Superseder & Exchange Agreement
This Superseder & Exchange 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 Exchange Act
("AmeriNet"); Trilogy International, Inc., a Florida corporation ("Trilogy");
and, Dennis A. Berardi ("Mr. Berardi") and Carol A. Berardi, his wife (Mrs.
Berardi"), both Florida residents (collectively "Mr. & Mrs. Berardi;" AmeriNet,
Trilogy and Mr. & Mrs. Berardi being sometimes hereinafter collectively referred
to as the "Parties" or generically as a "Party").
Preamble:
WHEREAS, Mr. & Mrs. Berardi were the promoters, parents, founders and
controlling stockholders of Old Trilogy (as defined below), and currently serve
as a majority of the members of Trilogy's board of directors and as Trilogy's
executive officers, and in such roles, on December 1, 1999, participated in a
reorganization involving Old Trilogy and a subsidiary of AmeriNet (Trilogy
Acquisition") pursuant to Code Section 368(a)(2)(D), pursuant to which Old
Trilogy was merged into Trilogy Acquisition, by operation of law became an
integrated component of a wholly owned subsidiary of AmeriNet and all of Old
Trilogy's capital stock, being 3,217,365 shares of common stock and 744,818
shares of preferred stock, were converted into 1,817,273 shares of AmeriNet
common stock, 1,051,726 shares of which were issued to Mr. & Mrs. Berardi (the
"Berardi Shares") and the balance were issued to the other Old Trilogy
stockholders (the "Non-Berardi Shares"); and
WHEREAS, AmeriNet has loaned Trilogy $672,051 in expansion and operating
funds since the Reorganization (the "AmeriNet Loans") but Trilogy has been
unable to meet the projections pursuant to which the AmeriNet Loans were
provided, and AmeriNet has advised Trilogy that it will not make any further
funds available to it; and
WHEREAS, without further funding, Trilogy will be unable to continue in
operation and Mr. & Mrs. Berardi have requested that AmeriNet, as Trilogy's sole
current stockholders, permit Trilogy to take certain actions not authorized
pursuant to the terms of the Reorganization, in order to permit it to obtain
$300,000 in additional capital required to attain its business plans and
projections; and
WHEREAS, Xcel Associates, Inc., a New Jersey corporation ("Xcel") has
agreed to arrange for infusion of the capital required by Trilogy, provided that
AmeriNet's equity interest in Trilogy is reduced to 20%, Xcel is provided a
19.28% equity interest in Trilogy, Mr. & Mrs. Berardi are provided a 27.86%
equity interest in Trilogy and a 27.86% equity interest will be sold hereunder
to George T. Jochum and a 5% interest will be provided to Richard H. Tanenbaum,
Attorney at Law; and,
WHEREAS, in order to induce AmeriNet to agree to such actions and to
extinguish the AmeriNet Loans, Trilogy and Mr. & Mrs. Berardi have offered to
return all of the Berardi Shares to AmeriNet if Trilogy (as defined below) will
issue them shares in Trilogy as compensation therefore; and
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:
Page 5
<PAGE>
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. 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;
Page 6
<PAGE>
(5) Any natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of his
purchase exceeds $1,000,000;
(6) Any natural person who had an individual income in
excess of $200,000 in each of the two most recent years
or joint income with that person's spouse in excess of
$300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the
current year;
(7) Any trust, with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the
securities offered, whose purchase is directed by a
sophisticated person as described in
ss.230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are
accredited investors.
(B) Aggregate AmeriNet
Investment:
All sums invested in Trilogy by holders of the Non-Berardi
Shares (the "Original Trilogy Investment") plus the amount
of the AmeriNet Loans immediately prior to the Closing.
(C) (1) Closing:
The effectuation of the transactions called for by this
Agreement, including exchange of securities, execution of
instruments, stock certificates, stock powers, releases and
other documents.
(2) Closing Date: The date on which the Closing takes place.
(D) Code: The Internal Revenue Code of 1986, as amended.
(E) Commission: The United States Securities and Exchange Commission
(F) EDGAR: The Commission's electronic data gathering and retrieval
system accessible by the public at the Commission's website
located at http://www.sec.gov.
(G) Exchange Act: The Securities Exchange Act of 1934, as amended.
Page 7
<PAGE>
(H) Exchange Act Reports:
The reports on Commission Forms 10-SB, 10-KSB, 10-QSB and
8-K and Commission Schedules 14A and 14C, that AmeriNet is
required to file pursuant to Sections 13, 14, 15(d) and
12(g) of the Exchange Act.
(I) Florida Act: The Florida Securities and Investor Protection Act
(J) Florida Rule:
Florida Rule 3E-500.005, which provides as follows:
Disclosure requirements of Section 517.061(11)(a)3., Florida
Statutes.
(1) Transactions by an issuer which do not satisfy all of
the conditions of this rule shall not raise any
presumption that the exemptions provided by Section
517.061(11), Florida Statutes is not available for such
transactions. Attempted compliance with this rule does
not act as an election; the issuer can also claim the
availability of Section 517.061(11), Florida Statutes,
outside this rule.
(2) The determination as to whether sales of securities are
part of a larger offering (i.e., are deemed to be
integrated) depends on the particular facts and
circumstances. In determining whether sales should be
regarded as part of a larger offering and thus should
be integrated, the facts described in Rule 3E-500.01
should be considered.
(3) Although sales made pursuant to Section 517.061(11),
Florida Statutes, and in compliance with this rule, are
exempt from the registration provisions of this Act,
such exemption does not avoid the antifraud provisions
of Sections 517.301 and 517.311, Florida Statutes.
(4) The provisions of this rule shall apply only to
transactions which are consummated with persons in the
State of Florida.
(5) The requirements of Sections 517.061(11)(a)(3), Florida
Statutes, that each purchaser, or his representative be
provided with or given reasonable access to full and
fair disclosure of all material information shall be
deemed to be satisfied if either paragraphs (5)(a) or
(5)(b) are complied with:
(a) Access to or Furnishing of Information. Reasonable
access to, or the furnishing of, material information
shall be deemed to have been satisfied if prior to the
sale a purchaser is given access to the following
information:
1. All material books and records of the issuer; and
2. All material contracts and documents relating to the
proposed transaction; and
3. An opportunity to question the appropriate executive
officers or partners. ....
(6) In the case of an issuer that is subject to the
reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the provisions of
paragraph (5)(b) of this rule shall be deemed satisfied
by providing the following:
(a) The information contained in the annual report required
to be filed under the Securities Exchange Act of 1934
or a registration statement on Form S-1 [CCH Federal
Securities Law Reporter P. 7121 ] under the Securities
Act of 1933, whichever filing is the most recent
required to be filed, and the information contained
Page 8
<PAGE>
in any definitive proxy statement required to be filed
pursuant to Section 14 of the Securities Exchange Act of
1934 and in any reports or documents required to be filed by
the issuer pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, since the filing of such
annual report or registration statement; and
(b) A brief description of the securities being offered,
the use of the proceeds from the offering, and any
material changes in the issuer's affairs which are not
disclosed in the documents furnished.
(K)
(1) Old Trilogy:
Trilogy International, Inc., a Florida corporation with an
independent existence prior to December 1, 1999, which was
merged into Trilogy Acquisition.
(2) Trilogy:
Name given to Trilogy Acquisition, the corporation that
survived the merger of Old Trilogy and Trilogy Acquisition.
(3) Trilogy Acquisition:
A new corporation organized by AmeriNet solely for the
purpose of effecting the acquisition of Old Trilogy and into
which Old Trilogy was merged.
(L) Reorganization:
The corporate events effected in reliance on Section
368(a)(2)(D) of the Code which took place on or about
December 1, 1999, between AmeriNet, Trilogy Acquisition and
Old Trilogy, as a result of which Trilogy became a wholly
owned subsidiary of AmeriNet and the former Old Trilogy
securities holders became AmeriNet securities holders.
(M) Reorganization Agreement:
The agreement between AmeriNet and all of the former
stockholders of Old Trilogy closed on or about December 1,
1999, pursuant to Old Trilogy was merged into Trilogy
Acquisitions creating Trilogy, all of the Old Trilogy
securities were converted into AmeriNet securities and
Trilogy became a wholly owned subsidiary of AmeriNet, a copy
of the Reorganization Agreement having been filed with the
Commission at its EDGAR website.
(N) Securities Act: The Securities Act of 1933, as amended.
(O) Service: The United States Internal Revenue Service.
(P) All undefined financial terms shall have the meanings ascribed to them
by generally accepted accounting practices, consistently applied, as
modified by rules of the Commission.
(Q) Additional terms characterized by initial capital letters are defined
in this Agreement immediately following their first use.
Article II
Operative Provisions
Subject to the condition precedent that all actions required to be taken in
order to comply with the securities and other laws of each state having
jurisdiction over the transactions called for under this Agreement, the Parties
hereby agree as follows:
(A) Mr. & Mrs. Berardi hereby agree to:
(1) Immediately return all of the Berardi Shares to AmeriNet, to
waive any obligations of any kind that AmeriNet or its affiliates
have to them; and
Page 9
<PAGE>
(2) Release AmeriNet and its affiliates from any obligations to
them, from the beginning of time until the Closing on this
Agreement, other than the obligations specifically undertaken
by AmeriNet pursuant to this Agreement; and
(3) Vote the proxy granted to them by AmeriNet in Section 2(B)
solely in the manner required by this Agreement.
(4) Execute themselves if so requested and have Xcel, George T.
Jochum and Richard H. Tanenbaum execute the Investment Letter
which will include an accredited investor representation, the
basic form of which is attached hereto subject to such
inclusion and further review, prior to the transfer of Trilogy
Stock to them, which shall include a statement from each
stating the following: "I (we) acknowledge that in acquiring
shares of common stock of Trilogy International, Inc. (the
"Company"): (i) I (we) am (are) aware that the Company is
insolvent and has sustained material operating losses; (ii)
neither AmeriNet Group.com.Inc., The Yankee Companies, Inc.,
nor any officer, director, shareholder, affiliate, consultant
or agent of either corporation has made any representation or
warranty to me (us) concerning the Company, its business,
operations, financial condition, management or future
prospects, and I am acquiring the common stock on an "as is"
basis; and (iv) I (we) am (are) not relying upon any oral or
written statements made by any of the above parties in making
my (our) investment decision."
(B) In consideration for Mr. & Mrs. Berardi's return of the Berardi Shares, the
covenants of Trilogy set forth below and the other actions performed or to
be performed by Mr. & Mrs. Berardi, and Trilogy, as required by this
Agreement, AmeriNet hereby agrees to and does hereby:
(1) Discharge the Trilogy Loans and hereby transfers eighty
percent (80%) of the issued and outstanding stock of Trilogy
as set forth below in section B(1)(b), with the following
being the then existing facts with regard to Trilogy:
(a) Be capitalized by Xcel or persons introduced by
Xcel,(the "New Investors") through an equity
investment of $300,000, $70,000 of which has already
been invested in Trilogy by Xcel and $225,000 of
which is to be invested by George T. Jochum, an
individual introduced by Xcel, for the interest
stated below; and
(b) Immediately following the equity investment described
in Section 2(B)(1), will be owned in the following
ratio:
(i) AmeriNet, 20%;
(ii) Xcel or its assigns, 19.28%;
(iii) Mr. & Mrs. Berardi, 27.86%(in the aggregate)
it being agreed the Berardi Shares and the
Berardi's 27.86% interest in Trilogy both
have an agreed fair market value as of the
date hereof of two hundred twenty five
thousand dollars ($225,000),said amount also
being equal to the cash investment and
percentage ownership by George T. Jochum;
and,
(iv) Richard H. Tanenbaum, 5%; and,
(i) George T. Jochum, 27.86% in return for his
investment of $225,000 in Trilogy.
(2) Grant Mr. & Mrs. Berardi a proxy to vote all of AmeriNet's capital stock in
Trilogy in favor of corporate resolutions authorizing and effecting the
actions required and contemplated by this Agreement, including, without
limitation, the election of a new Board of Directors.
(3) Release Mr. & Mrs. Berardi and Trilogy and its affiliates from any
obligations to them, from the beginning of time until the Closing on this
Agreement, other than the obligations specifically undertaken by the
Berardi's pursuant to this Agreement; and
(C) In consideration for the Agreements of Mr. & Mrs. Berardi and AmeriNet in
Sections 2(A) and 2(B), Trilogy hereby agrees as follows:
Page 10
<PAGE>
(1) It will take all actions required by it in order to assure
compliance with the provisions of Sections 2(A) and 2(B) of
this Agreement;
(2) It will refrain from taking any action that would violate or
facilitate the violation of any of the provisions of Sections
2(A) and 2(B) of this Agreement;
(3) It hereby waives any obligations of any kind that AmeriNet or
its affiliates have to it, and releases AmeriNet and its
affiliates from any obligations to it, from the beginning of
time until the Closing on this Agreement, other than the
obligations specifically undertaken by AmeriNet pursuant
to this Agreement.
(4) For a period of one (1) year from the date of closing
hereunder, AmeriNet's 20% share in Trilogy will not be reduced
as long as the total of equity investments and investments
convertible into equity investments in Trilogy, including
those referred to in Section2(B), does not exceed $300,000.
(5) (a) If the total of new equity investments in Trilogy, including
those referred to in Section2(B), exceeds $300,000, then
AmeriNet and its designees will have a right of first offer
to subscribe to equity securities or securities convertible
into equity securities which Trilogy intends to offer for
sale to be issued by Trilogy or its successors in interest
in such amount necessary to maintain its 20% share of
Trilogy (the "Right of First Offer"), such right to be
exercised within five business days after receipt of a
notice of the intent to sell stock by Trilogy, such notice
to include a copy of the offer and all related materials
(the "Financing Notice").
(b) Exercise of the Right of First Offer will be affected by
tender of a notice accepting the offer and closing on the
exercise will be in accordance with the terms of the offer.
(c) The failure on any occasion to exercise the Right of First
Offer shall not be a waiver of future rights thereto.
(d) If the Right of First Offer is not exercised, Trilogy may
sell stock to third party(ies) but only in accordance with
the terms presented to and declined by AmeriNet.
(e) Nothwithstanding the foregoing, AmeriNet's Right of First
Offer shall not be operative or prevent Trilogy from
adopting an Employee Stock Option Plan or otherwise
providing stock options to key contributors of Trilogy's
future operations, and shall be limited to instances where
Trilogy intends to sell stock or grant stock options to
raise additional cash.
Article III
Superseder, Mutual Releases & Closing
(A) The terms of this Agreement supersede the terms of all other agreements
between AmeriNet, Trilogy and Mr. & Mrs. Berardi and their 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, AmeriNet,
Trilogy and Mr. & Mrs. Berardi 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.
(C) The transactions contemplated by this Agreement, issuance of the equity
interests in Trilogy and capitalization of Trilogy shall be effected as
soon as possible following the execution of this Agreement, but in any
event, prior to June 30, 2000, and, to the extent possible, the Closing
shall be effected through exchange of documents and instruments in
escrow, by next day delivery service, such documents and instruments to
be released from escrow concurrently with confirmation by legal counsel
to Trilogy and Amerinet that all transactions contemplated by this
Agreement have been completed.
Page 11
<PAGE>
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:
(1) To AmeriNet:
AmeriNet Group.com, Inc.
Crystal Corporate Center; 2500 North Military Trail, Suite 225-C;
Boca Raton, Florida 33431
Attention: Lawrence R. Van Etten, President
Telephone (561) 998-3435, Fax (561) 998-3425; and,
e-mail [email protected]; with copies to
George Franjola, Esquire; General Counsel
AmeriNet Group.com, Inc.
1941 Southeast 51st Terrace; Ocala, Florida
34471 Telephone (352) 694-6661, Fax (352) 694-1325; and, e-mail,
[email protected], and
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];
(2) To Trilogy:
Trilogy International, Inc.
526 Southeast Dixie Highway; Stuart, Florida 34994.
Attention: Carol A. Berardi, President
Telephone (561) 781-7278; fax (561) 781-7282; e-mail [email protected]
(3) Mr. & Mrs. Berardi:
Mr. & Mrs. Dennis A. Berardi and Carol A. Berardi
1050 Southwest Chapman Way; Palm City, Florida 34990
Telephone (561) 219-4569; Fax (561) 781-7686
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.
Page 12
<PAGE>
(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) Amerinet acknowledge that the Yankee Companies, Inc., a
Florida corporation ("Yankees") serves as a strategic
consultant to AmeriNet and has acted as scrivener for Amerinet
in this transaction but that Yankees is neither a law firm nor
an agency subject to any professional regulation or oversight.
(2) Yankees has advised Amerinet to retain independent legal and
accounting counsel to review this Agreement and its exhibits
and incorporated materials on their behalf.
(3) The decision by Amerinet not to use the services of legal
counsel in conjunction with this transaction shall be solely
at their own risk, Amerinet 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.
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.
Page 13
<PAGE>
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 Palm Beach 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:
(1) (a) First, the issue shall be submitted to mediation before
a mediation service in Palm Beach County, Florida
to be selected by lot from six alternatives to be
provided, two by Mr. & Mrs. Berardi, two by AmeriNet
and two by Trilogy.
(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 Palm Beach County, Florida to
be selected by lot, from six alternatives to be provided, two
by Mr. & Mrs. Berardi, two by AmeriNet and two by Trilogy.
(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 George
Franjola, Esquire, Yankee's general counsel.
(B) The use of this form of agreement by the Parties is authorized hereby
solely for purposes of this transaction.
Page 14
<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, Trilogy and Mr. & Mrs. Berardi 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/ Lawrence R. Van Etten
_____________________________
Lawrence R. Van Etten, President
(Corporate Seal)
Attest: /s/ Vanessa H. Lindsey
_____________________________
Vanessa H. Lindsey, Secretary
Dated: June 30, 2000
State of Florida }
County of Palm Beach } ss.:
On this 30th day of June, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Lawrence R. Van Etten 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 ___day of ______________, ____.
{Seal} /s/ Charles J. Scimeca
--------------------------------
Notary Public
Trilogy International, Inc.
_________________________________ (a Florida corporation)
_________________________________ By: /s/ Carol A. Berardi
_____________________________
Carol A. Berardi, President
(Corporate Seal)
Attest: /s/ Dennis A. Berardi
_____________________________
Dennis A. Berardi, CEO
Dated: June 30, 2000
State of Florida }
County of Palm Beach } ss.:
On this 30th day of June, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Carol A. Berardi and Dennis
A. Berardi, to me known, and known to me to be the president and CEO of Trilogy
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 Trilogy
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 ___day of _______________, ____.
(Seal)
----------------------------
Notary Public
Page 15
<PAGE>
Mr. & Mrs. Berardi
---------------------------------
/s/ Dennis A. Berardi
--------------------------------- ----------------------------
Dennis A. Berardi
---------------------------------
/s/ Carol A. Berardi
--------------------------------- ----------------------------
Carol A. Berardi
Dated: June 30, 2000
State of Florida }
County of Palm Beach } ss.:
On this 30th day of June, 2000, before me, a notary public in and for
the county and state aforesaid, personally appeared Dennis A. Berardi and Carol
A. Berardi, his wife, to me known, and known to me to be the persons who
executed the foregoing instrument, and acknowledged the execution thereof to be
their 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 ___day of _______________, ____.
(Seal)
----------------------------
Notary Public
Page 16
<PAGE>
Exhibit 3(D)(6)
Form of Investment Letters
Date:
Carol A. Berardi
President
Trilogy
526 Southeast Dixie Highway
Stuart, Florida 34994
Re.: Trilogy Securities
Dear Madame:
I hereby certify and warrant that I am a party to that certain
superseder and exchange agreement to which a form of this letter is annexed as
an exhibit (the "Agreement"), pursuant to which I am acquiring equity securities
of Trilogy and I am providing this letter to acknowledge certain matters and to
bind myself by certain agreements required by Trilogy, in order to assure that
the issuance of unregistered securities to me complies with applicable
exemptions from securities registration requirements provided under federal
securities laws and the securities laws of my state of domicile.
I hereby certify that:
1. Upon receipt of the Trilogy securities, I will be acquiring them for my own
account for investment purposes without any intention of selling or
distributing all or any part thereof. I represent and warrant that I
qualify as an accredited investor (as that term is defined in rule 501(a)
of Regulation D promulgated under authority of the Securities Act of 1933,
as amended [the "Securities Act"]) and that I am sophisticated in financial
affairs, or have relied on the advice of someone sophisticated in financial
affairs, and I able to bear the economic risks of this investment and I do
not have any reason to anticipate any change in my circumstances, financial
or otherwise, nor any other particular occasion or event which should cause
me to sell or distribute, or necessitate or require my sale or distribution
of the Trilogy securities. No one other than me has any beneficial interest
in the Trilogy securities.
2. I have consulted with my own legal counsel who, after having been apprized
by me of all the material facts surrounding this transaction, opined to me,
for the benefit of Trilogy, that this transaction was being effected in
full compliance with the applicable securities laws of my state of
domicile.
3. I agree that I will in no event sell or distribute any of the Trilogy
securities unless in the opinion of Trilogy's counsel (based on an opinion
of my legal counsel) the Trilogy securities may be legally sold without
registration under the Securities Act, and/or registration and/or other
qualification under then-applicable State and/or Federal statutes, or the
Trilogy securities shall have been so registered and/or qualified and an
appropriate prospectus, shall then be in effect.
4. I am fully aware that the Trilogy securities is being offered and issued by
Trilogy to me in reliance on the exemption provided by Section 4(6) or the
Securities Act which exempts the sale of securities by an issuer solely to
accredited investors, based on my certifications and warranties.
5. In connection with the foregoing, I consent to Trilogy's legending my
certificates representing the Trilogy securities to indicate my investment
intent and the restriction on transfer contemplated hereby and to Trilogy's
placing a "stop transfer" order against the Trilogy securities in Trilogy's
securities transfer books until the conditions set forth herein shall have
been met.
6. I acknowledge by my execution hereof that I have had access to Exchange Act
Reports that contain material information concerning Trilogy's predecessor,
Trilogy International, Inc., and to Trilogy's updated financial statements,
business plans and information, books, records and properties, and have
inspected the same to my full and complete satisfaction prior to my
acquisition of the Trilogy securities.
7. I represent and warrant that because of my experience in business and
investments, I am competent to make an informed investment decision with
respect thereto on the basis of my inspection of Trilogy's records and my
questioning of Trilogy's officers.
I further certify that my domicile is located at the address set forth
in the Agreement.
Very truly yours,
[Entity Name, if applicable
-------------------------
[Name and Title, if applicable]
Signature
Page 17
