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EXHIBIT 10.4
EXCHANGE AGREEMENT
THIS AGREEMENT made and entered into as of the 24 day of July, 2000, by
and between XXXX XXXXX PENSION/PROFIT SHARING, (referred to herein as "HOLDER"),
and XXXXXXX ST. LAURENT, or his assigns or affiliates (referred to herein as
"St. Laurent");
W I T N E S S E T H :
WHEREAS, HOLDER is the owner, free and clear of all liens or
encumbrances, of US $300,000 (Three Hundred Thousand U.S. Dollars) face value
global medium term notes issued by Technology Acceptance Corp., a Cayman Islands
special purpose corporation, on April 16, 1998, copies of which are attached
hereto as Exhibit "A" (referred to herein as the "TAC Notes"); and
WHEREAS, St. Laurent is the owner, free and clear of all liens and
encumbrances, of 48,000 (Forty Eight Thousand) restricted shares of the common
stock of Vitech America, Inc., a Florida corporation (referred to herein as the
"Vitech Stock"); and
WHEREAS, HOLDER desires to transfer the TAC Notes to St. Laurent in
exchange for the Vitech Stock, and St. Laurent desires to transfer the Vitech
Stock to HOLDER in exchange for the TAC Notes, subject to the terms and
conditions stated herein;
NOW, THEREFORE, for and in consideration of the mutual promises herein
set forth, the receipt and sufficiency of which are hereby acknowledged, it is
hereby agreed as follows:
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1. Exchange. HOLDER hereby transfers all of its right, title and
interest in the TAC Notes to St. Laurent in exchange for all St. Laurent's
right, title and interest in and to the Vitech Stock, free and clear of all
liens and encumbrances.
2. Assignment. Upon execution hereof, HOLDER agrees to deliver
the TAC Notes to St. Laurent together with a fully executed bond power assigning
the TAC Notes to St. Laurent to allow, upon execution hereof, the transfer of
the TAC Notes to St. Laurent on the corporate records of Technology Acceptance
Corp. Upon execution hereof, St. Laurent agrees to deliver the Vitech Stock to
HOLDER together with a fully executed stock power assigning the Vitech Shares to
HOLDER to allow, upon execution hereof, the transfer of the Vitech Stock to
HOLDER on the corporate records of Vitech America, Inc..
3. No Broker or Finder. The parties hereto acknowledge that they
are not in any way obligated for a payment of fees or expenses to any broker or
finder in connection with the transaction contemplated by this Agreement.
4. Nondisclosure. The parties hereby agree to maintain the
existence of this Agreement as well as all of its terms and conditions (referred
to herein as the "Transaction Information") in confidence and to use at least
the same degree of care to maintain the Transaction Information as secret as it
uses in maintaining as secret its own proprietary and confidential information
but always using at least a reasonable degree of care. The parties will use or
disclose the Transaction Information only to the extent necessary to effectuate
the exchange called for herein, as reasonably required in connection with the
contemplated registration of the Vitech Stock as hereinafter agreed to in
writing by both parties or as required by law.
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5. Further Assurances. St. Laurent and HOLDER agree that each
shall, from time to time upon the reasonable request of the other party,
execute, acknowledge and deliver in proper form any instrument of conveyance or
further assurance necessary or desirable to perfect the consummation of the
within transaction.
6. Construction. The parties hereto agree that all matters
pertaining to the validity, construction and effect of this Agreement shall be
determined in accordance with the laws of the State of Florida. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
7. Notice. All deliveries, notices, statements, requests and
demands given to or made upon any party hereto in accordance with the provisions
of this Agreement shall be made via messenger or nationally recognized courier
service or via telecopy to the following addresses or facsimile numbers or such
other addresses or facsimile numbers at which the parties shall from time to
time notify one another:
If to HOLDER:
Xxxx Xxxxx
X.X. Xxx X
Xxxxxxx, XX 00000
If to ST. LAURENT:
Xxxxxxx St. Laurent
C/O Vitech America Inc.
0000 XX 00xx Xxxxx
Xxxxx, XX 00000
8. Counterparts. This Agreement may be executed in any number of
counterpart copies, each of which shall be deemed an original for all purposes,
but all of which shall constitute one and the same agreement.
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9. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of St. Laurent and HOLDER, and no contemporaneous or
subsequent oral agreement or statements shall alter or modify the terms and
provisions hereof unless agreed thereto by the parties in writing. There are no
promises or representations upon which any party hereto has relied in the
execution of this Agreement which are not contained herein.
10. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
11. Pronouns and Headings. As used herein, all pronouns shall
include the masculine, feminine, neuter, singular and plural thereof wherever
the context and facts require such construction. The headings, titles and
subtitles herein are inserted for convenience of reference only and are to be
ignored in any construction of the provisions hereof.
12. No Reliance. The Parties to this Agreement acknowledge and
agree that neither has relied on any representation of the other, or upon
representation from any other person or entity, referring or relating in any way
to this transaction, other than the representations and warranties specifically
contained in this Agreement. The Parties to this Agreement further acknowledge
and agree that they were represented by their own counsel in connection with
this Agreement, were afforded the opportunity to conduct due diligence, were
afforded the opportunity to seek financial advice and were otherwise allowed to
fully analyze the transactions. No party has relied upon the other or any of the
other's representatives concerning the value, worth or any other aspect of the
securities described herein, except the representations and warranties
specifically contained in this Agreement.
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13. Understanding of Relationship. HOLDER acknowledges and
understands that St. Laurent is related to officers, directors and/or principals
of Vitech, TAC and other related entities and that St. Laurent owns greater than
10% of the shares of common stock of Vitech and owns a majority of the TAC
Notes. HOLDER further acknowledges and agrees that St. Laurent's relationship
with Vitech, TAC and their respective officers, directors and principals and
related companies shall not provide any basis, right or reason to assert any
claim, of whatever nature, against St. Laurent. HOLDER acknowledges and agrees
that it has had full opportunity to investigate St. Laurent's relationship with
Vitech, TAC and their respective officers, directors and principals and related
companies and hereby waives any and all rights and/or claims which it had, has
or may have which in any way relate to the relationship between St. Laurent and
Vitech, TAC and their related companies, officers, directors and/or principals.
14. Mutual Releases. Except for the breach of this Agreement, each
party, on behalf of themselves and their respective administrators, successors,
agents, attorneys, assigns, employees and affiliates hereby releases and forever
discharges, waives and relinquishes the other party, its administrators,
successors, agents, attorneys, officers, directors, employees, assigns and
affiliates from any and all claims, demands, lawsuits, causes of action,
obligations, damages, debts, liabilities, sums of money, including attorneys'
fees and costs, whether in law or in equity, whether known or unknown
(collectively, "Claims"), occurring at any time prior to and including the date
hereof. Each party further covenants not to xxx and agrees not to assert any
claim or other legal proceeding against the other parties released herein, in
any court or other jurisdiction, based on any events, whether known or unknown,
which are the subject of the release contained in this Section 13. For purposes
of this release, Vitech America Inc., Intercontinental Telecommunications
Corporation, Technology Acceptance Corporation and Bahia Tech shall be
considered affiliates of XXX.
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IN WITNESS WHEREOF, the parties hereto have set their respective hands
as of the date first above written.
HOLDER
By: /s/ XXXX XXXXX MD /s/ XXXXXXX ST. LAURENT
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XXXX XXXXX PENSION/PROFIT SHARING XXXXXXX ST. LAURENT
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