STOCK EXCHANGE AGREEMENT
This STOCK EXCHANGE AGREEMENT is entered into on this 11th day of February,
2000, between the persons listed on the signature page under the caption
"Stockholders" (collectively, the "STOCKHOLDERS" and individually, a
"STOCKHOLDER"), who are holders of the Company's Series C Preferred Stock, par
value $0.10 per share (the "SERIES C PREFERRED STOCK"), and Applied Voice
Recognition, Inc., a Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, the Company and the Stockholders are parties to a letter agreement
dated January 7, 2000 (the "LETTER AGREEMENT") pursuant to which the Company
agreed to designate a Series G Preferred Stock, par value $0.10 per share, with
a specified conversion price (the "SERIES G PREFERRED STOCK"), to exchange for
all of the outstanding Series C Preferred Stock held by the Stockholders; and
WHEREAS, the parties desire to consummate their understandings agreed upon
in the Letter Agreement with respect to the exchange of shares of the Series C
Preferred Stock for shares of the Series G Preferred Stock on the terms set
forth therein.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
and dependent promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, each of the
following terms has the meanings set forth below:
(a) "Agreement" means and includes this Stock Exchange Agreement and the
schedules and exhibits hereto.
(b) "Claims" means any claims, demands, actions, costs, damages, losses,
diminution in value, expenses, obligations, liabilities, recoveries,
judgments, settlements, suits, proceedings, causes of action or
deficiencies, including interest, penalties (including civil and criminal
penalties) and reasonable attorneys' fees.
(c) "Encumbrance" means any security interest, mortgage, deed of trust,
pledge, lien, claim or other encumbrance of any third party of any nature
whatsoever.
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(d) "knowledge" means, with respect to any representation or warranty in
Article III made to the knowledge of the Stockholders or words of similar
import, receipt of notice by, or actual knowledge of any Stockholder, but
no representation or warranty made by the Stockholders in Article III may
be qualified or limited by reference to "KNOWLEDGE" unless due inquiry has
actually been made of the Stockholders.
(e) "Series C Shares" means at any date all of the shares of the Series C
Preferred Stock issued and outstanding on such date.
(f) "Person" means an individual, corporation, limited liability company,
partnership, limited partnership, joint venture, joint stock company, firm,
company, syndicate, trust, estate, association, governmental authority,
business, organization or any other incorporated or unincorporated entity.
1.2 OTHER DEFINED TERMS. Words and terms used in this Agreement that are
defined elsewhere in this Agreement are used herein as therein defined.
1.3 OTHER DEFINITIONAL PROVISIONS.
(a) When used in this Agreement, the words "herein," "hereof" and
"hereunder" and words of similar import refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article,"
"Section," "Schedule" and "Exhibit" refer to Articles and Sections of, and
Schedules and Exhibits to, this Agreement unless otherwise specified.
(b) Whenever the context so requires, the singular number includes the
plural and vice versa, and a reference to one gender includes the other
gender and the neuter.
(c) The words "shall" and "will" are used interchangeably and have the same
meaning.
1.4 CAPTIONS. Captions to Articles, Sections and subsections of, and
Schedules and Exhibits to, this Agreement are included for convenience of
reference only, and such captions shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
ARTICLE II
EXCHANGE OF STOCK
2.1 EXCHANGE OF PREFERRED STOCK. Subject to the terms and conditions of
this Agreement, and based upon the representations, warranties, covenants and
agreements set forth herein, at the Closing, Stockholders agree to convey to the
Company, free and clear of all Encumbrances, and the Company agrees to exchange
with and accept from Stockholders, all of
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the Series C Shares as hereinafter provided and for the consideration set forth
in Section 2.2 hereof.
2.2 EXCHANGE. At Closing, the Stockholders shall deliver to the Company
certificates representing all the Series C Shares, each such certificate to be
duly endorsed in blank and in good form for transfer, or accompanied by stock
powers duly executed in blank, sufficient and in good form to properly transfer
such shares to the Company. In exchange therefor, the Company shall issue to
the Stockholders an aggregate of 15,641.14 shares of Series G Preferred Stock
(the "STOCK CONSIDERATION"). At Closing, the Company shall record in its books
the exchange and issuance of such shares representing the Stock Consideration to
the Stockholders registered in the name of the Stockholders for the amount of
shares set forth opposite each of their names on Schedule A attached hereto and
incorporated herein for all purposes.
2.3 CLOSING. Consummation of the transactions contemplated by this
Agreement (the "CLOSING") shall take place on the date hereof, via the
telephone, facsimile, e-mail and regular mail. The date upon which the Closing
occurs is referred to herein as the "CLOSING DATE."
ARTICLE III
REPRESENTATIONS AND WARRANTIESOF STOCKHOLDERS
Each Stockholder severally as to himself, herself or itself only,
represents and warrants to, and agrees with, the Company that, the following
representations, warranties and agreements are true and correct as the date
hereof.
3.1 AUTHORITY AND CONSENT. Each Stockholder has the requisite power
and authority to enter into, and perform their obligations under this Agreement,
and no approval or consent of any Person is necessary in connection therewith.
This Agreement, together with all other agreements, documents and instruments
executed in connection herewith by Each Stockholder constitute valid and
legally-binding obligations of that Stockholder, and are enforceable against
such Stockholder in accordance with their terms, subject to bankruptcy,
receivership, insolvency, reorganization, moratorium or other similar laws
affecting or relating to creditors' rights generally and subject to general
principles of equity.
3.2 TITLE TO SERIES C SHARES. Each Stockholder holds good and valid
title to all of the Series C Shares set forth opposite its name on Schedule A,
free and clear of all Encumbrances. Each Stockholder possesses full authority
and legal right to sell, transfer and assign to the Company such Series C
Shares, free and clear of all Encumbrances. Upon transfer to the Company by
each Stockholder of such Series C Shares, the Company will own such Series C
Shares free and clear of all Encumbrances. There are no Claims pending or, to
any Stockholder's knowledge, threatened against such Stockholder that concern or
affect title to the Series C Shares.
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3.3 UNREGISTERED SHARES. Each Stockholder acknowledges, represents and
agrees that:
(a) The Stock Consideration has not been registered under the Securities
Act of 1933, as amended (the "1933 ACT"), or registered or qualified under
any applicable state securities laws;
(b) Each Stockholder has had the opportunity to ask questions of, and
receive answers from, the Company's officers and directors concerning such
Stockholder's acquisition of the Stock Consideration, and to obtain such
other information concerning the Company and the Stock Consideration, to
the extent they possessed the same or could acquire it without unreasonable
effort or expense, as Each Stockholder deemed necessary; and
(c) The Company has made no representations or warranties to the
Stockholders as to the Stockholders' federal, state, local or foreign tax
consequences from the consummation of the transactions contemplated by this
Agreement, and the Company has urged and advised each Stockholder to
consult his, her or its personal tax advisor with respect to such matters.
3.4 No Adverse Consequences. Neither the execution and delivery of this
Agreement by Stockholders nor the consummation of the transactions contemplated
by this Agreement will (a) to the knowledge of each Stockholder, violate any
statute, judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority applicable to each Stockholder, or (b) either alone or
with the giving of notice or the passage of time or both, conflict with,
constitute grounds for termination of, accelerate the performance required by,
accelerate the maturity of any indebtedness or obligation under, result in the
breach of the terms, conditions or provisions of or constitute a default under
any mortgage, deed of trust, indenture, note, bond, lease, license, permit or
other agreement, instrument or obligation to which each Stockholder is a party
or by which it is bound.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Stockholders that as of the
date hereof and the Closing Date:
4.1 ORGANIZATION. The Company is a corporation duly organized, validly
existing and in good standing under the laws of Delaware. The Company has all
necessary corporate power and authority to own, operate, and lease its
properties and to carry on its business as now owned or leased and operated by
it. The Company is qualified to do business under the laws of any jurisdiction
in which such qualification is required.
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4.2 AUTHORITY. The Company has the requisite power and authority to
enter into and perform its obligations under this Agreement, and except as
otherwise provided herein, no approval or consent of any Person is necessary in
connection therewith. This Agreement, together with all other agreements,
documents, certificates and instruments executed by the Company in connection
herewith, constitute valid and legally-binding obligations of the Company, and
are enforceable against the Company in accordance with their terms, subject to
bankruptcy, receivership, insolvency, reorganization, moratorium or other
similar laws affecting or relating to creditors' rights generally and subject to
general principles of equity.
4.3 VALID ISSUANCE OF STOCK CONSIDERATION. The Stock Consideration that
is being received by each Stockholder in exchange for the Series C Shares
hereunder, when issued, sold and delivered in accordance with the terms of this
Agreement for the consideration expressed herein, will be duly and validly
issued, fully paid, and nonassessable, will be free of all Claims and
restrictions on transfer other than restrictions on transfer under this
Agreement and under applicable state and federal securities laws and will not
subject the holders thereof to personal liability by reason of being such
holder. The common stock of the Company, par value $.001per share (the "COMMON
STOCK") issuable upon conversion of the Stock Consideration purchased under this
Agreement (based on an initial conversion price of $.30 per share), has been
duly and validly reserved for issuance and, upon issuance in accordance with the
terms of the Certificate of Designation for the Series G Preferred Stock (the
"SERIES G DESIGNATION") will be duly and validly issued, fully paid, and
nonassessable and will be free of all Claims and restrictions on transfer other
than restrictions on transfer under this Agreement and under applicable state
and federal securities laws, and will not subject the holders thereof to
personal liability by reason of being such holders.
4.4 COMPLIANCE WITH SECURITIES EXCHANGE ACT OF 1934. The Company is in
full compliance with all reporting requirements of the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), and the Company's Common Stock is
quoted on the Nasdaq Over-the-Counter Bulletin Board (trading symbol "EDOC").
4.5 GOVERNMENTAL CONSENTS. No consent, approval, qualification, order or
authorization of, or filing with, any local, state, or federal governmental
authority is required on the part of the Company in connection with the
Company's valid execution, delivery, or performance of this Agreement, the
offer, sale or issuance of the Stock Consideration by the Company or the
issuance of Common Stock upon conversion of the Stock Consideration, except (i)
the filing of the Series G Designation with the Secretary of State of the State
of Delaware, and (ii) such filings as have been made prior to the Closing,
except that any notices of sale required to be filed with the Securities and
Exchange Commission under Regulation D of the Securities Act of 1933, as amended
(the "SECURITIES ACT"), or such post-closing filings as may be required under
applicable state securities laws, which will be timely filed within the
applicable periods therefor.
4.6 CAPITALIZATION AND VOTING RIGHTS. The authorized capital of the
Company consists, or will consist prior to the Closing, of:
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(i) Preferred Stock. 2,000,000 shares of Preferred Stock, par value $0.10
(the "PREFERRED STOCK"), 312,500 of which shares have been designated Series A
Preferred Stock, of which 186,500 are issued and outstanding, 3,000 of which
have been designated Series B Preferred Stock of which 1,680 are issued and
outstanding, 231,788 of which have been designated Series C Preferred Stock of
which 153,538 are issued and outstanding, 5,000 of which have been designated
Series D Preferred Stock of which none are issued and outstanding, 2,000 of
which have been designated Series 1 Preferred Stock of which none are issued and
outstanding, and 250,000 of which have been designated Series 2 Preferred Stock
of which 500 are issued and outstanding, 5,000 of which have been designated
Series E Preferred Stock of which 2,000 are issued and outstanding, and 100,000
of which have been designated Series G Preferred Stock of which 51,137.755 will
be issued pursuant to this Agreement and the other stock exchange agreements
that are substantially similar in form to this Agreement. The rights,
privileges and preferences of the Series G Preferred Stock will be as stated in
the Series G Designation.
(ii) Common Stock. 50,000,000 shares of Common Stock of which 16,746,875
shares are issued and outstanding.
(iii) The outstanding shares of Series X, X, X, X, X, X, 0 and 2 Preferred
Stock and Common Stock have been issued in accordance with the registration or
qualification provisions of the Securities Act and any relevant state securities
laws or pursuant to valid exemptions therefrom.
(iv) The Company is not a party or subject to any agreement or
understanding, and, to the best of the Company's knowledge, there is no
agreement or understanding between any persons that affects or relates to the
voting or giving of written consents with respect to any security or the voting
by a director of the Company.
4.7 No Adverse Consequences. Neither the execution and delivery of this
Agreement by the Company nor the consummation of the transactions contemplated
by this Agreement will (a) to the knowledge of the Company, violate any statute,
judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority applicable to the Company, or (b) either alone or with
the giving of notice or the passage of time or both, conflict with, constitute
grounds for termination of, accelerate the performance required by, accelerate
the maturity of any indebtedness or obligation under, result in the breach of
the terms, conditions or provisions of or constitute a default under any
mortgage, deed of trust, indenture, note, bond, lease, license, permit or other
agreement, instrument or obligation to which the Company is a party or by which
it is bound.
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ARTICLE V
CONDITIONS
5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY. The obligations
of the Company to consummate the transactions contemplated by this Agreement
shall be subject to the satisfaction of the following conditions, or to the
waiver thereof by the Company in the manner contemplated by Section 6.2 at the
Closing:
(a) Representations and Warranties of Stockholders True on Closing Date.
The representations and warranties of Stockholders herein contained shall
be true as of and at the Closing Date in all material respects with the
same effect as though made at such date, except as affected by transactions
permitted or contemplated by this Agreement; Stockholders shall have
performed and complied in all material respects with all covenants required
by this Agreement to be performed or complied with by Stockholders before
the Closing Date;
(b) Tender of Stock. Stockholders shall have delivered to the Company all
certificates or other documents or instruments representing all of the
Series C Shares, duly endorsed for transfer or accompanied by duly executed
stock powers, free and clear of any Encumbrance;
(c) Execution by All Parties to Letter Agreement. Each of the holders of
the Series A, C and E Preferred Stock that are parties to the Letter
Agreement have entered into a Stock Exchange Agreement with the Company
substantially similar in form to this Agreement.
(d) Other. All other items required to be delivered hereunder or as may be
reasonably requested by the Company to facilitate the Closing, in form and
substance reasonably satisfactory to the Company.
5.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKHOLDERS. The obligations
of Stockholders to consummate the transactions contemplated by this Agreement
shall be subject to the satisfaction of the following conditions, or to the
waiver thereof by Stockholders in the manner contemplated by Section 6.2 at the
Closing:
(a) Representations and Warranties of the Company True on Closing Date.
The representations and warranties of the Company herein contained shall be
true as of and at the Closing Date in all material respects with the same
effect as though made at such date, except as affected by transactions
permitted or contemplated by this Agreement; the Company shall have
performed and complied in all material respects with all covenants required
by this Agreement to be performed or complied with by it before the Closing
Date;
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(b) Tender of Stock Consideration. On the Closing Date, the Company shall
have recorded in its books the issuance of the Stock Consideration to the
Stockholders, subject to the provisions of Sections 2.1 and 2.2 hereof;
(c) Execution by All Parties to Letter Agreement. Each of the holders of
the Series A, C and E Preferred Stock that are parties to the Letter
Agreement have entered into a Stock Exchange Agreement with the Company
substantially similar in form to this Agreement.
(d) Other. All other items required to be delivered hereunder or as may be
reasonably requested by Stockholders to facilitate the Closing, in form and
substance reasonably satisfactory to Stockholders.
ARTICLE VI
MISCELLANEOUS
6.1 EXPENSES. Each of the Company and Stockholders shall bear their own
legal and accounting fees, and other costs and expenses with respect to the
negotiation, execution and delivery of this Agreement, and consummation of the
transactions contemplated hereby.
6.2 NOTICES AND WAIVERS. Any notice, instruction, authorization,
request, demand or waiver hereunder shall be in writing, and shall be delivered
either by personal delivery, by telegram, telex, telecopy or similar facsimile
means, by certified or registered mail, return receipt requested, or by courier
or delivery service, addressed to the parties hereto at the address indicated
beneath their respective signatures on the execution pages of this Agreement, or
at such other address and number as a party shall have previously designated by
written notice given to the other parties in the manner hereinabove set forth.
Notices shall be deemed given when received, if sent by facsimile means
(confirmation of such receipt by confirmed facsimile transmission being deemed
receipt of communications sent by facsimile means); and when delivered and
receipted for (or upon the date of attempted delivery where delivery is
refused), if hand-delivered, sent by express courier or delivery service, or
sent by certified or registered mail, return receipt requested.
6.3 PREVIOUS CONTRACTUAL RIGHTS. The parties to this Agreement hereby
agree that the execution of this Agreement will not change, modify or otherwise
affect any rights provided to Stockholders pursuant to Section 5(f), (g), (m)
and (n) and Section 8 of the Placement Agreement dated July 30, 1998 between
Stockholders and the Company.
6.4 SUCCESSORS AND ASSIGNS. This Agreement shall bind, inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns, and if an individual, by his executors,
administrators, and beneficiaries of his estate by will or the laws of descent
and distribution. This Agreement and the rights and obligations hereunder shall
not be assignable or delegable by any party.
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6.5 APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas and of the United States
applicable in Texas. Each party hereto hereby acknowledges and agrees that it
has consulted legal counsel in connection with the negotiation of this Agreement
and that it has bargaining power equal to that of the other parties hereto in
connection with the negotiation and execution of this Agreement. Accordingly,
the parties hereto agree that the rule that an agreement shall be construed
against the draftsman shall have no application in the construction or
interpretation of this Agreement.
6.6 AMENDMENT AND ENTIRETY. This Agreement may be amended, modified, or
superseded only by written instrument executed by all parties hereto. This
Agreement and the exhibits and schedules hereto sets forth the entire agreement
and understanding of the parties with respect to the transactions contemplated
hereby and supersedes all prior agreements, arrangements, and understandings
relating to the subject matter hereof. In the event of any conflict or
inconsistency between the provisions of this Agreement and the contents or
provisions of any schedule or exhibit hereto, the provisions of this Agreement
shall control.
6.7 RIGHTS OF PARTIES. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any Persons other than the parties hereto and their respective
successors and assigns, nor shall any provision give any third Persons any right
of subrogation or action over against any party to this Agreement. Without
limiting the generality of the foregoing, it is expressly understood that this
Agreement does not create any third party beneficiary rights.
6.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts by means of original or facsimile signature, each of which shall be
deemed an original and all which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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In Witness Whereof, this Stock Exchange Agreement is executed and delivered
as of the date first above written.
THE COMPANY:
Applied Voice Recognition, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Chairman of the Board
000 Xx. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopy No. (000) 000-0000
STOCKHOLDERS:
Equity Services, Ltd.
By: /s/ Xxxx Xxxxxxxxx
------------------
Name: Xxxx Xxxxxxxxx
----------------
Title: President
----------
Address: Box F42544
----------
Freeport, Bahamas
-----------------
Telecopy No. 000-000-0000
------------
/s/ Xxxxxxxxx Xxxxxxx
---------------------
Xxxxxxxxx Xxxxxxx
Address:
Telecopy No.
10
/s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx
Address:
Telecopy No.
/s/ Xxxxxxxx Xxxxxxx
--------------------
Xxxxxxxx Xxxxxxx
Address:
Telecopy No.
/s/ Matthia Dornier
-------------------
Matthia Dornier
Address:
Telecopy No.
/s/ Silvius Dornier
-------------------
Silvius Dornier
Address:
Telecopy No.
/s/ Xxxxxx Xxxx
---------------
Xxxxxx Xxxx
Address:
Telecopy No.
11
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
Address:
Telecopy No.
/s/ Xxxxx Xxxxxxxx
------------------
Xxxxx Xxxxxxxx
Address:
Telecopy No.
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SCHEDULE A
SERIES C SERIES G
STOCKHOLDERS SHARES HELD SHARES TO BE RECEIVED
------------- ------------------ ------------------------
Equity Services, Ltd. 11,038 1,124.458
Xxxxxxxxx Xxxxxxx 22,500 2,292.105
Xxxxxx Xxxxxxx 30,000 3,056.145
Xxxxxxxx Xxxxxxx 22,500 2,292.105
Matthia Dornier 15,000 1,528.074
Silvius Dornier 30,000 3,056.145
Xxxxxx Xxxx 19,500 1,986.492
Xxxxxxx X. Xxxxxxx 1,500 152.808
Xxxxx Xxxxxxxx 1,500 152.808
------------------ ------------------------
153,538 15,641.140
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