EXHIBIT 10.33 LOCK-UP & VOTING AGREEMENT
This Lock-Up & Voting Agreement (the "Agreement") is made and entered into by
and among Equity Growth Systems, inc., a Delaware corporation with a class of
securities registered under Section 12 of the Securities Exchange Act of 1934,
as amended (the "Holding Company" and the "Exchange Act," respectively) and the
officers directors and principal stockholders of the Holding Company made
signatories to this Agreement (the "Holding Company's Principals"), the Holding
Company and the Holding Company's Principals being sometimes hereinafter
collectively referred to as the "Parties" and each being sometimes hereinafter
generically referred to as a "Party").
Preamble:
WHEREAS, the Holding Company and the Holding Company's Principals
desire to induce American Internet Technical Centers, Inc., a Nevada corporation
originally organized as Ascot Industries, Inc. (the "Target Company") and the
individuals and entities which are listed in exhibit 0.1 to the proposed
reorganization agreement between the Holding Company, the Target Company (the
"Reorganization Agreement" and the "Subscribers." respectively), to enter into
and close on the Reorganization Agreement, as a result of which the target
Company will become a 90% owned subsidiary of the Holding Company in a
transaction intended to meet the requirements of Section 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended; and
WHEREAS, the Subscribers desire to engage in such transaction provided
that they receive additional assurances from the Holding Company that certain
covenants in the Reorganization Agreement which require ongoing action by the
directors and stockholders of the Holding Company are confirmed by the Holding
Company's Principals, as set forth below; and
WHEREAS, the Holding Company's Principals are agreeable to such
confirmation through entry into this Agreement:
NOW, THEREFORE, in consideration of the premises, as well as the mutual
covenants hereinafter set forth, the Parties, intending to be legally bound,
hereby agree as follows:
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Witnesseth:
First Voting Agreements
The Holding Company's Principals, jointly and severally, hereby agree
that during the five year period following the Closing (as defined in the
Reorganization Agreement, all capitalized terms not otherwise defined in this
Agreement having the meanings defined in the Reorganization Agreement), they
will, in their roles as members of the Holding Company's Board of Directors and
as stockholders in the Holding Company, at all meetings of the Holding Company's
stockholders or of Board of Directors, vote in such a manner as to secure
approval of the following covenants made by the Holding Company to the
Subscribers in Section 4.6 of the Reorganization Agreement, to wit:
"During the five years following the Closing, the Holding Company shall
use its best efforts to assure that:
(1) At least one designee of the Subscribers is nominated for
membership on the Holding Company's Board of Directors at each
meeting of the Holding Company's stockholders or directors at
which the membership of its Board of Directors is up for
election, and to use their best efforts consistent with
applicable law to secure such nominee's election, so that the
membership of the Holding Company's Board of Directors
includes at least one designee of the Subscribers;
(2) Designees of the Subscribers are elected to at least two
thirds of the seats on the Target Company's Board of Directors
and
(3) On one occasion only, [the Holding Company] provide "piggy
back" registration rights covering up to an aggregate of
35,000 shares of the Holding Company's Stock obtained pursuant
to this Agreement to Messrs. Bruce Drezner and Gary Walk;
Theodore Gill and Susan Gill, his wife, as tenants by the
entireties; and, Lyn Poppiti."
Second: Stock Lock-Up Agreements
During the following periods, the Holding Company's Principals will
refrain from any sales of the Holding Company's securities, except as
specified below:
(a) During the 90 day period following closing on this Agreement,
the Holding Company's Principals will not engage in any sales
of the Holding Company's common stock; and
(b) (1) From the 91st through the 270th day following closing
on this Agreement, the Holding Company's Principals
will not engage in any sales of the Holding Company's
common stock in excess of 10,000 shares per month;
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(2) For purposes of this Section 2-b only, the persons or
entities included within each separately numbered
subsection shall be deemed to be acting in concert as
part of a related group for purposes of determining
such 10,000 shares per month limitation:
1. Charles J. Scimeca, on his own behalf and on
behalf of his affiliates.
2. Anthony Q. Joffe, on his own behalf and on
behalf of his affiliates.
3. Penny Adams Field, on her own behalf and on
behalf of his affiliates.
4. G. Richard Chamberlin Esquire, on his own
behalf and on behalf of his affiliates.
5. Jerry C. Spellman, and on behalf of his
affiliates.
6. The Yankee Companies, Inc., on its own behalf
and on behalf of its affiliates.
7. The Granville-Smith Group: Mark Granville-
Smith, on his own behalf and on behalf of his
affiliates; and, Edward Granville-Smith, and
on behalf of his affiliates.
8. The Calvo Group: Cyndi N. Calvo, on her own
behalf, on behalf of her affiliates and as a
trustee for the Calvo Family Spendthrift
Trust; and, William A. Calvo, III, on his
own behalf, on behalf of his affiliates and
as a trustee for his children, William,
Alexander & Edward.
9. The Tucker Group: Leonard Miles Tucker, on
his own behalf, on behalf of his affiliates
and on behalf of Carrington Capital Corp.
(exclusive of the 50,000 shares as to which
Equitrade Securities Corporation has
purchase rights under two covered
option/leap agreements, each dated December
18, 1998); and, Michelle Tucker, on her own
behalf, on behalf of her affiliates, on
behalf of Blue Lake Capital Corp., and as a
trustee for her children Shayna and Montana.
10. The Radcliffe Group: Joseph D. Radcliffe, on
his own behalf and on behalf of his
affiliates; Dennis V. Radcliffe, on his own
behalf and on behalf of his affiliates;
Michael J. Radcliffe, on his own behalf and
on behalf of his affiliates; and, Vanessa
Radcliffe, on her own behalf and on behalf
of her affiliates.
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(2) Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall be interpreted as an agreement
by the Holding Company's Principals to engage in any concerted
or group activities involving the Holding Company's common
stock, as determined for purposes of Commission Rule 144, or
Sections 13, 14 or 16 of the Exchange Act.
Third: Miscellaneous
3.1 Amendment.
No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is evinced by a written instrument,
subscribed by the Party against which such modification, waiver, amendment,
discharge or change is sought.
3.2 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 unaudited
mail, return receipt requested, postage prepaid, addressed as follows:
To the Holding Company's Principals (other than The Yankee Companies,
Inc. ["Yankees"]):
At such addresses as they provide the Holding Company's transfer agent
for such purpose, with a copy to G. Richard Chamberlin, Esquire (at the
address set forth below), who is hereby appointed by each of the
Holding Company's Principals, as his, her or its authorized agent for
purposes of initialing each page of this Agreement, and as a
supplemental recipient of notices.
To the Holding Company:
Equity Growth Systems, inc.
8001 DeSoto Woods Drive; Sarasota, Florida 34243;
Telephone (941) 358-8182; Fax (941) 358-8423
Attention: Charles J. Scimeca, President; with a copy to
G. Richard Chamberlin, Esquire; General Counsel
Equity Growth Systems, inc.
14950 South Highway 441; Summerfield, Florida
34491 Telephone (352) 694-6714, Fax (352) 694-9178; and,
e-mail, GrichardCh@aol.com.
To Yankees:
The Yankee Companies, Inc.
902 Clint Moore Road, Suite 136; Boca Raton, Florida 33487
Telephone (561) 998-2025, Fax (561) 998-3425; and, e-mail
carrington@flinet.com; Attention: Leonard Miles
Tucker, President; with a copy to
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The Yankee Companies, Inc.
1941 Southeast 51st Terrace; Ocala, Florida 34471
Telephone (352) 694-9179, Fax (352) 694-9178; and, e-mail wacalvo3@atlantic.net
Attention: William A. Calvo, III, Vice President
or such other address or to such other person as any Party shall
designate to the other for such purpose in the manner hereinafter set
forth.
(b) (1) The Parties acknowledge that Yankees serves as a strategic
consultant to the Holding Company 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.
3.3 Merger.
This instrument, together with the instruments referred to herein,
contains all of the understandings and agreements of the Parties with respect to
the subject matter discussed herein. All prior agreements whether written or
oral are merged herein and shall be of no force or effect.
3.4 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.
3.5 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.
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3.6 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) but 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.
3.7 Indemnification.
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. 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.
3.8 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 Yankees as agent for the Holding
Company's Principals, one by the Holding Company and
three by the Subscribers acting by majority vote
(based on their relative stock ownership in the
Holding Company).
(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
Yankees as agent for the Holding Company's Principals, one by
the Holding Company and three by the Subscribers acting by
majority vote (based on their relative stock ownership in the
Holding Company).
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(3) (A) Expenses of mediation shall be borne by the
Holding Company, if successful. Expenses of
mediation, if unsuccessful and of arbitration shall
be borne by the Party or Parties against whom the
arbitration decision is rendered.
(B) 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.
3.9 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.
3.10 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.
3.11 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.
3.12 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.
3.13 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship.
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3.14 Counterparts.
(a) This Agreement may be executed in any number of counterparts. All
executed counterparts shall constitute one Agreement notwithstanding
that all signatories are not signatories to the original or the same
counterpart.
(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 Commission.
3.15 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 caused this Agreement to be
executed effective as of the date last set forth below.
Signed, sealed and delivered
In Our Presence:
Equity Growth Systems, inc.
- - ---------------------------------
_________________________________ By:_____________________________
Charles J. Scimeca
Personally and as President
(Corporate Seal)
Attest:_______________________________
G. Richard Chamberlin, Secretary
Dated: June __, 1999
The Holding Company's Principals:
- - ---------------------------------
- - --------------------------------- --------------------------
Charles J. Scimeca
Officer, Director and Stockholder
Dated: June __, 1999
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- - ---------------------------------
- - --------------------------------- --------------------------
Anthony Q. Joffe
Director and Stockholder
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Penny Adams Field
Director and Stockholder
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
G. Richard Chamberlin Esquire
Officer, Director and Stockholder
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Mark Granville-Smith, Director
and Stockholder, on his own behalf
and as attorney-in-fact for his father,
Edward Granville-Smith
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Edward Granville-Smith, Stockholder
on his own behalf and on behalf of
his affiliates
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Jerry C. Spellman, Stockholder
on his own behalf and on behalf of
his affiliates
Dated: June __, 1999
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- - ---------------------------------
- - --------------------------------- --------------------------
Cyndi N. Calvo, on her own behalf
and as a trustee for the Calvo
Family Spendthrift Trust, Stockholders
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
William A. Calvo, III, on his own behalf
and as a trustee for his children, William,
Alexander & Edward, Stockholders
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Leonard Miles Tucker, on his
own behalf and on behalf of
Carrington Capital Corp., Stockholders
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Michelle Tucker, on her own behalf,
on behalf of Blue Lake Capital Corp.,
and as a trustee for her children
Shayna and Montana, Stockholders
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Joseph D. Radcliffe, on his own behalf
and on behalf of his affiliates,
Stockholder
Dated: June __, 1999
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- - ---------------------------------
- - --------------------------------- --------------------------
Dennis V. Radcliffe, on his own behalf
and on behalf of his affiliates,
Stockholder
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Michael J. Radcliffe, on his own behalf
and on behalf of his affiliates,
Stockholder
Dated: June __, 1999
- - ---------------------------------
- - --------------------------------- --------------------------
Vanessa Radcliffe, on her own behalf
and on behalf of her affiliates,
Stockholder
Dated: June __, 1999
The Yankee Companies, Inc.
- - ---------------------------------
_________________________________ By:
-------------------------------
Leonard Miles Tucker, President
(Corporate Seal)
Attest:______________________________
William A. Calvo, III, Secretary
Dated: June __, 1999
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