits of liability of not less than $500,000 per occurrence.
This policy shall cover, among other risks, the contractual liability assumed
under the indemnification provision set forth in this Agreement.
Nothing contained in these provisions relating to coverage and amounts
shall operate as a limitation of Tenant's liability in tort or contract under
the terms of this Agreement, and shall survive termination or expiration of this
Lease.
ARTICLE 19. CASUALTY INSURANCE/TENANT'S OBLIGATION TO REBUILD:
Tenant, at its own cost and expense, shall obtain and maintain throughout
the Term and any Extended Term, as the same may from time to time be extended,
for the benefit of Tenant and Landlord as their interest may appear, In a
Commercial General Liability Policy as Landlord shall reasonably approve, with a
deductible which does not exceed an amount approved in writing by Landlord and
with standard coverage endorsement for the benefit of Landlord. Prior to
Commencement of the Term and at least thirty (30) days prior to the expiration
of any policy or policies previously provided by Tenant hereunder, Tenant shall
cause a certificate of insurance to be furnished to Landlord evidencing such
coverage, and providing that the policy or policies will not be canceled nor the
limits thereunder materially changed without first providing Landlord with at
least thirty (30) days prior written notice thereof. 1fTenant shall not comply
with its covenants made in this Section, Landlord shall have the right, but not
the obligation, to cause insurance as aforesaid to be issued, and in such event
Tenant agrees to pay the premium for such insurance as additional rent upon the
demand of Landlord. Tenant shall promptly rebuild, repair and restore the same
to the condition they were in prior to any occurrence caused by Tenant. Damage
to the Facility shall not cause an abatement of Tenant's obligation to pay rent
to Landlord or to make any other payments required to be made by Tenant under
this Lease.
ARTICLE 20. MUTUAL WAlVER OF SUBROGATION:
Notwithstanding anything else contained and to the extent that the same can
be done without invalidating either party's insurance coverage, Landlord and
Tenant hereby waive any and all rights of subrogation as between them with
respect to any and all insurance carried by either party on or relating to the
Properties, and each party agrees to provide the other with written evidence
that all such policies have been so endorsed if the same is required under the
policies.
If Landlord is required by a mortgagee, which shall be a holder of record
of any mortgage covering the premises, to carry and maintain a policy of
insurance for such coverage, such policy shall be furnished by Tenant and name
the mortgagee as an additional named insured; such insurance may be carried
under so called blanket policy or policies.
Tenant shall indemnify and save Landlord harmless against and from any and
all liabilities, losses, damages, injuries, costs and expenses as hereafter may
occur, arise, or be claimed to occur or arise directly or indirectly from or out
of: (a) any failure by Tenant to make any payment to be made by it hereunder or
fully to perform and observe any obligation or condition to be performed and
observed by Tenant hereunder, or (b) any cause whatsoever on, about or relating
to the premises during the term of this Lease, however, or by whomever caused,
whether due in whole or in part to the negligent acts or omissions on the part
of Tenant, or anyone else not party to this Lease and any negligent acts caused
by negligence on the part of Landlord and Tenant, and whether such acts or
omissions are active or passive in character, including, without limitation, any
use, misuse, possession, occupancy or un-occupancy of the premises by anyone
during the term of this Lease, or any failure by Tenant to perform and observe
all obligations and conditions to be performed and observed by it under this
Lease, or (c) any cost or expenses incurred or paid by Landlord in connection
with the foregoing, including reasonable attorney fees or other costs or
expenses in prosecuting or defending any of the foregoing, whether litigated or
un-litigated. Tenant shall maintain at its cost comprehensive general liability
insurance in the amount of One Million Dollars ($1,000,000.00) insuring against
any liability, loss, damage, injury cost or expense against which Tenant has
agreed hereunder to indemnify and hold Landlord harmless. Such insurance may be
maintained under a so called blanket policy or policies.
ARTICLE 21. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS:
If Landlord's improvements on the demised premises shall be damaged or
rendered untenantable by fire or other casualty, the Landlord shall within
thirty (30) days from the date of said damage or destruction commence to repair
or replace said improvements according to Tenant's the current plans and
specifications so that the Tenant may continue with occupancy and the same shall
be completed within sixty (60) days thereafter. However Landlord's obligation to
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pay for the cost of rebuilding or repairing any such damage or destruction to
the improvements located on the demised premises shall be limited to the
insurance monies payable by reason of such damage or destruction and if the cost
of repairing or replacing said improvements according to Tenant's then current
plans and specifications shall exceed this amount it shall be Tenant's
responsibility to either (a) pay to Landlord all additional monies required to
pay for such repair or replacement (b) require Landlord to pay such excess and
increase the base rental payable hereunder by thirteen (13%) percent of the
costs incurred by Landlord which shall be in excess of the insurance monies
payable. However, it is further agreed that the rent herein required to be paid
shall abate during said period of untenantability or if the improvements shall
be damaged but not rendered untenantable thereby, the rental shall abate in an
amount proportionate to the decrease in the utility of the premises. In the
event Landlord has not commenced construction, or has not notified Tenant that
he intends to commence construction within fifteen ( 15) days from the date of
such damage, then, and in that event, Tenant may either (a) terminate this Lease
Agreement by giving written notice of such tenmination in accordance with
Article 29 hereof, or (b) Tenant may thereupon and without further notice to
Landlord commence to repair or replace said building with Tenant having access
to the insurance proceeds, if any, available by reason of such damage or
destruction. In the event Tenant makes such repairs or replacements, Landlord
shall be Liable to the Tenant for any and all costs and expenses of Tenant in
making the same and Landlord shall be required to reimburse Tenant for any such
costs and expenses of Tenant for any costs which Tenant expends for replacement
or repair of the improvements which shall be in excess of the insurance proceeds
payable by reason of such damage or destruction. If Landlord fails to reimburse
Tenant within thirty (30) days after receiving Tenant's invoice, Tenant shall
have the right to deduct the amount of the invoice from rental payments due to
Landlord and or institute legal action in Law or equity to recover its expenses.
It is agreed by the parties that if the building cannot be replaced or repaired
within ninety (90) days after such damage to the building, due to the inability
of either party to obtain materials or labor needed, strikes or acts of God or
governmental restrictions that would prohibit, limit, or delay said
construction, then the time for completion of said repairs and replacements
shall be extended accordingly, provided, that in any event, if the repair or
replacement of the building has not been complete within a period of One Hundred
Twenty (120) days from the date of such damage or destruction, Tenant and/or
Landlord may, and in addition to other remedies available hereunder, elect to
terminate this Lease. In the event of any damage or destruction occurring in the
last twelve (12) months of the original term of this Lease or during any
extension of the term, to the extent of fifty percent (50%) or more of the
insurable value of the building, Tenant may, at its option, to be evidenced by
notice in writing giving to the Landlord within thirty (30) days after the
occurrence of such damage or destruction, in lieu of repairing or replacing such
building elect to terminate this lease as of the date of said damage or
destruction. All insurance proceeds payable on account of such damage or
destruction shall be paid to Landlord.
ARTICLE 22. EMINENT DOMAIN:
If the whole or any part of the demises premises shall be taken for any
public or quasi public use under any statute or by right of eminent domain or by
private purchase in lieu thereof; Tenant reserves unto itself the right to
prosecute its claim for an award bases upon injury caused to its leasehold
interest by such taking, without impairing any rights of Landlord for the taking
of or injury to the reversion. 1n the event a part of the demised premises shall
be taken and that (a) the part so includes the building on the demised premises
or any part thereof or (b) the part so taken shall remove from the premises
twenty percent (20%) or more of the front depth of the parking area thereof or
(c) the part so taken shall consist of twenty-five percent (25% ) or more of the
total parking area or ( d) such part so taken shall result in cutting off direct
access from the demised premises to any adjacent public street or highway, then,
and in any such event, the Tenant may at any time either prior to or within a
period of sixty (60) days after the date when possession of the premises shall
be required by the taking authority elect to terminate this Lease. In the event
that Tenant shall fail to exercise any such option to terminate this Lease or in
the event that a part of the demises premises shall be taken by circumstances
under which the Tenant will have no such option, then the Landlord shall, at its
own cost and expense and with reasonable promptness, restore the remaining
portion of the demised premises to the extent necessary to reconstitute the
improvements thereon as a complete architectural unit, susceptible to the same
use as that which was in effect immediately prior to such taking and the base
rental payable under the provisions of this Lease shall be equitably reduced
according to the decrease in the utility of the premises for the Tenant's
intended use and the effect thereof upon the business of Tenant.
ARTICLE 23. ASSIGNMENT AND SUBLETTING:
Tenant may not, without the prior written consent of Landlord, assign,
sublet or encumber this Lease or its rights hereunder. In the event of any
assignment or subletting, Tenant shall remain liable for the payment of all
rents required to be paid hereunder and for the performance of all terms,
covenants and conditions herein undertaken by Tenant and Landlord may exercise
other rights afforded it hereunder.
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ARTICLE 24. SIGNS:
Tenant shall not paint or install any signs on the Premises without the
written consent of Landlord which consent shall be in the sole discretion of
Landlord. All signs shall be removed by Tenant upon the termination or
expiration of the Lease at Tenant's expense and the Premises shall be restored
to their original position.
ARTICLE 25. REMEDIES OF Landlord:
If Tenant shall fail to pay any installment of rent promptly on the day
when the same shall become due and payable hereunder, and shall continue in such
default for a period often (10) days, or if Tenant shall fail to promptly keep
and perform any other affirmative covenants of this lease, strictly in
accordance with the terms of this Lease and shall continue in default for a
period of fifteen ( 15) days after written notice thereof by Landlord of default
and demand of performance, then and in any such event and as often as any such
event shall occur , Landlord may (a) declare the said term ended, and enter into
said premises, or any part thereof, either with or without process of law and
expel Tenant or any person occupying the same in or upon said premises, using
such force as may be necessary, and to repossess and enjoy said premises as in
the Landlord's former estate; or (b) relet the premises applying said rent from
the new tenant of the demised premises against the rent payable by Tenant
hereunder and Tenant shall be responsible for no more than the balance that may
be due, should a balance exist. However if any default shall occur, other than
the payment of money, which cannot with due diligence be cured within a period
of thirty (30) days, and if Tenant prior to the expiration of(30) thirty days
from and after the giving of the notice as aforesaid, eliminates the cause of
such default, then Landlord shall not have the right to declare the term ended
by reason of such default.
ARTICLE 26. LANDLORD'S ACCESS TO PREMISES:
Landlord shall have reasonable rights of access to the demised premises for
the purpose of inspecting the condition thereof from time to time throughout the
term of this Lease and any renewals thereof. Landlord shall also have the right
during the last two (2) months of the Lease term or any renewal thereof to show
the demised premises to any prospective tenant at reasonable times during
business hours and place any rental or "For Rent" signs on or about the
Premises.
ARTICLE 27. SURRENDER OF PREMISES:
Tenant shall, after the last day of the term or any extension thereof, or
upon any earlier termination of such term, surrender and yield up to Landlord
all of Landlord's Improvements on such premises in good order, condition, and
state of repair, reasonable wear and tear and the provisions of article 19
hereof excepted. AR\TICLE 28. HOLDING OVER:
In the event Tenant continues to 0ccupy the premises after the first day of
the term hereby created, or after the last day of any extension of said term,
and the Landlord elects to accept rent thereafter, a tenancy from month to month
only shall be created under and subject to all other provisions contained herein
and Landlord shall be entitled to collect any additional rental amounts to the
maximum amount permitted under Florida law. ARTICLE 29. SERVICE OF NOTICE:
Every notice, approval, consent or other communication authorized or
required by this Lease shall not be effective unless the same shall be in
writing and sent postage prepaid by United States registered or certified mail,
return receipt requested. and if for Landlord shall be addressed to: Mr. John A.
Roschrnan 5651 N. W. 29th Street, Margate, FI, 33063, and if for Tenant shall be
addressed to :5653 N. W.29th Street. Margate. FI. , or such other address as
either party may designate, by notice given from time to time in accordance with
this Article. Any notice given in accordance with the provisions of this Article
shall be deemed to have been given as of the date such notice shall have been
placed in the United States Postal Service. The rent payable by Tenant hereunder
shall be paid to Landlord at the same place where a notice to Landlord is herein
required to be directed.
ARTICLE 30. SUCCESSORS AND ASSIGNS:
The terms, conditions, and covenants of this lease shall be binding upon
and shall inure to the benefit of each of the parties hereto, their heirs,
personal representatives, successors or assigns, and shall run with the land,
and where more than one party shall be Landlord under this Lease, the word
Landlord whenever used in this Lease shall be deemed to include all Landlords
jointly and severally.
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ARTICLE 31. LIMITATION OF LANDLORD'S LIABILITY:
The obligations of Landlord under this Lease do not constitute personal
obligations of l,andlord or the individual partners, shareholders, directors,
officers, employees or agents of Landlord, and Tenant shall look solely to
Landlord's interest in the Premises and Center, and to no other assets of
Landlord, for satisfaction of any liability in respect of this Lease, and will
not seek recourse against the individual partners, shareholders, directors,
officers, employees or agents of Landlord or any of their personal assets for
such satisfaction. No other properties or assets of Landlord shall be subject to
levy, execution. or other enforcement procedures for the satisfaction of any
judgment ( or other judicial process) or for the satisfaction of any other
remedy of Tenant arising out of or in connection with this Lease, the
relationship of landlord and Tenant, or Tenant's use of the premises.
ARTICLE 31.(b) PERSONAL PROPERTY LIABILITY
All personal property placed or moved in the premises above described shall
be at the risk of the Tenant or Owner thereof, and Landlord shall not be liable
for any damage to said personal property, or to the Tenant arising from bursting
or leaking water pipes, or from any act of negligence of any co- tenant of
occupants of the building or of any other person whomsoever .
ARTICLE 32. SALE:
In the event the original Landlord hereunder, or any successor owner of the
Center, shall sell or convey, or otherwise transfer the Center, aI1liabilities
and obligations under this Lease on the part of the original Landlord, or a
successor owner, accruing thereafter shall terminate and thereupon all such
liabilities and obligations shall be binding upon the new owner. Tenant and any
assignee or subTenant of Tenant hereby agrees to attorn to any such new owner .
ARTICLE 33. Landlord'S RESERVED RIGHTS:
Without notice and without liability to Tenant, Landlord shall have the
right to grant utility easements or other easements in, or re-plat, subdivide or
make other changes in the legal status of the land underlying the Premises as
Landlord shall deem appropriate in its sole discretion, provided such grant or
changes do not substantially interfere with Tenant's use of the Premises for the
use as set forth in Article 5; (ii) sell the Premises (or any portion(s)
thereof) and assign this Lease, to the purchaser, and upon such assignment
Landlord shall be released from all of its obligations under this Lease and
Tenant agrees to attorn to such purchaser, or any other successor or assign of
Landlord through foreclosure or deed in lieu of foreclosure or otherwise, and to
recognize such person as successor Landlord under this Lease; (iii) change the
name or street address of the Premises; (iv) install and maintain signs on the
Premises; and (v) make such Rules and Regulations as, in the sole discretion of
Landlord, may be needed from time to time for the safety of the Premises, the
care and cleanliness of the Premises, and the preservation of good order
therein.
ARTICLE 34. LANDLORD'S LIEN:
To secure the payment of all Rents due and to become due hereunder, and the
faithful performance of all other terms, covenants, agreements and conditions of
Tenant under this Lease, Tenant hereby grants to Landlord an express contract
lien on and security interest in all personal property, fixtures, furnishings or
merchandise which may be placed in or on the Premises, together with any
insurance or other proceeds thereof. All exemption laws are hereby waived by
Tenant. This lien and security interest are given in addition to, and shall be
cumulative to, Landlord's statutory lien(s).. In an Event of Default, Landlord
shall have the right, but not the obligation, to remove such property from the
Premises and to store such property in any place selected by Landlord
(including, without limitation, a public warehouse), at the expense and risk of
the owner(s) thereof, and to sell or otherwise dispose of such property, with or
without notice, in such manner as Landlord shall determine in its sole
discretion, and Landlord further shall be entitled to become the purchaser of
any such property upon offering the highest price at any sale thereof. The
proceeds of any such sale shall be applied, first to the costs of such sale,
second to any costs of storage and removal, third to the payment of any damages
or-other sums of money which may be due from Tenant to Landlord under any of the
terms hereof or otherwise, and the balance, if any, to be paid to Tenant or
whosoever shall be entitled to the same.
ARTICLE 35. RECORDING:
This Lease shall not be recorded. However if either of the parties hereto
desire to record a statutory memorandum of this Lease, Landlord and Tenant agree
to execute and deliver to the other a memorandum of this Lease containing only
minimum statutory requirements, which memorandum of Lease may then be recorded
in the appropriate office of the County within which the demised premises is
located.
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ARTICLE 36. COMMISSIONS:
Landlord and Tenant hereby warrant and represent to the other that it has
had no dealing with any Real Estate broker or agent {other than Landlord's agent
Steven Gee} ,in connection with Lease, and Landlord and Tenant further hereby
warrant to the other that it shall indemnify the other party as to any liability
for the payment of any real estate broker's commission claimed to be payable by
reason of services performed by said broker pursuant to the request or either
Landlord or Tenant. Landlord acknowledges that Landlord shall be responsible for
payment or broker's commission to Steven Gee in connection with this Lease.
ARTICLE 37. AMENDMENTS:
No waivers, alterations, or modifications of this Lease or other agreements
in connection therewith shall be valid unless in writing duly executed by both
Landlord and Tenant herein.
ARTICLE 38. ESTOPPEL CERTIFICATE:
Tenant agrees to provide at any time, within five (5) days of Landlord's
written request, a statement certifying that this Lease is unmodified and in
full force and effect or, if there have been modifications, that same is in full
force and effect as modified and stating the modifications, and the dates to
which the rent or other charges have been paid in advance, if any. It is
intended that any such statement delivered pursuant to this Section may be
relied upon by any prospective purchaser or mortgagee of the Premises. If Tenant
fails to execute such statements within ten (10) days after written request by
Landlord therefor, Tenant shall be deemed to have approved the contents of any
such statements submitted to Tenant by Landlord and Landlord is authorized to so
certify .
ARTICLE 39. INV ALIDITY OF PROVISIONS:
If any term, coyenant, condition or provision of this lease or the
application thereof to any person or circumstance shall, at any time, or to any
extent, be inyalid or unenforceable, the remainder of this Lease or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby; and each term, covenant, condition and provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
ARTICLE 40. RADON GAS:
Radon is a naturally occurring radioactive gas that when it has accumulated
in a building in sufficient quantities, may represent health risks to persons
who are exposed to it over time. Levels of radon that exceed Federal and State
guidelines have been found in buildings in Florida. Additional information
regarding Radon and Radon testing may be obtained from your county public health
unit.
ARTICLE 41. BANKRUPTCY, INSOLVENCY
If the Tenant shall become insolvent or if bankruptcy proceedings shall be
begun by or against the Tenant, before the end of this lease term the Landlord
is hereby irrevocably authorized at its option, to forthwith cancel this lease,
as for default. Landlord may elect to accept rent from such receiver, trustee,
or other judicial officer during the term of their occupancy in their fiduciary
capacity without effecting Landlord's rights as contained in this contract. No
receiver, trustee, or other judicial officer shall ever have any right, title or
interest in or to the above described premises by virtue of this contract.
ARTICE 42. CAPTIONS:
The captions appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope of
intent of such articles of this Lease.
ARTICLE 43. OPTION TO RENEW:
Landlord grants tenant One (1) Two (2) year Option to renew this lease with
3 months prior written notice. Rent for Renewal term shall be the previous years
rent increased by Five Percent (5%). The second year of the option period shall
also have a Five Percent (5%) escalation over prior years rent.
ARTICLE 44. ENTIRE AGREEMENT:
This Lease supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the demised premises and
contains all of the covenants, agreements, and other obligations between the
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ARTICLE 45: CITY OF MARGATE APPROVAL
Subject to approval for occupational license, including police and fire.
IN WITNESS WHEREOF, the parties hereto have set their hands to duplicates
hereof, this 10TH day of December, 1998. Signed and acknowledged in the presence
of:
Landlord:
John A Roschrnan
By:: /s/ John n A Roschman
Tenant:
VISTA VACATIONS INTERNATIONA, INC.
By: /s/ Teri Nadler
State of FLORIDA
County of BROWARD
Before me personally appeared John A. Roschman to me well known and known to me
to be the Landlord in the foregoing instrument, and acknowledged to and before
me that he executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal, this 10TH day of December, A.D.., 1998.
/s/ MARY PAT HEVENER
Notary Public
State of FLORIDA
County of
Before me personally appeared Teri Nadler to me well known and known to me to be
the President of Visa Vacations International, Inc. in the foregoing instrument,
and acknowledged to and before me that - executed said instrument for the
purposes therein expressed.
WITNESS my hand and official seal, this 10th day of December A.D., 1998.
/s/ MARY PAT HEVENER
Notary Public
181
BSFS Equipment Leasing Lease Agreement #6790397-001
Lease Agreement
Leesee's Name: VISTA VACATIONS INTERNATIONAL
Address: 5653 NW 29th Street
City/State/Zip Code: Margate, FL 33063
Contact: Teri Nadler
Fax Number: 954-753-9186
Term (in months) 36
855.24
Advanced Rent 1 @ $2,566.76
---------
$3,421.00
Monthly Rent 2 -36 @ $473.80
System: ICS Phone System
System Price: $17,105.04
Total Price: $17,105.04
Supplier Name: Bellsouth Communications Systems Co,
Address: 5405 Windward Parkway
City/State/Zip: Alpharetta, GA 30004
By: /s/ Teri Nadler
Title: President
Date: 12/30/98
182
Lease Agreement The Document Company
XEROX
Customer's Legal Name: Vista Vacations International
Street Address 5653 NW 29th St.
City/State/Zip Code Margate, FL 33063
Tax ID# 650877427
Negotiated Contract #0709364
County Installed in: Broward
Customer Requested initial date: 3/15/99
Lease Term: 36 months
Product:
(serial number) 5322OZTAS
Minimum Monthly lease payment $87.32
Customer Name: Teri Nadler Phone: 954-975-0898
Title: Owner/Pres. Date: 3/16/99
Agreement Presented by:
Name: Linda Cope phone: 305-655-9960
183
Lease Agreement The Document Company
XEROX
Customer's Legal Name: Vista Vacations International
Street Address: 5653 NW 29th St.
City/State/Zip Code: Margate, FL 33063
County Installed in: Broward
Customer requested initial date: 3/15/99
Negotiated contract #0709364
Product:
(serial number) DWC 635
Minimum monthly lease payment: $57.65
Customer Name: Teri Nadler Phone: 954-975-0898
Title: Owner/Pres. Date: 3/16/99
Agreement Presented by:
Name: Linda Cope phone: 305-655-9960
184
Lease Agreement The Document Company
XEROX
Customer's Legal Name: Vista Vacations International
Street Address: 5653 NW 29th St.
City/State/Zip Code: Margate, FL 33063
Tax ID#650877427
Negotiated Contract #0709364
County Installed in: Broward
Customer requested install date: 3/15/99
Product:
(serial number) 5760DADF
Minimum Monthly Lease Payment $252.60
Print Charge (Meter #1) $.16
Print Charge (Meter #2) $.04
Customer Name: Teri Nadler Phone: 954-975-0898
Title: Owner/Pres. Date: 3/16/99
Agreement presented by:
Name: Linda Cope phone: 305-655-9960
185
Vista Vacations International Shareholders Agreement
SHAREHOLDERS' AGREEMENT AND IRREVOCABLE PROXY
AGREEMENT, made and entered into as of the 13th day of November 1998 , by
and among TERRI NADLER, residing at 6645 Northwest 48th Manor, Coral Springs,
Fla, 33067, and NELLIE TIPPERY, residing at 219 E. Wiser Lake Rd., Lynden Wash.
98264, JEAN HICKMAN, residing at 3780 SW 19th Street, Fort Lauderdale, Florida
33312, ALICIA TORREALBA residing at 1965 South Ocean Drive, Apartment 2J,
Hallendale, Florida 33309, collectively referred to as the "Shareholders" and
Vista Vacations International, Inc., (the "Corporation") with offices at 6645
Northwest 48th Manor, Coral Springs, Fla, 33067.
W I T N E S S E T H:
WHEREAS, the Corporation was incorporated on November 13, 1998 and is
presently in good standing; and
WHEREAS, the Shareholders desire to provide for the contemplated business
of the Corporation and assure the continuity of management of the Corporation
and its business, and in furtherance thereof, to place certain restrictions on
the sale, transfer or other disposition of the shares of the Corporation now
owned or hereafter acquired by each of them;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereby agree as follows:
1. Offices
(a) Principal Office: The principal office of the Corporation in the State
of Florida shall be located at 6645 Northwest 48th Manor, Coral Springs, FL
33067. The Corporation may have such other offices, either within or without
Florida, as the Shareholders may designate or as the business of the Corporation
may from time to time require.
(b) Registered Office: The registered office of the Corporation, required
by the laws of Florida, may, but need not, be identical with the Principal
Office in the state of Florida. The address of the initial registered office of
the Corporation is 6645 Northwest 48th Manor, Coral Springs, FL 33067, and the
initial registered agent at such address is NADLER. The registered office and
the registered agent may ne changed from time to time by action of the
Shareholders and by filing the prescribed form with the Florida Secretary of
State.
2. Meetings and Management
(a) Operations: The Corporation is to be managed by its Shareholders. The
day to day affairs and all business in the ordinary course of the Corporation
may be carried out by any Shareholder without the consent of the other
Shareholder(s). However, any action by the Corporation that requires either the
disbursement of Corporation funds un excess of Ten Thousand ($10,000.00)
Dollars, the adjustment, but not the initial setting of any compensation of
distribution of any Shareholder, or the sale of all, or substantially all of the
Corporation's assets, shall require the vote and written approval of those
Shareholders owning a seventy (70%) percent or greater interest in the
Corporation. All other actions taken by the Corporation shall require the vote
and approal of the Shareholders owning a majority in interest on the
Corporation.
(b) Meetings: Corporation decisions and actions that need to be decided by
a majority or seventy (70%) percent or greater in interest of the Shareholders,
as the case may be, shall be decided at meetings regularly called with notice to
all Shareholders. For purposes of determining a "majority in interest", a
Shareholder's interest will be his interest in the profits and losses of the
Corporation as set forth herein and a majority will mean fifty-one (51%) percent
or more.
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(c) Notice of Meeting: Written or telephonic notice stating the place, day
and hour of the meeting, the purposes for which the meeting is called shall be
delivered not less than three (3) days before the date of the meeting, either
personally or by mail, by or at the direction of any Shareholder, to each other
Shareholder or record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the Shareholder at his address as it appears on the books of the
Corporation, with postage thereon prepaid. When all the Shareholders of the
Corporation are present at any meeting, or if those not present sign in writing
a waiver of notice of such meeting, or subsequently ratify all the proceedings
thereof, the transactions of such meting are as valid as if a meeting were
formally called and notice had been given.
Procedure: The Shareholders may adopt rules of procedure for the
Corporation --------- meetings, which rules shall not be inconsistent with this
agreement.
Informal Action of Shareholders: Unless otherwise provided by law, any
action required to be taken at a meeting of the Shareholders, or any other
action which may be taken at a meeting of the Shareholders, may be taken without
a meeting if a consent in writing, setting forth the action taken, shall be
signed by all Shareholders entitled to vote with respect to the subject matter
thereof.
(d) Telephonic Meeting: Shareholders of the Corporation may participate in
any meeting of the Shareholders by means of conference telephone or similar
communication of all persons participating in such meeting can hear one another
for the entire discussion or the matter(s) to be voted upon. Participating in a
meeting pursuant to this Section shall constitute presence at such meeting.
3. Management Restrictions
(a) Loans: No loans other than the loan made by Nellie Tippery, as
evidenced by a Security and Pledge Agreement, dated November 13, 1998, to the
Corporation shall be contracted on behalf of the Corporation and no evidences of
indebtedness shall be issued in its name other than in the ordinary course of
business, unless authorized by a resolution of the Shareholders. Such authority
may be general or confided to specific instances.
(b) Contracts: The Shareholders may authorize any Shareholder or agent of
the Corporation to enter into any contract or execute any instrument in the name
of and behalf of the Corporation, and such authority may be general or confined
to specific instances. Any Shareholder may enter into contracts in the ordinary
course of business, unless restricted by resolution of the Corporation.
(c) Banking: The Corporation shall maintain bank accounts in the
Corporation's name in a bank chosen by the Shareholders. Checks and drafts shall
be drawn on the Corporation's bank account for Corporation purposes only and
shall be signed by a Shareholder or designated agent. NOTWITHSTANDING the
foregoing, however, all checks, drafts, contracts and instruments, valued in
excess of Ten Thousand ($10,000.00 ) Dollars, must contain the dual signatures
of Teri Nadler and any other Shareholder or designated agent.
4. Prior Shareholders' Agreements.
All prior agreements and understandings among the parties hereto with
respect to the subject matter hereof are hereby terminated and are of no further
force or effect.
187
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5. Shareholders; Subchapter S Election.
(a) The Shareholders own the following number of shares of the common stock
of the corporation, being 100% of the total issued and outstanding shares of the
Corporation:
Shareholder Number of Shares
NADLER 765
TIPPERY 375
HICKMAN 20
TORREALBA 20
Treasury Stock 320
(b) The parties hereto specifically acknowledge that it is contemplated
that the Corporation will elect to be treated as an "S corporation," as defined
in Section 1361 of the Internal Revenue Code of 1986, as amended (the "Code") on
both a ~federal and state level, and as such, agrees to promptly file with the
proper authorities all documents necessary to effectuate the same. Thereafter,
the Corporation shall make distributions from its cash flow or shall use its
best efforts to obtain financing, if necessary, for it to make annual cash
distributions to its Shareholders, whether characterized as salary, bonus,
incentive compensation, or otherwise, on or before April 13 of each year
following a year (the "Prior Year') with respect to which the Corporation had
Taxable Income (as defined below), in an amount at least equal to each
Shareholder's percentage shareholdings in the Corporation multiplied by the
product of: (x) the sum of the highest marginal federal income tax rate and the
Highest Effective Florida Tax Rate (as defined below) applicable to individuals
with respect to income earned during the Prior Year; multiplied by (y) the
amount of the Corporation's Taxable Income for the Prior ear. For purposes of
this Agreement, the Corporation's "Taxable Income" shall mean, with respect to
any year, its gross income for that year minus all deductions allowed for that
year (determined without excluding the items described in Section 1366(a)( l)(A)
of the Code, and the "Highest Effective Florida Tax Rate" shall mean, with
respect to any year, the highest marginal Florida State income tax rate
applicable to individuals for that year multiplied by the excess of 100% over
the highest marginal Federal income tax rate applicable to individuals for that
year.
(c) Only Shareholder Tippery has heretofore invested in the capital of the
Corporation , in the amount of $100,000.00. $10,000.00 has been deposited with
Scott B. Ugell, Attorney Trust Account, subject to an Escrow Agreement dated on
or about November 5, 1998. Shareholder Tippery shall contribute the remaining
balance with the execution of this agreement. Each Shareholder agrees that, at
any time and from time to time, the Corporation may require each such
Shareholder to lend or contribute in cash to the capital of the Corporation, at
the Corporation's option, additional amounts at such times and upon such
conditions as shall be agreed upon by both Shareholders.
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<PAGE>
6. Management of the Corporation and Voting.
(a) Each Shareholder agrees, from and after the date hereof to elect Teri
Nadler and directors of the Corporation, and to continue to vote for the
election of such directors during the term of this Agreement. In the event
either such director dies, is adjudicated incompetent or resigns, the successor
holder(s) of the shares formerly held by such director shall be entitled to
designate, by majority vote, a director to fill the vacancy, whom all of the
Shareholders shall also elect as a director. The Shareholders shall continue to
vote for such successor director(s) and remaining named directors during the
term of this Agreement. Notwithstanding the foregoing, (I) the unanimous consent
of the board shall be required in order to approve a merger, divestiture, sale
by the Corporation of all or substantially all its assets, or any corporate
expenditure in excess of $5000, or any corporate borrowing in any account which
borrowing is not made in the ordinary course of business (by way of illustration
and not by way of limitation, either Shareholder acting individually may
establish a documentary letter of credit arrangement with a bank or similar
financial institution and may borrow thereunder provided such activity is
incident to the Corporation's ordinary business dealings and is itself in the
ordinary course of such business dealings).
(b) The Shareholders, whether in their capacities as directors or by so
instructing their respective designated directors, further agree to cause the
election of the following persons as officers of the Corporation throughout the
term of this Agreement:
Teri Nadler President Chief Executive Officer
Jean Hickman Vice President Operations and Finance
Karyn McKnight Vice President Education and Communication
Alicia Torrealba Executive Director of Clia/Agent Educational
Tour Operations
Scott B. Ugell Vice President, General Counsel
(c) Notwithstanding Subsections (a) and (b) above, in the event any
Shareholder shall sell all of his shares of the Corporation, such Shareholder
will, at that time, resign as an officer and director of the Corporation or, if
applicable, cause his designee to resign as such.
(d) So long as the Corporation shall have in effect a valid "S corporation"
election, each Shareholder agrees that, in his capacity as a director and/or
officer of the Corporation, he shall not vote for or otherwise cause the
Corporation to engage in any transaction that would result in the termination of
the Corporation's status as an "S corporation" for Federal or Florida State tax
purposes. Nothing contained herein shall preclude the Shareholders from voting
to terminate the Corporation's status as an "S corporation," as permitted by
applicable law.
7. Restrictions on Sale or Other Disposition of Shares.
(a) Except as specifically provided in Subsection (b) hereof; no
Shareholder shall sell, assign, transfer, mortgage, pledge, encumber, grant a
security interest, or in any other manner dispose of any shares of stock of the
Corporation (or any right or interest therein) which may now or hereafter be
owned by such Shareholder, without first offering all of his shares for purchase
as set forth in Section 5 below, at the purchase price determined and payable in
accordance with the provisions of Section 6 hereof. Except as otherwise provided
in Section 5 hereof; or as all Shareholders and the Corporation may otherwise
agree in writing, no Shareholder shall at any time offer less than all of his
shares of stock of the Corporation for purchase as set forth below, whether to
parties hereto or third parties.
189
<PAGE>
(b) Notwithstanding anything to the contrary contained herein, so long as
the Corporation shall continue to have a valid election to be taxed as an "S
corporation," no transfers of any shares of the Corporation shall be made to any
person or entity which does not quality as an eligible shareholder of an "S
Corporation," nor shall any other transfer be permitted which would result in
the termination of the Corporation's status as an "S corporation" for Federal or
Florida State tax purposes.
(c) Any transfer of shares in violation of this Section 4 shall be
conclusively deemed null and void.
(d) Notwithstanding anything contained herein to the contrary, Nadler
agrees not to sell , pledge, encumber or assign any of her shares in said
Corporation until Tippery os repaid for her loan along with applicable interest,
if any.
8. Sale of Shares.
(a) If at any time, a Shareholder shall desire to dispose of any or all of
his shares of the Corporation, such Shareholder (the "Offeror") shall first
offer to sell all of the shares then owned by such Offeror to the other
Shareholders, pro rata to their respective shareholdings, at the price and upon
the terms and conditions hereinafter set forth. The other Shareholders shall
have a period of 30 days from the receipt of the offer in which to accept or
reject such offer, in whole or in part, by written notice to the Offeror and
each other Shareholder. In the event any of such remaining Shareholders declined
to purchase his full pro-rata portion of the shares so offered within 30 days
from receipt of such offer, the other remaining Shareholders may agree to
purchase the balance of such shares (or his or their pro-rata portion, as the
case may be) within a further 60-day period. If the remaining Shareholders
together fail to purchase all of the shares of the Offeror (unless all parties
have agreed in writing to a partial sale), the Offeror shall be entitled to sell
or otherwise dispose of the remainder of his shares of stock to any third party
on terms not more favorable to such third party than those provided herein, for
a period of 30 days from the date the last offer made hereunder shall expire,
and provided that such third party agrees in writing to be bound by all of the
terms and conditions of this Agreement. At the end of such 30 day period, the
Offeror shall advise the other parties hereto in writing as to the consummation
of a sale of all of his shares in a bona fide transaction during such period.
(b) In the event that a proposed third party purchaser offers to purchase
such shares at a lower price or upon terms and conditions which are more
favorable to such third party than those previously offered by the Offeror to
the other Shareholders pursuant hereto, the Offeror shall give written notice of
the terms of the third party offer to the remaining Shareholders who shall have
the right to purchase all such shares on the terms offered by such third party,
in accordance with the provisions of Subsection (a) above, except that the
offering periods in Subsection (a) at the end thereof shall be limited to five
(5) business days.
(c) Each offer made hereunder and notice of acceptance or rejection shall
be made in writing and mailed to the Corporation and each of the Shareholders.
(d) Any subsequent transfer of the shares sold hereunder, whether to the
remaining Shareholders or third parties, shall be subject to and in accordance
with the terms hereof.
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(e) There shall survive the sale of any shares by any party hereto the
liability of such selling Shareholder for his pro-rata portion of any taxes,
penalties, fines or assessments (not included in the value of the shares sold)
which may be imposed on the Corporation by any federal, state or local
government or any agency, department or bureau thereof after the date of such
sale, by reason of its corporate operations up to such date. Conversely, the
selling Shareholder shall be entitled to his pro rata portion of any refund,
credit or reduction on account of any tax, fine or assessment imposed prior to
such date, for which no credit was given in the computation of the total value
of the shares sold.
(f) Upon a sale of all of a Shareholder's shares, the employment of such
Shareholder by the Corporation, if any, shall be terminated on the Closing Date
of such sale (as hereinafter defined). Any loans or debentures payable by the
selling Shareholder to the Corporation as of the Closing Date, whether or not
then due and payable in accordance with their terms, shall be paid and at a rate
of 50 percent at closing and the balance within six (6) months, and discharged
by the selling Shareholder, on the Closing Date, in cash.
(g) It is agreed that in effectuating any purchase of shares hereunder by
the Corporation: (I) the Corporation shall first utilize its then available
surplus to purchase all or so much of the shares which the Corporation has
elected to purchase as is possible, provided such purchase does not violate
applicable law; and (ii) the Corporation and the remaining Shareholders shall
promptly take those steps necessary to reduce the capital of the Corporation to
the extent necessary to increase the surplus available for the purchase of any
balance of shares unpurchased, provided such reduction does not violate
applicable law and provided further, however, that if the Shareholders, other
than the selling Shareholder, so desire, they may in lieu of effecting a
reduction of the stated capital of the Corporation, elect to contribute to the
Corporation a sufficient amount of cash or property to enable the Corporation to
purchase such shares or to make any payment or payments due hereunder. Solely
for the purpose of effecting such reduction in stated capital, the Shareholders
grant to, and are hereby deemed to have executed in favor of each other:
(A) An irrevocable proxy to vote all of the shares of the Corporation
owned by the grantor of the proxy in favor of a reduction in stated capital
at a meeting of the Shareholders of the Corporation held to vote upon and
authorize such reduction in stated capital or in any action taken without a
meeting; and
(B) An irrevocable power of attorney to execute and file any and all
documents required to be signed and filed by the grantor of the power of
attorney in order to effect the requisite reduction in stated capital.
(C) Notwithstanding anything contained herein to the contrary, in the
event of death of either of any shareholder, the estate of said shareholder
shall be bound by the terms of this agreement to relinquish any rights it
has to the shares of said company in exchange for the benefit of a life
insurance policy which shall be purchased by said corporation in amounts of
death benefits no less than $1,000,000.00 for shareholder Teri Nadler, for
a period of coverage for not less than 15 years from the date of this
agreement. Such life insurance policies' death benefit amount may be
increased periodically by vote of the Board of Directors, as may the length
of coverage, or even the kind of coverage from term coverage to whole life
or otherwise.
Nothing herein shall be deemed to require the Corporation to purchase any
shares.
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(D) Notwithstanding anything contained herein the contary, a unanimous
vote of the shareholders shall be required to waive any of the provisions
of the above Section "8" entitled " SALE OF SHARES"
9. Purchase Price; Payment by Corporation and/or Remaining Shareholder(s)
(a) The purchase price of any shares of the Corporation sold to remaining
Shareholder(s) pursuant to Section 3 hereunder shall be the certificate value
("Certificate Value") thereof as hereafter defined. For the purpose of this
Agreement, the Certificate Value of each share of the Corporation owned by the
Shareholders shall be determined by each Shareholder's respective "shareholder's
equity" in the Corporation as carried on the Corporation's balance sheet at the
time of disposition. The Certificate Value shall be the product of the selling
Shareholder's "shareholder's equity" multiplied by (I) one, during the period
from the date hereof through and including the second anniversary date hereof or
(ii) two, during the period beginning the day after the second anniversary date
hereof and at all times thereafter. For purposes of this Agreement, such
determination shall be made by the regular certified public accountants for the
Corporation (with or without an audit as shall, in the judgment of such
accountants, be appropriate) and shall be final, conclusive and binding on all
of the parties hereto, including the personal or legal representatives of any
deceased or disabled party. Such determination shall be made in accordance with
generally accepted accounting principles and, to the extent consistent
therewith, in accordance with the regular methods and practices employed by the
Corporation in keeping its books; provided, however, that there shall not be
included in the calculation of net earnings or net losses hereunder the net
proceeds (actual proceeds less cash surrender value) realized from any insurance
policy owned on the life of a deceased Shareholder.
(b) The purchase price of such shares, as so determined pursuant to
subparagraph (a) above, shall be paid by the purchaser's execution and delivery
to the selling Shareholder, his legal representative, personal representative or
heirs, as the case may be (the "Selling Shareholder") of a non-negotiable
installment promissory note, in the principal amount of such purchase price (or
balance thereof as provided below), bearing interest on the unpaid principal
balance at the rate of 1% per annum above the "prime rate" of the Bank of
Florida, or any successor thereto, and payable in equal consecutive monthly
installments of principal and interest over a two (2) year period, the first
such payment commencing two (2) months following the Closing Date; provided,
however, that if such sale shall take place at anytime on or after the second
anniversary date of the date hereof the purchaser(s) of such shares being sold
by the selling Shareholder shall be required to pay, on or before the Closing
Date, in certified funds or by wire transfer, a down payment on such purchase
price equal to 35% of such purchase price. Such note shall provide that (i) in
the event of a sale of the assets of the Corporation or the dissolution and
liquidation of the Corporation, the unpaid balance of such note, together with
accrued interest, shall become due and payable forthwith, (ii) in the event of a
default in the payment of any installment of principal or interest due
thereunder, the entire unpaid balance thereof together with accrued interest,
shall become due and payable at the election of the holder of the note on ten
(10) days' prior written notice to the maker, unless such default is cured
within such ten (10) day period, and (iii) the principal balance thereof
together with accrued interest thereon, may be prepaid at any time, in whole or
in part, without premium or penalty.
In the event the sale of shares results from the death or disability of a
Shareholder, all proceeds obtained by any purchaser of such shares from any life
insurance policy(ies) or disability insurance policy(ies) maintained by such
purchaser on the life of the selling Shareholder shall first be paid to the
estate of such Shareholder, or to such Shareholder if disabled, and such amount
shall be credited against (and reduce) the purchase price payable pursuant to
the foregoing.
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(c) (i) The closing of any sale and purchase of shares hereunder shall take
place at the offices of the Corporation within ten (10) days after delivery of
the filial acceptances pursuant to Section 4 hereto at a time to be designated
(the "Closing Date"). In connection therewith, the Shareholders agree to execute
an escrow agreement in form and substance satisfactory to them and the
attorney(s) in connection with the escrow provided for below and agree to
indemnify such attorney(s) and hold him (them) harmless from and against any
liability arising from such escrow except for such attorney(s)' willful
misconduct or gross negligence.
(ii) On the Closing Date, the selling Shareholder shall deliver the
certificates representing the shares being sold, endorsed in blank or
accompanied by stock powers endorsed in blank to the selling Shareholder's
attorneys, together with all necessary instruments of transfer and necessary tax
stamps affixed, to be held by sash attorneys in escrow pending payment of the
full purchase price. The selling Shareholder shall also on such date deliver to
the Corporation his immediate resignation (or the immediate resignation of his
designee, as the case may be) as an officer and director of the Corporation. All
such shares sold hereunder shall be pledged by the purchaser to secure full
payment of the note. During the period of sash escrow and pledge, the selling
Shareholder shall not be entitled to vote the shares sold except on the issue of
dissolution, and shall not receive any distributions on or have any rights of a
shareholder with respect to such shares. In the case of a purchase from a
personal representative of a deceased Shareholder, the certificates representing
such shares shall also be accompanied by a certificate of the appointment of the
representative, a certified copy of the Will, if any, an affidavit to the effect
that all legacies, debts, claims and taxes have been paid or are amply provided
for, and other applicable State tax waivers and releases of tax liens. Upon due
proof being finished to such attorneys of payment of the frill purchase price,
said certificates shall be delivered to the purchaser(s).
(iii) in the event of a default in the making of such payments, not cured
within the ten (10) day cure period referred to above, the parties agree that if
the selling Shareholder so elects by written notice to the Corporation and
remaining Shareholder(s) during the continuation of such default, the remaining
Shareholder(s) will cause the Corporation and its subsidiaries, if any, to be
liquidated and dissolved, and the selling Shareholder shall be entitled to
receive the entire unpaid amount of the note, plus interest, prior to any
distribution of the net assets of the Corporation to the remanding
Shareholder(s). Such liquidation and dissolution shall be achieved through an
orderly program calculated to protect the interests of each of the
Shareholder(s) and shall take place over a period of time not to exceed one (1)
year following the date of the default. To accomplish such liquidation and
dissolution, each of the Shareholders hereby grant to, and is deemed to have
executed in favor of the selling Shareholder; (A) an irrevocable proxy to vote
all of the shares of the Corporation owned by the grantor of the proxy in favor
of such liquidation and dissolution by a written consent of Shareholders without
a meeting or at a meeting of the Shareholders held for the purpose of author-
such liquidation and dissolution; and (B) an irrevocable power of attorney to
execute and file any and all documents required to be signed and filed by the
grantor of the power in order to effectuate the liquidation and dissolution of
the Corporation.
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In the alternative, if no demand for dissolution and liquidation is made,
the selling Shareholder shall have the right to demand and enforce collection of
the balance of the note, with interest thereon, or, upon ten (10) days' prior
written notice to the purchaser and the Corporation and without advertisement,
to sell, assign, grant options to purchase, and/or deliver the pledged shares or
any part thereof in such manner as the selling Shareholder, in his/her
discretion, may deem proper, In any public or private sale, for cash, credit or
future delivery, and to apply the net proceeds of such sale, after deducting the
costs of sale, including reasonable attorney's fees and disbursements, to the
payment of the unpaid principal of the note together with accrued interest. Any
such sale shall be fee and clear of the restrictions imposed by this Agreement.
Upon any sale of the pledged shares or any part thereof the selling Shareholder
or any third party may purchase the same for his own account without
accountability to the maker of the note and free and discharged of any equity of
redemption. In the event there shall be a balance remaining, after the payment
of the entire balance of the note plus accrued interest and all such costs and
expenses, such excess proceeds shall be paid to the maker of the note.
10. Deemed Offers of Sale.
(a) In the event of the death of a Shareholder, the personal representative
of such deceased Shareholder shall be deemed to have offered all of the shares
of the Corporation owned by such Shareholder for sale pursuant to Section 5
hereto as of the date of death of such Shareholder.
(b) In the event of the disability of a Shareholder, such individual shall
be deemed to have offered all of the shares of the Corporation owned by such
Shareholder for sale pursuant to Section 5 hereof as of the last day of the
"Disability Period" (as defined below).
(c) For purposes of this Section 7, an individual shall be considered
disabled if he or she shall become incapacitated by reason of a physical or
mental disability with the result that he or she is unable to devote his or her
customary time and energy to the affairs of the Corporation for a period of six
(6) consecutive months, or for any shorter periods aggregating six (6) months
during any period of twelve (12) consecutive months (the "Disability Period"). A
Shareholder shall be entitled to receive his/her ordinary compensation
arrangement during the Disability Period less any payment received by him,
directly or indirectly, on account of any disability insurance policy .
(d) In the event that the shares owned by any Shareholder are subject to
divesture by a court of competent jurisdiction, including, by way of example and
not Limitation, an award pursuant to the equitable distribution provisions of
the Domestic Relations Law of the State of Florida or the similar laws of any
other jurisdiction, such Shareholder shall be deemed to have made a voluntary
offer, pursuant to Section 5 hereof to sell that portion of his shares in the
Corporation subject to divestiture, as of the date of the applicable court
order. Notwithstanding Subsection (b) below, such Shareholder shall immediately
give written notice of the existence of such court order to the other parties
hereto, and the time periods specified in Section 5 shall run from the date such
notice is given.
(e) In the event (I) a petition shall be filed by or against any
Shareholder for relief pursuant to any law for the relief of debtors, (li) a
Shareholder shall make an assignment for the benefit of his creditors, or (ii)
there shall be a levy of execution under a judgment against any Shareholder,
unless the same shall be dismissed, withdrawn, satisfied, released or cured
within thirty (30) days, such Shareholder tutu be deemed to have made an
irrevocable offer to sell all of his shares of the Corporation pursuant to
Section 5 hereof as of the date of such event.
194
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(f) Notwithstanding the provisions of Section 5 to the contrary, notices
required to be given by the selling Shareholder pursuant to Section 5 shall not
be required for the purposes of offers deemed to be made pursuant to ibis
Section 7, but shall be deemed given as of the date the oiler is deemed made
pursuant to this Section 7.
11. Restrictive Covenant.
(a) During the term of this Agreement, each Shareholder shall devote so
much of his/her time and attention and apply his skill and knowledge to the
business of the Corporation as shall be necessary to fulfill all his obligations
thereto. In addition, for a period of three (3) years after the Closing Date of
any sale of shares by a Shareholder, such Shareholder shall not, directly or
indirectly, engage or participate in, or be in any manner connection with, any
'other business which is similar to or competes with any business operations or
activities of the Corporation or any of its divisions, subsidiaries or
affiliated companies or act as a director, officer, partner, consultant, or
employee for or make any financial investment in any other firm, corporation or
other such enterprise anywhere in the United States, without the express written
approval of the Corporation. Nothing contained herein, however, shall restrict
any Shareholder from making any investments in any business or enterprise whose
securities are listed on a national securities exchange or active traded in the
over-the-counter market, which business or enterprise is or might be, directly
or indirectly, in competition with the business operations of the Corporation;
provided, however, that such investment does not give Shareholder the right to
control or influence the policy decisions of such business.
(b) During the term of this Agreement and at all times thereafter, no
Shareholder may divulge, furnish or make accessible to anyone (other than in the
regular course of business of the Corporation or at the request of the
Corporation) any knowledge or information with respect to confidential or secret
methods, data, ideas, creations, hardware, software, programs, codes, formulae,
plans, materials and processes (including improvements and enhancements thereof)
of the Corporation or any of its divisions, subsidiaries, affiliates or outside
contractors including, without limitation, any customer or client lists,
telephone leads, prospect lists, advertising and sales promotion materials,
forms or literature and manufacturing processes (collectively, "Intangible
Property"). Moreover, each Shareholder agrees that any Intangible Property that
he may conceive, make, invent, develop or suggest during the term of this
Agreement (whether individually or jointly with any other person or persons),
relating in any way to the business or activities of the Corporation shall be
the sole, exclusive and absolute property of the Corporation. Such Shareholder
will immediately disclose any Intangible Property to the Corporation, except
where the same is lawfully protected from disclosure as the trade secret of a
third parry or by any other lawful bar to such disclosure. Each Shareholder
further agrees that without either remuneration (except out-of-pocket expenses)
and whether or not such Shareholder is still employed by or owns shares of the
Corporation, he will, at the Corporation's request, execute and deliver any
documents and give reasonable assistance which may be essential or desirable to
secure to, assign, and vest in the Cow oration the sole and exclusive right,
title and interest in and to such Intangible Property including, in those
instances where the Corporation determines in its sole discretion, to apply for
letters patent of the United States of America and (or other countries, patent
applications, copyright applications, assignments, affidavits, priority claims
or otherwise now or hereafter essential or desirable in the opinion of
Corporation in obtaining, maintaining and (or defending such patents, copyrights
or other proprietary tights and in securing to and vesting in the Corporation
the sole and exclusive right, title and interest in and to such rights.
195
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(c) Each Shareholder agrees that during the term of this Agreement and for
a period of three (3) years after the Closing Date of any sale of shares by ham,
he will not:
(i) Directly or indirectly solicit, raid, entice or induce any other
Shareholder or employee of the Corporation or of any of its divisions,
subsidiaries or affiliated companies to be employed by any other person, firm or
corporation; or
(ii) Directly or indirectly approach any such Shareholder or employee for
such purposes; or
(iii) Authorize or knowingly approve the taking of such actions by other
persons on behalf of any such person, firm or corporation or assist any such
person, firm or corporation in taking such action.
(d) Each Shareholder agrees that during the term of this Agreement he will
not enter into on behalf of the Corporation or cause the Corporation to enter
into, directly or indirectly, any transaction with any business organization in
which he or any member of his immediate family may be interested as a partner,
trustee, director, officer, employee, shareholder, other equity holder, lender
of money or guarantor, unless the material acts as to his interest and as to the
transaction are disclosed or are known to the Corporation.
(e) In the event of a judicial determination of the unreasonableness,
illegality or unenforceability of all or any part of these covenants with regard
to tame, geographical limitations or prohibited activities, it is agreed by the
parties that their intention is that this Agreement should be considered to be
effective within judicially determined reasonable limits, time and prohibited
activities.
12. Specific Performance.
Inasmuch as the shares of the Corporation cannot be readily purchased or
sold on the open market, irreparable damage would result in the event this
Agreement is not specifically embraced. Therefore, the sights to, or obligations
of; purchase and sale of shares hereunder shall be enforceable in a court of
equity, or other tribunal of competent jurisdiction, by a decree of specific
performance, and appropriate injunctive relief may be applied for and granted in
connection therewith. Such remedies and all other remedies provided for in this
Agreement shall, except where otherwise specifically provided, be cumulative and
not exclusive and shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
13. After-Acquired Shares.
The terms and provisions of this Agreement shall apply to all of the shares
of the Corporation now owned or which may hereafter be issued to the
Shareholders in consequence of any additional issuance, purchase, exchange or
reclassification of shares, corporate reorganization, or any other form of
recapitalization, consolidation, merger, share split-up, share dividend or
distribution or which are acquired by the Shareholders in any other manner
whatsoever.
196
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14. Legend.
Each certificate representing shares of the Corporation owned by the
parties hereto or by any persons subject to the provisions of this Agreement
shall have stamped, printed or typed thereon the following legend: "This
certificate and the shares represented hereby are subject to and transferable
only in accordance with the provisions of a certain Shareholders' Agreement
dated as of September 19, 1997 among Stan Dobrzynski, William E. Smith, the
Corporation, a copy of which is on file with the Secretary of the Corporation."
15. Agreement by Corporation.
The Corporation hereby agrees that it will not at any time permit any
transfer to be made on its books or records of the certificates representing the
shares of any Shareholder unless such transfer is made pursuant to and is in
accordance with the terms and conditions of this Agreement.
16. Terminal.
This Agreement shall terminate upon the earliest of
(a) The unanimous consent in writing of all of the then shareholders of the
Corporation; or
(b) The expiration of thirty (30) days after a petition in bankruptcy shall
have been filed by or against the Corporation and such petition shall not have
been discharged during such thirty (30) day period; or upon an assignment by the
Corporation for the benefit of its creditors; or upon the expiration of thirty
(30) days after the commencement of any proceeding under any Act of Congress or
state governmental authority for the relief of debtors seeking the relief or
readjustment of indebtedness either through reorganization, composition,
extension or otherwise, and such proceeding involving the Corporation as debtor
shall not have been vacated within such thirty (30) day period; or upon the
voluntary or involuntary dissolution of the Corporation; or
(c) The sale of all or substantially all the Corporation's assets.
17. Finances: Records.
(a) All cash; checks and instruments fir the payment of monies shall be
deposited in the Corporation's bank account(s) as may be selected by the Board
of Directors.
(b) The directors and officers of the Corporation shall cause the
accountants for the Corporation to deliver each Shareholder, not less frequently
than annually and no later than by March 15th of the succeeding year (unless the
Corporation shall have validly and timely filed for an extension of its filing
due date on all Federal, state and local tax returns based upon income required
to be filed by it, in which event such date shall be deferred to the latest
effective date of such filing extensions); true and complete copies of Schedule
K-1 to Form 1120S and/or such other or additional forms as the Corporation may
be required to file, in order fir each shareholder to adequately prepare his
individual tax returns. The first such statement shall be delivered within 73
days following the end of the Corporation's first fiscal year.
(c) The parties agree that each party hereto shall have the right, during
normal business hours, to have the books of the Corporation examined and/or
audited by a certified public accountant of his choosing, at his own expense.
197
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(d) The parties have reviewed a set of papers collectively referred to as
Schedule "A" which is incorporated by reference herein, and made a part hereof.
Said Schedule "A" titled "VISTA VACATIONS INTERNATIONAL BUSINESS PLAN", dated
October, 1998 is a business plan that was prepared for the purpose of analyzing
the viability of entering into such a business venture, and is the sole the
criteria used by the parties to determine the financial model to be employed by
the parties. The parties agree to follow said plan, and to substantially follow
the costs, budgets and projections, especially that of salaries stated therein.
18. Complete Agreement and Survival of Covenants.
This Agreement constitutes the complete understanding among the parties
hereto with respect to its subject matter and no alteration, modification or
amendment of any of the provisions hereof shall be valid unless made in writing
and signed by all of the parties hereto. Termination of this Agreement shall
have no effect on the rights of any party against any other party hereunder in
respect of acts or omissions prior to such termination, or upon the obligations
of any party which are specifically stated to or necessarily extend beyond the
date of termination.
19. Successors and Assigns.
Neither this Agreement nor any of the rights and obligations hereunder
shall be assignable by any party hereto except with the prior written consent of
all other parties hereto. All of the terms of this Agreement shall inure to the
benefit of and shall be binding upon the heirs, personal representatives, legal
representatives, successors and permitted assigns of the individual parties
hereto and upon the successors and permitted assigns of the Corporation.
20. Notices.
All notices, offers and other communications made under or pursuant to the
terms of this Agreement shall be in writing and shall be sent by certified mail,
return receipt requested, postage prepaid, via Federal Express or similar
overnight courier service (provided it gives receipts for all packages picked
up) or personally delivered against receipt, to the respective addresses of the
parties as first set forth herein, or to such other address as shall hereafter
be designated by any party for the giving of such notices, by written notice to
the other parties given in accordance herewith.
21. This Agreement, its performance and the rights, obligations and
remedies of the parties hereto, shall be construed and governed by the laws of
the State of Florida without regard to its principles of conflict of laws.
22. Amendment of Certificate of Incorporation or By-laws.
Each Shareholder agrees that he will consent to and approve any amendment
of the Certificate of incorporation or By-Laws of the Corporation which may be
necessary or advisable in order to conform any of the provisions of this
Agreement or any amendments hereto to the applicable laws of the State of
Florida now or hereafter enacted, including, without limitation; the Florida
Business Corporation Law. Each Shareholder further agrees to vote his shares of
the Corporation and to execute and deliver such documents as may be necessary in
order to implement the provisions of the preceding sentence. In furtherance of
the foregoing, each Shareholder hereby grants to the other Shareholder(s), for
the duration of the Term hereof, an irrevocable proxy to vote all the shares of
the Corporation owned by such Shareholder in accordance with the terms and
provisions of this Section 19.
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23. Construction.
As the context so requires, terms herein in the masculine form shall be
construed as including the feminine form as well as neater and the singular form
shall include the plural and vice versa.
24. Counterparts.
This Agreement maybe executed in any number of counterparts, each of which
shall be an original, but all of which taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
VISTA VACATIONS INTERNATIONAL, INC.,
[corporate seal]
By: /s/ Teri Nadler, President
By: /s/ Jean Hickman, Treasurer
By: /s/ Alicia Torrealba, Secretary
By: /s/ Nellie R. Tippery
199
AMENDED SHAREHOLDERS' AGREEMENT AND IRREVOCABLE PROXY
FOR
VISTA VACATIONS INTERNATIONAL, INC.
AGREEMENT, made and entered into as of the 28th day of September 1999 , by
and among TERI NADLER, residing at 6645 Northwest 48th Manor, Coral Springs,
Fla., 33067, and NELLIE TIPPERY, residing at 219 E. Wiser Lake Rd., Lynden Wash.
98264, JEAN HICKMAN, ALICIA TORREALBA, collectively referred to as the
"Shareholders" and Vista Vacations International, Inc., (the "Corporation") with
offices at 5653 NW 29th Street, Margate, FL.
W I T N E S S E T H:
WHEREAS, the Corporation was incorporated on November 13, 1998 and is
presently in good standing; and WHEREAS, the Shareholders desire to provide for
the contemplated business of the Corporation and assure the continuity of
management of the Corporation and its business, and in furtherance thereof, to
place certain restrictions on the sale, transfer or other disposition of the
shares of the Corporation now owned or hereafter acquired by each of them;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereby agree as follows:
1. WHEREAS, Nellie Tippery had joined the corporation as shareholder and had
provided funds necessary to start up the corporation and to provide further
funds during the operation of the company until financing was available
from some third party lender or bank and
WHEREAS the corporation has borrowed $150,000.00 ONE HUNDRED FIFTY THOUSAND
DOLLARS from Tippery and having sought additional funds from Tippery and
being denied those additional funds by Tippery and Tippery is not willing
to sign as a guarantor or obligor as a major shareholder of the
corporation, and upon mutual agreement and understanding Tippery agrees to
re-characterize her status with the corporation and give up her right of
ownership to any shares of the corporation in exchange for any further
obligation on her part to provide further financing to the company,
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereby agree that the shareholders agreement
and irrevocable proxy dated November 13, 19998, is amended to reflect:
1. That Nellie Tippery is no longer a shareholder of the corporation. But
merely a creditor.
2. That the amount lent by Tippery to the corporation is One Hundred Fifty
Thousand Dollars $150,000.00 and is due on October 1, 2000.
3. That said loan amount of One Hundred Fifty Thousand $150,000.00 shall be
secured by the number of shares of stock, which represent 375 shares or not
less than 25% of the corporation.
4. That the security agreement and Promissory Note dated November 13, 1998
shall be amended to reflect these changes.
5. That Nellie Tippery shall no longer have any voting rights in the company
or any other rights associated with being a shareholder of said
corporation. As such Tippery waives any notices or procedural requirements
that were implied or express in such Shareholders Security and Pledge
agreement.
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6. As further consideration to Tippery provided by the Corporation, the
corporation agrees to convey upon Tippery the right of first refusal to
purchase the 25% or 375 shares of the Corporation that Tippery has as
security for her loan. The right of first refusal applies to any bona fide
offer made in written form from a third party purchaser. In such event,
Tippery is granted the additional right to be given a credit for any monies
including applicable interest due to Tippery at the time such offer is
made. Therefore, as an example if a John Q. Investor was to offer $250,000.
For the 375 shares which are set aside by the Corporation to secure
Tippery's loan, Tippery may have the right to purchase those same shares at
the same terms and conditions and would be given a credit of approximately
$150,000, which is the amount that is currently Tippery's loan balance with
the Corporation. Therefore in the above example, Tippery would only have to
pay to the Corporation approximately $100,000 in additional funds to
purchase those shares.
7. Tippery hereby acknowledges that she has the right to counsel to review
this document, and has either done so, or has waived her right to do so.
2. Counterparts. This Agreement maybe executed in any number of counterparts,
each of which shall be an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
VISTA VACATIONS INTERNATIONAL, INC.,
[corporate seal]
By: /s/ Teri Nadler
By: /s/ Jean Hickman
By: /s/ Alicia Torrealba
By: /s/ Nellie Tippery
201
Ugell Law Firm, P.C.
Attorneys and Counselors at Law
155 North Main Street
New City, New York
Tel (914) 639-7011
Fax (914) 639 - 7088
January 20, 2000
Nellie Tippery
219 East Wiser Lake Road
Lynden, Washington 98264
SENT VIA FACSIMILE TO 360-354-0630 & US MAIL
Dear Ms. Tippery:
In accordance with the telephone conference discussion yesterday with Teri
Nadler, Jean Hickman, Alicia Torrealba and myself of Vista Vacations
International, Inc, please allow this correspondence to memorialize our
understanding.
So as to allow for the continued orderly operation of Vista and including, but
not limited to the attempt to sell additional shares of company stock to third
parties you have agreed to release your security interest in said shares of
vista Vacations International, Inc. By signing below you authorize this office
to eliminate said security interest on the books and records of the company.
To reiterate, you are the creditor on a promissory note with Vista whereby you
have loaned $180,000 to the company as startup capital with applicable interest
due and payable on November 1, 2000. Allow this correspondence to serve to you
as an estoppel with regard to said loan.
Please fax back this agreement signed by you at the space provided below, and
send a back an original to this office at your first opportunity, as I have some
meetings with potential investors and would need this document in hand in order
to close any transactions.
As all ways should you have any questions or comments, please feel free to
contact this office.
Very truly yours,
/s/ Scott B. Ugell
Ugell Law Firm, P.C.
By:Scott B. Ugell
Vice-President & General Counsel Vista Vacations International, Inc.
cc: Teri Nadler @ Vista 954-975-8447
Above text is agreed to and accepted
/s/ Nellie R. Tippery
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Nellie Tippery
Dated January_ __,2000
202
SECURITY AND PLEDGE AGREEMENT
THIS AGREEMENT made as of November 14, 1998, by and among NELLIE TIPPERY
residing at 219 E. Wiser Lake Rd. Lynden Wash. 98264 (TIPPERY), JEAN HICKMAN,
residing at 3780 SW 19 th Street, Fort Lauderdale, FL 33312, (HICKMAN), ALICIA
TORREALBA, residing at 1965 South Ocean Drive, Apartment 2J, Hallandale, Fl.
33309, (TORREALBA), and VISTA VACATIONS INTERNATIONAL. INC., conducting business
at 6645 Northwest 48th Manor, Coral Springs, Fl. 33067 (VISTA)
RECITALS
Whereas, TIPPERY, HICKMAN, and TORREALBA are Members of VISTA VACATIONS
INTERNATIONAL INC., and are parties to that certain Shareholders Agreement dated
as of November 13, 1998, whereunder TIPPERY has lent to VISTA VACATIONS
INTERNATIONAL INC, the sum of $100,000.00 as and for working capital for the
conduct of its business (the "VISTA VACATIONS INTERNATIONAL LOAN"); and,
WHEREAS, VISTA VACATIONS INTERNATIONAL, INC., has executed a promissory
note to repay the VISTA VACATIONS INTERNATIONAL LOAN and a security agreement
and financing to collateralize said loan; and,
WHEREAS, NADLER as majority shareholder and CEO of VISTA VACATIONS
INTERNATIONAL, INC., and as parties to that certain Shareholders Agreement of
even date, whereunder TIPPERY has lent VISTA VACATIONS INTERNATIONAL INC., the
sum of $100,000.00 for which collateral is given as security hereunder (the
VISTA LOAN) and
WHEREAS NADLER as majority shareholder and CEO, on behalf of the
corporation, VISTA VACATIONS INTERNATIONAL, INC., has executed the promissory
note to repay the VISTA VACATIONS INTERNATIONAL, Inc. LOAN and to collateralize
the said loan hereunder.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual
promises herein set forth, the parties agree as follows:
1. Secured Obligations. The obligations of VISTA VACATIONS INTERNATIONAL for
which Collateral is held hereunder ("Secured Obligations") are the
Promissory Notes annexed hereto collectively as Exhibit "A".
2. Collateral. Contemporaneously herewith, VISTA VACATIONS INTERNATIONAL, INC.
has delivered to TIPPERY the stock certificate and certificate of
ownership, listed below, each representing the indicated number of shares
of the capital stock of VISTA VACATIONS INTERNATIONAL INC., (Share
Certificate") together with a stock power for each Share Certificate
executed in blank with the ownership interest of HICKMAN, TORREALBA and
VISTA VACATIONS INTERNATIONAL., ("Certificate of Ownership") together with
a duly executed assignment and power of transfer executed in blank
(collectively the "Transfer Powers") The Share Certificate and Certificate
of Ownership and accompanying Transfer Powers are sometimes hereinafter
referred to as "Collateral Documents", and the shares of stock evidenced by
the Share Certificate and the ownership interest evidenced by the
Certificate of Ownership as "Collateral". The Collateral shall also include
all distributions of cash and other property which may be made in respect
of the existing and future Collateral, including stock dividends as well as
all securities of any nature which may be issued in exchange therefor by
reason of any stock split, reorganization, merger recapitalization or other
event all of which shall be received in trust by VISTA VACATIONS
INTERNATIONAL (if VISTA VACATIONS INTERNATIONAL should come into possession
of the same) and to be delivered promptly to TIPPERY together with executed
stock powers, assignments or other appropriate instruments to facilitate
their transfer in the event of default.
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The Collateral Documents delivered to TIPPERY consist of the following
Share Certificate and Certificate of Ownership together with Transfer Powers:
Certificate Number Number of Shares Ownership Interest
1 20 1.333
2 20 1.333
3 320 21.33
3. Grant of Security Interest. VISTA VACATIONS INTERNATIONAL, INC., HICKMAN
and TORREALBA hereby grants to TIPPERY a security interest in the
Collateral, present and future, to secure due and prompt payment and
performance of the Secured Obligations. TIPPERY and any officer or Member,
as the case may be, are irrevocably authorized by VISTA VACATIONS
INTERNATIONAL, INC. to complete the Transfer Powers in order to effect
transfer of Collateral in the event of a breach or default in respect of
the Secured Obligations.
4. Default. In the event of a default in respect of the Secured Obligations,
in addition to any and all other available remedies, TIPPERY shall have the
right to sell so much of the Collateral as shall be necessary to pay all
costs and expenses and to satisfy the Secured Obligations. The proceeds of
sale or disposition of the Collateral shall be applied as follows:
First, toward payment of all costs of taking possession of and selling the
Collateral. Second, to pay in full all amounts due by reason of the breach
or default with respect to the Secured Obligations or any of them.
Third, the balance, and the remaining Collateral Documents, if any, shall
be refunded and returned to VISTA VACATIONS INTERNATIONAL, INC. upon
receipt of an unqualified general release.
5. Procedure Following Default.
A. TIPPERY shall notify VISTA VACATIONS INTERNATIONAL, INC., HICKMAN and
TORREALBA in writing of any breach or default on the part of VISTA
VACATIONS INTERNATIONAL, INC. with respect to any Secured Obligations,
stating the nature of the breach or default ("Default Notice"). Unless
TIPPERY shall receive notice from VISTA VACATIONS INTERNATIONAL, INC.
within ten (10) business days after receipt of the Default Notice,
contesting the existence of the default and specifically stating the
basis for such objection, TIPPERY shall have the right, immediately,
to liquidate or otherwise realize on the Collateral. TIPPERY shall
have the right to sell or dispose of the Collateral in any lawful and
commercially reasonable manner consistent with applicable provisions
of the Uniform Commercial Code as in effect in the State having
Jurisdiction over the Collateral, at a public or private sale pursuant
to prior written notice to VISTA VACATIONS INTERNATIONAL, INC. of
fifteen (15) days or more. TIPPERY shall have the right to purchase
all or any part of the Collateral at any such public sale, with the
same force and effect as if TIPPERY were a disinterested purchaser.
The process of the sale shall be applied pursuant to Paragraph 4
hereof. If the net proceeds from sale of the Collateral, after payment
of expenses as provided in Paragraph 4, shall be insufficient to pay
and discharge the Secured Obligation in full, VISTA VACATIONS
INTERNATIONAL, INC. shall remain liable for the deficit.
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B. If TIPPERY shall receive a notice from VISTA VACATIONS INTERNATIONAL,
INC. within five (5) business days after receipt of a Default Notice,
setting forth a bona fide and good faith basis for contesting the
Default Notice, as hereinabove provided, TIPPERY shall defer its sale
or liquidation of the Collateral for a period of twenty (20) days to
permit VISTA VACATIONS INTERNATIONAL, INC. to commence judicial
proceedings. IF VISTA VACATIONS INTERNATIONAL, INC. shall succeed, by
judicial proceedings or otherwise, in delaying the liquidation or sale
of Collateral, VISTA VACATIONS INTERNATIONAL, INC. shall be liable for
interest during the period form the time of her notice contesting the
default until payment of the damages at a rate equal to four (4%)
percent above the "prime" rate as set forth on that day as published
in The Wall Street Journal.
6. VISTA VACATIONS INTERNATIONAL, INC.'S Representations, VISTA VACATIONS
INTERNATIONAL, INC. makes the following representations to TIPPERY:
A. VISTA VACATIONS INTERNATIONAL, INC. owns and holds the Collateral free
and clear of any and all liens, claims and security interests of any
nature whatsoever other than the security interested granted to
TIPPERY hereunder
B. VISTA VACATIONS INTERNATIONAL, INC. has unrestricted power and
authority to enter into this Agreement and o deliver and pledge the
Collateral and perform their obligations pursuant to this Agreement
and such acts by VISTA VACATIONS INTERNATIONAL, INC. do not violate
any law, rule, regulation, order, injunction or decree by any
governmental body or agency or of any Court, nor any agreement to
which VISTA VACATIONS INTERNATIONAL, INC. is a party or by which VISTA
VACATIONS INTERNATIONAL, INC. or the collateral are bound. C. The
Collateral is duly and validly issued and outstanding and non
assessable. Upon lawful sale of the Collateral or any part thereof
following default TIPPERY is duly authorized and empowered to transfer
and will have transferred good title to the purchaser(s) thereof free
of all claims liens and security interests.
7. Notices. Notices hereunder shall be given by certified mail, return receipt
requested, or by overnight mail or Federal Express or similar overnight
delivery service by a reputable carrier which obtains and provides delivery
receipts, addressed to the parties at their respective addresses set forth
at the head of this agreement or at such substituted address as any party
may from time to time designate for such purpose by notice given in like
manner to the other(s).
8. Counterparts. This Agreement may be executed in any number of counterparts
and may either contain original signatures or facsimile(s) or original
signatures with the same effect as if all parties hereto had all signed the
same document. All counterparts will be construed together and will
continue one (1) agreement.
9. Binding Effect, This Agreement, and the rights and obligations of the
parties arising hereunder shall be binding upon and shall inure to the
benefit of the parties and their respective heirs, administrators, personal
representatives and assigns
205
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IN WITNESS WHEREOF, the parties have executed this Agreement or have caused
their duly authorized officers to execute this Agreement and to affix their
seals hereunto as of the day and year first above written.
WITNESS
/s/ Teri Nadler
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VISTA VACATIONS INTERNATIONAL, INC.
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NELLIE TIPPERY
/s/ Jean Hickman
----------------
JEAN HICKMAN
/s/ Alicia Torrealba
-----------------
ALICIA TORREALBA
EXHIBIT "A"
Promissory Note from VISTA VACATIONS INTERNATIONAL, INC. to NELLIE TIPPERY dated
November 13, 1998
Promissory Note from JEAN HICKMAN to NELLIE TIPPERY dated November 13, 1998
Promissory Note from ALICIA TORREALBA to NELLIE TIPPERY dated November 13, 1998
206
SHAREHOLDERS' AGREEMENT AND IRREVOCABLE PROXY
AGREEMENT, made and entered into as of the 17th day of January 2000, by and
among Teri Nadler, residing at 6645 Northwest 48th Manor, Coral Springs, Florida
33067, Scott B. Ugell, residing at 155 North Main Street, New City, New York
10956, Jean Hickman, residing at 3780 SW 19th Street, Fort Lauderdale, Florida
33312, Alicia Torrealba, residing at 1965 South Ocean Drive, Apartment 2J,
Hallandale, Florida 33309, Karyn Mcknight, 10020A Main Street, #177, Bellevue,
Washington 98004, Carol Nelson, residing at 1625 3rd Street South, Naples,
Florida 34102-7423and Ken Nelson, 1625 3rd Street South, Naples, Florida
34102-7423, collectively referred to as the "Shareholders" and Vista Vacations
International, Inc. " (the Corporation") with offices at 5653 NW 29th Street,
Margate, Florida 33063, a corporation organized pursuant to the laws of the
State of Florida.
W I T N E S S E T H:
WHEREAS, the Corporation was incorporated on November 12, 1998 and is
presently in good standing; and
WHEREAS, the Shareholders desire to provide for the contemplated business
of the Corporation and assure the continuity of management of the Corporation
and its business, and in furtherance thereof, to place certain restrictions on
the sale, transfer or other disposition of the shares of the Corporation now
owned or hereafter acquired by each of them;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereby agree as follows:
1. Prior Shareholders' Agreements. All prior agreements and understandings
among the parties hereto with respect to the subject matter hereof are hereby
terminated and are of no further force or effect.
2. Shareholders; Subchapter S Election.
(a) The Shareholders own the following number of shares of the common stock
of the corporation, being 100% of the total issued and outstanding shares of the
Corporation:
Shareholder Number of Shares
Nadler 765
Ugell 400
Hickman 180
Nelson 75
Torrealba 60
Mcknight 20
(b) The parties hereto specifically acknowledge that it is contemplated
that the Corporation will elect to be treated as an "S corporation," as defined
in Section 1361 of the Internal Revenue Code of 1986, as amended (the "Code") on
both a federal and state level, and as such, agrees to promptly file with the
proper authorities all documents necessary to effectuate the same. Thereafter,
the Corporation shall make distributions from its cash flow or shall use its
best efforts to obtain financing, if necessary, for it to make annual cash
distributions to its Shareholders, whether characterized as salary, bonus,
incentive compensation, or otherwise, on or before April 13 of each year
following a year (the "Prior Year') with respect to which the Corporation had
Taxable Income (as defined below), in an amount at least equal to each
Shareholder's percentage shareholdings in the Corporation multiplied by the
product of: (x) the sum of the highest marginal federal income tax rate and the
Highest Effective Florida Tax rate defined below) applicable to individuals with
respect to income earned during the Prior Year; multiplied by (y) the amount of
the Corporation's Taxable Income for the Prior year. For purposes of this
Agreement, the Corporation's "Taxable Income" shall mean, with respect to any
year, its gross income for that year minus all deductions allowed for that year
(determined without excluding the items described in Section 1366(a)( l)(A) of
the Code, and the "Highest Effective Florida Tax Rate" shall mean, with respect
to any year, the highest marginal Florida State income tax rate applicable to
individuals for that year multiplied by the excess of 100% over the highest
marginal Federal income tax rate applicable to individuals for that year.
207
<PAGE>
(c) Each Shareholder has heretofore invested in the capital of the
Corporation. Each Shareholder agrees that, at any time and from time to time,
the Corporation may require each such Shareholder to lend or contribute in cash
or other value to the Corporation, at the Corporation's option, additional
amounts at such times and upon such conditions as shall be agreed upon by a 2/3
vote majority of the outstanding shares of stock.
3. Management of the Corporation and Voting.
(a) Each Shareholder agrees, from and after the date hereof to elect Teri
Nadler and Scott B. Ugell directors of the Corporation, and to continue to vote
for the election of such directors during the term of this Agreement. In the
event either such director dies, is adjudicated incompetent or resigns, the
successor holder(s) of the shares formerly held by such director shall be
entitled to designate, by majority vote, a director to fill the vacancy, whom
all of the Shareholders shall also elect as a director. The Shareholders shall
continue to vote for such successor director(s) and remaining named directors
during the term of this Agreement. Notwithstanding the foregoing, (I) the
unanimous consent of the board shall be required in order to approve a merger,
divestiture, sale by the Corporation of all or substantially all its assets, or
any corporate expenditure in excess of $10,000, or any corporate borrowing in
any account which borrowing is not made in the ordinary course of business (by
way of illustration and not by way of limitation, either Shareholder acting
individually may establish a documentary letter of credit arrangement with a
bank or similar financial institution and may borrow thereunder provided such
activity is incident to the Corporation's ordinary business dealings and is
itself in the ordinary course of such business dealings).
(b) The Shareholders, whether in their capacities as directors or by so
instructing their respective designated directors, further agree to cause the
election of the following persons as officers of the Corporation throughout the
term of this Agreement:
Teri Nadler President, Chief Executive Officer
Jean Hickman Operations, Finance and Corporate Treasurer
Alicia Torrealba Executive Director of CLIA/Agent Education
Corporate Secretary
Scott B. Ugell Vice President, General Counsel
(c) Notwithstanding Subsections (a) and (b) above, in the event any
Shareholder shall sell all of his shares of the Corporation, such Shareholder
will, at that time, resign as an officer and director of the Corporation or, if
applicable, cause his designee to resign as such.
(d) In furtherance of the foregoing, each Shareholder hereby grants to the
other Shareholders, for the duration of the term hereof; an irrevocable proxy to
vote all of the shares of the Corporation owned by such Shareholder in
accordance with the provisions and agreements contained in this Section 3.
(e) So long as the Corporation shall have in effect a valid "S corporation"
election, each Shareholder agrees that, in his capacity as a director and/or
officer of the Corporation, he shall not vote for or otherwise cause the
Corporation to engage in any transaction that would result in the termination of
the Corporation's status as an "S corporation" for Federal or Florida State tax
purposes. Nothing contained herein shall preclude the Shareholders from voting
to terminate the Corporation's status as an "S corporation," as permitted by
applicable law.
208
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4. Restrictions on Sale or Other Disposition of Shares.
(a) Except as specifically provided in Subsection (b) hereof; no
Shareholder shall sell, assign, transfer, mortgage, pledge, encumber, grant a
security interest, or in any other manner dispose of any shares of stock of the
Corporation (or any right or interest therein) which may now or hereafter be
owned by such Shareholder, without first offering all of his shares for purchase
as set forth in Section 5 below, at the purchase price determined and payable in
accordance with the provisions of Section 6 hereof. Except as otherwise provided
in Section 5 hereof; or as all Shareholders and the Corporation may otherwise
agree in writing, no Shareholder shall at any time offer less than all of his
shares of stock of the Corporation for purchase as set forth below, whether to
parties hereto or third parties.
(b) Notwithstanding anything to the contrary contained herein, so long as
the Corporation shall continue to have a valid election to be taxed as an "S
corporation," no transfers of any shares of the Corporation shall be made to any
person or entity which does not quality as an eligible shareholder of an "S
Corporation," nor shall any other transfer be permitted which would result in
the termination of the Corporation's status as an "S corporation" for Federal or
Florida State tax purposes.
(c) Any transfer of shares in violation of this Section 4 shall be
conclusively deemed null and void.
5. Sale of Shares.
(a) If at any time, a Shareholder shall desire to dispose of any or all of
his shares of the Corporation, such Shareholder (the "Offeror") shall first
offer to sell all of the shares then owned by such Offeror to the other
Shareholders, pro rata to their respective shareholdings, at the price and upon
the terms and conditions hereinafter set forth. The other Shareholders shall
have a period of 30 days from the receipt of the offer in which to accept or
reject such offer, in whole or in part, by written notice to the Offeror and
each other Shareholder. In the event any of such remaining Shareholders declined
to purchase his full pro-rata portion of the shares so offered within 30 days
from receipt of such offer, the other remaining Shareholders may agree to
purchase the balance of such shares (or his or their pro-rata portion, as the
case may be) within a further 60-day period. If the remaining Shareholders
together fail to purchase all of the shares of the Offeror (unless all parties
have agreed in writing to a partial sale), the Offeror shall be entitled to sell
or otherwise dispose of the remainder of his shares of stock to any third party
on terms not more favorable to such third party than those provided herein, for
a period of 30 days from the date the last offer made hereunder shall expire,
and provided that such third party agrees in writing to be bound by all of the
terms and conditions of this Agreement. At the end of such 30-day period, the
Offeror shall advise the other parties hereto in writing as to the consummation
of a sale of all of his shares in a bona fide transaction during such period.
(b) In the event that a proposed third party purchaser offers to purchase
such shares at a lower price or upon terms and conditions which are more
favorable to such third party than those previously offered by the Offeror to
the other Shareholders pursuant hereto, the Offeror shall give written notice of
the terms of the third party offer to the remaining Shareholders who shall have
the right to purchase all such shares on the terms offered by such third party,
in accordance with the provisions of Subsection (a) above, except that the
offering periods in Subsection (a) at the end thereof shall be limited to five
(5) business days.
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(c) Each offer made hereunder and notice of acceptance or rejection shall
be made in writing and mailed to the Corporation and each of the Shareholders.
(d) Any subsequent transfer of the shares sold hereunder, whether to the
remaining Shareholders or third parties, shall be subject to and in accordance
with the terms hereof.
(e) There shall survive the sale of any shares by any party hereto the
liability of such selling Shareholder for his pro-rata portion of any taxes,
penalties, fines or assessments (not included in the value of the shares sold)
which may be imposed on the Corporation by any federal, state or local
government or any agency, department or bureau thereof after the date of such
sale, by reason of its corporate operations up to such date. Conversely, the
selling Shareholder shall be entitled to his pro rata portion of any refund,
credit or reduction on account of any tax, fine or assessment imposed prior to
such date, for which no credit was given in the computation of the total value
of the shares sold.
(f) Upon a sale of all of a Shareholder's shares, the employment of such
Shareholder by the Corporation, if any, shall be terminated on the Closing Date
of such sale (as hereinafter defined). Any loans or debentures payable by the
selling Shareholder to the Corporation as of the Closing Date, whether or not
then due and payable in accordance with their terms, shall be paid and at a rate
of 50 percent at closing and the balance within six (6) months, and discharged
by the selling Shareholder, on the Closing Date, in cash.
(g) It is agreed that in effectuating any purchase of shares hereunder by
the Corporation: (I) the Corporation shall first utilize its then available
surplus to purchase all or so much of the shares which the Corporation has
elected to purchase as is possible, provided such purchase does not violate
applicable law; and (ii) the Corporation and the remaining Shareholders shall
promptly take those steps necessary to reduce the capital of the Corporation to
the extent necessary to increase the surplus available for the purchase of any
balance of shares unpurchased, provided such reduction does not violate
applicable law and provided further, however, that if the Shareholders, other
than the selling Shareholder, so desire, they may in lieu of effecting a
reduction of the stated capital of the Corporation, elect to contribute to the
Corporation a sufficient amount of cash or property to enable the Corporation to
purchase such shares or to make any payment or payments due hereunder. Solely
for the purpose of effecting such reduction in stated capital, the Shareholders
grant to, and are hereby deemed to have executed in favor of each other:
(A) An irrevocable proxy to vote all of the shares of the Corporation
owned by the grantor of the proxy in favor of a reduction in stated capital
at a meeting of the Shareholders of the Corporation held to vote upon and
authorize such reduction in stated capital or in any action taken without a
meeting; and
(B) An irrevocable power of attorney to execute and file any and all
documents required to be signed and filed by the grantor of the power of
attorney in order to effect the requisite reduction in stated capital.
(C) Notwithstanding anything contained herein to the contrary, in the
event of death of either of any shareholder, the estate of said shareholder
shall be bound by the terms of this agreement to relinquish any rights it
has to the shares of said company in exchange for the benefit of a Term
life insurance policy which shall be purchased by said corporation in
amounts of death benefits no less than $1,000,000.00 for shareholder Teri
Nadler, and $500,000.00 for shareholder Scott B. Ugell, for a period of
coverage for not less than 15 years from the date of this agreement. Such
life insurance policies' death benefit amount may be increased periodically
by vote of the Board of Directors, as may the length of coverage, or even
the kind of coverage from term coverage to whole life or otherwise.
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Nothing herein shall be deemed to require the Corporation to purchase any
shares.
6. Purchase Price; Payment by Corporation and/or Remaining Shareholder(s).
(a) The purchase price of any shares of the Corporation sold to remaining
Shareholder(s) pursuant to Section 3 hereunder shall be the certificate value
("Certificate Value") thereof as hereafter defined. For the purpose of this
Agreement, the Certificate Value of each share of the Corporation owned by the
Shareholders shall be determined by each Shareholder's respective "shareholder's
equity" in the Corporation as carried on the Corporation's balance sheet at the
time of disposition. The Certificate Value shall be the product of the selling
Shareholder's "shareholder's equity" multiplied by (I) one, during the period
from the date hereof through and including the second anniversary date hereof or
(ii) two, during the period beginning the day after the second anniversary date
hereof and at all times thereafter. For purposes of this Agreement, such
determination shall be made by the regular certified public accountants for the
Corporation (with or without an audit as shall, in the judgment of such
accountants, be appropriate) and shall be final, conclusive and binding on all
of the parties hereto, including the personal or legal representatives of any
deceased or disabled party. Such determination shall be made in accordance with
generally accepted accounting principles and, to the extent consistent
therewith, in accordance with the regular methods and practices employed by the
Corporation in keeping its books; provided, however, that there shall not be
included in the calculation of net earnings or net losses hereunder the net
proceeds (actual proceeds less cash surrender value) realized from any insurance
policy owned on the life of a deceased Shareholder.
(b) The purchase price of such shares, as so determined pursuant to
subparagraph (a) above, shall be paid by the purchaser's execution and delivery
to the selling Shareholder, his legal representative, personal representative or
heirs, as the case may be (the "Selling Shareholder") of a non-negotiable
installment promissory note, in the principal amount of such purchase price (or
balance thereof as provided below), bearing interest on the unpaid principal
balance at the rate of 1% per annum above the "prime rate" of the Bank of New
York, or any successor thereto, and payable in equal consecutive monthly
installments of principal and interest over a two (2) year period, the first
such payment commencing two (2) months following the Closing Date; provided,
however, that if such sale shall take place at anytime on or after the second
anniversary date of the date hereof the purchaser(s) of such shares being sold
by the selling Shareholder shall be required to pay, on or before the Closing
Date, in certified funds or by wire transfer, a down payment on such purchase
price equal to 35% of such purchase price. Such note shall provide that (i) in
the event of a sale of the assets of the Corporation or the dissolution and
liquidation of the Corporation, the unpaid balance of such note, together with
accrued interest, shall become due and payable forthwith, (ii) in the event of a
default in the payment of any installment of principal or interest due
thereunder, the entire unpaid balance thereof together with accrued interest,
shall become due and payable at the election of the holder of the note on ten
(10) days' prior written notice to the maker, unless such default is cured
within such ten (10) day period, and (iii) the principal balance thereof
together with accrued interest thereon, may be prepaid at any time, in whole or
in part, without premium or penalty.
In the event the sale of shares results from the death or disability of a
Shareholder, all proceeds obtained by any purchaser of such shares from any life
insurance policy(ies) or disability insurance policy(ies) maintained by such
purchaser on the life of the selling Shareholder shall first be paid to the
estate of such Shareholder, or to such Shareholder if disabled, and such amount
shall be credited against (and reduce) the purchase price payable pursuant to
the foregoing.
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(c) (i) The closing of any sale and purchase of shares
hereunder shall take place at the offices of the Corporation within ten (10)
days after delivery of the filial acceptances pursuant to Section 4 hereto at a
time to be designated (the "Closing Date"). In connection therewith, the
Shareholders agree to execute an escrow agreement in form and substance
satisfactory to them and the attorney(s) in connection with the escrow provided
for below and agree to indemnify such attorney(s) and hold him (them) harmless
from and against any liability arising from such escrow except for such
attorney(s)' willful misconduct or gross negligence.
(ii) On the Closing Date, the selling Shareholder shall deliver the
certificates representing the shares being sold, endorsed in blank or
accompanied by stock powers endorsed in blank to the selling Shareholder's
attorneys, together with all necessary instruments of transfer and necessary tax
stamps affixed, to be held by sash attorneys in escrow pending payment of the
full purchase price. The selling Shareholder shall also on such date deliver to
the Corporation his immediate resignation (or the immediate resignation of his
designee, as the case may be) as an officer and director of the Corporation. All
such shares sold hereunder shall be pledged by the purchaser to secure full
payment of the note. During the period of sash escrow and pledge, the selling
Shareholder shall not be entitled to vote the shares sold except on the issue of
dissolution, and shall not receive any distributions on or have any rights of a
shareholder with respect to such shares. In the case of a purchase from a
personal representative of a deceased Shareholder, the certificates representing
such shares shall also be accompanied by a certificate of the appointment of the
representative, a certified copy of the Will, if any, an affidavit to the effect
that all legacies, debts, claims and taxes have been paid or are amply provided
for, and other applicable State tax waivers and releases of tax liens. Upon due
proof being finished to such attorneys of payment of the frill purchase price,
said certificates shall be delivered to the purchaser(s).
(iii) in the event of a default in the making of such payments, not cured
within the ten (10) day cure period referred to above, the parties agree that if
the selling Shareholder so elects by written notice to the Corporation and
remaining Shareholder(s) during the continuation of such default, the remaining
Shareholder(s) will cause the Corporation and its subsidiaries, if any, to be
liquidated and dissolved, and the selling Shareholder shall be entitled to
receive the entire unpaid amount of the note, plus interest, prior to any
distribution of the net assets of the Corporation to the remanding
Shareholder(s). Such liquidation and dissolution shall be achieved through an
orderly program calculated to protect the interests of each of the
Shareholder(s) and shall take place over a period of time not to exceed one (1)
year following the date of the default. To accomplish such liquidation and
dissolution, each of the Shareholders hereby grant to, and is deemed to have
executed in favor of the selling Shareholder; (A) an irrevocable proxy to vote
all of the shares of the Corporation owned by the grantor of the proxy in favor
of such liquidation and dissolution by a written consent of Shareholders without
a meeting or at a meeting of the Shareholders held for the purpose of author-
such liquidation and dissolution; and (B) an irrevocable power of attorney to
execute and file any and all documents required to be signed and filed by the
grantor of the power in order to effectuate the liquidation and dissolution of
the Corporation.
In the alternative, if no demand for dissolution and liquidation is made,
the selling Shareholder shall have the right to demand and enforce collection of
the balance of the note, with interest thereon, or, upon ten (10) days' prior
written notice to the purchaser and the Corporation and without advertisement,
to sell, assign, grant options to purchase, and/or deliver the pledged shares or
any part thereof in such manner as the selling Shareholder, in his/her
discretion, may deem proper, In any public or private sale, for cash, credit or
future delivery, and to apply the net proceeds of such sale, after deducting the
costs of sale, including reasonable attorney's fees and disbursements, to the
payment of the unpaid principal of the note together with accrued interest. Any
such sale shall be fee and clear of the restrictions imposed by this Agreement.
Upon any sale of the pledged shares or any part thereof the selling Shareholder
or any third party may purchase the same for his own account without
accountability to the maker of the note and free and discharged of any equity of
redemption. In the event there shall be a balance remaining, after the payment
of the entire balance of the note plus accrued interest and all such costs and
expenses, such excess proceeds shall be paid to the maker of the note.
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7. Deemed Offers of Sale.
(a) In the event of the death of a Shareholder, the personal representative
of such deceased Shareholder shall be deemed to have offered all of the shares
of the Corporation owned by such Shareholder for sale pursuant to Section 5
hereto as of the date of death of such Shareholder.
(b) In the event of the disability of a Shareholder, such individual shall
be deemed to have offered all of the shares of the Corporation owned by such
Shareholder for sale pursuant to Section 5 hereof as of the last day of the
"Disability Period" (as defined below).
(c) For purposes of this Section 7, an individual shall be considered
disabled if he or she shall become incapacitated by reason of a physical or
mental disability with the result that he or she is unable to devote his or her
customary time and energy to the affairs of the Corporation for a period of six
(6) consecutive months, or for any shorter periods aggregating six (6) months
during any period of twelve (12) consecutive months (the "Disability Period"). A
Shareholder shall be entitled to receive his/her ordinary compensation
arrangement during the Disability Period less any payment received by him,
directly or indirectly, on account of any disability insurance policy .
(d) In the event that the shares owned by any Shareholder are subject to
divestiture by a court of competent jurisdiction, including, by way of example
and not Limitation, an award pursuant to the equitable distribution provisions
of the Domestic Relations Law of the State of New York or the similar laws of
any other jurisdiction, such Shareholder shall be deemed to have made a
voluntary offer, pursuant to Section 5 hereof to sell that portion of his shares
in the Corporation subject to divestiture, as of the date of the applicable
court order. Notwithstanding Subsection (b) below, such Shareholder shall
immediately give written notice of the existence of such court order to the
other parties hereto, and the time periods specified in Section 5 shall run from
the date such notice is given.
(e) In the event (I) a petition shall be filed by or against any
Shareholder for relief pursuant to any law for the relief of debtors, (li) a
Shareholder shall make an assignment for the benefit of his creditors, or (ii)
there shall be a levy of execution under a judgment against any Shareholder,
unless the same shall be dismissed, withdrawn, satisfied, released or cured
within thirty (30) days, such Shareholder tutu be deemed to have made an
irrevocable offer to sell all of his shares of the Corporation pursuant to
Section 5 hereof as of the date of such event.
(f) Notwithstanding the provisions of Section 5 to the contrary, notices
required to be given by the selling Shareholder pursuant to Section 5 shall not
be required for the purposes of offers deemed to be made pursuant to ibis
Section 7, but shall be deemed given as of the date the oiler is deemed made
pursuant to this Section 7.
8. Restrictive Covenant.
(a) During the term of this Agreement, each Shareholder shall devote so
much of his/her time and attention and apply his skill and knowledge to the
business of the Corporation as shall be necessary to fulfill all his obligations
thereto. In addition, for a period of three (3) years after the Closing Date of
any sale of shares by a Shareholder, such Shareholder shall not, directly or
indirectly, engage or participate in, or be in any manner connection with, any
'other business which is similar to or competes with any business operations or
activities of the Corporation or any of its divisions, subsidiaries or
affiliated companies or act as a director, officer, partner, consultant, or
employee for or make any financial investment in any other firm, corporation or
other such enterprise anywhere in the United States, without the express written
approval of the Corporation. Nothing contained herein, however, shall restrict
any Shareholder from making any investments in any business or enterprise whose
securities are listed on a national securities exchange or active traded in the
over-the-counter market, which business or enterprise is or might be, directly
or indirectly, in competition with the business operations of the Corporation;
provided, however, that such investment does not give Shareholder the right to
control or influence the policy decisions of such business.
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(b) During the term of this Agreement and at all times thereafter, no
Shareholder may divulge, furnish or make accessible to anyone (other than in the
regular course of business of the Corporation or at the request of the
Corporation) any knowledge or information with respect to confidential or secret
methods, data, ideas, creations, hardware, software, programs, codes, formulae,
plans, materials and processes (including improvements and enhancements thereof)
of the Corporation or any of its divisions, subsidiaries, affiliates or outside
contractors including, without limitation, any customer or client lists,
telephone leads, prospect lists, advertising and sales promotion materials,
forms or literature and manufacturing processes (collectively, "Intangible
Property"). Moreover, each Shareholder agrees that any Intangible Property that
he may conceive, make, invent, develop or suggest during the term of this
Agreement (whether individually or jointly with any other person or persons),
relating in any way to the business or activities of the Corporation shall be
the sole, exclusive and absolute property of the Corporation. Such Shareholder
will immediately disclose any Intangible Property to the Corporation, except
where the same is lawfully protected from disclosure as the trade secret of a
third parry or by any other lawful bar to such disclosure. Each Shareholder
further agrees that without either remuneration (except out-of-pocket expenses)
and whether or not such Shareholder is still employed by or owns shares of the
Corporation, he will, at the Corporation's request, execute and deliver any
documents and give reasonable assistance which may be essential or desirable to
secure to, assign, and vest in the Cow oration the sole and exclusive right,
title and interest in and to such Intangible Property including, in those
instances where the Corporation determines in its sole discretion, to apply for
letters patent of the United States of America and (or other countries, patent
applications, copyright applications, assignments, affidavits, priority claims
or otherwise now or hereafter essential or desirable in the opinion of
Corporation in obtaining, maintaining and (or defending such patents, copyrights
or other proprietary tights and in securing to and vesting in the Corporation
the sole and exclusive right, title and interest in and to such rights.
(c) Each Shareholder agrees that during the term of this Agreement and
for a period of three (3) years after the Closing Date of any sale of shares by
him, he will not:
(i) Directly or indirectly solicit, raid, entice or induce any other
Shareholder or employee of the Corporation or of any of its divisions,
subsidiaries or affiliated companies to be employed by any other person, firm or
corporation; or
(ii) Directly or indirectly approach any such Shareholder or employee for
such purposes; or (iii) Authorize or knowingly approve the taking of such
actions by other persons on behalf of any such person, firm or corporation or
assist any such person, firm or corporation in taking such action.
(d) Each Shareholder agrees that during the term of this Agreement he will
not enter into on behalf of the Corporation or cause the Corporation to enter
into, directly or indirectly, any transaction with any business organization in
which he or any member of his immediate family may be interested as a partner,
trustee, director, officer, employee, shareholder, other equity holder, lender
of money or guarantor, unless the material acts as to his interest and as to the
transaction are disclosed or are known to the Corporation.
(e) In the event of a judicial determination of the unreasonableness,
illegality or unenforceability of all or any part of these covenants with regard
to tame, geographical limitations or prohibited activities, it is agreed by the
parties that their intention is that this Agreement should be considered to be
effective within judicially determined reasonable limits, time and prohibited
activities.
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9. Specific Performance. Inasmuch as the shares of the Corporation cannot
be readily purchased or sold on the open market, irreparable damage would result
in the event this Agreement is not specifically embraced. Therefore, the sights
to, or obligations of; purchase and sale of shares hereunder shall be
enforceable in a court of equity, or other tribunal of competent jurisdiction,
by a decree of specific performance, and appropriate injunctive relief may be
applied for and granted in connection therewith. Such remedies and all other
remedies provided for in this Agreement shall, except where otherwise
specifically provided, be cumulative and not exclusive and shall be in addition
to any other remedies which any party may have under this Agreement or
otherwise.
10. After-Acquired Shares. The terms and provisions of this Agreement shall
apply to all of the shares of the Corporation now owned or which may hereafter
be issued to the Shareholders in consequence of any additional issuance,
purchase, exchange or reclassification of shares, corporate reorganization, or
any other form of recapitalization, consolidation, merger, share split-up, share
dividend or distribution or which are acquired by the Shareholders in any other
manner whatsoever.
11. Legend. Each certificate representing shares of the Corporation owned
by the parties hereto or by any persons subject to the provisions of this
Agreement shall have stamped, printed or typed thereon the following legend:
"This certificate and the shares represented hereby are subject to and
transferable only in accordance with the provisions of a certain Shareholders'
Agreement dated as of January 17, 2000 among Teri Nadler, Scott B. Ugell, Jean
Hickman, Carol Nelson, Ken Nelson, Alicia Torrealba and Karyn Mcknight., the
Corporation, a copy of which is on file with the Secretary of the Corporation."
12. Agreement by Corporation. The Corporation hereby agrees that it will
not at any time permit any transfer to be made on its books or records of the
certificates representing the shares of any Shareholder unless such transfer is
made pursuant to and is in accordance with the terms and conditions of this
Agreement.
13. Terminal. This Agreement shall terminate upon the earliest of
(a) The unanimous consent in writing of all of the then shareholders
of the Corporation; or
(b) The expiration of thirty (30) days after a petition in bankruptcy
shall have been filed by or against the Corporation and such
petition shall not have been discharged during such thirty (30)
day period; or upon an assignment by the Corporation for the
benefit of its creditors; or upon the expiration of thirty (30)
days after the commencement of any proceeding under any Act of
Congress or state governmental authority for the relief of
debtors seeking the relief or readjustment of indebtedness either
through reorganization, composition, extension or otherwise, and
such proceeding involving the Corporation as debtor shall not
have been vacated within such thirty (30) day period; or upon the
voluntary or involuntary dissolution of the Corporation; or
(c) The sale of all or substantially all the Corporation's assets.
14. Finances: Records.
(a) All cash; checks and instruments fir the payment of monies shall be
deposited in the Corporation's bank account(s) as may be selected by the Board
of Directors.
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(b) The directors and officers of the Corporation shall cause the
accountants for the Corporation to deliver each Shareholder, not less frequently
than annually and no later than by March 15th of the succeeding year (unless the
Corporation shall have validly and timely filed for an extension of its filing
due date on all Federal, state and local tax returns based upon income required
to be filed by it, in which event such date shall be deferred to the latest
effective date of such filing extensions); true and complete copies of Schedule
K-1 to Form 1120S and/or such other or additional forms as the Corporation may
be required to file, in order fir each shareholder to adequately prepare his
individual tax returns. The first such statement shall be delivered within 73
days following the end of the Corporation's first fiscal year.
(c) The parties agree that each party hereto shall have the right, during
normal business hours, to have the books of the Corporation examined and/or
audited by a certified public accountant of his choosing, at his own expense.
15. Complete Agreement and Survival of Covenants. This Agreement
constitutes the complete understanding among the parties hereto with respect to
its subject matter and no alteration, modification or amendment of any of the
provisions hereof shall be valid unless made in writing and signed by all of the
parties hereto. Termination of this Agreement shall have no effect on the rights
of any party against any other party hereunder in respect of acts or omissions
prior to such termination, or upon the obligations of any party which are
specifically stated to or necessarily extend beyond the date of termination.
16. Successors and Assigns. Neither this Agreement nor any of the rights
and obligations hereunder shall be assignable by any party hereto except with
the prior written consent of all other parties hereto. All of the terms of this
Agreement shall inure to the benefit of and shall be binding upon the heirs,
personal representatives, legal representatives, successors and permitted
assigns of the individual parties hereto and upon the successors and permitted
assigns of the Corporation.
17. Notices. All notices, offers and other communications made under or
pursuant to the terms of this Agreement shall be in writing and shall be sent by
certified mail, return receipt requested, postage prepaid, via Federal Express
or similar overnight courier service (provided it gives receipts for all
packages picked up) or personally delivered against receipt, to the respective
addresses of the parties as first set forth herein, or to such other address as
shall hereafter be designated by any party for the giving of such notices, by
written notice to the other parties given in accordance herewith.
18. . This Agreement, its performance and the rights, obligations and
remedies of the parties hereto, shall be construed and governed by the laws of
the State of New York without regard to its principles of conflict of laws.
19. Amendment of Certificate of Incorporation or By-laws. Each Shareholder
agrees that he will consent to and approve any amendment of the Certificate of
incorporation or by-laws of the Corporation which may be necessary or advisable
in order to conform any of the provisions of this Agreement or any amendments
hereto to the applicable laws of the State of New York now or hereafter enacted,
including, without limitation; the New York Business Corporation Law. Each
Shareholder further agrees to vote his shares of the Corporation and to execute
and deliver such documents as may be necessary in order to implement the
provisions of the preceding sentence. In furtherance of the foregoing, each
Shareholder hereby grants to the other Shareholder(s), for the duration of the
Term hereof, an irrevocable proxy to vote all the shares of the Corporation
owned by such Shareholder in accordance with the terms and provisions of this
Section 19.
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20. Construction. As the context so requires, terms herein in the masculine
form shall be construed as including the feminine form as well as neater and the
singular form shall include the plural and vice versa.
21. Counterparts. This Agreement maybe executed in any number of
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
VISTA VACATIONS INTERNATIONAL , INC. Seal
By: /s/ Teri Nadler
By: /s/ Scott B. Ugell
By: /s/ Jean Hickman
By: /s/ Carol Nelson
By: /s/ Ken Nelson
By: /s/ Alicia Torrealba
By: Karyn Mcknight
217
CARNIVAL
March 18, 1999
Ms. Teri Nadler
Vista Vacations
5653 NW 29th Street
Margate, FL 33063
954-975-0898
Re: Override Commission Agreement
Dear Teri,
It was terrific speaking with you back in January! As we discussed, Vicke agreed
to increase your commission to 15%, even though we normally require 85 sailed
guests for members of The Consortium to earn 15%. Whenever we make this type of
exception it is for a six-month trial period, after which we review your
progress. We know you'll come through with flying colors! The complete details
of your commission program are detailed below.
Commission Level Targets: As a member of The Consortium your commission level is
determined by comparing the number of guests sailed by your agency in a calendar
year to the targets listed below.
Commission2 Annual Sailed Guests
------------ ---------------------
10% 0-12
12% 13-39
13% 40-59
14% 60-84
15% 85-349
16% 350 +
1 Note: Productivity is calculated on a calendar year basis in seven-day
equivalents (2-5 day guests count 1/2, 6-9 day guests count as one, 10-12 day
guests count 1 1/2 and 13+ day guests count as two ). Free group and reduced
agent's fares are not counted. Guests are considered "sailed" once their cruise
is completed. Ship charters are not covered by this agreement and do not count
toward productivity goals.
Commission at Source/Effective Dates: Vista Vacations will receive 15% at
source2 on the cruise-only fare of all individual and group guests booked
between January 12, 1999 and July 11, 1999.
2. Note: Pre/Post option packages, the Cruise Vacation Protection Plansm,
FlyAweighR Airfare Supplements and cruise-only transfers are commissionable at
10%. Port charges and all
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taxes/fees are non-commissionable. Port charges include: taxes/fees assessed by
governmental and other agencies; costs incidental to entering/leaving ports such
as pilotage; and costs incurred while in port such as stevedoring, waste removal
and payroll for port-related functions. Carnival reserves the right to change at
any time, without notice, commission levels, the items that qualify for override
commission and the items that are commissionable.
Renewal Requirements: In July 1999 we will evaluate the continuation of your 15%
commission by determining if you are on track toward sailing a minimum of 85
guests in 1999. Should you fall short of this target, your commission will be
adjusted based on the chart above. Please note that the productivity targets in
the chart above are applicable only to The Consortium members. If your
membership lapses during the term of this agreement, then Carnival's standard
individual Override targets will become effective.
Product Description: This agreement covers all of the Carnival brand cruise
products in all categories for sailings to The Bahamas, the Caribbean, Mexico,
the Panama Canal, Alaska and Hawaii. Any special cruise oportunities, additions
to the flwwt and/or new deployment will be covered as well.
Preferred Supplier Commitment: Carnival Cruise Lines will receive "Preferred
Supplier" status for all of our products. This means that, in exchange for the
override commission and sales/marketing support, Carnival Cruise Lines should be
a primary cruise line supported by your agency in the contemporary market.
Trademarks: Vista Vacations may not use any trademark or trade name of Carnival
, or any similar trademark or trade name, in advertising or elsewhere without
first obtaining Carnival's written approval (except for any advertising
materials supplied to you by Carnival). Vista Vacations may not use any Carnival
trademark or trade name as part of its corporate, business or trade name.
Relationship of Parties: Vista Vacations acknowledges and agrees that it is an
independent contractor, and that it shall not act as an employee, agent,
franchise, or licensee of Carnival. Vista Vacations shall be solely responsible
for its liabilities and expenses in connection with this agreement and the
operation of its business. Vista Vacations acknowledges that it is an agent of
its respective customers and not an agent of Carnival.
Wholesaling: Wholesaling of Carnival Cruise Lines' products is strictly
prohibited. Carnival Cruise Lines reserves the right to cancel this agreement if
Vista Vacations wholesales our product.
Indemnification: Vista Vacations shall indemnify and hold harmless Carnival from
and against all claims, liabilities, costs and expenses (including reasonable
attorney's fees) arising out of or in connection with (i) the acts, commissions
or statements of any employee, agent or representative of Vista Vacations, (ii)
the operation of Vista Vacation's business, (iii) Vista Vacation's failure to
deliver any passenger ticket document to a customer promptly after receipt of
each such document from Carnival, or (iv) any breach of this letter agreement by
Vista Vacations.
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Governing Law/Venue: This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Florida, without regard to its conflict
of laws principles. Vista Vacations agrees that any and all lawsuits arising out
of or relating in any way to this Agreement shall be litigated only in the state
of federal courts sitting in Miami-Dade County, Florida, and Vista Vacations
hereby submits to the jurisdiction of each of such courts for such purposes.
Confidentiality: Vista Vacations shall keep the terms of this agreement and any
business information of Carnival strictly confidential.
This Agreement represents the complete commission arrangement between Vista
Vacations and Carnival Cruise Lines and supercedes any prior or contemporaneous
agreements. By continuing to make bookings with Carnival following receipt of
this Agreement, Vista Vacations is agreeing to all of the terms and conditions
contained herein.
Teri, we sincerely appreciate your support of Carnival Cruise Lines and are
confident that this commission exception will help us significantly build our
business together. We are very pleased to be working with you and look forward
to a successful 1999!
Best Regards,
/s/ Fred Stein
Fred Stein
Supervisor, Agency Compensation
CC: Christine Arnholt, Tracey Kelly, Janice Lynne
220
VACATIONS.COM
North America's Largest Vacation Selling Network
February 9, 2000
Teri Nadler
Vista Vacations International
5653 NW 29th Street
Margate, FL 33063
Dear Teri:
We congratulate you for a year of hard work and dedication! Vacation.com is
proud to include you among our elite group of success-oriented agencies and is
pleased to renew your membership!
Renewing is simple and seamless:
Complete the enclosed APPLICATION in its entirety date and sign.
Issue a check for the MEMBERSHIP FEE as indicated on the enclosed
invoice.
Mail the APPLICATION and the MEMBERSHIP FEE to Vacation.com today. A
return envelope is enclosed for your convenience.
Your agency will continue receiving preferred supplier overrides, plus an
arsenal of exclusive offers including upgrades, ship board credits, extra
discount certificates, select-sailing exclusive offers and group rates. We look
forward to another record-breaking year!
VACATION.COM Member Renewal
MEMBERSHIP APPLICATION FORM
Today's date: 2/11/00 Agency Name: Vista Vacations International
Street Address: 5653 NW 29th Street
City: Margate State: Florida Zip Code: 33063
E-mail address: [email protected] URL Address:
Telephone: 954-975-0898 Fax: 954-975-8447
List any existing Consortium/Co-op/Franchise Affiliations: none
CLIA number: 00526993
Date of CLIA Appointment: 11/1/98 Date of IATA Appoiuntment: Pending
Home Office
No. of Years in Business: 1 No. of Employees: 6
No. of Years at this Location: 1
Annual Volume: $1.2 MIL
Name of Owners who are Full-time employees: Teri Nadler, Jean Hickman,
Alicia Torrealba
Percentage of Business: Retail 100%
Description of Agency: "Mostly Independent home based agents
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An agreement is made by and between Vacation.com, a corporation organized and
existing under the laws of the State of New York, having as principal place of
business in West Islip, New York and the following company thereinafter referred
to as travel agent. Vacation.com is engaged in Travel Industry Marketing and has
developed and continues to use in connection with its business certain
trademarks copyrights proprietary interests service marks and trade names,
including the Vacation.com logo to identify the corporation to the public. The
parties therefore agree as follows:
1) Vacation.com will not accept any dual affiliation with any other Travel
Industry Marketing association: travel consortium or cooperative
franchise affiliation, immediate action will be take to remove your
agency from Vacation.com'c agency membership. Travel agent hereby
agrees to utilize Vacation.com system of Travel Industry Marketing and
recognize Vacation.com as the primary consortium/co-op/franchise
affiliation with all suppliers.
2) Vacation.com hereby grants the travel agent the right to use certain
Vacation.com trademarks owned and used by Vacation.com for as long as a
Member is in good standing. Member upon termination of membership,
shall be required to cease in the use and return of any and and all
Vacation.com identifications, logos, trademarks, materials, information
and lists or facsimile thereof Vacation.com reserves the right to
require as a condition of the continuation of this agreement, that
Member establish or maintain in good standing, appointment in ARC, IATA
or CLIA.
Member agrees that in the event it is also a member of and has override
or residual agreements through another travel sales and marketing
consortium, co-op, association or entity, Vacation.com will be the
marketing affiliation through which overrides will be earned and all
such other former agreements will be thereby superseded.
This agreement supersedes and nullifies and previous Vacation.com
membership agreements.
3) Vacation.com agrees to cooperate with and make available tot he travel
agent, operating and marketing procedures to assist the travel agent in
implementing the Vacatiopn.com system of Travel Industry Marketing.
Vacation.com will provide each member with a specific list of
suppliers. Vacation.com will provide information on procedures and
commissions on a regular basis.
4) Vacation.com shall have the right, upon written notice to travel agent,
to terminate this agreement in the event travel agent shall become
insolvent, file for bankruptcy, commit acts detrimental tot he travel
public or the Vacation.com name and reputation. Vacation.com agrees
that it will use its best efforts, subject to compliance with all
applicable federal state and local laws, to negotiate with various
Preferred Suppliers (hereinafter called "suppliers") of air, land or
sea travel, and other services and products for commissions or
discounts for members of Vacation.com. In return, Member agrees to use
best effort, to promote and sell Vacation.com preferred suppliers. The
names of such suppliers shall be provided to the Member by
Vacation.com, but the Member shall not be
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required to act as agent for any supplier and shall be permitted to
negotiate with any supplier with respect to commissions without regard
to Vacation.com. Vacation.com will make an effort to correct the
condition, but shall not be held liable for default, errors or
omissions on the part of the suppliers to perform according to terms of
or to renew the supplier contract with Vacation.com. Vacation.com will
periodically evaluate Members production with Preferred Suppliers and
reserves the right to terminate agreement due to low productivity.
5) Vacation.com shall prepare a schedule of override commissions and pay
to travel agent a portion of said override commissions. Override
commissions shall be considered as any payments made to Vacation.com or
to the travel agent by suppliers of travel service as a result of the
Vacation.com efforts and their systems of marketing. The travel agent
agrees that Vacation.com may collect override commissions as travel
agent's representative. Inclusion in Preferred Supplier override
commission programs is at the discretion of individual Preferred
Suppliers. Members must be in good standing with Vacation.com to
receive such overrides.
6) It is understood by both parties in the relationship that the travel
agent is an independent contractor who is not authorized to enter into
any contract on behalf of Vacation.com. Neither party shall be
obligated for any act or omission of the other, and each shall hold
harmless and indemnify the other against any and all claims with
respect to the operations of the travel agent and Vacation.com.
7) Membership will be effective on the first day of the following month
upon receipt of fees, affiliation letter and at the sole discretion and
approval of Vacation.com.
8) This agreement constitutes the entire agreement between the parties.
9) This agreement shall be governed by the laws of the State of New York.
In witness whereof the parties hereto have signed this agreement the day and
year fiurst written below:
Agency: Vista Vacation International
Name: Teri Nadler, Pres.
Date 2/11/00
VACATION.COM
754 Montauk Highway
West Islip, NY 11795
Date: 2/8/00 Inv #438
Bill To
Teri Nadler
Vista Vacations International
5653 NW 29th Street
Margate, FL 33063
Membership Dues February 2000 to February 2001 $300.00
Encls.
223
COMPENSATION FOR PUBLIC RELATIONS / CORPORATE COMMUNICATIONS
I suggest an annual retainer of $15,000.00, which would include up to 200 hours
of my time per year. Once 200 hours have been consumed, additional time
requested and/or required will be billed at the rate of $100.00 per hour. Out of
pocket expenses on behalf of Vista Vacations will be reimbursed.
The calculation of hours will include but will not be limited to:
o Weekly review of travel trade press in search of appropriate promotional
opportunities
o Monthly review of consumer travel related publications in search of
appropriate promotional opportunities
o Time spent preparing press releases, writing appropriate Letters to the
Editor, newsletters, articles, training manuals, curricula, etc.
o Time spent providing consultation services to the CEO and/or Marketing
Director
o Travel time when travel is required.
Accurate records of hours spent and activities engaged in during those hours
will be kept and a monthly summary of "hour balance" remaining will be
submitted. If the 100 hours covered by the annual retainer are exceeded, a
monthly statement of billable hours and an invoice for same will be submitted
224
AGREEMENT FOR PROFESSIONAL SERVICES
AGREEMENT made this 10th day of March, 2000, between Vista Vacations, Inc.,
a Florida corporation, hereinafter referred to as the "Client" and Wiwebs.com,
inc., a Florida corporation hereinafter referred to as "WRI" or the
"Professional" ;
Recitals
The Client is engaged in the business of marketing vacation packages and
has its principal place of business at Margate, Florida.
The Client is currently engaged in a project to modernize and update its
website and desires to engage the services of the Professional to assist in such
project and to render services on the terms and conditions provided in this
agreement.
The Professional is a website design and hosting company, duly licensed to
do business in the State of Florida, and desires to render professional services
for the Client as provided herein.
THEREFORE, the Client engages the services of the Professional and in
consideration of the mutual promises contained in this agreement, the parties
agree as follows:
Term
1. This agreement shall be for a minimum one year period, commencing on or
about March 1, 2000.
Services
2. The Professional will perform the following services at the prescribed
rates and payment schedule to this Client only:
Phase 1:
$2500.00 For the Opening Flash (a 10-15 second presentation).
$100.00 per hour for design and graphics
$125.00 per hour for database programming and IT work.
Minimum of $125.00 per month to maximum of $600.00 per month for the
co-location of the server and the administration fees, to begin on or
about July 1st 2000 if applicable.
A live Stats package will be provided free with the purchase of the
contract.
Services will also include the following: 1) an Initial Set-Up, including
the compilation of required agent database information; 2) Database Interface,
which will allow Client to utilize the information in the database to send
membership forms, create reports, et al; 3) Creation of an Inactive Agent
database; 4) EMHL Function Database, which will allow Client to send E-mails to
one or all members of travel programs; 5) Auto reports as identified, which will
automatically run as the parameters are set; 6) Auto Response, which is required
for member sign-ups; 7) Password Protection, which allows the system to assign a
user-ID and Password to members to allow them to access the Agent-only sections;
8) CGI Forms; 9)Locator site; 10) Replicator sites; 11) live stats package
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1. Both parties understand and agree that this contract is limited to 12
months and can be renewed if both parties agree the relationship has
met with both parties' expectations.
2. WRI understands and agrees "that time is of the essence" in creating
and updating Vista's website and online reservation system, which
therefore may require extra hours over and above the maximum $10,000.00
budget allowance to be paid to WRI, thereby requiring deferred payments
to WRI from Vista. Vista understands and agrees that this contract is
for $120,000.00, Should WRI bill $120,000 in hourly increments prior to
the end of the 12 month period, Vista agrees to continue to pay WRI
$10,000.00 per month even if ongoing work has ceased. Of course, any
additional terms can be worked out at any time, but must be in writing.
b. To maintain Vista's continuity, and create new "design and
graphics", WRI anticipates there will be the same amount of information
in the new site as was in Vista's old site, approximately 56 pages for
the beginning process. It takes approximately 1.67 hours per page for
the creation of new design for an initial cost of $9,352.00. This does
not necessarily need to be the first priority and can be assessed prior
to starting. This amount is included in the bill-paying agreement of
$10,000.00 per month.
c. WRI will include the networking of Vista's in-house computers as
part of the start-up using one Vista's existing servers as the network
server. This will take approximately 4-8 hours including all necessary
wiring and materials at $125.00 per hour. WRI will also include free
database training at 1 day per week for 5 weeks to ensure efficiency
for all concerned. Database programming will include but not be limited
to: In-house online inventory, including prompt and search
capabilities, reservation forms including our enrollment form with
charge card payment capability which will have a "shipping fee" to
offset applicable points and Free emails for all Vista In-house agents.
d. The monthly fee for collocation of the server and the administration
fees will not begin until the site is published and in the tweaking
stage, and will range between $125.00 per month and $600.00 per month
depending on the size of the site and its components to begin on or
about July 1st, 2000.
Phase 2:
Phase 2 of this proposal is for the CD-ROM marketing disc. .WRI will
provide the Client a 2-3 minute flash presentation on CD-ROM along with Internet
Explorer 5.0, which together with the website address, will provide a gateway to
the Internet for those who install it into their computer. This will increase
traffic to the site and give ease in location as well. One time set-up fee will
be $1600.00, and the price of dics is $8.00 each when sold in 100 bulk
quantities.
Phase 2 also includes online tutorial classes, with time lengths expected
to be 5-12 minutes each of presentation. Additionally, Phase 2 will include the
expansion of the website, including additional database features such as
International Agent Locators, 2-page sites for individual agents, and Search
capabilities to locate information for both Agents and Customers.
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Phase 3:
Phase 3 is attached as Exhibit "A" and incorporated herewith.
Use of Agents or Assistants
3. To the extent reasonably necessary to enable the Professional to
perform the duties under this contract, the Professional is authorized to engage
the services of any agents or assistants that the Professional may deem proper
and further to employ, engage, or retain the services of such other persons or
corporations to aid or assist the Professional in the proper performance of the
duties. The cost of the services of agents or assistants shall not be chargeable
directly to the Client, nor shall any expenses incurred by the Professional in
engaging such agents or assistants be reimbursed by the Client without the
expressed written consent of the Client.
Facilities, Supplies, and Equipment
4. Facilities will be the production offices of WRI.
Schedule of Payments
5. For services to be rendered under this agreement, the Professional
shall be paid as follows: $10,000.00 as a retainer fee on commencement of this
agreement and the balance at the rate of $10,000.00 per month on the first day
of each month following the commencement of this Agreement. Failure to make
payment as stated above may result in the downloading of Client website onto
disc without access to Client until all balances are paid in full.
Devotion of Time
6. The Professional shall devote such time to the performance of the
duties under this agreement as is reasonably necessary for a satisfactory
performance. Should the Client require additional services not included in this
agreement, the Professional shall make a reasonable effort to perform the
additional services without decreasing the effectiveness of the performance of
the duties required by this contract.
Entire Agreement
7. This agreement supersedes any and all other agreements, either oral
or in writing, between the parties to this agreement with respect to its subject
matter, and no other agreement, statement, or promise relating to the subject
matter of this agreement that is not contained in it shall be valid or binding.
Assignment
8. Neither this agreement nor any duties or obligations under this
agreement shall be assignable by the Professional without the prior written
consent of the Client. In the event of an assignment by the Professional to
which the Client has consented, the assignee or the assignee's legal
representative shall agree in writing with the Client to personally assume,
perform, and be bound by the covenants, obligations, and agreements contained in
this contract.
Successors and Assigns
9. Subject to the provision regarding assignment, this agreement shall
be binding on the heirs, executors, administrators, legal representatives,
successors, and assigns of the respective parties.
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Attorney's Fees
10. If any action at law or in equity is brought to enforce or
interpret the provisions of this agreement, the prevailing party shall be
entitled to reasonable attorney's fees in addition to any other relief that may
be available.
Governing Law
11. The validity of this agreement and of any of its terms or
provisions, as well as the rights and duties of the parties to this agreement,
shall be governed by the laws of the State of Florida.
Amendment
12. This agreement may be amended by the mutual agreement of the
contracting parties in a writing to be attached to and incorporated into this
agreement.
Legal Construction
13. In case any one or more of the provisions contained in this
agreement shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, this invalidity, illegality, or unenforceability shall not
affect any other provision of this agreement and this agreement shall be
construed as if the invalid, illegal, or unenforceable provision had never been
contained in it.
Executed at Margate [city], Florida [state], on the day and year first
written above.
WRI Webs.com
by: /s/ Debrah Grant
__________________________
[signature of professional]
Vista Vacations international
by: /s/ Teri Nadler, President
__________________________
{signature of client]
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Superseder & Conversion Agreement
This Superseder & Conversion Agreement (the "Agreement") is made and
entered into by and among AmeriNet Group.com, Inc., a publicly held Delaware
corporation with a class of securities registered under Section 12(g) of the
Securities Exchange Act of 1934, as amended ("AmeriNet" and the "Exchange Act,"
respectively); Vista Vacations International, Inc., a Florida corporation
("Vista Vacations"); and, Nellie Tippery, a Washington resident ("Ms. Tippery"),
AmeriNet, Vista Vacations and Ms. Tippery being sometimes hereinafter
collectively referred to as the "Parties" or generically as a "Party").
Preamble:
WHEREAS, Ms. Tippery has in various documents and instruments been
described as both a creditor and investor of Vista Vacations, and in conjunction
with a proposed acquisition of Vista Vacations by AmeriNet, the status of Ms.
Tippery must be clearly established; and
WHEREAS, as a condition to AmeriNet's acquisition of Vista Vacations, Ms.
Tippery must be deemed solely a creditor of Vista Vacations and must irrevocably
agree to convert all debts, liabilities and obligations owed to her by Vista
Vacations into the right to receive 66,667 shares of AmeriNet's common stock;
and
WHEREAS, in order to induce AmeriNet to acquire Vista Vacations, Ms.
Tippery has agreed to irrevocably convert all of Vista Vacations' debts,
obligations and liabilities to her or her affiliates, including, without
limitation, loans aggregating at least $180,000, into the right to receive
66,667 shares of AmeriNet Common Stock:
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the Parties, intending to be legally bound, hereby agree as follows:
Witnesseth:
Article I
Definitions
The following terms or phrases, as used in this Agreement, shall have
the following meanings:
(A) Accredited Investor:
An investor that meets the requirements for treatment as an accredited
investor, as defined in Rule 501(a) of Commission Regulation D, which
provides as follows:
Accredited investor. "Accredited investor" shall mean any person who
comes within any of the following categories, or who the issuer
reasonably believes comes within any of the following categories, at
the time of the sale of the securities to that person:
(1) Any bank as defined in section 3(a)(2) of the Act, or any savings
and loan association or other institution as defined in section
3(a)(5)(A) of the Act whether acting in its individual or
fiduciary capacity; any broker or dealer registered pursuant to
section 15 of the Securities Exchange Act of 1934; any insurance
company as defined in section 2(13) of the Act; any investment
company registered under the Investment Company Act of 1940 or a
business development company as defined in section 2(a)(48) of
that Act; Small Business Investment Company licensed by the U.S.
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Small Business Administration under section 301(c) or (d) of the
Small Business Investment Act of 1958; any plan established and
maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions for
the benefit of its employees, if such plan has total assets in
excess of $5,000,000; employee benefit plan within the meaning of
the Employee Retirement Income Security Act of 1974 if the
investment decision is made by a plan fiduciary, as defined in
section 3(21) of such Act, which is either a bank, savings and
loan association, insurance company, or registered investment
adviser, or if the employee benefit plan has total assets in
excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited investors;
(2) Any private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific
purpose of acquiring the securities offered, with total
assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the
issuer of the securities being offered or sold, or any
director, executive officer, or general partner of a general
partner of that issuer;
(5) Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase
exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint
income with that person's spouse in excess of $300,000 in
each of those years and has a reasonable expectation of
reaching the same income level in the current year;
(7) Any trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a sophisticated
person as described in ss.230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
(B) Commission: The United States Securities and Exchange Commission
(C) Exchange Act The Securities Exchange Act of 1934, as amended.
(D) Exchange Act Reports:
The reports on Commission Forms 10-SB, 10-KSB, 10-QSB and
8-K and Commission Schedules 14A and 14C, that AmeriNet is
required to file pursuant to Sections 13, 14, 15(d) and
12(g) of the Exchange Act.
(E) Washington Act: The Securities Act of Washington
(F) Washington Rule:
WAC Rule 460-44A-050: Isolated transactions, Sales not
involving a public offering:
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(1) An "isolated transaction" within the meaning of RCW 21.20.320(1)
includes:
(a) Subject to the limitation of (b) of this subsection, any sale of
an outstanding security by or on behalf of a person not in
control of the issuer or controlled by the issuer or under common
control with the issuer and not involving a distribution;
(b) Any sale satisfying the requirements of (a) of this subsection
that is effected through a broker-dealer, provided that it is one
of not more than three such transactions effected by or through
the broker-dealer in this state during the prior twelve months;
(c) Any sale of an outstanding security by or on behalf of a person
in control of the issuer or controlled by the issuer or under
common control with the issuer if the sale is effected pursuant
to:
(i) Brokers' transactions in accordance with section 4(4) of the
Securities Act of 1933 and Rule 144 thereunder; or
(ii) Any other transaction not effected through a broker-dealer
and not involving a distribution, if the sale, including any
other sales of securities of the same class during the prior
twelve months inside or outside this state by the person,
does not exceed 1% of the outstanding shares or units of
that class; or
(d) Any sale of a security by or on behalf of an issuer that is one of not
more than three such transactions inside or outside this state during
the prior twenty-four months.
An exemption provided by (a), (b), (c), or (d) of this subsection
shall not be available for any offering made in a manner inconsistent
with the limitations set forth in (a), (b), (c), or (d) of this
subsection, respectively.
(2) "Sales not involving a public offering," within the meaning of
RCW 21.20.320(1), is interpreted by the director in a manner
consistent with section 4(2) of the federal Securities Act of
1933 and Securities and Exchange Commission Act Release No. 4552.
(G) Reorganization Agreement
The agreement between AmeriNet and all of the stockholders of
Vista Vacations pursuant to which AmeriNet will acquire all of
Vista Vacation's common stock in exchange for shares of AmeriNet
common stock, a copy of which is annexed hereto and made a part
hereof as exhibit 1(F).
(H) Securities Act The Securities Act of 1933, as amended.
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Article II
Conversion
Subject to the condition precedent that Closing on the Reorganization
Agreement takes place on or before April 30, 2000:
(A) (1) Ms. Tippery hereby irrevocably agrees to convert all of
Vista Vacations' debts, obligations and liabilities to her or
her affiliates, including, without limitation, loans
aggregating at least $180,000, into the right to receive
66,667 shares of AmeriNet Common Stock (the "Tippery Shares").
(2) The conversion shall be effective without any further required
action or documentation by Ms. Tippery in the event that the
Reorganization Agreement is Closed upon prior to April 30,
2000.
(3) In the event that the Reorganization Agreement is not Closed
upon prior to April 30, 2000, then this Agreement shall be
deemed null and void, as if it had never been entered into,
and Ms. Tippery and Vista Vacations shall resume all
relationships and obligations between them, as existed prior
to the execution hereof.
(B) (1) In consideration for Ms. Tippery's conversion of all of
Vista Vacations' debts, obligations and liabilities to her or
her affiliates, including, without limitation, loans
aggregating at least $180,000 into the Tippery Shares,
AmeriNet hereby agrees to issue the Tippery Shares to the
order of Ms. Tippery.
(2) In the event that the Reorganization Agreement is not Closed
upon prior to April 30, 2000, then this Agreement shall be
deemed null and void, as if it had never been entered into,
and Ms. Tippery and AmeriNet shall have no rights or
liabilities as to each other based on this Agreement or
matters incidental thereto.
(C) Subject to the condition precedent reflected above, the Tippery Shares
shall be issued to Ms. Tippery following closing on AmeriNet's
acquisition of Vista Vacations (the "Closing"), concurrently with the
issuance of shares of AmeriNet's common stock to the holders of Vista
Vacations' common stock immediately preceding the Closing, in reliance
on the exemption from registration under the Securities Act provided by
Section 4(6) thereof based on Ms. Tippery's status as an Accredited
Investor.
(D) As a material inducement to AmeriNet's consideration of Ms. Tippery's
offer to convert all of Vista Vacation's obligations, liabilities and
debts owed to her and her affiliates into the Tippery Stock, Ms.
Tippery represents, warrants and covenants to AmeriNet, as follows:
(1) Ms. Tippery 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 her
advisors or representatives, if any, such knowledge and
experience in financial matters that Ms. Tippery is capable of
evaluating the relative risks and merits of this subscription,
the text of Rule 501(a) being set forth, in full, above;
(2) Ms. Tippery acknowledges that she has, based on her 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 her in particular;
(3) (a) Ms. Tippery understands that the offer and issuance of the
AmeriNet Stock is being made in reliance on Ms. Tippery's
representation that she has reviewed all of AmeriNet's
reports filed with the Commission during the past 12 months
and posted on the Commission's Internet
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web site (www.sec.gov) under the EDGAR Archives sub site,
and has become familiar with the information disclosed
therein, including that contained in exhibits filed with
such reports.
(b) Ms. Tippery is fully aware of the material risks associated
with becoming an investor in AmeriNet and confirms that she
was previously informed that all documents, records and
books pertaining to this investment have been available from
AmeriNet and that all docu ments, records and books
pertaining to this transaction requested by her have been
made available to her;
(4) Ms. Tippery has had an opportunity to ask questions of and
receive answers from the officers of AmeriNet concerning the
terms and conditions of this Agreement and the transactions
contemplated hereby, as well as the affairs of AmeriNet and
related matters;
(5) Ms. Tippery has had an opportunity to obtain additional
information necessary to verify the accuracy of the information
referred to in subparagraphs (a), (b), (c) and (d) hereof, as
well as to supplement the information in the Exchange Act
Reports.
(6) Ms. Tippery has represented to Vista Vacations that she has the
general ability to bear the risks of the subject transaction and
that she is a suitable investor for a private offering and Ms.
Tippery hereby affirms the correctness of such information to
AmeriNet, including, without limitation, the representations in
the form of the investment letter annexed hereto and made a part
hereof as exhibit 3(D)(6);
(7) Ms. Tippery acknowledges and is aware that:
(a) The AmeriNet Stock is a speculative investment with no
assurance that AmeriNet will be successful, or if
successful, that such success will result in payments to Ms.
Tippery or to realization of capital gains by Ms. Tippery on
disposition of the AmeriNet Stock; and
(b) The AmeriNet Stock to be issued to her has not been
registered under the Securities Act or under any state
securities laws, accordingly Ms. Tippery may have to hold
such common stock and may not be able to liquidate, pledge,
hypothecate, assign or transfer it;
(8) Ms. Tippery has obtained her own opinion from her 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 either Ms. Tippery or AmeriNet in conjunction with this
Agreement and the issuance of the AmeriNet Stock in conjunction
therewith, other than such actions as have already been taken in
order to comply with the securities law requirements of Ms.
Tippery's state of domicile; and
(9) (a) The certificates for the AmeriNet Stock will bear
restrictive legends and AmeriNet's transfer agent will be
instructed not to transfer the subject securities unless
they have been registered pursuant to Section 6 of the
Securities Act or an opinion of counsel to Ms. Tippery
satisfactory to legal counsel to AmeriNet and AmeriNet's
president has been provided, to the effect that the proposed
transaction is exempt from registration requirements imposed
by the Securities Act, the Exchange Act and any applicable
state or foreign laws.
(b) The legend shall read as follows: "The securities
represented by this certificate were issued without
registration under the Securities Act of 1933, as amended,
or comparable state laws in reliance on the provisions of
Section 4(6) of such act, and comparable state law
provisions. These securities may not be transferred pledged
or hypothecated unless they are first registered under
applicable federal, state or foreign laws, or the
transaction is demonstrated to be exempt from such
requirements to AmeriNet's satisfaction."
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Article III
Superseder
(A) The terms of this Agreement supersede the terms of all other agreements
between Vista Vacation and Ms. Tippery and her affiliates, all of which
will be henceforth null and void as if they had never been entered
into, this Agreement being deemed a novation, settlement accord and
satisfaction of all such prior agreements.
(B) In consideration for the exchange of covenants reflected above but
excepting only the obligations created by this Agreement, Vista
Vacations and Ms. Tippery 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 shall be to a Schedule or Exhibit to this Agreement
unless otherwise indicated.
(B) The words "include," "includes" and "including" when used herein shall
be deemed in each case to be followed by the words "without
limitation."
(C) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
(D) The captions in this Agreement are for convenience and reference only
and in no way define, describe, extend or limit the scope of this
Agreement or the intent of any provisions hereof.
(E) All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the
Party or Parties, or their personal representatives, successors and
assigns may require.
(F) The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
4.2 Notice.
(A) All notices, demands or other communications given hereunder shall be
in writing and shall be deemed to have been duly given on the first
business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
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(1) To AmeriNet:
AmeriNet Group.com, Inc.
Crystal Corporate Center;
2500 North Military Trail, Suite 225-C; Boca Raton, Florida 33431
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425;
and, e-mail [email protected]; with a copy to
G. Richard Chamberlin, Esquire; General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida
34471 Telephone (352) 694-6714, Fax (352) 694-9178; and,
e-mail, [email protected].
(2) To Vista Vacations:
Vista Vacations International, Inc.
5653 Northwest 29th Street; Margate, Florida 33063
Attention: Teri Nadler, President
Telephone (954) 975-0898; Fax (954) 975-8447;
e-mail [email protected]; with a fax copy to
Scott Ugell
155 North Main Street; New City, New York
10956 Telephone (914) 639-7011; Fax (914) 639-7088; and,
e-mail [email protected]
(3) Ms. Tippery:
Ms. Nellie Tippery
219 East Wiser lake Road; Lyden, Washington 98264
Social Security Number ###-##-####
Telephone (360) 354-0600; Fax (360) 354-0630
or such other address or to such other person as any Party shall
designate to the other for such purpose in the manner hereinafter set
forth.
(B) At the request of any Party, notice will also be provided by overnight
delivery, facsimile transmission or e-mail, provided that a
transmission receipt is retained.
(C) (1) The Parties acknowledge that the Yankee Companies, Inc., a
Florida corporation ("Yankees") serves as a strategic consultant
to AmeriNet and has acted as scrivener for the Parties in this
transaction but that Yankees is neither a law firm nor an agency
subject to any professional regulation or oversight.
(2) Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement and its
exhibits and incorporated materials on their behalf.
(3) The decision by any Party not to use the services of legal
counsel in conjunction with this transaction shall be solely at
their own risk, each Party acknowledging that applicable rules of
the Florida Bar prevent AmeriNet's general counsel, who has
reviewed, approved and caused modifications on behalf of
AmeriNet, from representing anyone other than AmeriNet in this
transaction.
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4.3 Merger of All Prior Agreements Herein.
(A) This instrument, together with the instruments referred to herein, contains
all of the understandings and agreements of the Parties with respect to the
subject matter discussed herein.
(B) All prior agreements whether written or oral are merged herein and shall be
of no force or effect.
4.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and the Reorganization and
shall be effective regardless of any investigation that may have been made or
may be made by or on behalf of any Party.
4.5 Severability.
If any provision or any portion of any provision of this Agreement, other
than one of the conditions precedent or subsequent, or the application of such
provision or any portion thereof to any person or circumstance shall be held
invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Agreement or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby.
4.6 Governing Law.
This Agreement shall be construed in accordance with the substantive and
procedural laws of the State of Delaware (other than those regulating Taxation
and choice of law).
4.7 Indemnification.
(A) Each Party hereby irrevocably agrees to indemnify and hold the other
Parties harmless from any and all liabilities and damages (including
legal or other expenses incidental thereto), contingent, current, or
inchoate to which they or any one of them may become subject as a
direct, indirect or incidental consequence of any action by the
indemnifying Party or as a consequence of the failure of the
indemnifying Party to act, whether pursuant to requirements of this
Agreement or otherwise.
(B) In the event it becomes necessary to enforce this indemnity through an
attorney, with or without litigation, the successful Party shall be
entitled to recover from the indemnifying Party, all costs incurred
including reasonable attorneys' fees throughout any negotiations,
trials or appeals, whether or not any suit is instituted.
4.8 Dispute Resolution.
(A) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement any
proceedings pertaining directly or indirectly to the rights or
obligations of the Parties hereunder shall, to the extent legally
permitted, be held in Broward County, Florida, and the prevailing Party
shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials
and appeals, whether or not any formal proceedings are initiated.
(B) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the
dispute shall, at the request of any Party, be exclusively resolved
through the following procedures:
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(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 Ms.
Nadler, 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
Ms. Nadler, two by AmeriNet and two by Vista Vacations.
(3) (a) Expenses of mediation shall be borne equally by the Parties,
if successful.
(b) Expenses of mediation, if unsuccessful and of arbitration
shall be borne by the Party or Parties against whom the
arbitration decision is rendered.
(c) If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful
mediation and arbitration shall be borne equally by the
Parties involved.
4.9 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees but are not intended to confer upon
any other person any rights or remedies hereunder.
4.10 Further Assurances.
The Parties agree to do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged or delivered and to perform all such acts and
deliver all such deeds, assignments, transfers, conveyances, powers of attorney,
assurances, stock certificates and other documents, as may, from time to time,
be required herein to effect the intent and purpose of this Agreement.
4.11 Counterparts.
(A) This Agreement may be executed in any number of counterparts.
(B) All executed counterparts shall constitute one Agreement
notwithstanding that all signatories are not signatories to the
original or the same counterpart.
(C) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Agreement which shall be the document filed with the Commission.
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 G. Richard Chamberlin,
Esquire, AmeriNet's acting general counsel.
(B) The use of this form of agreement by the Parties is authorized hereby
solely for purposes of this transaction.
237
<PAGE>
(C) The use of this form of agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
In Witness Whereof, AmeriNet, Vista Vacations and Ms. Tippery 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 Group.com, Inc.
_________________________________ (A Delaware corporation)
_________________________________ By: /s/ Michael H. Jordan
_____________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
_____________________________
Vanessa H. Lindsey, Secretary
Dated: March 12, 2000
State of Florida }
County of Palm Beach } ss.:
On this 12th day of March, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Michael H. Jordan and
Vanessa H. Lindsey, to me known, and known to me to be the president and
secretary of AmeriNet Group.com, 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 Group.com, Inc., for the uses and purposes therein
mentioned.
In witness whereof, I have hereunto set my hand and affixed my notarial
seal the day and year in this certificate first above written. My commission
expires the 26 day of April, 2004.
{Seal}
/s/ Charles S. Scimeca
--------------------------------
Notary Public
238
<PAGE>
Vista Vacations International, Inc.
_________________________________ (a Florida corporation)
_________________________________ By: /s/ Teri Nadler
_____________________________
Teri Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_____________________________
Alicia Torrealba, Secretary
Dated: March 12, 2000
State of Florida }
County of Broward } ss.:
On this 12th day of March, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Teri Nadler and Alicia
Torrealba, to me known, and known to me to be the president and secretary of
Vista Vacations International, 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 Vista Vacations International, Inc., for the uses and purposes therein
mentioned.
In witness whereof, I have hereunto set my hand and affixed my notarial
seal the day and year in this certificate first above written. My commission
expires the 26 day of April, 2004.
(Seal) /s/ Chales J. Scimeca
----------------------------
Notary Public
- ---------------------------------
/s/ Nellie Tippery
- --------------------------------- ---------------------------
Nellie Tippery
Dated: March 12, 2000
State of California }
County of Riverside } ss.:
On this 13th day of March, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Nellie Tippery, to me known,
and known to me to be the person who executed the foregoing instrument, and
acknowledged the execution thereof to be her free act and deed for the uses and
purposes therein mentioned.
In witness whereof, I have hereunto set my hand and affixed my notarial
seal the day and year in this certificate first above written. My commission
expires the 26 day of September, 2002.
(Seal) /s/ Shirley J. Schwilk
----------------------------
Notary Public
239
<PAGE>
Exhibit 1(F)
The Reorganization Agreement
This exhibit has been provided to Ms. Tippery under separate cover, and
by her initials on the bottom of this page, such receipt is hereby acknowledged.
Exhibit 3(D)(6)
Ms. Tippery's Investment Letter
March 12, 2000
Michael Harris Jordan
President
AmeriNet Group.com, Inc.
Crystal Corporate Center
2500 North Military Trail, Suite 225-C
Boca Raton, Florida 33431
Re.: Conversion of Vista Vacation Obligations for AmeriNet Securities
Dear Sir:
I hereby certify and warrant that I am relinquishing all rights to
repayment of $180,000, together with accrued interest, as well as all rights
under liabilities, debts and obligations owed to me and my affiliates by Vista
Vacations, Inc., a Florida corporation ("Vista Vacations") that AmeriNet is
acquiring concurrently with the execution of this letter, and the superseder and
conversion agreement to which this letter is an exhibit (the "Agreement"), in
consideration for the issuance to me of 66,667 shares of AmeriNet Common Stock
(the "AmeriNet Stock,"). I hereby certify under penalty of perjury that upon
receipt of the AmeriNet Stock, I will be acquiring it 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 AmeriNet Stock. No one other than me has any
beneficial interest in the AmeriNet Stock.
I further certify that 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 AmeriNet, that this transaction
was being effected in full compliance with the applicable securities laws of my
state of domicile, based on the exemption provided by Rule 460-44A-050
promulgated under authority of Section 21.20.320(1) of the Securities Act of
Washington.
240
<PAGE>
I agree that I will in no event sell or distribute any of the AmeriNet
Stock unless in the opinion of AmeriNet's counsel (based on an opinion of my
legal counsel) the AmeriNet Stock 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 Stock shall have
been so registered and/or qualified and an appropriate prospectus, shall then be
in effect.
I am fully aware that the AmeriNet Stock is being offered and issued by
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.
In connection with the foregoing, I consent to AmeriNet's legending my
certificates representing the AmeriNet Stock to indicate my investment intent
and the restriction on transfer contemplated hereby and to AmeriNet's placing a
"stop transfer" order against the AmeriNet Stock in AmeriNet's securities
transfer books until the conditions set forth herein shall have been met.
I acknowledge by my execution hereof that I have had access to
AmeriNet's Exchange Act Reports, books, records and properties, and have
inspected the same to my full and complete satisfaction prior to my acquisition
of the AmeriNet Stock. 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 basisof my inspection of AmeriNet's records
and my questioning of AmeriNet's officers.
I further certify that my domicile is located at the address set forth
in the Agreement.
Very truly yours,
/s/ Nellie Tippery
Nellie Tippery
241
PROMISSORY NOTE
$100,00.00 Dated: November 14, 1998
Principal Amount State of Florida
FOR VALUE RECEIVED, the undersigned hereby jointly and severally
promise to pay to the order of Nellie Tippery, the sum of One Hundred Thousand
Dollars ($100,00.00). Together with interest thereon at the rate of 8.5% per
annum on the unpaid balance. Said sum shall be paid in the manner following;
Said Note shall be paid along with interest thereon one year from the date
executed.
All payment shall be first applied to interest and the balance to
principal. This note may be prepaid, at any time, in whole or in part, without
penalty. All prepayments shall be applied in reverse order of maturity.
This note shall at the option of any holder hereof be immediately due
and payable upon the failure to make any payment due hereunder and all other
rights and remedies are subject to a Security and Pledge Agreement and
Shareholders Agreement executed contemporaneously herewith, incorporated by
reference herein, and made a part hereof.
All payments hereunder shall be made to such address as may from time
to time be designated by any holder hereof, so long as such address change is
made in writing sent to the Secretary of the Borrower, Vista Vacations
International, Inc.
The undersigned and all other parties to this note are subject to conditions as
set forth in a Shareholders Agreement and Security and Pledge Agreement, of even
date hereof, whether as enforces, guarantors of sureties, agree to remain fully
bound hereunder until this note shall be fully paid and waive demand,
presentment and protest and all notices thereto and further agree to remain
bound, notwithstanding any extension, renewal, modification, waiver, or other
indulgence by any holder or upon the discharge or release of any obligor
hereunder or to this note, or upon the exchange, substitution, or release of any
collateral granted as security for this note. No modification or indulgence by
holder hereof shall be binding unless in writing; and any indulgence any one
occasion shall not be an indulgence for any other or future occasion. Any
modification or change of terms, hereunder granted by any holder hereof, shall
be valid and binding upon each of the undersigned, notwithstanding the
acknowledgment any undersigned, and each of the undersigned does hereby
irrevocably grant to each of the others a power of attorney to enter into any
such modification on their behalf. This note shall take effect as a sealed
instrument and shall be construed, governed and enforced in accordance with the
laws of the State of Florida. The undersigned hereby execute this note as
principals and not as sureties.
242
<PAGE>
Notwithstanding anything contained herein to the contrary, the rights
of the Lender in the enforcement of this Note are limited to the terms and
conditions of a Shareholder's Agreement and Security and Pledge Agreement of
even date herewith. As such it is specifically understood and agreed, that
Lender may only seek to foreclose on the shares of Vista Vacations
International, Inc. stock, pledge to secure this Note, and may not obtain a
money judgement against Borrowers Torrealba and Hickman
Signed in the presence of :
Witness /s/Alicia Torrealba, Borrower
Witness /s/ Jean Hickman, Borrower
Witness Vista Vacations International, Inc.
By: /s/ Teri E. Nadler, President
Ms. Tippery wrote cancel over the Promissory Note and signed it on 3/19/00.
243
PREMIUM ASSIGNMENT CORPORATION
P.O. Box 3066-3522 Thomasville Rd., Tallahassee, FL 32315 Phone 850-907-5610
This agreement made and delivered this 2nd day of February, 2000, between Vista
Vacations International, Inc., 5653 NW 29th Street, Margate, FL 33063 phone
#954-975-0898 hereinafter called the insured, and Premium Assignment
Corporation, a Florida Corporation, hereinafter called PAC, for the financing of
the balance of the premiums on the following insurance policies:
<TABLE>
<S> <C> <C> <C> <C> <C>
Exp Name & Address of Insuring Co. Policy Policy Policy
Date Date (Including general agency if Brokered Type No. Premium
2/3/00 2/3/01 Preferred National Ins. FL PKG. TBD $1,100.06
Unamark FL
2/3/00 2/3/01 Preferred National Ins. FL PLIA TBD $2,320.00
Unamark FL
Cash Price Cash Down Unpaid +DOC =Amount +Finance =Total of Annual
(Total Premium) Payment Balance of Stamps Financed Charge Payments Percentage Rate
Cash Price
$3,420.06 $855.02 $2,565.04 $9.10 $2,574.14 $174.06 $2,748.20 14.50%
Amount of each payment Number of Payments When First Payment is Due
$274.82 10 3/3/00
</TABLE>
Itemization of the amount financed:
1. Unpaid balance of cash price will be paid to your insurance company(ies) or
their agents on your behalf.
2. Documentar stamps (if applicable) will be paid to public officials.
Warranties of Agent
The undersigned hereby certifies that: (1) The down payment as shown in the
contract has been paid by or on behalf of the insured. (2) All policies listed
are or will be in force on the stated effective dates and delivered by him (3)
No audit, reporting form, minimum or fully earned premium policy is included in
this Agreement, except as indicated in the Scheduled Policies of Insurance. (4)
The above Agreement is a bona fide and binding contract (5) The signatures are
genuine. (6) A copy of this Agreement has been delivered to the insured. The
undersigned agent further certifies that he is an authorized agent of the MGA or
insuring companies. (7) Upon cancellation of the Scheduled Policies of
Insurance, the undersigned agrees to remit the full amount of the unearned
premium, including unearned commission up to the unpaid balance of the
Agreement, upon receipt from the carrier.
244
<PAGE>
Notice to Insured: (1) Do not sign this agreement before you read it or if it
contains any blank space. (2) You are entitled to a completely filled in copy of
this agreement (3) Under the law, you have the right to pay off in advance the
full amount due and under certain conditions to obtain a partial refund of the
service charge. (4) This Agreement includes and is subject to all of the terms,
provisions, covenants, powers and agreements which are contained and appear on
page 1 and page 2 of this agreement.
Power of Attorney: The insured hereby appoints PAC his attorney in fact to
cancel and give notice of cancellation of the Scheduled Policies of Insurance to
the named insurance companies for nonpayment of premium.
All insureds named in Policies sign here. Insured acknowledges receipt of a copy
of page 1 and page 2
/s/ Jean Hickman, EVP OPerations 2/2/00
____________________________ Agency Name: Mack Groups/Schwab & Co.
Insured signature Title & Date Address: 1900 Corporate Blvd Ste 110
Boca Raton, FL 33431-7340
245
<PAGE>
PREMIUM ASSIGNMENT CORPORATION - PREMIUM FINANCE AGREEMENT
FOR VALUE RECEIVED, the insured promises to pay to the order of PAC the "TOTAL
OF PAYMENTS" as stated on page 1 of this Agreement, pursuant to all of the terms
and conditions.
WITNESSETH: That in consideration of the payment by PAC to the named insurance
companies, or their agents, of the balance of the premiums due on the scheduled
Policies of Insurance, the Insured agrees:
1. EFFECTIVE DATE This agreement is effective upon its acceptance by PAC.
Acceptance by PAC shall be deemed to occur upon payment of its draft or check by
PAC to the agent or to the Insuring Company of the balance of the premiums due
on the Scheduled Policies.
2. PAYMENTS The Insured agrees to make payments to PAC in accordance with the
payment schedule stated on page 1 of this Agreement. Payments are to be made to
PAC at Post Office Box 3066, Tallahassee, FL 32315-3066 or such other address as
PAC may notify you of. Payments made to any other person, firm, insurance
agency, corporation or otherwise shall not constitute payment to PAC. Payments
received after cancellation of the Scheduled Policies of insurance shall be
credited to the unpaid balance due on the account and shall not constitute
reinstatement of the canceled policies nor shall it constitute waiver by PAC of
its rights under the Agreement.
3. SECURITY FOR PAYMENT The insured assigns to PAC as security for the total
amount due under this Agreement (Total of Payments) any and all unearned
premiums which may become payable under the Scheduled Policies of Insurance. PAC
may request the Insuring Company to pay all monies for unearned premiums upon
cancellation of PAC. The Insured agrees that PAC may endorse his/her name on any
check or draft of all monies that may become due from the Insuring Company and
apply the same as payment for any amounts fie under the Agreement.
4. DEFAULT A default shall occur if any installment is not paid by its due date,
or should the insured fail to carry out any other obligations set forth in the
Agreement Should a default occur, the total unpaid amount under this Agreement
shall become immediately due and payable. Interest will continue to accrue on
the unpaid balance at the stated APR or maximum rate allowed by applicable State
Law until all balances are paid. The Insured agrees to pay a late charge for any
payments received and accepted by PAC after payment due date in accordance with
the Lat Charge section page 1 of this Agreement. Upon default of payment of
premium PAC may request cancellation of the Scheduled Policies of Insurance at
the earliest time permitted and in accordance with applicable State Law. Should
PAC cancel the Scheduled Policies of Insurance the Insured agrees to pay PAC a
cancellation fee equal to the amount permitted by applicable State Law (no fee
in AK,CA,CT,FL,KS,KY,NV,NM,NC,PA,SC,TX,VT,VA). The Insured consents to PAC
adding any unpaid balance on this contract to any future premium finance
agreement entered into with PAC.
5. ADDITIONAL CHARGE If permitted by State Law, you may be assessed a one-time
additional charge equal to the amount allowed by State Law for costs relating to
the precessing of your loan ($10 in AK).
6. SHORTAGE OR OVERAGE OF UNEARNED PREMIUM If unearned premiums are not
sufficient to pay the unpaid balance due, the insured shall pay PAC the
deficiency. Interest shall accrue on the deficiency at the stated APR or maximum
rate allowed by applicable State Law. If the unearned premiums received by PAC
are more than the amount due he excess shall be returned to the insured within
the time allowed by applicable State Law. The insured waives his/her right to
receive any excess which is less that $1.00 ($5 in IL,MD,UT;$3 in MS,OH,SC and
for prepayment in MI;$2 in GA; refunds of less than $1 will be made in KY and
VA).
246
<PAGE>
7. ATTORNEYS FEES AND EXPENSES If permitted by State Law, PAC may charge
attorney's fees and costs equal to the amount allowed by State Law to collect
any amounts due under this Agreement (20% in FL).
8. LENDER RELATIONSHIP The insured acknowledges that PAC is a lender and is not
an insurance agent nor an insurance company and that this Agreement is a
financing Agreement and is not an insurance policy or a guarantee of insurance
coverage.
9. PREPAYMENT If the balance of the amount due under this contract is paid off
prior to maturity, the insured may receive a refund of unearned finance charge
computed in accordance with the Rule of 78's (actuarial method in
AZ,CA,IO,ME,MA,MT,NJ,OR,PA,VT; short rate in SC) after deducting any fully
earned charges permitted by applicable State Law ($20 in FL).
10. ADDITIONAL PREMIUMS PAC may advance to the insured's agent or the insurance
company any additional premiums that may become due, less normal down payment,
adding the advance amount, plus any finance charge, to his/her present contract
balance. However, any additional premium which is owed to the insurance company
(ies) named in the Scheduled Policies of Insurance as a result of any type of
misclassification on risks, and which is not paid in full or financed on his
Agreement, may result in cancellation of the coverage for nonpayment of premium.
11. PAC LIABILITY PAC is not responsible for consequential damages resulting
from cancellation by PAC of the Scheduled Policies of Insurance if the
cancellation was done in accordance with applicable State Law. The insured shall
be responsible for reasonable attorney's fees and expenses for any unsuccessful
action filed by an Insured under this provision.
12. INSUFFICIENT FUNDS CHECK If allowed by State Law, a returned check fee will
be charged for each check returned to PAC for insufficient funds ($25 in MD &
NC; $20 in AR,CO,GA,ID,IN,VA; $15 in FL, LA, MS, NV, SD; $10 in AZ, MA, OH, OK;
$5 in CA) If a check is returned, it will not be automatically redeposited to
prevent cancellation of the insurance policies. If PAC does cancel the Scheduled
Policies of Insurance for nonpayment, the insufficient funds check may be
redeposited after cancellation to reduce any unpaid balance due under this
agreement.
13 WARRANTIES OF INSURED Insured warrants to PAC that (a) each of the Scheduled
Policies of Insurance have been issued or a binder of full force and effect has
been issued; (b) he has not any will not assign or encumber the unearned premium
of the Scheduled Policies of Insurance to anyone else nor grant anyone else
power of attorney to cancel the Scheduled Policies of Insurance until this
Agreement is paid in full (c) all rights conferred upon PAC shall inure to PAC's
successors or assigns and (d) no proceeding in bankruptcy has been instituted by
his/her/them.
14. ASSIGNMENT This Agreement may be assigned by PAC as allowed by State Law and
the assignee has the rights as PAC does under this Agreement. Th Federal Equal
Credit Opportunity Act prohibits creditors from discriminating against credit
applications on the basis of sex or marital status. The federal agency which
administers compliance with this law concerning this premium finance company is
the Federal Trade Commission, 703 Peachtree St., NE, Room 600, Atlanta, GA
30308. DOCUMENTARY STAMPS REQUIRED BY LAW IF ANY ARE AFFIXED TO MONTHLY JOURNAL
AND CANCELED.
247
- --------------------------------------------------------------------------------
SUMMARY OF INSURANCE Prepared: 03/23/00
- --------------------------------------------------------------------------------
For: Vista Vacations Int'l., Inc. The Mack Group Inc.
Teri Nadler 1900 NW Corporate Blvd. #110W
5653 NW 29th Street Boca Raton, FL 33431
Margate, FL 33063 561-998-1570
954-752-4770
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
Coverage Amount Company Policy No Eff Exp Premium
- ------------------------------------------------------------------------------------------------------------------------------------
Commercial Application Preferred National Ins. 73895B 02/03/00 02/03/01 $1100.06
Co.
Premise 1
Building 1
5653 NW 29th Street
Margate, FL 33063
Property Preferred National Ins. 73895B 02/03/00 02/03/01 Included
Co.
Premises 1 Building 1
Contents $87,500
Coins % 90
Valuation RC
Cause of Loss Special
Deductible 500
Business Income w/
Extra Expense $10,000
Included Rental value
EDP $6,000
Coins % 100
Valuation RC
Cause of Loss Special
Deductible 250
General Liability Preferred National Ins. 73895B 02/03/00 02/03/01 Included
Co.
Occurrence
General Aggregate 1,000,000
Products/Completed Oper. Aggr. Excluded
Personal & Advertising Injury 1,000,000
Each Occurrence 1,000,000
Fire Damage (Any One Fire) 50,000
Medical Expense (Any One Person) 5,000
Non-owned Auto $100,000
Professional Liability Preferred National Ins. 65332 02/03/00 02/03/01 $2,320.00
Co.
Retroactive Date: 02/03/99
Limit of Liability
Each Wrongful Acts $1,000,000
Annual Aggregate $1,000,000
Deductible $2,500.00
248
<PAGE>
Package & Professional Liability policies are being finance by Premium Assignment Corp. (800-342-0991)
Account # 455971
# of installments: 10
Monthly payment: $274.82
First payment due on 3/03/00
Workers Compensation Comp Option XS21-UB-271D978-6-00 02/18/00 02/18/01 $1970.00
Bodily injury by Accident (each accident 100,000
Bodily Injury by Disease (policy Limit) 500,000
Bodily Injury by Disease (each employee) 100,000
Classifications
Clerical Office Employees NOC
Code: 8810/Rate: .59
Total Estimates Payroll 300,000
Seller of Travel Bond Security Bond Associates 29933 01/25/00 01/25/01 $200.00
Bond Limit $10,000
Health American Medical Security Group 06/01/99 06/01/00*
# 4200-019852
Schedule of Premium 00
$15.00 POS
Schedule Classification Monthly rate per Subscriber
Hickman, Jean $272.54
Hickman, Keith $114.96
Nadler, Rachel $193.76
Grafflin, Trevor $114.96
Torrealba, Alic $200.18
</TABLE>
249
Professional Liability Insurance Policy
This is a claims-made Policy. Please review you Policy carefully.
The Policy is limited to liability for only those claims that are first made
against the insured during the policy period
Interstate Insurance Group
Chicago Insurance Company
Executive Offices: 55 E. Monroe St.
Chicago, IL 60603
Policy Number: LWB-3016091-0
Named Insured & Address: Scott B. Ugel
155 North Main St.
New City, NY 10956
And those individuals listed in the insured supplement
Producer Name Bertholon Rowland Corp.
Policy Period 5/1/99 to 5/1/00
Insured is: Individual
Limit of Liability: $1,000,000 each claim
$1,000,000 aggregate
(A separate limit of liability applies to claim expenses)
Deductible $1,000 per claim
Premium $3,536.00
Claim 81400
No. of Lawyers 2
Forms attached at Issue: POE-2182 (04/97) New York Mandatory
POE-2247 (12/1/96) Claim Expenses in
addition to llimits POJ-2018 (01/95) Lawyers
Claims-Made Policy Jacket
Bertholon-Rowland Countersigned at: New York, NY
Insurance Brokers Issue Date 6/17/99
100 Broadway
New York, NY 10005
250
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 Group.com, 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:
251
<PAGE>
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 Group.com, 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 Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-6714, Fax (352) 694-9178; and, e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
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.
Richard Chamberlin, 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) 765 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/ Teri E. Nadler
- ---------------------------- ------------------------
Signature
Dated: March 11, 2000 Teri Nadler
------------------------
Print name
AmeriNet Group.com, Inc.
- ----------------------------
____________________________ By: /s/ Michael H. Jordan
________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
______________________
Vanessa H. Lindsey, Secretary
Dated: March 11, 2000
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
_____________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
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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, Group.com, 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.
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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: Teri Eileen Nadler
________________ _____________ ____________
First Middle Last
B. Tax identification number: Social Security number ommitted for
reasons of personal privacy
C. Domicile Address: 6645 Northwest 48th Manor;
Coral Springs, Florida 33067
D. Telephone, fax and e-mail: 954-752-4770/954-975-8447
[email protected]
E. Shares Information:
(1) Number of Vista Vacations Shares owned or controlled as to
voting matters:
765
Signed, sealed and delivered
In Our Presence:
Stockholder:
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
______________________________
Dated: March 12, 2000
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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 Group.com, 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 Group.com, 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 Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-6714, Fax (352) 694-9178; and, e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
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.
Richard Chamberlin, 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) 60 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/ Alicia Torrealba
- ---------------------------- ------------------------
Signature
Dated: March 11, 2000 Alicia Torrealba
------------------------
Print name
AmeriNet Group.com, Inc.
- ----------------------------
____________________________ By: /s/ Michael H. Jordan
________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
______________________
Vanessa H. Lindsey, Secretary
Dated: March 11, 2000
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
_____________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
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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, Group.com, 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.
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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: Alicia Josefina Torrealba
_________________ _______________ _____________
First Middle Last
B. Tax identification number: Social Security number ommitted for
reasons of personal privacy
C. Domicile Address: 1985 South Ocean Drive Apartment 11-A
Hallandale, Florida 33009
D. Telephone, fax and e-mail: 954-975-098 [email protected]
E. Shares Information:
(1) Number of Vista Vacations Shares owned or controlled as to
voting matters:
60
Signed, sealed and delivered
In Our Presence:
Stockholder:
- ----------------------------
____________________________ By: /s/ Alicia Torrealba
Dated: March 11, 2000
284
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 Group.com, 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 Group.com, 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 Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-6714, Fax (352) 694-9178; and, e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
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.
Richard Chamberlin, 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) 400 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/ Scott B. Ugell
- ---------------------------- ------------------------
Signature
Dated: March 11, 2000 Scott B. Ugell
------------------------
Print name
AmeriNet Group.com, Inc.
- ----------------------------
____________________________ By: /s/ Michael H. Jordan
________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
______________________
Vanessa H. Lindsey, Secretary
Dated: March 11, 2000
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
_____________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
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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, Group.com, 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.
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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: Scott B. Ugell
_________________ _______________ _____________
First Middle Last
B. Tax identification number: Social Security number ommitted for
reasons of personal privacy
C. Domicile Address: 8 Culver Drive, New City, New York 10956
D. Telephone, fax and e-mail: 914-639-7011 914-639-7088
[email protected]
E. Shares Information:
(1) Number of Vista Vacations Shares owned or controlled as to
voting matters:
400
Signed, sealed and delivered
In Our Presence:
Stockholder:
- ----------------------------
____________________________ By: /s/ Scott B. Ugell
Dated: March 11, 2000
301
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 Group.com, 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 Group.com, 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 Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-6714, Fax (352) 694-9178; and, e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
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.
Richard Chamberlin, 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) 75 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/ Kenneth Nelson
/s/ Carol Nelson
- ---------------------------- ------------------------
Signature
Dated: March 11, 2000
------------------------
Print name
AmeriNet Group.com, Inc.
- ----------------------------
____________________________ By: /s/ Michael H. Jordan
________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
______________________
Vanessa H. Lindsey, Secretary
Dated: March 11, 2000
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
_____________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
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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, Group.com, 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.
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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: Kenneth A. Nelson
Carol W. Nelson
_________________ _______________ _____________
First Middle Last
B. Tax identification number: Social Security number ommitted for
reasons of personal privacy
C. Domicile Address: 1625 3rd Street South
D. Telephone, fax and e-mail: 954-262-8785 [email protected]
E. Shares Information:
(1) Number of Vista Vacations Shares owned or controlled as to
voting matters:
75
Signed, sealed and delivered
In Our Presence:
Stockholder:
- ----------------------------
____________________________ By: /s/ Kenneth A. Nelson
/s/ Carol W. Nelson
______________________________
Dated: March 10, 2000
318
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 Group.com, 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 Group.com, 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 Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-6714, Fax (352) 694-9178; and, e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
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.
Richard Chamberlin, 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) 180 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/ Jean Hickman
- ---------------------------- ------------------------
Signature
Dated: March 11, 2000 Jean Hickman
------------------------
Print name
AmeriNet Group.com, Inc.
- ----------------------------
____________________________ By: /s/ Michael H. Jordan
________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
______________________
Vanessa H. Lindsey, Secretary
Dated: March 11, 2000
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
_____________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
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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, Group.com, 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.
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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: Jean Hickman
_________________ _______________ _____________
First Middle Last
B. Tax identification number: Social Security number ommitted for
reasons of personal privacy
C. Domicile Address: 3780 Southwest 19th Street;
Ft. Lauderdale, Florida 33312
D. Telephone, fax and e-mail: 954-975-0898 [email protected]
E. Shares Information:
(1) Number of Vista Vacations Shares owned or controlled as to
voting matters:
180
Signed, sealed and delivered
In Our Presence:
Stockholder:
- ----------------------------
____________________________ By: /s/ Jean Hickman
______________________________
Dated: March 15, 2000
335
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 Group.com, 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 Group.com, 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 Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-6714, Fax (352) 694-9178; and, e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
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.
Richard Chamberlin, 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) 20 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/ Karyn McKnight
- ---------------------------- ------------------------
Signature
Dated: March 11, 2000 Karyn McKnight
------------------------
Print name
AmeriNet Group.com, Inc.
- ----------------------------
____________________________ By: /s/ Michael H. Jordan
________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
______________________
Vanessa H. Lindsey, Secretary
Dated: March 11, 2000
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
_____________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
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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, Group.com, 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.
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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: Karyn Mcknight
_________________ _______________ _____________
First Middle Last
B. Tax identification number: Social Security number ommitted for
reasons of personal privacy
C. Domicile Address: 10020A Main Street Suite 177
Bellevue, Washington 98004
D. Telephone, fax and e-mail: 425-957-3561 425-641-1248fax
[email protected]
E. Shares Information:
(1) Number of Vista Vacations Shares owned or controlled as to
voting matters:
20
Signed, sealed and delivered
In Our Presence:
Stockholder:
- ----------------------------
____________________________ By: /s/ Karyn McKnight
______________________________
Dated: February 28, 2000
352
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 Group.com, 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 Group.com, 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 Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-6714, Fax (352) 694-9178; and, e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
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.
Richard Chamberlin, 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/ Nellie R. Tippery
- ---------------------------- ------------------------
Signature
Dated: March 11, 2000 /s/ Nellie R. Tippery
------------------------
Print name
AmeriNet Group.com, Inc.
- ----------------------------
____________________________ By: /s/ Michael H. Jordan
________________________
Michael H. Jordan, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
______________________
Vanessa H. Lindsey, Secretary
Dated: March 11, 2000
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
_____________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
_________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
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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, Group.com, 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.
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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: Nellie R. Tippery
________________ _______________ _____________
First Middle Last
B. Tax identification number: Social Security number ommitted for
reasons of personal privacy
C. Domicile Address: 219 E. Wiser Lake Road;
Lynden, Washington 98264
D. Telephone, fax and e-mail: 360-354-0600 360-354-0630 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/ Nellie R. Tippery
______________________________
Dated: March 10, 2000
369
Executive's Employment Agreement
THIS EXECUTIVE'S EMPLOYMENT AGREEMENT (the "Agreement") is entered into by
and among Teri E. Nadler, an individual residing in the State of Florida (the
"Executive"); Vista Vacations International, Inc., a Florida corporation
("Vista"; Vista and the Executive being sometimes hereinafter collectively to as
the "Parties" or generically as a "Party".
Preamble:
WHEREAS, Vista's board of directors is of the opinion that in conjunction
with effectuation of Vista's future plans it must memorialize, confirm and
assure itself of the continuing the services of the Executive, who currently
serves as a member of Vista's board of directors and as its president and chief
executive officer; and
WHEREAS, the Executive is thoroughly knowledgeable with all aspects of
Vista's operations and plans; and
WHEREAS, the Executive is agreeable to serving as a member of Vista's board
of directors and as its president and chief executive officer, 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:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of the Executive's
employment hereunder shall be deemed to commence on the date of this Agreement's
execution by all of the Parties and shall continue until June 30, 2001.
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 30th day
prior to termination of the then current term.
1.3 Earlier Termination.
Vista 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
Sections 1.4 and 1.5, for the following reasons:
(a) For Cause:
(1) Vista may terminate the Executive's employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof
to the Executive, which notice shall specify the cause for
termination.
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(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Executive, through sickness or
other incapacity, to discharge his duties under this
Agreement for 30 or more consecutive days or for a
total of 60 or more days in a period of twelve
consecutive months;
(B) The failure of the Executive to follow the directions
of Vista's board of directors;
(C) Dishonesty; theft; or conviction of a crime involving
moral turpitude;
(D) Material default in the performance of the
Executive's obligations, services or duties required
under this Agreement (other than due to illness) or
material breach of any provision of this Agreement,
which default or breach has continued for ten days
after written notice of such default or breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that Vista experiences material business
reversals or fails to meet the operational criteria reflected
in its projections or business plans, then, subject to the
provisions of Section 1.4, at the option of Vista, this
Agreement shall terminate as of a date selected by Vista with
the same force and effect as if such date was the date
originally set as the termination date hereof.
(2) In the event that Vista 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 Vista shall not be deemed a termination of
its business.
(c) Death:
This Agreement shall terminate immediately on the death of the Executive;
however, all accrued compensation at such time shall be promptly paid to the
Executive's estate.
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1.4 Severance Payments and Alternatives to Termination
In the event this Agreement is terminated for reasons other than for cause
as described in Section 1.3(b) above, the Executive shall be entitled to either
thirty days prior written notice or to a severance payment in a sum equal to the
salary that would have been paid had 30 days prior written notice been provided;
provided, however, that in lieu of termination, Vista may offer to continue this
Agreement under modified compensation arrangements, if such arrangements are
reflected in the written notice and accepted by the Executive prior to the end
of the 30 day notice period.
1.5 Final Settlement.
Upon termination of this Agreement and payment of all amounts due to the
Executive hereunder, the Executive or his representative shall execute and
deliver to the terminating entity on a form prepared by Vista, a receipt for
such sums and a release of all claims, except such claims as may have been
submitted pur suant to the terms of this Agreement and which remain unpaid, and,
shall forthwith tender to Vista 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.
Vista hereby hires the Executive and the Executive hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) The Executive shall be employed as the president of Vista and perform
the duties generally associated with the position of president and
chief executive officer thereof.
(b) Without limiting the generality of the foregoing, the Executive shall
have exclusive control of all aspects of Vista's day to day operations,
subject only to compliance with the directions of Vista's stockholder,
its board of directors, applicable laws and fiduciary obligations.
(c) The Executive covenants to perform the employment duties called for
hereby in good faith, devoting substantially all business time,
energies and abilities to the proper and efficient management of the
business of Vista.
2.3 Status.
(a) Throughout the term of this Agreement, the Executive shall serve as a
member of the board of directors of Vista and as its president and
chief executive officer.
(b) In the event that the Executive is not elected to such positions, then,
at the option of the Executive, this Agreement may be deemed terminated
effective as of the earliest time that it can be reasonably determined
that such election will not take place, provided that written notice of
such election is provided to Vista within 30 days after it failed to
elect the Executive to the required office.
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2.4 Exclusivity.
Unless specifically otherwise authorized by Vista's board of directors, on
a case by case basis, all of the Executive's business time shall be devoted
exclusively to the affairs of Vista.
Article Three
Compensation
3.1 Compensation.
As consideration for the Executive's services to Vista the Executive shall
be entitled to:
(a) (1) An annual salary in the aggregate gross sum of $75,000 (the
"Base Salary"); plus
(2) An annual bonus equal to 5% of Vista's net pre tax profits,
payable within 30 days after an annual audit of Vista (or of
Vista's parent corporation) is completed, permitting
determination thereof (the "Annual Bonus").
(b) Incentive stock options complying with the requirements of Section 422 of
the Internal Revenue Code of 1986, as amended, or successor provisions
thereto (the "Options"), permitting the Executive to purchase up to 499,800
of the 931,000 shares of the common stock of AmeriNet Group.com, Inc., a
publicly held Delaware corporation with a class of securities registered
under Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which holds of all of Vista's capital stock and other
securities ("AmeriNet"), that AmeriNet reserved for issuance to Vista
employees in conjunction with the Reorganization Agreement pursuant to
which AmeriNet acquired all of Vista's securities (the "Executive's Option
Shares"), on the following terms and subject to the following conditions:
(1) The Executive's rights to the Options will vest as follows:
(A) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $400,000 during the
period starting on July 1, 2000 and ending on June
30, 2001, then the Executive shall have the right to
purchase 71,396 of the Executive's Option Shares.
(B) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $1,200,000 during
the period starting on July 1, 2000 and ending on
June 30, 2002, then the Executive shall have the
right to purchase 214,164 of the Executive's Option
Shares (including the 71,396 shares first referred to
above) and
(C) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $2,800,000 during
the period starting on July 1, 2000 and ending on
June 30, 2003, then the Executive shall have the
right to purchase all of the Executive's Option
Shares (including the 214,164 shares first referred
to above).
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(2) If Vista fails to attain the earnings requirements for
exercise of any of the Options by June 30, 2003, all of the
Executive's rights to any of the Executive's Option Shares
that remain unvested by such date shall lapse and be of no
further force or effect.
(3) The Options will be exercisable at a price of $1.875 per share
for a period commencing on the date of vesting and ending on
the earlier of June 30, 2005 or the 90th day after termination
of the Executive's employment by Vista.
(4) All other terms pertaining to the Options are hereby
incorporated by reference from those contained in AmeriNet's
Non-Qualified Stock Option & Stock Incentive Plan, Effective
as of January 1 , 2000 filed by AmeriNet with the United
States Securities and Exchange Commission (the "Commission"),
a copy of which is annexed hereto and made a part hereof as
exhibit 3.1(B)(2), except to the extent that they would be
inconsistent with the specific terms in this Section 3.1
unless such inconsistency is required by the provisions of
Code Section 422.
3.2 Benefits.
During the term of this Agreement, the Executive shall also be entitled
to the following benefits:
(a) Two weeks paid vacation per year during the first three years of this
Agreement and three weeks per year thereafter.
(b) Provided that in each case, the gross cost thereof to Vista does not
exceed $4,000 per year:
(1) Comprehensive health insurance;
(2) Comprehensive disability insurance; and
(3) The use of an automobile owned or leased by Vista for the
Executive.
(d) All other benefits of employment generally available to all of Vista's
employees, provided that such benefits have been approved by Vista's
stockholders.
3.3 Indemnification.
Vista will defend, indemnify and hold the Executive 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 Vista, its affiliates or for other
persons or entities at the request of the board of directors of Vista, 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
the Executive to incur any out of pocket expenses; provided, however, that the
Executive permits the majority stockholders of Vista to select and supervise all
personnel involved in such defense and that the Executive waive any conflicts of
interest that such personnel may have as a result of also representing Vista,
its 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, Non-Circumvention and Non-Competition.
During the term of this Agreement, all renewals thereof and for a period of
two years after its termination, the Executive hereby irrevocably agrees to be
bound by the following restrictions, which constitute a material inducement for
Vista's entry into this Agreement and for AmeriNet's agreement to provide shares
of its common stock as the securities underlying the Options:
(a) Because the Executive will be developing for Vista, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as Vista's trade secrets,
systems, procedures, manuals, confidential reports, personnel resources,
strategic and tactical plans, advisors, clients, investors and funders; as
material inducement to the entry into this Agreement by Vista, the
Executive hereby covenants and agrees not to personally use, divulge or
disclose, for any purpose whatsoever, directly or indirectly, any of such
confidential information during the term of this Agreement, any renewals
thereof, and for a period of two years after its termination.
(b) The Executive hereby covenants and agrees to be bound as a fiduciary of
Vista, as if the Executive were a partner in a partnership bound by the
partnership opportunities doctrine, as such concept has been judicially and
legislatively developed in the State of Florida, and consequently, without
the prior written consent of Vista, on a specific, case by case basis, the
Executive shall not, among other things, directly or indirectly:
(1) Engage in any activities, whether or not for profit, competitive
with Vista's business.
(2) Solicit or accept any person providing services to Vista, whether
as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of Vista to cease doing business
with Vista or to engage in business with any person engaged in
business activities that compete with Vista's business.
(4) Divert any business opportunity within the general scope of
Vista's business and business capacity, to any other person or
entity.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista as a result of a breach by the Executive of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Vista's interests, the Executive hereby covenants and agrees that
Vista shall have the following additional rights and remedies in the event of a
breach hereof:
(a) In addition to and not in limitation of any other rights, remedies or
damages available to Vista, whether at law or in equity, it shall be
entitled to a permanent injunction in order to prevent or to restrain
any such breach by the Executive, or by the Executive's partners,
agents, representatives, servants, employers, employees, affiliates
and/or any and all persons directly or indirectly acting for or with
him and the Executive hereby consents to the issuance of such a
permanent injunction; and
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(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Vista may sustain prior to the effective
enforcement of such injunction, the Executive hereby covenants and
agrees to pay over to Vista, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(1) Any payment or compensation of any kind received by the
Executive or by persons affiliated with or acting for or with
the Executive, because of such violation before the issuance
of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for
the injuries suffered by Vista as a result of such violation,
the Parties hereto agreeing that such liquidated damages are
not intended as the exclusive remedy available to Vista 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
Vista from the injury caused by such breaches would be
injunctive relief.
4.3 Cumulative Remedies.
The Executive hereby irrevocably agrees that the remedies described in
Section 4.2 shall be in addition to, and not in limitation of, any of the rights
or remedies to which Vista is or may be entitled to, whether at law or in
equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(a) The Executive hereby represents, warrants and acknowledges that having
carefully read and considered the provisions of this Article Four, the
restrictions set forth herein are fair and reasonable and are reasonably
required for the protection of the interests of Vista, 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, the Executive hereby covenants, agrees and directs
such court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Executive 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.
(b) In determining the nature of this limitation, the Executive 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 these covenants not to circumvent, disclose or compete
be imposed and maintained to the greatest extent possible.
4.5 Unauthorized Acts.
The Executive hereby covenants and agrees not do any act or incur any
obligation on behalf of Vista except as authorized by its board of directors or
by its stockholders pursuant to duly adopted stockholder action or reasonably
inferred therefrom.
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Article Five
Miscellaneous
5.1 Notices.
(a) (1) 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 the Executive:
Teri E. Nadler
6645 Northwest 48th Manor; Coral Springs, Florida
33062 Telephone (954) 752-4770; Fax, none;
e-mail, none
To Vista:
Vista Vacations International, Inc.
5653 Northwest 29th Street; Margate, Florida 33063
Attention: Teri Nadler, President
Telephone (954) 975-0898; Fax (954) 975-8447; e-mail [email protected];
with a fax copy to
Scott B. Ugell
155 North Main Street; New City, New York 10956
Telephone (914) 639-7011; Fax (914) 639-7088; and, e-mail
[email protected] (2) In each case, copies of notices
will also be provided to:
AmeriNet Group.com, Inc.
The Crystal Corporate Center;
2500 North Military Trail, Suite 225-C; Boca Raton, Florida 33431
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail [email protected]
Attention: Michael Harris Jordan, President; and
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-9182; Fax (954) 694-1325; and e-mail [email protected]
Attention: Vanessa H. Lindsey, Secretary;
(3) Copies of notices will also be provided to such other address or
to such other person as any Party shall designate to the other
for such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that The Yankee Companies, Inc., a
Florida corporation ("Yankees") has acted as scrivener for the
Parties in this transaction and that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement on their
behalf since it cannot provide any Party with legal advice.
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(3) This Agreement shall not be interpreted more or less strictly
against any Party based on its authorship.
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 Vista's and 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.
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.
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(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, two by Vista's majority stockholder,
two by Vista and two by the Executive.
(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,, two by
Vista's majority stockholder, two by Vista and two by the
Executive.
(3) (A) Expenses of mediation shall be borne by Vista, 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 the Executive without the prior
written consent of Vista.
(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.
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.
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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 Vista.
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.
Execution Page
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 Executive
- --------------------------
/s/ Teri E. Nadler
- -------------------------- --------------------------
Teri E. Nadler
Dated: March 12, 2000
Vista Vacations International, Inc.
a Florida corporation.
- --------------------------
__________________________ By: /s/ Teri E. Nadler
___________________________
Teri E. Nadler, President
(CORPORATE SEAL)
Attest: /s/ Alicia Torrealba
__________________________
Alicia Torrealba, Secretary
Dated: March 12, 2000
380
Executive's Employment Agreement
This Executive's Employment Agreement (the "Agreement") is entered into by
and among Scott B. Ugell, an individual residing in the State of Florida (the
"Executive"); Vista Vacations International, Inc., a Florida corporation
("Vista"; Vista and the Executive being sometimes hereinafter collectively to as
the "Parties" or generically as a "Party".
Preamble:
WHEREAS, Vista's board of directors is of the opinion that in conjunction
with effectuation of Vista's future plans it must memorialize, confirm and
assure itself of the continuing the services of the Executive, who currently
serves as a member of Vista's board of directors and as its general counsel and
chief legal officer; and
WHEREAS, the Executive is thoroughly knowledgeable with all aspects of
Vista's operations and plans; and
WHEREAS, the Executive is agreeable to serving as a member of Vista's board
of directors and as its general counsel and chief legal officer, 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:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of the Executive's
employment hereunder shall be deemed to commence on the date of this Agreement's
execution by all of the Parties and shall continue until June 30, 2001.
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 30th day
prior to termination of the then current term.
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1.3 Earlier Termination.
Vista 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
Sections 1.4 and 1.5, for the following reasons:
(a) For Cause:
(1) Vista may terminate the Executive's employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof
to the Executive, which notice shall specify the cause for
termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Executive, through sickness or
other incapacity, to discharge his duties under this
Agreement for 30 or more consecutive days or for a
total of 60 or more days in a period of twelve
consecutive months;
(B) The failure of the Executive to follow the directions
of Vista's board of directors;
(C) Dishonesty; theft; or conviction of a crime involving
moral turpitude;
(D) Material default in the performance of the
Executive's obligations, services or duties required
under this Agreement (other than due to illness) or
material breach of any provision of this Agreement,
which default or breach has continued for ten days
after written notice of such default or breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that Vista experiences material business
reversals or fails to meet the operational criteria reflected
in its projections or business plans, then, subject to the
provisions of Section 1.4, at the option of Vista, this
Agreement shall terminate as of a date selected by Vista with
the same force and effect as if such date was the date
originally set as the termination date hereof.
(2) In the event that Vista 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 Vista shall not be deemed a termination of
its business.
(c) Death:
This Agreement shall terminate immediately on the death of the Executive;
however, all accrued compensation at such time shall be promptly paid to the
Executive's estate.
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1.4 Severance Payments and Alternatives to Termination
In the event this Agreement is terminated for reasons other than for cause
as described in Section 1.3(b) above, the Executive shall be entitled to either
thirty days prior written notice or to a severance payment in a sum equal to the
salary that would have been paid had 30 days prior written notice been provided;
provided, however, that in lieu of termination, Vista may offer to continue this
Agreement under modified compensation arrangements, if such arrangements are
reflected in the written notice and accepted by the Executive prior to the end
of the 30 day notice period.
1.5 Final Settlement.
Upon termination of this Agreement and payment of all amounts due to the
Executive hereunder, the Executive or his representative shall execute and
deliver to the terminating entity on a form prepared by Vista, a receipt for
such sums and a release of all claims, except such claims as may have been
submitted pur suant to the terms of this Agreement and which remain unpaid, and,
shall forthwith tender to Vista 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.
Vista hereby hires the Executive and the Executive hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) The Executive shall be employed as the general counsel of Vista and
perform the duties generally associated with the position of general
counsel and chief legal officer thereof.
(b) Without limiting the generality of the foregoing, the Executive shall
be responsible for preparation or review of all of Vista's agreements,
preparation of all corporate minutes and monitoring its compliance with
applicable laws.
(c) The Executive covenants to perform the employment duties called for
hereby in good faith, devoting such time as may be required for the
proper and efficient management of the legal affairs of Vista.
2.3 Status.
(a) Throughout the term of this Agreement, the Executive shall serve as a
member of the board of directors of Vista and as its general counsel
and chief legal officer.
(b) In the event that the Executive is not elected to such positions, then,
at the option of the Executive, this Agreement may be deemed terminated
effective as of the earliest time that it can be reasonably determined
that such election will not take place, provided that written notice of
such election is provided to Vista within 30 days after it failed to
elect the Executive to the required office.
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2.4 Exclusivity.
Vista acknowledges that the Executive has material commitments involving
his legal and judicial career and that the Executive will only devote such time
to Vista's affairs as are required to assure its compliance with applicable
laws, the proposer documentation of its corporate operations and agreements and
the supervision of its legal advisors.
Article Three
Compensation
3.1 Compensation.
As consideration for the Executive's services to Vista the Executive shall
be entitled to:
(a) (1) An initial payment of $25,000, tendered concurrently with
the execution of this Agreement as consideration for the
Executive's Agreement to provide services to Vista as its
general counsel until June 30, 2005, if so desired by Vista
(the "Base Payment"); and
(2) A gross monthly fee of $1,200 (the "Monthly Fee") throughout
the term of this Agreement and any extensions or renewals
thereof.
(b) Incentive stock options complying with the requirements of Section 422 of
the Internal Revenue Code of 1986, as amended, or successor provisions
thereto (the "Options"), permitting the Executive to purchase up to 261,660
of the 931,000 shares of the common stock of AmeriNet Group.com, Inc., a
publicly held Delaware corporation with a class of securities registered
under Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which holds of all of Vista's capital stock and other
securities ("AmeriNet"), that AmeriNet reserved for issuance to Vista
employees in conjunction with the Reorganization Agreement pursuant to
which AmeriNet acquired all of Vista's securities (the "Executive's Option
Shares"), on the following terms and subject to the following conditions:
(1) The Executive's rights to the Options will vest as follows:
(A) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $400,000 during the
period starting on July 1, 2000 and ending on June
30, 2001, then the Executive shall have the right to
purchase 37,378 of the Executive's Option Shares.
(B) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $1,200,000 during
the period starting on July 1, 2000 and ending on
June 30, 2002, then the Executive shall have the
right to purchase 112,134 of the Executive's Option
Shares (including the 37,378 shares first referred to
above) and
(C) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $2,800,000 during
the period starting on July 1, 2000 and ending on
June 30, 2003, then the Executive shall have the
right to purchase all of the Executive's Option
Shares (including the 112,134 shares first referred
to above).
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(2) If Vista fails to attain the earnings requirements for
exercise of any of the Options by June 30, 2003, all of the
Executive's rights to any of the Executive's Option Shares
that remain unvested by such date shall lapse and be of no
further force or effect.
(3) The Options will be exercisable at a price of $1.875 per share
for a period commencing on the date of vesting and ending on
the earlier of June 30, 2005 or the 90th day after termination
of the Executive's employment by Vista.
(4) All other terms pertaining to the Options are hereby
incorporated by reference from those contained in AmeriNet's
Non-Qualified Stock Option & Stock Incentive Plan, Effective
as of January 1 , 2000 filed by AmeriNet with the United
States Securities and Exchange Commission (the "Commission"),
a copy of which is annexed hereto and made a part hereof as
exhibit 3.1(B)(2), except to the extent that they would be
inconsistent with the specific terms in this Section 3.1
unless such inconsistency is required by the provisions of
Code Section 422.
3.2 Benefits.
During the term of this Agreement, the Executive shall also be entitled to
all benefits of employment generally available to all of Vista's employees,
provided that such benefits have been approved by Vista's stockholders.
3.3 Indemnification.
Vista will defend, indemnify and hold the Executive 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 Vista, its affiliates or for other
persons or entities at the request of the board of directors of Vista, 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
the Executive to incur any out of pocket expenses; provided, however, that the
Executive permits the majority stockholders of Vista to select and supervise all
personnel involved in such defense and that the Executive waive any conflicts of
interest that such personnel may have as a result of also representing Vista,
its stockholders or other personnel and agrees to hold them harmless from any
matters involving such representation, except such as involve fraud or bad
faith.
Article Four
Special Covenants
4.1 Confidentiality, Non-Circumvention and Non-Competition.
During the term of this Agreement, all renewals thereof and for a period of
two years after its termination, the Executive hereby irrevocably agrees to be
bound by the following restrictions, which constitute a material inducement for
Vista's entry into this Agreement and for AmeriNet's agreement to provide shares
of its common stock as the securities underlying the Options:
(a) Because the Executive will be developing for Vista, making use of,
acquiring and/or adding to, confidential information of special and
unique nature and value relating to such matters as Vista's
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trade secrets, systems, procedures, manuals, confidential reports,
personnel resources, strategic and tactical plans, advisors, clients,
investors and funders; as material inducement to the entry into this
Agreement by Vista, the Executive hereby covenants and agrees not to
personally use, divulge or disclose, for any purpose whatsoever,
directly or indirectly, any of such confidential information during the
term of this Agreement, any renewals thereof, and for a period of two
years after its termination.
(b) The Executive hereby covenants and agrees to be bound as a fiduciary of
Vista, as if the Executive were a partner in a partnership bound by the
partnership opportunities doctrine, as such concept has been judicially
and legislatively developed in the State of Florida, and consequently,
without the prior written consent of Vista, on a specific, case by case
basis, the Executive shall not, among other things, directly or
indirectly:
(1) Engage in any activities, whether or not for profit, competitive
with Vista's business.
(2) Solicit or accept any person providing services to Vista, whether
as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of Vista to cease doing business
with Vista or to engage in business with any person engaged in
business activities that compete with Vista's business.
(4) Divert any business opportunity within the general scope of
Vista's business and business capacity, to any other person or
entity.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista as a result of a breach by the Executive of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Vista's interests, the Executive hereby covenants and agrees that
Vista shall have the following additional rights and remedies in the event of a
breach hereof:
(a) In addition to and not in limitation of any other rights, remedies or
damages available to Vista, whether at law or in equity, it shall be
entitled to a permanent injunction in order to prevent or to restrain
any such breach by the Executive, or by the Executive's partners,
agents, representatives, servants, employers, employees, affiliates
and/or any and all persons directly or indirectly acting for or with
him and the Executive hereby consents to the issuance of such a
permanent injunction; and
(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Vista may sustain prior to the effective
enforcement of such injunction, the Executive hereby covenants and
agrees to pay over to Vista, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(1) Any payment or compensation of any kind received by the
Executive or by persons affiliated with or acting for or with
the Executive, because of such violation before the issuance
of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for
the injuries suffered by Vista as a result of such violation,
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the Parties hereto agreeing that such liquidated damages are
not intended as the exclusive remedy available to Vista 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
Vista from the injury caused by such breaches would be
injunctive relief.
4.3 Cumulative Remedies.
The Executive hereby irrevocably agrees that the remedies described in
Section 4.2 shall be in addition to, and not in limitation of, any of the rights
or remedies to which Vista is or may be entitled to, whether at law or in
equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(a) The Executive hereby represents, warrants and acknowledges that having
carefully read and considered the provisions of this Article Four, the
restrictions set forth herein are fair and reasonable and are reasonably
required for the protection of the interests of Vista, 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, the Executive hereby covenants, agrees and directs
such court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Executive 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.
(b) In determining the nature of this limitation, the Executive 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 these covenants not to circumvent, disclose or compete
be imposed and maintained to the greatest extent possible.
4.5 Unauthorized Acts.
The Executive hereby covenants and agrees not do any act or incur any
obligation on behalf of Vista except as authorized by its board of directors or
by its stockholders pursuant to duly adopted stockholder action or reasonably
inferred therefrom.
Article Five
Miscellaneous
5.1 Notices.
(a) (1) All notices, demands or other communications hereunder shall be
in writing, and unless otherwise provided, shall be deemed to
have been duly given on the first business day after mailing by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
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To the Executive:
Scott B. Ugell
155 North Main Street; New City, New York 10956
Telephone (914) 639-7011; Fax, none; e-mail [email protected]
To Vista:
Vista Vacations International, Inc.
5653 Northwest 29th Street; Margate, Florida 33063
Attention: Teri E. Nadler, President
Telephone (954) 975-0898; Fax (954) 975-8447; e-mail [email protected];
with a fax copy to
Scott B. Ugell
155 North Main Street; New City, New York 10956
Telephone (914) 639-7011; Fax (914) 639-7088; and, e-mail
[email protected] (2) In each case, copies of notices
will also be provided to:
AmeriNet Group.com, Inc.
The Crystal Corporate Center;
2500 North Military Trail, Suite 225-C; Boca Raton, Florida 33431
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail [email protected]
Attention: Michael Harris Jordan, President; and
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-9182; Fax (954) 694-1325; and e-mail [email protected]
Attention: Vanessa H. Lindsey, Secretary;
(3) Copies of notices will also be provided to such other address or
to such other person as any Party shall designate to the other
for such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that The Yankee Companies, Inc., a
Florida corporation ("Yankees") has acted as scrivener for the
Parties in this transaction and that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement on their
behalf since it cannot provide any Party with legal advice.
(3) This Agreement shall not be interpreted more or less strictly
against any Party based on its authorship.
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.
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(b) This Agreement may not be modified without the consent of a majority
in interest of Vista's 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.
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, two by Vista's majority stockholder,
two by Vista and two by the Executive.
(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;
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(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
Vista's majority stockholder, two by Vista and two by the
Executive.
(3) (A) Expenses of mediation shall be borne by Vista, 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 the Executive without the prior
written consent of Vista.
(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.
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 Vista.
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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.
Execution Page
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 Executive
- --------------------------
/s/ Scott B. Ugell
- -------------------------- --------------------------
Scott B. Ugell
Dated: March 12, 2000
Vista Vacations International, Inc.
a Florida corporation.
- --------------------------
__________________________ By: /s/ Teri E. Nadler
___________________________
Teri E. Nadler, President
(CORPORATE SEAL)
Attest: /s/ Alicia Torrealba
__________________________
Alicia Torrealba, Secretary
Dated: March 12, 2000
391
Executive's Employment Agreement
This Executive's Employment Agreement (the "Agreement") is entered into by
and among Alicia Torrealba, an individual residing in the State of Florida (the
"Executive"); Vista Vacations International, Inc., a Florida corporation
("Vista"; Vista and the Executive being sometimes hereinafter collectively to as
the "Parties" or generically as a "Party".
Preamble:
WHEREAS, Vista's board of directors is of the opinion that in conjunction
with effectuation of Vista's future plans it must memorialize, confirm and
assure itself of the continuing the services of the Executive, who currently
serves as Vista's secretary and chief administrative officer; and
WHEREAS, the Executive is thoroughly knowledgeable with all aspects of
Vista's operations and plans; and
WHEREAS, the Executive is agreeable to serving as Vista's secretary and
chief administrative officer, 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:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of the Executive's
employment hereunder shall be deemed to commence on the date of this Agreement's
execution by all of the Parties and shall continue until June 30, 2001.
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 30th day
prior to termination of the then current term.
1.3 Earlier Termination.
Vista 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
Sections 1.4 and 1.5, for the following reasons:
(a) For Cause:
(1) Vista may terminate the Executive's employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof
to the Executive, which notice shall specify the cause for
termination.
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(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Executive, through sickness or
other incapacity, to discharge his duties under this
Agreement for 30 or more consecutive days or for a
total of 60 or more days in a period of twelve
consecutive months;
(B) The failure of the Executive to follow the directions
of Vista's board of directors;
(C) Dishonesty; theft; or conviction of a crime involving
moral turpitude;
(D) Material default in the performance of the
Executive's obligations, services or duties required
under this Agreement (other than due to illness) or
material breach of any provision of this Agreement,
which default or breach has continued for ten days
after written notice of such default or breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that Vista experiences material business
reversals or fails to meet the operational criteria reflected
in its projections or business plans, then, subject to the
provisions of Section 1.4, at the option of Vista, this
Agreement shall terminate as of a date selected by Vista with
the same force and effect as if such date was the date
originally set as the termination date hereof.
(2) In the event that Vista 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 Vista shall not be deemed a termination of
its business.
(c) Death:
This Agreement shall terminate immediately on the death of the Executive;
however, all accrued compensation at such time shall be promptly paid to the
Executive's estate.
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1.4 Severance Payments and Alternatives to Termination
In the event this Agreement is terminated for reasons other than for cause
as described in Section 1.3(b) above, the Executive shall be entitled to either
thirty days prior written notice or to a severance payment in a sum equal to the
salary that would have been paid had 30 days prior written notice been provided;
provided, however, that in lieu of termination, Vista may offer to continue this
Agreement under modified compensation arrangements, if such arrangements are
reflected in the written notice and accepted by the Executive prior to the end
of the 30 day notice period.
1.5 Final Settlement.
Upon termination of this Agreement and payment of all amounts due to the
Executive hereunder, the Executive or his representative shall execute and
deliver to the terminating entity on a form prepared by Vista, a receipt for
such sums and a release of all claims, except such claims as may have been
submitted pur suant to the terms of this Agreement and which remain unpaid, and,
shall forthwith tender to Vista 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.
Vista hereby hires the Executive and the Executive hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) The Executive shall be employed as the secretary of Vista and perform
the duties generally associated with the position of secretary and
chief administrative officer thereof.
(b) Without limiting the generality of the foregoing, the Executive shall
be responsible for the proper recording and maintenance of Vista's
records, timely filing of reports to AmeriNet and to governmental and
self regulatory agencies, including without limitation, the United
States Internal Revenue Service and the United States Securities and
Exchange Commission, verification of the authenticity of corporate
signatures and maintenance of Vista's corporate minutes.
(c) The Executive covenants to perform the employment duties called for
hereby in good faith, devoting substantially all business time,
energies and abilities to the proper and efficient management of the
business of Vista.
2.3 Status.
(a) Throughout the term of this Agreement, the Executive shall serve as
Vista's secretary and chief administrative officer.
(b) In the event that the Executive is not elected to such positions, then,
at the option of the Executive, this Agreement may be deemed terminated
effective as of the earliest time that it can be reasonably
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determined that such election will not take place, provided that
written notice of such election is provided to Vista within 30 days
after it failed to elect the Executive to the required office.
2.4 Exclusivity.
Unless specifically otherwise authorized by Vista's board of directors, on
a case by case basis, all of the Executive's business time shall be devoted
exclusively to the affairs of Vista.
Article Three
Compensation
3.1 Compensation.
As consideration for the Executive's services to Vista the Executive shall
be entitled to:
(a) An annual salary in the aggregate gross sum of $40,000 (the "Base
Salary").
(b) Incentive stock options complying with the requirements of Section 422
of the Internal Revenue Code of 1986, as amended, or successor
provisions thereto (the "Options"), permitting the Executive to
purchase up to 39,200 of the 931,000 shares of the common stock of
AmeriNet Group.com, Inc., a publicly held Delaware corporation with a
class of securities registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which holds of
all of Vista's capital stock and other securities ("AmeriNet"), that
AmeriNet reserved for issuance to Vista employees in conjunction with
the Reorganization Agreement pursuant to which AmeriNet acquired all
of Vista's securities (the "Executive's Option Shares"), on the
following terms and subject to the following conditions:
(1) The Executive's rights to the Options will vest as follows:
(A) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $400,000 during the
period starting on July 1, 2000 and ending on June
30, 2001, then the Executive shall have the right to
purchase 5,600 of the Executive's Option Shares.
(B) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $1,200,000 during
the period starting on July 1, 2000 and ending on
June 30, 2002, then the Executive shall have the
right to purchase 16,800 of the Executive's Option
Shares (including the 5,600 shares first referred to
above) and
(C) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $2,800,000 during
the period starting on July 1, 2000 and ending on
June 30, 2003, then the Executive shall have the
right to purchase all of the Executive's Option
Shares (including the 16,800 shares first referred to
above).
(2) If Vista fails to attain the earnings requirements for
exercise of the Options during a measuring year, all of the
Executive's rights to the Executive's Option Shares that would
have become vested on such year shall lapse and be of no
further force or effect.
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(3) The Options will be exercisable at a price of $1.875 per share
for a period commencing on the date of vesting and ending on
the earlier of June 30, 2005 or the 90th day after termination
of the Executive's employment by Vista.
(4) All other terms pertaining to the Options are hereby
incorporated by reference from those contained in AmeriNet's
Non-Qualified Stock Option & Stock Incentive Plan, Effective
as of January 1 , 2000 filed by AmeriNet with the United
States Securities and Exchange Commission (the "Commission"),
a copy of which is annexed hereto and made a part hereof as
exhibit 3.1(B)(2), except to the extent that they would be
inconsistent with the specific terms in this Section 3.1
unless such inconsistency is required by the provisions of
Code Section 422.
3.2 Benefits.
During the term of this Agreement, the Executive shall also be entitled
to the following benefits:
(a) Two weeks paid vacation per year.
(b) Provided that in each case, the gross cost thereof to Vista does not
exceed $4,000 per year:
(1) Comprehensive health insurance; and
(2) The use of an automobile owned or leased by Vista for the
Executive.
(c) All other benefits of employment generally available to all of Vista's
employees, provided that such benefits have been approved by Vista's
stockholders.
3.3 Indemnification.
Vista will defend, indemnify and hold the Executive 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 Vista, its affiliates or for other
persons or entities at the request of the board of directors of Vista, 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
the Executive to incur any out of pocket expenses; provided, however, that the
Executive permits the majority stockholders of Vista to select and supervise all
personnel involved in such defense and that the Executive waive any conflicts of
interest that such personnel may have as a result of also representing Vista,
its stockholders or other personnel and agrees to hold them harmless from any
matters involving such representation, except such as involve fraud or bad
faith.
Article Four
Special Covenants
4.1 Confidentiality, Non-Circumvention and Non-Competition.
During the term of this Agreement, all renewals thereof and for a period of
two years after its termination, the Executive hereby irrevocably agrees to be
bound by the following restrictions, which constitute a material inducement for
Vista's entry into this Agreement and for AmeriNet's agreement to provide shares
of its common stock as the securities underlying the Options:
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(a) Because the Executive will be developing for Vista, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as Vista's trade secrets,
systems, procedures, manuals, confidential reports, personnel resources,
strategic and tactical plans, advisors, clients, investors and funders; as
material inducement to the entry into this Agreement by Vista, the
Executive hereby covenants and agrees not to personally use, divulge or
disclose, for any purpose whatsoever, directly or indirectly, any of such
confidential information during the term of this Agreement, any renewals
thereof, and for a period of two years after its termination.
(b) The Executive hereby covenants and agrees to be bound as a fiduciary of
Vista, as if the Executive were a partner in a partnership bound by the
partnership opportunities doctrine, as such concept has been judicially and
legislatively developed in the State of Florida, and consequently, without
the prior written consent of Vista, on a specific, case by case basis, the
Executive shall not, among other things, directly or indirectly:
(1) Engage in any activities, whether or not for profit, competitive
with Vista's business.
(2) Solicit or accept any person providing services to Vista, whether
as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of Vista to cease doing business
with Vista or to engage in business with any person engaged in
business activities that compete with Vista's business.
(4) Divert any business opportunity within the general scope of
Vista's business and business capacity, to any other person or
entity.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista as a result of a breach by the Executive of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Vista's interests, the Executive hereby covenants and agrees that
Vista shall have the following additional rights and remedies in the event of a
breach hereof:
(a) In addition to and not in limitation of any other rights, remedies or
damages available to Vista, whether at law or in equity, it shall be
entitled to a permanent injunction in order to prevent or to restrain
any such breach by the Executive, or by the Executive's partners,
agents, representatives, servants, employers, employees, affiliates
and/or any and all persons directly or indirectly acting for or with
him and the Executive hereby consents to the issuance of such a
permanent injunction; and
(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Vista may sustain prior to the effective
enforcement of such injunction, the Executive hereby covenants and
agrees to pay over to Vista, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(1) Any payment or compensation of any kind received by the
Executive or by persons affiliated with or acting for or with
the Executive, because of such violation before the issuance
of such injunction, or
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(2) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for
the injuries suffered by Vista as a result of such violation,
the Parties hereto agreeing that such liquidated damages are
not intended as the exclusive remedy available to Vista 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
Vista from the injury caused by such breaches would be
injunctive relief.
4.3 Cumulative Remedies.
The Executive hereby irrevocably agrees that the remedies described in
Section 4.2 shall be in addition to, and not in limitation of, any of the rights
or remedies to which Vista is or may be entitled to, whether at law or in
equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(a) The Executive hereby represents, warrants and acknowledges that having
carefully read and considered the provisions of this Article Four, the
restrictions set forth herein are fair and reasonable and are reasonably
required for the protection of the interests of Vista, 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, the Executive hereby covenants, agrees and directs
such court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Executive 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.
(b) In determining the nature of this limitation, the Executive 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 these covenants not to circumvent, disclose or compete
be imposed and maintained to the greatest extent possible.
4.5 Unauthorized Acts.
The Executive hereby covenants and agrees not do any act or incur any
obligation on behalf of Vista except as authorized by its board of directors or
by its stockholders pursuant to duly adopted stockholder action or reasonably
inferred therefrom.
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Article Five
Miscellaneous
5.1 Notices.
(a) (1) 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 the Executive:
Alicia Torrealba
1985 South Ocean Drive, Apartment 11-A; Hallandale Beach Florida 33009
Telephone (954) 455-9839; Fax, none; e-mail, [email protected]
To Vista:
Vista Vacations International, Inc.
5653 Northwest 29th Street; Margate, Florida 33063
Attention: Teri E. Nadler, President
Telephone (954) 975-0898; Fax (954) 975-8447; e-mail [email protected];
with a fax copy to
Scott B. Ugell
155 North Main Street; New City, New York 10956
Telephone (914) 639-7011; Fax (914) 639-7088; and, e-mail
[email protected] (2) In each case, copies of notices
will also be provided to:
AmeriNet Group.com, Inc.
The Crystal Corporate Center;
2500 North Military Trail, Suite 225-C; Boca Raton, Florida 33431
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail [email protected]
Attention: Michael Harris Jordan, President; and
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-9182; Fax (954) 694-1325; and e-mail [email protected]
Attention: Vanessa H. Lindsey, Secretary;
(3) Copies of notices will also be provided to such other address or
to such other person as any Party shall designate to the other
for such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that The Yankee Companies, Inc., a
Florida corporation ("Yankees") has acted as scrivener for the
Parties in this transaction and that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement on their
behalf since it cannot provide any Party with legal advice.
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(3) This Agreement shall not be interpreted more or less strictly
against any Party based on its authorship.
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 Vista's and 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.
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:
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(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 Vista's majority stockholder,
two by Vista and two by the Executive.
(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,, two by
Vista's majority stockholder, two by Vista and two by the
Executive.
(3) (A) Expenses of mediation shall be borne by Vista, 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 the Executive without the prior
written consent of Vista.
(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.
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,
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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 Vista.
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.
Execution Page
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 Executive
- --------------------------
/s/ Alicia Torrealba
- -------------------------- --------------------------
Alicia Torrealba
Dated: March 12, 2000
Vista Vacations International, Inc.
a Florida corporation.
- --------------------------
__________________________ By: /s/ Teri e. Nadler
___________________________
Teri E. Nadler, President
(CORPORATE SEAL)
Attest: /s/ Alicia Torrealba
__________________________
Alicia Torrealba, Secretary
Dated: March 12, 2000
402
Executive's Employment Agreement
This Executive's Employment Agreement (the "Agreement") is entered into by
and among Jean Hickman, an individual residing in the State of Florida (the
"Executive"); Vista Vacations International, Inc., a Florida corporation
("Vista"; Vista and the Executive being sometimes hereinafter collectively to as
the "Parties" or generically as a "Party".
Preamble:
WHEREAS, Vista's board of directors is of the opinion that in
conjunction with effectuation of Vista's future plans it must memorialize,
confirm and assure itself of the continuing the services of the Executive, who
currently serves as Vista's treasurer and chief financial officer; and
WHEREAS, the Executive is thoroughly knowledgeable with all aspects of
Vista's operations and plans; and
WHEREAS, the Executive is agreeable to serving as Vista's treasurer and
chief financial officer, 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:
Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of the Executive's
employment hereunder shall be deemed to commence on the date of this Agreement's
execution by all of the Parties and shall continue until June 30, 2001.
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 30th day
prior to termination of the then current term.
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1.3 Earlier Termination.
Vista 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
Sections 1.4 and 1.5, for the following reasons:
(a) For Cause:
(1) Vista may terminate the Executive's employment under this
Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof
to the Executive, which notice shall specify the cause for
termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Executive, through sickness or
other incapacity, to discharge his duties under this
Agreement for 30 or more consecutive days or for a
total of 60 or more days in a period of twelve
consecutive months;
(B) The failure of the Executive to follow the directions
of Vista's board of directors;
(C) Dishonesty; theft; or conviction of a crime involving
moral turpitude;
(D) Material default in the performance of the
Executive's obligations, services or duties required
under this Agreement (other than due to illness) or
material breach of any provision of this Agreement,
which default or breach has continued for ten days
after written notice of such default or breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that Vista experiences material business
reversals or fails to meet the operational criteria reflected
in its projections or business plans, then, subject to the
provisions of Section 1.4, at the option of Vista, this
Agreement shall terminate as of a date selected by Vista with
the same force and effect as if such date was the date
originally set as the termination date hereof.
(2) In the event that Vista 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 Vista shall not be deemed a termination of
its business.
(c) Death:
This Agreement shall terminate immediately on the death of the Executive;
however, all accrued compensation at such time shall be promptly paid to the
Executive's estate.
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1.4 Severance Payments and Alternatives to Termination
In the event this Agreement is terminated for reasons other than for cause
as described in Section 1.3(b) above, the Executive shall be entitled to either
thirty days prior written notice or to a severance payment in a sum equal to the
salary that would have been paid had 30 days prior written notice been provided;
provided, however, that in lieu of termination, Vista may offer to continue this
Agreement under modified compensation arrangements, if such arrangements are
reflected in the written notice and accepted by the Executive prior to the end
of the 30 day notice period.
1.5 Final Settlement.
Upon termination of this Agreement and payment of all amounts due to the
Executive hereunder, the Executive or his representative shall execute and
deliver to the terminating entity on a form prepared by Vista, a receipt for
such sums and a release of all claims, except such claims as may have been
submitted pur suant to the terms of this Agreement and which remain unpaid, and,
shall forthwith tender to Vista 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.
Vista hereby hires the Executive and the Executive hereby accepts such
employment, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) The Executive shall be employed as the treasurer of Vista and perform
the duties generally associated with the position of treasurer and
chief financial officer thereof.
(b) Without limiting the generality of the foregoing, the Executive shall
be responsible for the proper recording and maintenance of Vista's
financial records, balancing of Vista's financial accounts and
collection and transmittal of Vista's periodic financial records to its
auditors, as required to permit timely preparation of reports to
governmental and self regulatory agencies, including without
limitation, the United States Internal Revenue Service and the United
States Securities and Exchange Commission.
(c) The Executive covenants to perform the employment duties called for
hereby in good faith, devoting substantially all business time,
energies and abilities to the proper and efficient management of the
business of Vista.
2.3 Status.
(a) Throughout the term of this Agreement, the Executive shall serve as Vista's
treasurer and chief financial officer.
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(b) In the event that the Executive is not elected to such positions, then,
at the option of the Executive, this Agreement may be deemed terminated
effective as of the earliest time that it can be reasonably determined
that such election will not take place, provided that written notice of
such election is provided to Vista within 30 days after it failed to
elect the Executive to the required office.
2.4 Exclusivity.
Unless specifically otherwise authorized by Vista's board of directors, on
a case by case basis, all of the Executive's business time shall be devoted
exclusively to the affairs of Vista.
Article Three
Compensation
3.1 Compensation.
As consideration for the Executive's services to Vista the Executive shall
be entitled to:
(a) An annual salary in the aggregate gross sum of $60,000 (the "Base Salary").
(b) Incentive stock options complying with the requirements of Section 422 of
the Internal Revenue Code of 1986, as amended, or successor provisions
thereto (the "Options"), permitting the Executive to purchase up to 117,600
of the 931,000 shares of the common stock of AmeriNet Group.com, Inc., a
publicly held Delaware corporation with a class of securities registered
under Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which holds of all of Vista's capital stock and other
securities ("AmeriNet"), that AmeriNet reserved for issuance to Vista
employees in conjunction with the Reorganization Agreement pursuant to
which AmeriNet acquired all of Vista's securities (the "Executive's Option
Shares"), on the following terms and subject to the following conditions:
(1) The Executive's rights to the Options will vest as follows:
(A) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $400,000 during the
period starting on July 1, 2000 and ending on June
30, 2001, then the Executive shall have the right to
purchase 16,799 of the Executive's Option Shares.
(B) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $1,200,000 during
the period starting on July 1, 2000 and ending on
June 30, 2002, then the Executive shall have the
right to purchase 50,397 of the Executive's Option
Shares (including the 16,799 shares first referred to
above) and
(C) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $2,800,000 during
the period starting on July 1, 2000 and ending on
June 30, 2003, then the Executive shall have the
right to purchase all of the Executive's Option
Shares (including the 50,397 shares first referred to
above).
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(2) If Vista fails to attain the earnings requirements for
exercise of the Options during a measuring year, all of the
Executive's rights to the Executive's Option Shares that would
have become vested on such year shall lapse and be of no
further force or effect.
(3) The Options will be exercisable at a price of $1.875 per share
for a period commencing on the date of vesting and ending on
the earlier of June 30, 2005 or the 90th day after termination
of the Executive's employment by Vista.
(4) All other terms pertaining to the Options are hereby
incorporated by reference from those contained in AmeriNet's
Non-Qualified Stock Option & Stock Incentive Plan, Effective
as of January 1 , 2000 filed by AmeriNet with the United
States Securities and Exchange Commission (the "Commission"),
a copy of which is annexed hereto and made a part hereof as
exhibit 3.1(B)(2), except to the extent that they would be
inconsistent with the specific terms in this Section 3.1
unless such inconsistency is required by the provisions of
Code Section 422.
3.2 Benefits.
During the term of this Agreement, the Executive shall also be entitled to
the following benefits:
(a) Two weeks paid vacation per year.
(b) Provided that in each case, the gross cost thereof to Vista does not
exceed $4,000 per year:
(1) Comprehensive health insurance; and
(2) The use of an automobile owned or leased by Vista for the
Executive.
(c) All other benefits of employment generally available to all of Vista's
employees, provided that such benefits have been approved by Vista's
stockholders.
3.3 Indemnification.
Vista will defend, indemnify and hold the Executive 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 Vista, its affiliates or for other
persons or entities at the request of the board of directors of Vista, 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
the Executive to incur any out of pocket expenses; provided, however, that the
Executive permits the majority stockholders of Vista to select and supervise all
personnel involved in such defense and that the Executive waive any conflicts of
interest that such personnel may have as a result of also representing Vista,
its 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, Non-Circumvention and Non-Competition.
During the term of this Agreement, all renewals thereof and for a period of
two years after its termination, the Executive hereby irrevocably agrees to be
bound by the following restrictions, which constitute a material inducement for
Vista's entry into this Agreement and for AmeriNet's agreement to provide shares
of its common stock as the securities underlying the Options:
(a) Because the Executive will be developing for Vista, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as Vista's trade secrets,
systems, procedures, manuals, confidential reports, personnel resources,
strategic and tactical plans, advisors, clients, investors and funders; as
material inducement to the entry into this Agreement by Vista, the
Executive hereby covenants and agrees not to personally use, divulge or
disclose, for any purpose whatsoever, directly or indirectly, any of such
confidential information during the term of this Agreement, any renewals
thereof, and for a period of two years after its termination.
(b) The Executive hereby covenants and agrees to be bound as a fiduciary of
Vista, as if the Executive were a partner in a partnership bound by the
partnership opportunities doctrine, as such concept has been judicially and
legislatively developed in the State of Florida, and consequently, without
the prior written consent of Vista, on a specific, case by case basis, the
Executive shall not, among other things, directly or indirectly:
(1) Engage in any activities, whether or not for profit, competitive
with Vista's business.
(2) Solicit or accept any person providing services to Vista, whether
as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of Vista to cease doing business
with Vista or to engage in business with any person engaged in
business activities that compete with Vista's business.
(4) Divert any business opportunity within the general scope of
Vista's business and business capacity, to any other person or
entity.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista as a result of a breach by the Executive of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Vista's interests, the Executive hereby covenants and agrees that
Vista shall have the following additional rights and remedies in the event of a
breach hereof:
(a) In addition to and not in limitation of any other rights, remedies or
damages available to Vista, whether at law or in equity, it shall be
entitled to a permanent injunction in order to prevent or to restrain
any such breach by the Executive, or by the Executive's partners,
agents, representatives, servants, employers, employees, affiliates
and/or any and all persons directly or indirectly acting for or with
him and the Executive hereby consents to the issuance of such a
permanent injunction; and
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(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Vista may sustain prior to the effective
enforcement of such injunction, the Executive hereby covenants and
agrees to pay over to Vista, in the event he violates the covenants and
agreements contained in Section 4.2 hereof, the greater of:
(1) Any payment or compensation of any kind received by the
Executive or by persons affiliated with or acting for or with
the Executive, because of such violation before the issuance
of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for
the injuries suffered by Vista as a result of such violation,
the Parties hereto agreeing that such liquidated damages are
not intended as the exclusive remedy available to Vista 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
Vista from the injury caused by such breaches would be
injunctive relief.
4.3 Cumulative Remedies.
The Executive hereby irrevocably agrees that the remedies described in
Section 4.2 shall be in addition to, and not in limitation of, any of the rights
or remedies to which Vista is or may be entitled to, whether at law or in
equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(a) The Executive hereby represents, warrants and acknowledges that having
carefully read and considered the provisions of this Article Four, the
restrictions set forth herein are fair and reasonable and are reasonably
required for the protection of the interests of Vista, 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, the Executive hereby covenants, agrees and directs
such court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, the Executive 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.
(b) In determining the nature of this limitation, the Executive 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 these covenants not to circumvent, disclose or compete
be imposed and maintained to the greatest extent possible.
4.5 Unauthorized Acts.
The Executive hereby covenants and agrees not do any act or incur any
obligation on behalf of Vista except as authorized by its board of directors or
by its stockholders pursuant to duly adopted stockholder action or reasonably
inferred therefrom.
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Article Five
Miscellaneous
5.1 Notices.
(a) (1) 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 the Executive:
Jean Hickman
3780Southwest 19th Street; Fort Lauderdale, Florida
33312 Telephone (954) 316-6977; Fax, none;
e-mail, none.
To Vista:
Vista Vacations International, Inc.
5653 Northwest 29th Street; Margate, Florida 33063
Attention: Teri E. Nadler, President
Telephone (954) 975-0898; Fax (954) 975-8447; e-mail [email protected];
with a fax copy to
Scott B. Ugell
155 North Main Street; New City, New York 10956
Telephone (914) 639-7011; Fax (914) 639-7088; and, e-mail
[email protected] (2) In each case, copies of notices
will also be provided to:
AmeriNet Group.com, Inc.
The Crystal Corporate Center;
2500 North Military Trail, Suite 225-C; Boca Raton, Florida 33431
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail [email protected]
Attention: Michael Harris Jordan, President; and
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-9182; Fax (954) 694-1325; and e-mail [email protected]
Attention: Vanessa H. Lindsey, Secretary;
(3) Copies of notices will also be provided to such other address or
to such other person as any Party shall designate to the other
for such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that The Yankee Companies, Inc., a
Florida corporation ("Yankees") has acted as scrivener for the
Parties in this transaction and that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement on their
behalf since it cannot provide any Party with legal advice.
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(3) This Agreement shall not be interpreted more or less strictly
against any Party based on its authorship.
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 Vista's and 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.
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.
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(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, two by Vista's majority stockholder,
two by Vista and two by the Executive.
(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,, two by
Vista's majority stockholder, two by Vista and two by the
Executive.
(3) (A) Expenses of mediation shall be borne by Vista, 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 the Executive without the prior
written consent of Vista.
(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.
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.
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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 Vista.
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.
Execution Page
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 Executive
- --------------------------
/s/ Jean Hickman
- -------------------------- --------------------------
Jean Hickman
Dated: March 12, 2000
Vista Vacations International, Inc.
a Florida corporation.
- --------------------------
__________________________ By: /s/ Teri E. Nadler
___________________________
Teri E. Nadler, President
(CORPORATE SEAL)
Attest: /s/ Alicia Torrealba
__________________________
Alicia Torrealba, Secretary
Dated: March 12, 2000
413
Independent Contractor Agreement
This Independent Contractor Agreement (the "Agreement") is made and entered
into by and between Vista Vacations International, Inc., a Florida corporation
("Vista"); and, Karyn McKnight, a resident of the State of Washington whose
social security number is ###-##-#### (the "Independent Contractor"; Vista and
the Independent Contractor being hereinafter collectively referred to as the
"Parties" and generically as a "Party").
Preamble:
WHEREAS, Vista is engaged in providing the travel services industry
specializing in cruise package development, promotions and sales through a
network of home based agents communicating with Vista and with Vista's clients
through the Internet; and
WHEREAS, the Independent Contractor has substantial business experience,
acumen and contacts, and desires to be included among the independent
contractors engaged by Vista, from time to time, in rendering services to
Vista's agents and clients; and
WHEREAS, Vista is willing to use the Independent Contractor in conjunction
with Vista's provision of services to Vista's clients, on the terms and subject
to the conditions hereinafter set forth:
NOW, THEREFORE, in consideration for the Independent Contractor's agreement
to render the hereinafter described services as well as of the premises, the sum
of TEN ($10) 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:
Witnesseth:
Article One
Independent Contractor's Services
1.1 Description of Services
(A) The Independent Contractor's areas of expertise and the services it she
is to provide to Vista and through Vista, to its agents and clients are
more particularly described in exhibit 1.1 annexed hereto and made a
part hereof (the "Areas of Service").
(B) (1) The Independent Contractor shall make its services available to
Vista's clients solely through Vista.
(2) The Independent Contractor's compensation shall an annual fee of
$25,000.
(C) The Independent Contractor hereby represents and warrants to Vista and
Vista's clients that it is subject to no legal, self regulatory
organization or regulatory impediments to the provision of the services
called for
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by this Agreement, or to receipt of the compensation called for under
this Agreement or any supplements thereto; and, the Independent
Contractor hereby irrevocably covenants and agrees to immediately bring
to the attention of Vista any facts required to make the foregoing
representation and warranty continuingly accurate throughout the term
of this Agreement, or any supplements or extensions thereof.
1.2 Fiduciary Obligation to Vista and its Clients
(A) The Independent Contractor's primary duties shall be to Vista and in
the event of a conflict, perceived or actual, between the Independent
Contractor's obligations to Vista and Vista's clients, the Independent
Contractor's duties to Vista shall be controlling.
(B) In rendering its services, the Independent Contractor shall not
disclose to any third party any confidential non-public information
furnished by Vista or its clients or otherwise obtained by it with
respect to Vista or its clients.
1.3 Limitations on Services
(A) The Parties recognize that Vista is a subsidiary of a publicly traded
company required to file periodic reports with the United States
Securities and Exchange Commission (the "Commission") and that certain
responsibilities and obligations are imposed by federal and state
securities laws and by the applicable rules and regulations of stock
exchanges, the NASD, in-house "due diligence" or "compliance"
departments of brokerage houses, etc.; accordingly, the Independent
Contractor agrees that the Independent Contractor will not:
(1) Release any financial or other material information or data about
Vista without the prior consent and approval of Vista;
(2) Release or make available any information or data about Vista
clients to any selected or limited person(s), entity, or group if
the Independent Contractor is aware that such information or data
has not been generally released or promulgated.
(B) The Independent Contractor shall not take any action which would in any
way adversely affect the reputation, standing or prospects of Vista or
Vista's clients or which would cause Vista or its clients to be in
violation of applicable laws.
(C) In the event that the Independent Contractor is an entity rather than a
natural person, then the following provisions shall apply:
(1) Karyn McKnight, a principal of the Independent Contractor (e.g.,
its president, director, stock holder, partner, member, etc.;
sometimes hereinafter referred to as "Mr. Ms. McKnight") shall,
unless otherwise consented to by Vista, be the person through
which the Independent Contractor provides all its services
hereunder;
(2) In the event that Ms. McKnight becomes disassociated from the
Independent Contractor, then Vista shall have the option of
terminating this Agreement and requiring Ms. McKnight, at Ms.
McKnight's election, of either personally or through a legal
entity controlled by Ms. McKnight
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through which Ms. McKnight can personally provide the required
services, to perform the obligations of the Independent
Contractor for the balance of the term, or then operative renewal
term, of this Agreement;
(3) In the event that the responsibilities for fulfilling the terms
of this Agreement devolve on Ms. McKnight personally, then it
shall be presumed that the Independent Contractor has
correspondingly assigned to Ms. McKnight all rights to receipt of
compensation associated with such services;
(4) In all instances in this Agreement to the provision of services
by the Independent Contractor or the death of the Independent
Contractor, or the inability of the Independent Contractor to
provide services, or pertaining to conduct justifying earlier
termination of this Agreement, such references shall include any
such events, actions or failures to act by Ms. McKnight.
Article Two
Term, Renewals & Earlier Termination
2.1 Term.
This Agreement shall be for an initial term of one year, commencing on the
date of its complete execution by all Parties, as evinced in the execution page
hereof.
2.2 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 30th day
prior to termination of the then current term.
2.3 Earlier Termination.
Vista 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
Sections 2.4 and 2.5, for the following reasons:
(a) For Cause:
(1) Vista may terminate this Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof
to the Independent Contractor, which notice shall specify the
cause for termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of the Independent Contractor, through
sickness or other incapacity, to discharge her duties
under this Agreement for 30 or more consecutive days
or for a total of 60 or more days in a period of
twelve consecutive months;
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(B) The failure of the Independent Contractor to
follow the directions of Vista's board of directors;
(C) Dishonesty; theft; or conviction of a crime involving
moral turpitude;
(D) Material default in the performance of the
Independent Contractor's obligations, services or
duties required under this Agreement (other than due
to illness) or material breach of any provision of
this Agreement, which default or breach has continued
for ten days after written notice of such default or
breach.
(b) Deterioration or Discontinuance of Business:
(1) In the event that Vista experiences material business
reversals or fails to meet the operational criteria reflected
in its projections or business plans, then, subject to the
provisions of Section 2.4, at the option of Vista, this
Agreement shall terminate as of a date selected by Vista with
the same force and effect as if such date was the date
originally set as the termination date hereof.
(2) In the event that Vista 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 Vista shall not be deemed a termination of
its business.
(c) Death:
This Agreement shall terminate immediately on the death of the Independent
Contractor; however, all accrued compensation at such time shall be promptly
paid to the Independent Contractor's estate.
2.4 Severance Payments and Alternatives to Termination
In the event this Agreement is terminated for reasons other than for cause
as described in Section 2.3(b) above, the Independent Contractor shall be
entitled to either thirty days prior written notice or to a severance payment in
a sum equal to the fee that would have been paid had 30 days prior written
notice been provided; provided, however, that in lieu of termination, Vista may
offer to continue this Agreement under modified compensation arrangements, if
such arrangements are reflected in the written notice and accepted by the
Independent Contractor prior to the end of the 30 day notice period.
2.5 Final Settlement.
Upon termination of this Agreement and payment of all amounts due to the
Independent Contractor hereunder, the Independent Contractor or his
representative shall execute and deliver to the terminating entity on a form
prepared by Vista, 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 Vista all records,
manuals and written procedures, as may be desired by it for the continued
conduct of its business.
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Article Three
Compensation
3.1 Compensation.
As consideration for the Independent Contractor's services to Vista the
Independent Contractor shall be entitled to:
(a) An consulting fee in the aggregate gross sum of $25,000 (the "Base
Fee").
(b) Incentive stock options complying with the requirements of Section 422
of the Internal Revenue Code of 1986, as amended, or successor
provisions thereto (the "Options"), permitting the Independent
Contractor to purchase up to 12,740 of the 931,000 shares of the
common stock of AmeriNet Group.com, Inc., a publicly held Delaware
corporation with a class of securities registered under Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which holds of all of Vista's capital stock and other
securities ("AmeriNet"), that AmeriNet reserved for issuance to Vista
employees and qualifying consultants in conjunction with the
Reorganization Agreement pursuant to which AmeriNet acquired all of
Vista's securities (the "Independent Contractor's Option Shares"), on
the following terms and subject to the following conditions:
(1) The Independent Contractor's rights to the Options will vest as
follows:
(A) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $400,000 during the
period starting on July 1, 2000 and ending on June
30, 2001, then the Independent Contractor shall have
the right to purchase 1,820 of the Independent
Contractor's Option Shares.
(B) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $1,200,000 during
the period starting on July 1, 2000 and ending on
June 30, 2002, then the Independent Contractor shall
have the right to purchase 5,460 of the Independent
Contractor's Option Shares (including the 1,820
shares first referred to above) and
(C) If Vista earns net, pre tax profits, determined in
accordance with GAAP, of at least $2,800,000 during
the period starting on July 1, 2000 and ending on
June 30, 2003, then the Independent Contractor shall
have the right to purchase all of the Independent
Contractor's Option Shares (including the 5,460
shares first referred to above).
(2) If Vista fails to attain the earnings requirements for
exercise of the Options during a measuring year, all of the
Independent Contractor's rights to the Independent
Contractor's Option Shares that would have become vested on
such year shall lapse and be of no further force or effect.
(3) The Options will be exercisable at a price of $1.875 per share
for a period commencing on the date of vesting and ending on
the earlier of June 30, 2005 or the 90th day after termination
of this Agreement.
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(4) All other terms pertaining to the Options are hereby
incorporated by reference from those contained in AmeriNet's
Non-Qualified Stock Option & Stock Incentive Plan, Effective
as of January 1 , 2000 filed by AmeriNet with the United
States Securities and Exchange Commission (the "Commission"),
a copy of which is annexed hereto and made a part hereof as
exhibit 3.1(B)(2), except to the extent that they would be
inconsistent with the specific terms in this Section 3.1
unless such inconsistency is required by the provisions of
Code Section 422.
3.3 Indemnification.
Vista will defend, indemnify and hold the Independent Contractor 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 Vista, its affiliates or for other
persons or entities at the request of the board of directors of Vista, 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
the Independent Contractor to incur any out of pocket expenses; provided,
however, that the Independent Contractor permits the majority stockholders of
Vista to select and supervise all per sonnel involved in such defense and that
the Independent Contractor waive any conflicts of interest that such personnel
may have as a result of also representing Vista, its stockholders or other
personnel and agrees to hold them harmless from any matters involving such
representation, except such as involve fraud or bad faith.
Article Four
Special Covenants
4.1 Confidentiality, Non-Circumvention and Non-Competition.
During the term of this Agreement, all renewals thereof and for a period of
two years after its termination, the Independent Contractor hereby irrevocably
agrees to be bound by the following restrictions, which constitute a material
inducement for Vista's entry into this Agreement and for AmeriNet's agreement to
provide shares of its common stock as the securities underlying the Options:
(a) Because the Independent Contractor will be developing for Vista, making
use of, acquiring and/or adding to, confidential information of special
and unique nature and value relating to such matters as Vista's trade
secrets, systems, procedures, manuals, confidential reports, personnel
resources, strategic and tactical plans, advisors, clients, investors
and funders; as material inducement to the entry into this Agreement by
Vista, the Independent Contractor hereby covenants and agrees not to
personally use, divulge or disclose, for any purpose whatsoever,
directly or indirectly, any of such confidential information during the
term of this Agreement, any renewals thereof, and for a period of two
years after its termination.
(b) The Independent Contractor hereby covenants and agrees to be bound as a
fiduciary of Vista, as if the Independent Contractor were a partner in
a partnership bound by the partnership opportunities doctrine, as such
concept has been judicially and legislatively developed in the State of
Florida, and consequently, without the prior written consent of Vista,
on a specific, case by case basis, the Independent Contractor shall
not, among other things, directly or indirectly:
(1) Engage in any activities, whether or not for profit, competitive
with Vista's business.
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(2) Solicit or accept any person providing services to Vista, whether
as an employee, consultant or independent contractor, for
employment or provision of services.
(3) Induce any client or customer of Vista to cease doing business
with Vista or to engage in business with any person engaged in
business activities that compete with Vista's business.
(4) Divert any business opportunity within the general scope of
Vista's business and business capacity, to any other person or
entity.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista as a result of a breach by the Independent Contractor of the covenants or
agreements contained in this Article Four, and in view of the lack of an
adequate remedy at law to protect Vista's interests, the Independent Contractor
hereby covenants and agrees that Vista shall have the following additional
rights and remedies in the event of a breach hereof:
(a) In addition to and not in limitation of any other rights, remedies or
damages available to Vista, whether at law or in equity, it shall be
entitled to a permanent injunction in order to prevent or to restrain
any such breach by the Independent Contractor, or by the Independent
Contractor's partners, agents, representatives, servants, employers,
employees, affiliates and/or any and all persons directly or indirectly
acting for or with him and the Independent Contractor hereby consents
to the issuance of such a permanent injunction; and
(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Vista may sustain prior to the effective
enforcement of such injunction, the Independent Contractor hereby
covenants and agrees to pay over to Vista, in the event he violates the
covenants and agreements contained in Section 4.2 hereof, the greater
of:
(1) Any payment or compensation of any kind received by the
Independent Contractor or by persons affiliated with or acting
for or with the Independent Contractor, because of such
violation before the issuance of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for
the injuries suffered by Vista as a result of such violation,
the Parties hereto agreeing that such liquidated damages are
not intended as the exclusive remedy available to Vista 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
Vista from the injury caused by such breaches would be
injunctive relief.
4.3 Cumulative Remedies.
The Independent Contractor hereby irrevocably agrees that the remedies
described in Section 4.2 shall be in addition to, and not in limitation of, any
of the rights or remedies to which Vista 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.
(a) The Independent Contractor hereby represents, warrants and acknowledges
that having carefully read and considered the provisions of this Article
Four, the restrictions set forth herein are fair and reasonable and are
reasonably required for the protection of the interests of Vista, its
officers, directors and employees; consequently, in the event that any of
the above-described restrictions shall be held unenforceable by any court
of competent jurisdiction, the Independent Contractor hereby covenants,
agrees and directs such court to substitute a reasonable judicially
enforceable limitation in place of any limitation deemed unenforceable and,
the Independent Contractor 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.
(b) In determining the nature of this limitation, the Independent Contractor
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 these covenants not to circumvent, disclose or
compete be imposed and maintained to the greatest extent possible.
4.5 Unauthorized Acts.
The Independent Contractor hereby covenants and agrees not do any act or
incur any obligation on behalf of Vista except as authorized by its board of
directors or by its stockholders pursuant to duly adopted stockholder action or
reasonably inferred therefrom.
Article Five
Miscellaneous
5.1 Notices.
(a) (1) 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 the Independent Contractor:
Karyn McKnight
10020 A Main Street, Suite 177; Bellevue, Washington
98004 Telephone (425) 957-3561; Fax, (425) 641-1248;
e-mail, [email protected]
To Vista:
Vista Vacations International, Inc.
Attention: Teri E. Nadler, President
5653 Northwest 29th Street; Margate, Florida
33063 Telephone (954) 975-0898; Fax (954) 975-8447; e-mail
[email protected]; with a fax copy to
Scott B. Ugell
155 North Main Street; New City, New York 10956
Telephone (914) 639-7011; Fax (914) 639-7088; and, e-mail [email protected]
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(2) In each case, copies of notices will also be provided to:
AmeriNet Group.com, Inc.
The Crystal Corporate Center;
2500 North Military Trail, Suite 225-C; Boca Raton, Florida 33431
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail [email protected]
Attention: Michael Harris Jordan, President; and
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-9182; Fax (954) 694-1325; and e-mail [email protected]
Attention: Vanessa H. Lindsey, Secretary;
(3) Copies of notices will also be provided to such other address or
to such other person as any Party shall designate to the other
for such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that The Yankee Companies, Inc., a
Florida corporation ("Yankees") has acted as scrivener for the
Parties in this transaction and that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement on their
behalf since it cannot provide any Party with legal advice.
(3) This Agreement shall not be interpreted more or less strictly
against any Party based on its authorship.
5.2 Amendment.
(5) 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.
(6) This Agreement may not be modified without the consent of a majority in
interest of Vista's and 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.
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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.
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, two by Vista's majority stockholder,
two by Vista and two by the Independent Contractor.
(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
Vista's majority stockholder, two by Vista and two by the
Independent Contractor.
(3) (A) Expenses of mediation shall be borne by Vista, 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.
423
<PAGE>
5.8 Benefit of Agreement.
(a) This Agreement may not be assigned by the Independent Contractor without
the prior written consent of Vista.
(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.
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.
(a) Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship,
lessor-lessee relationship, or principal-agent relationship.
(b) In amplification of the foregoing, the Independent Contractor shall be
responsible for providing the Independent Contractor's own office
facilities and supporting personnel and payment of all expenses
associated with provision of services and shall generally determine the
time and place for the performance of the Independent Contractor's
services under this Agreement, provided that such time and place must
be reasonable under the circumstances and acceptable to the Vista's
client involved.
(c) Consequently, throughout the term of this Agreement, the Independent
Contractor shall serve an independent contractor, as that term is
defined, without limitation, by the United States Internal Revenue
Service, and in conjunction therewith, shall be responsible for all of
the Independent Contractor's tax reporting and payment obligations.
(d) The Independent Contractor agrees not to enter into any contracts or
take other action which binds or obligates Vista and at all times to
hold itself out and conduct itself as an independent contractor of
Vista.
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.
424
<PAGE>
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.
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 Independent Contractor
- --------------------------
/s/ Karyn McKnight
- -------------------------- --------------------------
Karyn McKnight
Dated: March 12, 2000
Vista Vacations International, Inc.
a Florida corporation.
- --------------------------
__________________________ By: /s/ Teri E. Nadler
___________________________
Teri E. Nadler, President
(CORPORATE SEAL)
Attest: /s/ Alicia Torrealba
__________________________
Alicia Torrealba, Secretary
Dated: March 12, 2000
425
Confidentiality Agreement
This agreement (the "Agreement") is made and entered into by and between
Vista Vacations International, Inc., a Florida corporation (hereinafter together
with its affiliates referred to as "Vista Vacations"), and Jay Lovins, ("Mr.
Lovins"), an individual hereinafter collectively referred to as the "Parties or
generically as a "Party").
Witnesseth:
IN CONSIDERATION FOR BEING MADE PRIVY to confidential information and being
introduced to the business contacts and business operations of Vista Vacations,
the Party providing the information being hereinafter generically referred to as
the "Provider" and the Party receiving the information being hereinafter
referred to as the "Recipient"), the Parties hereby irrevocably agree not to
disclose the confidential information and or trade secrets (
1.1 Confidentiality.
(a) Mr. Lovins acknowledges that, in and as a result of his employment
hereunder, he will be developing for Vista Vacation, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as Vista Vacation '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 Vista Vacation , Mr. Lovins 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 Vista
Vacation, or Vista Vacation's affiliates.
(b) In the event of a breach or threatened breach by Mr. Lovins of any of the
provisions of this Section 1.1 Vista Vacation, in addition to and not in
limitation of any other rights, remedies or damages available to Vista
Vacation, whether at law or in equity, shall be entitled to a permanent
injunction in order to prevent or to restrain any such breach by Mr.
Lovins, or by Mr. Lovins's partners, agents, representatives, servants,
employers, employees, affiliates and/or any and all persons directly or
indirectly acting for or with him.
1.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista Vacation as a result of a breach by Mr. Lovins of the covenants or
agreements contained in this Article One, and in view of the lack of an adequate
remedy at law to protect Vista Vacation 's interests, Mr. Lovins hereby
covenants and agrees that Vista Vacation shall have the following additional
rights and remedies in the event of a breach hereof:
(a) Mr. Lovins hereby consents to the issuance of a permanent injunction
enjoining him from any violations of the covenants set forth in Section 1.1
hereof; and
426
<PAGE>
(b) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Vista Vacation may sustain prior to the effective
enforcement of such injunction, Mr. Lovins hereby covenants and agrees to
pay over to Vista Vacation , in the event he violates the covenants and
agreements contained in Section 1.2 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 Vista Vacation as a result of such violation, the Parties
hereto agreeing that such liquidated damages are not intended as the
exclusive remedy available to Vista Vacation for any breach of the
covenants and agreements contained in this Article One, prior to the
issuance of such injunction, the Parties recognizing that the only
adequate remedy to protect Vista Vacation from the injury caused by
such breaches would be injunctive relief.
1.3 Cumulative Remedies.
Mr. Lovins hereby irrevocably agrees that the remedies described in Section
1.2 hereof shall be in addition to, and not in limitation of, any of the rights
or remedies to which Vista Vacation is or may be entitled to, whether at law or
in equity, under or pursuant to this Agreement.
1.4 Acknowledgment of Reasonableness.
Mr. Lovins hereby represents, warrants and acknowledges that he has
carefully read and considered the provisions of this Article One 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 Vista
Vacation, 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, Mr. Lovins hereby covenants, agrees and
directs such court to substitute a reasonable judicially enforceable limitation
in place of any limitation deemed unenforceable and, Mr. Lovins hereby covenants
and agrees that if so modified, the covenants contained in this Article One
shall be as fully enforceable as if they had been set forth herein directly by
the Parties. In determining the nature of this limitation, Mr. Lovins 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.
1.5 Unauthorized Acts.
Mr. Lovins hereby covenants and agrees that he will not do any act or incur
any obligation on behalf of Vista Vacation of any kind whatsoever, except as
authorized by its board of directors or by its stockholders pursuant to duly
adopted stockholder action.
2.1 Duration.
The obligation to keep Information confidential shall expire two years from
the date of the disclosure.
427
<PAGE>
3.1 No Licenses Granted.
The furnishing of any Information hereunder shall not be constructed as the
granting of a licenses under any patent application as implying any obligation
other than as specifically recited herein.
4.1 Governing Law & Venue.
(1) This Agreement shall be governed and constructed in accordance with laws of
the State of Florida (other than its conflict of law provisions) and the
United States of America.
(2) Venue for any proceedings arising hereunder shall be in Palm Beach County,
Florida.
5.1. Attorney Fees.
If any legal actions arise related to this Agreement, the prevailing Party
shall be entitled to recover its court costs and reasonable attorney's fees.
6.1. Notice.
(1) 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:
(2) To AmeriNet:
AmeriNet Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-6714, Fax (352) 694-9178; and, e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
428
<PAGE>
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
(5) To Mr. Lovins:
Jay Lovins
2037 Champions Way, N. Lauderdale, Fl. 33068
Telephone (954)
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.
(2) (a) 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.
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 Individual Signee
- ----------------------------
/s/ Jay Lovins
- ---------------------------- ------------------------
Signature
Dated: March 10, 2000 Jay Lovins
-----------------------
Print name
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
______________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Alicia Torrealba
______________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
429
Confidentiality Agreement
This agreement (the "Agreement") is made and entered into by and between
Vista Vacations International, Inc., a Florida corporation (hereinafter together
with its affiliates referred to as "Vista Vacations"), and Karyn McKnight, ("Ms.
McKnight"), an individual hereinafter collectively referred to as the "Parties
or generically as a "Party").
Witnesseth:
IN CONSIDERATION FOR BEING MADE PRIVY to confidential information and being
introduced to the business contacts and business operations of Vista Vacations,
the Party providing the information being hereinafter generically referred to as
the "Provider" and the Party receiving the information being hereinafter
referred to as the "Recipient"), the Parties hereby irrevocably agree not to
disclose the confidential information and or trade secrets (
1.1 Confidentiality.
(a) Ms. McKnight acknowledges that, in and as a result of his employment
hereunder, he will be developing for Vista Vacation, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as Vista Vacation '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 Vista Vacation , Ms. McKnight 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 Vista
Vacation, or Vista Vacation's affiliates.
(b) In the event of a breach or threatened breach by Ms. McKnight of any of the
provisions of this Section 1.1 Vista Vacation, in addition to and not in
limitation of any other rights, remedies or damages available to Vista
Vacation, whether at law or in equity, shall be entitled to a permanent
injunction in order to prevent or to restrain any such breach by Ms.
McKnight, or by Ms. McKnight's partners, agents, representatives, servants,
employers, employees, affiliates and/or any and all persons directly or
indirectly acting for or with him.
1.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista Vacation as a result of a breach by Ms. McKnight of the covenants or
agreements contained in this Article One, and in view of the lack of an adequate
remedy at law to protect Vista Vacation 's interests, Ms. McKnight hereby
covenants and agrees that Vista Vacation shall have the following additional
rights and remedies in the event of a breach hereof:
(a) Ms. McKnight hereby consents to the issuance of a permanent injunction
enjoining her from any violations of the covenants set forth in Section 1.1
hereof; and
430
<PAGE>
(b) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Vista Vacation may sustain prior to the effective
enforcement of such injunction, Ms. McKnight hereby covenants and agrees to
pay over to Vista Vacation, in the event he violates the covenants and
agreements contained in Section 1.2 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 Vista Vacation as a result of such violation, the Parties
hereto agreeing that such liquidated damages are not intended as the
exclusive remedy available to Vista Vacation for any breach of the
covenants and agreements contained in this Article One, prior to the
issuance of such injunction, the Parties recognizing that the only
adequate remedy to protect Vista Vacation from the injury caused by
such breaches would be injunctive relief.
1.3 Cumulative Remedies.
Ms. McKnight hereby irrevocably agrees that the remedies described in
Section 1.2 hereof shall be in addition to, and not in limitation of, any of the
rights or remedies to which Vista Vacation is or may be entitled to, whether at
law or in equity, under or pursuant to this Agreement.
1.4 Acknowledgment of Reasonableness.
Ms. McKnight hereby represents, warrants and acknowledges that he has
carefully read and considered the provisions of this Article One 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 Vista
Vacation, 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, Ms. McKnight hereby covenants, agrees
and directs such court to substitute a reasonable judicially enforceable
limitation in place of any limitation deemed unenforceable and, Ms. McKnight
hereby covenants and agrees that if so modified, the covenants contained in this
Article One shall be as fully enforceable as if they had been set forth herein
directly by the Parties. In determining the nature of this limitation, Ms.
McKnight 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.
1.5 Unauthorized Acts.
Ms. McKnight hereby covenants and agrees that he will not do any act or
incur any obligation on behalf of Vista Vacation of any kind whatsoever, except
as authorized by its board of directors or by its stockholders pursuant to duly
adopted stockholder action.
2.1 Duration.
The obligation to keep Information confidential shall expire two years from
the date of the disclosure.
431
<PAGE>
3.1 No Licenses Granted.
The furnishing of any Information hereunder shall not be constructed as
the granting of a licenses under any patent application as implying any
obligation other than as specifically recited herein.
4.1 Governing Law & Venue.
(1) This Agreement shall be governed and constructed in accordance with laws of
the State of Florida (other than its conflict of law provisions) and the
United States of America.
(2) Venue for any proceedings arising hereunder shall be in Palm Beach County,
Florida.
5.1. Attorney Fees.
If any legal actions arise related to this Agreement, the prevailing Party
shall be entitled to recover its court costs and reasonable attorney's fees.
6.1. Notice.
(1) 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:
(2) To AmeriNet:
AmeriNet Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida
34471 Telephone (352) 694-6714, Fax (352) 694-9178; and,
e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
432
<PAGE>
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
(5) To Ms. McKnight:
Karyn McKnight
10020 A Main Street, Bellevue, Washington 98004
Telephone (954)
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.
(2) (a) 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.
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 Individual Signee
- ----------------------------
/s/ Karyn McKnight
- ---------------------------- ------------------------
Signature
Dated: March 11, 2000 Karyn McKnight
-----------------------
Print name
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
______________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /s/ Teri E. Nadler
______________________________
Alicia Torrealba, Secretary
Dated: March 11, 2000
433
Confidentiality Agreement
This agreement (the "Agreement") is made and entered into by and between
Vista Vacations International, Inc., a Florida corporation (hereinafter together
with its affiliates referred to as "Vista Vacations"), and Trevor Grafflin,
("Mr. Grafflin"), an individual hereinafter collectively referred to as the
"Parties or generically as a "Party").
Witnesseth:
IN CONSIDERATION FOR BEING MADE PRIVY to confidential information and being
introduced to the business contacts and business operations of Vista Vacations,
the Party providing the information being hereinafter generically referred to as
the "Provider" and the Party receiving the information being hereinafter
referred to as the "Recipient"), the Parties hereby irrevocably agree not to
disclose the confidential information and or trade secrets (
1.1 Confidentiality.
(a) Mr. Grafflin acknowledges that, in and as a result of his employment
hereunder, he will be developing for Vista Vacation, making use of,
acquiring and/or adding to, confidential information of special and unique
nature and value relating to such matters as Vista Vacation '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 Vista Vacation , Mr. Grafflin 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 Vista
Vacation, or Vista Vacation's affiliates.
(b) In the event of a breach or threatened breach by Mr. Grafflin of any of the
provisions of this Section 1.1 Vista Vacation, in addition to and not in
limitation of any other rights, remedies or damages available to Vista
Vacation, whether at law or in equity, shall be entitled to a permanent
injunction in order to prevent or to restrain any such breach by Mr.
Grafflin, or by Mr. Grafflin's partners, agents, representatives, servants,
employers, employees, affiliates and/or any and all persons directly or
indirectly acting for or with him.
1.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Vista Vacation as a result of a breach by Mr. Grafflin of the covenants or
agreements contained in this Article One, and in view of the lack of an adequate
remedy at law to protect Vista Vacation 's interests, Mr. Grafflin hereby
covenants and agrees that Vista Vacation shall have the following additional
rights and remedies in the event of a breach hereof:
(a) Mr. Grafflin hereby consents to the issuance of a permanent injunction
enjoining him from any violations of the covenants set forth in Section 1.1
hereof; and
434
<PAGE>
(b) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Vista Vacation may sustain prior to the effective
enforcement of such injunction, Mr. Grafflin hereby covenants and agrees to
pay over to Vista Vacation , in the event he violates the covenants and
agreements contained in Section 1.2 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 Vista Vacation as a result of such violation, the Parties
hereto agreeing that such liquidated damages are not intended as the
exclusive remedy available to Vista Vacation for any breach of the
covenants and agreements contained in this Article One, prior to the
issuance of such injunction, the Parties recognizing that the only
adequate remedy to protect Vista Vacation from the injury caused by
such breaches would be injunctive relief.
1.3 Cumulative Remedies.
Mr. Grafflin hereby irrevocably agrees that the remedies described in
Section 1.2 hereof shall be in addition to, and not in limitation of, any of the
rights or remedies to which Vista Vacation is or may be entitled to, whether at
law or in equity, under or pursuant to this Agreement.
1.4 Acknowledgment of Reasonableness.
Mr. Grafflin hereby represents, warrants and acknowledges that he has
carefully read and considered the provisions of this Article One 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 Vista
Vacation, 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, Mr. Grafflin hereby covenants, agrees
and directs such court to substitute a reasonable judicially enforceable
limitation in place of any limitation deemed unenforceable and, Mr. Grafflin
hereby covenants and agrees that if so modified, the covenants contained in this
Article One shall be as fully enforceable as if they had been set forth herein
directly by the Parties. In determining the nature of this limitation, Mr.
Grafflin 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.
1.5 Unauthorized Acts.
Mr. Grafflin hereby covenants and agrees that he will not do any act or
incur any obligation on behalf of Vista Vacation of any kind whatsoever, except
as authorized by its board of directors or by its stockholders pursuant to duly
adopted stockholder action.
2.1 Duration.
The obligation to keep Information confidential shall expire two years from
the date of the disclosure.
435
<PAGE>
3.1 No Licenses Granted.
The furnishing of any Information hereunder shall not be constructed as
the granting of a licenses under any patent application as implying any
obligation other than as specifically recited herein.
4.1 Governing Law & Venue.
(1) This Agreement shall be governed and constructed in accordance with laws of
the State of Florida (other than its conflict of law provisions) and the
United States of America.
(2) Venue for any proceedings arising hereunder shall be in _____ County,
Florida.
5.1. Attorney Fees.
If any legal actions arise related to this Agreement, the prevailing Party
shall be entitled to recover its court costs and reasonable attorney's fees.
6.1. Notice.
(1) 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:
(2) To AmeriNet:
AmeriNet Group.com, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Michael Harris Jordan, President
Telephone (561) 998-3435, Fax (561) 998-3425; and, e-mail
[email protected]; with a copy to
General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida
34471 Telephone (352) 694-6714, Fax (352) 694-9178; and,
e-mail, [email protected]
(3) To Vista Vacations:
Vista Vacations International, Inc.
5653 NW 29th Street, Margate, Florida 33063
Attention: Teri E. Nadler President
Telephone (954) 975-0898, Fax (954) 957-8447;
and, web site: [email protected]
436
<PAGE>
(4) To Yankees:
The Yankee Companies, Inc.
2500 North Military Trail, Suite 225; Boca Raton, Florida 33487
Attention: Leonard Miles Tucker, President
Telephone (561) 998-2025, Fax (561) 998-3425;
and, e-mail [email protected];
(5) To Mr. Grafflin:
Trevor Grafflin
22940 C. Oxford Place, Boca Raton, Florida 334333
Telephone (954)
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.
(2) (a) 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.
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 Individual Signee
- ----------------------------
/s/ Trevor Grafflin
- ---------------------------- ------------------------
Signature
Dated: March 10, 2000 Trevor Grafflin
-----------------------
Print name
Vista Vacations International, Inc.
- ----------------------------
____________________________ By: /s/ Teri E. Nadler
______________________________
Teri E. Nadler, President
(Corporate Seal)
Attest: /a/ Alicia Torrealba
______________________________
Alicia Torrealba, Secretary
Dated: February 28, 2000
437
March 1, 2000
Michael Jordan
Amerinet Group.Com, Inc.
2500 N. Military Trail-- Suite 225
Boca Raton, FL 33431
Dear Michael,
As we discussed at the first of the year, I cannot continue to
participate on the board of Amerinet Group due to the extreme demands that have
been placed on me at Cigarette Racing Team. I cannot predict when my
responsibilities or schedule will lighten and therefore have had to discontinue
all outside activity and devote myself to the corporate transition.
I wish you and all of the board at Amerinet the best and success in all
your endeavors.
Sincerely,
/s/ Penny Adams Field
Penny Adams Field
438
