Exhibit 7
AGREEMENT
THIS AGREEMENT dated as of the ___ day of July, 2000 is by and among
RONALD WILHEIM ("Wilheim"), an individual whose principal address is, STEVEN
ROSEDALE ("Rosedale"), an individual whose address is 4700 Ashwood Drive
Cincinnati, OH 45237, AMERICAN RISK MANAGEMENT CORP. ("American Risk"), a
Florida corporation whose principal place of business is located at 4700 Ashwood
Drive Cincinnati, OH 45237, CONNIE STEINMETZ ("Steinmetz"), an individual whose
address is 133 Timberline Drive, Franklin, Tennessee 37069, YUCATAN HOLDING
COMPANY ("Yucatan"), a Florida corporation whose principal place of business is
3003 Keller Bend Road, Knoxville, Tennessee 37922, ARIZONA DEVELOPMENT
CORPORATION ("Arizona"), a Florida corporation whose principal place of business
is 3003 Keller Bend Road, Knoxville, Tennessee 37922 and ATLAS PEARLMAN, P.A.
(the "Escrow Agent"), a Florida professional association whose principal place
of business is located at 350 East Las Olas Boulevard, Suite 1700, Fort
Lauderdale, Florida 33301. Steinmetz, Yucatan, Strategic and Arizona are
hereinafter collectively referred to as the "Consultants and Lenders."
WHEREAS, Rosedale is an officer, director and principal shareholder of
American Risk.
WHEREAS, Wilheim is an officer, director and principal shareholder of
American Risk.
WHEREAS, Wilheim and Rosedale and American Risk are entering into an
agreement with various investors the result of which will be a change of control
of American Risk (the "Transaction").
WHEREAS, following the closing of the Transaction, Rosedale will be the
beneficial and record owner of 120,000 shares of American Risk's common stock,
which such shares were acquired by Rosedale from American Risk in September 1998
(the "Rosedale Shares").
WHEREAS, following the closing of the Transaction, Wilheim will be the
beneficial and record owner of 80,000 shares of American Risk's common stock,
which such shares were acquired by Wilheim from American Risk in September 1998
(the Wilheim Shares").
WHEREAS, upon the closing of the Transaction, Rosedale will resign as an
officer and director of American Risk, and his ownership interest in American
Risk will be less than five percent (5%) of the issued and outstanding common
stock, accordingly he will no longer be an "affiliate" of American Risk and will
be entitled to begin selling his shares pursuant to Rule 144 of the Securities
Act of 1933, as amended (the "Securities Act").
WHEREAS, American Risk and Steinmetz are parties to that certain Financial
Consulting Agreement dated November 2, 1998 (the "Steinmetz Agreement"), a copy
of which is attached hereto as Exhibit B and incorporated herein by such
reference.
WHEREAS, American Risk and Strategic are parties to that certain Financial
Consulting Agreement dated November 9, 1998 (the "Strategic Agreement"), a copy
of which is attached hereto as Exhibit C and incorporated herein by such
reference.
WHEREAS, American Risk owes Yucatan an aggregate of $175,000 (the "Yucatan
Debt") and it owes Arizona an aggregate of $250,000 (the "Arizona Debt").
WHEREAS, as a condition precedent to the Transaction, American Risk has
requested that Steinmetz terminate the Steinmetz Agreement.
WHEREAS, in order to induce Steinmetz to agree to such termination,
Rosedale and Wilheim have agreed to enter into this Agreement.
WHEREAS, Rosedale and Wilheim's agreements to enter into this Agreement
and to fulfil the terms and conditions hereof is the sole basis for Steinmetz's
agreement to terminate the Steinmetz Agreement.
WHEREAS, as a condition precedent to the Transaction, American Risk has
requested that Strategic terminate the Strategic Agreement.
WHEREAS, in order to induce Strategic to agree to such termination,
Rosedale and Wilheim have agreed to enter into this Agreement.
WHEREAS, Rosedale and Wilheim's agreements to enter into this Agreement
and to fulfil the terms and conditions hereof is the sole basis for Strategic's
agreement to terminate the Strategic Agreement.
WHEREAS, as a condition precedent to the Transaction, American Risk has
requested that Yucatan forgive the Yucatan Debt.
WHEREAS, in order to induce Yacatan to agree to such forgiveness, Rosedale
and Wilheim agreed to enter into this Agreement.
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WHEREAS, Rosedale and Wilheim's agreements to enter into this Agreement
and to fulfil the terms and conditions hereof is the sole basis for Yucatan's
agreement to forgive the Yucatan Debt.
WHEREAS, as a condition precedent to the Transaction, American Risk has
requested that Arizona forgive the Arizona Debt.
WHEREAS, in order to induce Arizona to agree to such forgiveness, Rosedale
and Wilheim have agreed to enter into this Agreement.
WHEREAS, Rosedale and Wilheim's agreements to enter into this Agreement
and to fulfil the terms and conditions hereof is the sole basis for Arizona's
agreement to forgive the Arizona Debt.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and intending to be legally bound, the parties hereby agree as follows:
1. RECITALS. The foregoing recitals are true, correct and herein
incorporated by reference.
2. ESTABLISHMENT OF ESCROW ACCOUNT. Upon the execution of this
Agreement, the parties hereto shall establish an interest bearing escrow account
at the office of the Escrow Agent (the "Escrow Account").
3. DEPOSITS INTO THE ESCROW ACCOUNT.
(a) Upon the establishment of the Escrow Account, Rosedale shall
deliver to the Escrow Agent for deposit into the Escrow Account the original
stock certificate representing the Rosedale Shares together with a medallion
guaranteed stock power and Wilheim shall deliver to the Escrow Agent for deposit
into the Escrow Account the original stock certificate representing the Wilheim
Shares together with a medallion guaranteed stock power. Hereinafter, the
Rosedale Shares and the Wilheim Shares are collectively referred to as the
"Shares."
(b) During the period commencing on the date of this Agreement and
ending upon the deposit of the Shares into the Wien Account (as hereinafter
defined), none of the amounts deposited in the Escrow Account shall become the
property of the Consultants and Lenders or any other person or entity, except as
may be expressly provided herein, and the Escrow Agent shall not make any
disbursements from the Escrow Account except as expressly provided
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herein, or pursuant to any lawful order issued to the Escrow Agent by a tribunal
of competent jurisdiction.
4. SALE OF THE SHARES.
(a) Prior to the expiration of ninety (90) days from the closing date of
the Transaction, Rosedale and Wilhein shall establish a brokerage
account (the "Wien Account") with Wien Securities Corp. ("Wien"),
an NASD member firm located at 525 Washington Boulevard, Jersey
City, NJ 07310. Concurrent with the establishment of the Wien
Account, Rosedale and Wilheim shall deposit with Wein irrevocable
instructions that fifty percent (50%) of all proceeds received by
them from the sale of the Shares shall be immediately wire
transferred to the Consultants and Lenders upon their credit to the
Wien Account on the following pro-rata basis:
% OF PROCEEDS
Steinmetz ____%
Strategic ____%
Yucatan ____%
Arizona ____%
(b) On the ninety-first (91) day following the closing date of the
Transaction, the Escrow Agent shall deliver to Wein the certificates
representing the Shares together with a medallion guaranteed stock power for
deposit into the Wein Account.
(c) No later than the ninety-first (91) day following the closing date of
the Transaction, each of Rosedale and Wilheim shall (i) file a Form
144 with the Securities and Exchange Commission covering the sale
of the Shares, (ii) execute and deliver to Wien such additional
documents as Wien deems necessary to effectuate the sale of the
Shares, and (iii) cause American Risk's
counsel to deliver an opinion in form and substance reasonably
satisfactory to Wein covering the sale of the Shares pursuant to
Rule 144 of the Securities Act. Rosedale and Wilheim shall
immediately deliver copies of such documents to the Consultants and
Lenders. In the event the Shares are not sold during the period
covered by the Form 144, each of Rosedale and Wilheim shall
continue to deliver documents, to file such Forms 144 and to cause
American Risk's counsel to deliver such opinions as are necessary
in the Consultants and Lenders' sole discretion to permit the
continued liquidation of the Shares until such time as all such
shares shall have been sold. All sales of the Shares must be made
in ordinary brokers transactions as that term is defined in Section
4 of the Securities Act.
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(d) Within three (3) business days from deposit of the Shares into the
Wein Account, Rosedale and Wilheim will deliver to each of the Consultants and
Lenders a copy of an account statement evidencing such deposit.
(e) Within one (1) business day from the date of the sale(s) of the
Shares, Rosedale and Wilheim shall cause Wien to deliver to by facsimile a copy
of the original trade confirmation evidencing such sale(s), which such trade
confirmation shall report the number of shares sold, the sales price, the sales
commission and the date of the sale.
(f) Until such time as all 200,000 Shares shall have been sold pursuant
to the terms of this Agreement, such shares shall remain on deposit in the Wien
Account and neither Rosedale nor Wilheim will transfer such shares to any third
party or to any other account over which they shall have control or otherwise
obtain physical delivery of the certificate(s) representing the Shares.
Likewise, neither Rosedale nor Wilheim shall neither engage in, or participate
in any manner with any third parties in engaging in, any short sales of the
common stock of American Risk during the period of time that the Shares are
being liquidated.
5. TERMINATION AND FORGIVENESS.
(a) Upon the execution of this Agreement, American Risk and Steinmetz
agree that the Steinmetz Agreement shall be terminated. Steinmetz shall execute
and deliver such additional documents as may be reasonably requested by American
Risk evidencing such termination and shall deliver to American Risk for
cancellation an aggregate of 145,000 shares of American Risk's common stock
previously tendered to it pursuant to the terms of the Steinmetz Agreement.
(b) Upon the execution of this Agreement, American Risk and Strategic
agree that the Strategic Agreement shall be terminated. Strategic shall execute
and deliver such additional documents as may be reasonably requested by American
Risk evidencing such termination and shall deliver to American Risk for
cancellation an aggregate of 250,000 shares of American Risk's common stock
previously tendered to it pursuant to the terms of the Strategic Agreement.
(c) Upon execution of this Agreement, Yucatan shall forgive the Yucatan
Debt and it shall execute and deliver such additional documents as may be
reasonably requested by American Risk evidencing such forgiveness.
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(d) Upon execution of this Agreement, Arizona shall forgive the Arizona
Debt and it shall execute and deliver such additional documents as may be
reasonably requested by American Risk evidencing such forgiveness.
6. REPRESENTATIONS AND WARRANTIES.
(a) Rosedale hereby individually, and not jointly and severally,
represents and warrants to each of the Consultants and Lenders:
(i) he is the beneficial owner of the Rosedale Shares, and
that such shares are not subject to any options, warrants, pre-emptive rights,
puts, calls, pledges, assignments or hypothecations.
(ii) that he has the full right, power and capacity to execute
and deliver this Agreement and perform his obligations hereunder; that the
execution and delivery of this Agreement and the performance by him of his
obligations pursuant to this Agreement do not constitute a breach of or a
default under any agreement or instrument to which Rosedale is a party or by
which he or any of his assets are bound; and that this Agreement, upon execution
and delivery of the same by Rosedale, will represent the valid and binding
obligation of Rosedale enforceable in accordance with its terms. The
representations and warranties set forth herein shall survive the termination of
this Agreement.
(iii) that he acknowledges that any threatened or actual
breach by Rosedale of the terms, representations, warranties and covenants
contained herein would result in continuing and irreparable damage to the
Consultants and Lenders and that monetary damages would not adequately
compensate them for any such breach. In the event of any actual or threatened
breach, the Consultants and Lenders shall be entitled to any and all legal
and/or equitable remedies, including preliminary and permanent injunctive
relief, and may, in addition to any or all forms of relief, recover from
Rosedale all costs and attorney's fees should they prevail in a court of
competent jurisdiction in enforcing its rights under this Agreement.
(b) Wilheim hereby individually, and not jointly and severally,
represents and warrants to each of the Consultants and Lenders:
(i) he is the beneficial owner of the Wilheim Shares, and that
such shares are not subject to any options, warrants, pre-emptive rights, puts,
calls, pledges, assignments or hypothecations.
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(ii) that he has the full right, power and capacity to execute
and deliver this Agreement and perform his obligations hereunder; that the
execution and delivery of this Agreement and the performance by him of his
obligations pursuant to this Agreement do not constitute a breach of or a
default under any agreement or instrument to which Wilheim is a party or by
which he or any of his assets are bound; and that this Agreement, upon execution
and delivery of the same by Wilheim, will represent the valid and binding
obligation of Wilheim enforceable in accordance with its terms. The
representations and warranties set forth herein shall survive the termination of
this Agreement.
(iii) That he acknowledges that any threatened or actual
breach by Wilheim of the terms, representations, warranties and convenants
contained herein would result in continuing and irreparable damage to the
Consultants and Lenders and that monetary damages would not adequately
compensate them for any such breach. In the event of any actual or threatened
breach, the Consultants and Lenders shall be entitled to any and all legal
and/or equitable remedies, including preliminary and permanent injunctive
relief, and may, in addition to any or all forms of relief, recover from Wilheim
all costs and attorney's fees should they prevail in a court of competent
jurisdiction in enforcing its rights under this Agreement.
7. RIGHTS, DUTIES AND RESPONSIBILITIES OF THE ESCROW AGENT. It is
understood and agreed that the Escrow Agent is an agent of the Consultants and
Lenders and that the duties of the Escrow Agent are purely ministerial in
nature. It is further agreed that:
(a) Upon the disbursement of the Shares to Wein pursuant to the
provisions of subsection (b) of Section 4 hereof, the Escrow Agent will have no
further responsibilities with respect to the Shares or under this Agreement.
(b) In consideration of its acceptance of the appointment as the Escrow
Agent, each of the Consultants and Lenders, Rosedale, Wilheim and American Risk
jointly and severally agree to indemnify and hold the Escrow Agent harmless as
to any liability incurred by it to any person, firm or corporation by reason of
the Escrow Agent's having accepted the same or in carrying out any of the terms
hereof in accordance with such terms. Each party hereto agrees that the Escrow
Agent shall not be liable to either of them for any actions taken by the Escrow
Agent pursuant to the terms hereof except for actual damages incurred for acts
of gross negligence, fraud or willful misconduct by the Escrow Agent.
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(c) Notwithstanding anything to the contrary contained in this
Agreement, the Escrow Agent shall in no case or event be liable for the failure
of any of the conditions of this Agreement or for any other reason except for
its own gross negligence, fraud or willful misconduct, and the Escrow Agent
shall not be liable or responsible for its failure to ascertain the terms or
conditions, or to comply with any of the provisions of any agreement, contract
or other document filed herewith or referred to herein other than this
Agreement.
(d) If any controversy should arise among the parties hereto or with,
between or among any third person(s) with respect to the subject matter of this
Agreement, or its terms or conditions, the Escrow Agent shall not be required to
determine the same or take any action in the matter (unless any such controversy
alleges the gross negligence, fraud or willful misconduct of the Escrow Agent),
but rather, the Escrow Agent may await the settlement of any such controversy by
a court of competent jurisdiction or otherwise among the parties.
(e) The Escrow Agent's duties hereunder are only such as are herein
specifically provided, and as provided by applicable laws, are purely
ministerial in nature and the Escrow Agent is not charged with knowledge of any
duties or responsibilities in connection with any other document or agreement.
(f) The Escrow Agent shall not be required to institute legal
proceedings of any kind. The Escrow Agent shall have no responsibility for the
genuineness or validity of any document or other item deposited with it, and the
Escrow Agent shall be fully protected in acting in accordance with any notice or
written instruction given to it hereunder and reasonably believed by it to have
been signed or given by the proper party. If in doubt as to its duties and
responsibilities hereunder, the Escrow Agent may consult with counsel of its
choice and shall be protected in any action taken or omitted in reliance upon
the advice or opinion of such counsel; provided, however, the Escrow Agent shall
have advised the Consultants and lenders, Rosedale, Wilheim and American Risk as
to such advice or opinion.
(g) The Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any rights hereunder either directly or by or through its
agents or attorneys. Nothing in this Agreement shall be deemed to impose upon
the Escrow Agent and duty to qualify to do business or to act as fiduciary or
otherwise in any jurisdiction other than the State of Florida.
(h) The Escrow Agent may resign on 10 days prior written notice to the
Consultants and Lenders, Rosedale, Wilheim and American Risk; provided,
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however, that such resignation shall not be effective unless and until a new
escrow agent shall be appointed hereunder. In the case of the Escrow Agents
resignation, Consultants and Lenders, Rosedale, Wilheim and American Risk shall
appoint a new escrow agent and the retiring Escrow Agent's only duty, until a
successor escrow agent shall have been appointed and shall have accepted the
appointment, shall be to hold and disburse the Shares in accordance with the
provisions contained in this Agreement. Upon direction from Consultants and
Lenders, Rosedale, Wilheim and American Risk, the Escrow Agent shall transfer
the entire Escrow Account to the successor escrow agent appointed by it and
shall be discharged from all duties and responsibilities hereunder as to any
events that shall occur thereafter.
(i) In the event that any litigation is brought against the Escrow
Agent by any person or corporation with respect to this Agreement, Consultants
and Lenders shall reimburse the Escrow Agent for the reasonable fees and
expenses of counsel.
(8) NOTICES. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given on the
day when delivered in person or transmitted by confirmed facsimile transmission
or on the third calendar day after being mailed by United States registered or
certified mail, return receipt requested, postage prepaid, to the addresses
herein above first mentioned or to such other address as any party hereto shall
designate to the other for such purpose in the manner herein set forth.
(9) ENTIRE AGREEMENT. This Agreement 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.
(10) SEVERABILITY. The invalidity, illegality or unenforceability of
any provision or provisions of this Agreement will not affect any other
provision of this Agreement, which will remain in full force and effect, nor
will the invalidity, illegality or unenforceability of a portion of any
provision of this Agreement affect the balance of such provision. In the event
that any one or more of the provisions contained in this Agreement or any
portion thereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
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(11) CONSTRUCTION AND ENFORCEMENT. This Agreement shall be construed in
accordance with the laws of the State of Florida, without and application of the
principles of conflicts of laws. If it becomes necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
and such legal action results in a final judgement in favor of such party
("Prevailing Party"), then the party or parties against whom said final
judgement is obtained shall reimburse the Prevailing Party for all direct,
indirect or incidental expenses incurred, including, but not limited to, all
attorneys' fees, court costs and other expenses incurred throughout all
negotiations, trials or appeals undertaken in order to enforce the Prevailing
Party's rights hereunder. Any suit, action or proceeding with respect to this
Agreement shall be brought in the state or federal courts located in Broward
County in the State of Florida. The parties hereto hereby accept the exclusive
jurisdiction and venue of those courts for the purpose of any such suit, action
or proceeding. The parties hereto hereby irrevocably waive, to the fullest
extent permitted by law, any objection that any of them may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any judgement entered by any court in respect
thereof brought in Broward County, Florida, and hereby further irrevocably waive
any claim that any suit, action or proceeding brought in Broward County,
Florida, has been brought in an inconvenient forum.
(12) BINDING NATURE, NO THIRD PARTY BENEFICIARY. The terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties, and their respective successors and assigns, and is made solely and
specifically for their benefit. No other person shall have any rights, interest,
or claims hereunder or be entitled to any benefits under or on account of this
Agreement as a third-party beneficiary or otherwise.
(13) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, including facsimile signatures which shall be deemed as original
signatures. All executed counterparts shall constitute on Agreement,
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ Steven Rosedale
-----------------------
Steven Rosedale
/s/ Ronald Wilheim
-----------------------
Ronald Wilheim
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/s/ Connie Steinmetz
-------------------------------------
Connie Steinmetz
Strategic Capital Management, a
Florida corporation
By: /s/ ILLEGIBLE
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________________, President
Yucatan Holding Comany, a
Florida corporation
By:/s/ Jayme Dorrough
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Jayme Dorrough, President
Arizona Development Corporation,
A Tennessee corporation
By:
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_______________, President
American Risk Management, Inc.,
A Florida corporation
By: /s/ Ronald Wilheim
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Ronald Wilheim, President
Atlas Pearlman, P.A., a Florida
Professional association
By:
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