EXHIBIT 10.19
FORBEARANCE AGREEMENT
AGREEMENT (this "Agreement") made as of the Effective Date (as defined in
Section 18) by and among Xxxxx Xxxxx, an individual residing in Hollendale,
Florida ("Dagan"); e-DOCS Health Care Information Services, Inc., a Delaware
corporation formerly known as AVRI Health Care Information Services, Inc.
("HCIS"); and Applied Voice Recognition, Inc., a Delaware corporation d/b/a
x-XXXX.xxx ("E-Docs").
W I T N E S S E T H
WHEREAS, as of December 1, 1998, Cornell Transcription, Inc., a New York
corporation ("CTI"), Xxxxxx Xxxxxxxxx ("Xxxxxxxxx"), HCIS and E-Docs executed an
Asset Purchase Agreement (the "Purchase Agreement"), whereby CTI agreed to sell
to HCIS and HCIS agreed to purchase from CTI and Xxxxxxxxx, certain assets of
CTI and certain shares of common stock of CTI's subsidiary, Outsource
Transcription Philippines, Inc., a stock corporation formed under the laws of
the Republic of the Philippines ("OTPI"); and
WHEREAS, a portion of the Purchase Price, as defined in the Purchase
Agreement, included the issuance and delivery on December 31, 1999 by E-Docs to
CTI of 735 shares of convertible Series 1 Preferred Stock of E-Docs ("E-Docs
Preferred Stock"), with an aggregate stated value of $735,000; and
WHEREAS, on or about February 17, 1999, CTI, Xxxxxxxxx, HCIS and E-Docs
entered into the First Amendment to Asset Purchase Agreement ("First
Amendment"), wherein the number of shares of E-Docs Preferred Stock to be issued
to CTI on December 31, 1999 was corrected to 575, with an aggregate stated value
of $575,000; and
WHEREAS, the Certificate of Designation, Preferences, Rights and
Limitations of Series 1 Preferred Stock (the "Certificate of Designation")
describing the shares of E-Docs Preferred Stock provides that each holder of
shares of E-Docs Preferred Stock shall be entitled to cause any and all such
shares to be converted into shares of E-Docs Common Stock ("E-Docs Common
Stock"), which shares of E-Docs Common Stock will have been registered by E-Docs
pursuant to a registration statement filed with the Securities and Exchange
Commission (the "SEC") for public offering and sale of stock, pursuant to the
Securities Act of 1933, as amended, or any similar federal statute, and the
rules and regulations promulgated thereunder, all as the same shall be in effect
at the time (the "1933 Act"); and
WHEREAS, the E-Docs Common Stock has not been registered, as provided for
under the Purchase Agreement and the Certificate of Designation; and
WHEREAS, under the terms of Section 6.5 of the Purchase Agreement, HCIS and
E-Docs are entitled to offset against the shares of E-Docs Preferred Stock to be
delivered to CTI the amount equal of any claims by HCIS resulting from breaches
by CTI or Xxxxxxxxx of any of their respective representations, warranties or
covenants in the Purchase Agreement; and
WHEREAS, pursuant to the terms of the Closing Statement executed by the
parties in connection with the Purchase Agreement and the First Amendment,
Xxxxxxxxx, CTI, E-Docs and HCIS agreed to offset $51,134 against the E-Docs
Preferred Stock to be distributed to CTI in consideration for HCIS' assumption
of a lease with Sterling Bank, which offset is not in dispute among the parties
hereto, and
WHEREAS, HCIS and E-Docs are in the process of determining the amount of
claimed offsets pursuant to such Section 6.5, which amounts include fees and
expenses relating to filing certain corporate and tax reports and returns with
respect to the formation of OTPI, which fees and expenses E-Docs has
preliminarily estimated to be approximately $41,000 (the "Potential Offset
Claims"); and
WHEREAS, on or about February 17, 2000, CTI, Xxxxxxxxx, HCIS and E-Docs
agreed that E-Docs would issue to CTI 448.866 shares of E-Docs Preferred Stock,
such number of shares being determined by reducing the 575 shares of E-Docs
Preferred Stock owed by E-Docs to CTI by (i) 51.134 shares having a stated value
of $51,134 with respect to the Sterling Bank lease obligation, and (ii) 75
shares (the "Disputed Shares") having a stated value of $75,000 as a holdback
for purposes of satisfying the Potential Offset Claims, although the parties did
not agree as to the resolution of the amount of such Potential Offset Claims and
reserved their rights to resolve such claims and offset amounts at a later date;
and
WHEREAS, prior to the issuance of the 448.866 shares of E-Docs Preferred
Stock to CTI, CTI delivered to HCIS and E-Docs (i) a notice of conversion
instructing E-Docs to convert the shares of E-Docs Preferred Stock to be issued
to CTI into unrestricted shares of E-Docs Common Stock, in accordance with the
terms of the Certificate of Designation, and (ii) a corporate resolution
executed by Xxxxxxxxx, in his capacity as the sole director of CTI, and further
executed by Xxxxxxxxx and Dagan, in their capacities as the sole shareholders of
CTI, directing that all shares of E-Docs Common Stock to be issued to CTI should
be issued to Xxxxxxxxx individually; and
WHEREAS, on or about February 17, 2000, E-Docs converted the 448.866 shares
of E-Docs Preferred Stock into 1,468,539 restricted shares of E-Docs Common
Stock at a conversion rate of one (1) share of E-Docs Common Stock for each
0.0003056548 of a share of E-Docs Preferred Stock (the "12/31/99 Conversion
Rate"), which rate is the conversion rate determined as of December 31, 1999
pursuant to the terms of the Certificate of Designation; and
WHEREAS, to date, Xxxxxxxxx has sold 167,468 shares of E-Docs Common Stock,
which sale has occurred pursuant to SEC Rule 144; and
WHEREAS, Xxxxxxxxx has demanded that E-Docs issue and deliver duly
registered shares of E-Docs Common Stock in an amount equal to the balance of
1,301,071 restricted shares of E-Docs Common Stock that Xxxxxxxxx presently
holds (the "Xxxxxxxxx Shares"); and
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WHEREAS, E-Docs and HCIS have advised Xxxxxxxxx that they are currently
unable to issue and deliver registered shares of E-Docs Common Stock in the
amount of the Xxxxxxxxx Shares; and
WHEREAS, in addition to the forgoing, a dispute has arisen among
Xxxxxxxxx, Xxxxxx Szpicek ("Szpicek") and Dagan with respect to Szpicek's and
Dagan's respective beneficial ownership interests in and to the Xxxxxxxxx
Shares, if any, and to any other shares of E-Docs Common Stock that E-Docs is
required to issue and deliver to CTI or Xxxxxxxxx in connection with the
Purchase Agreement (the "Share Dispute"); and
WHEREAS, E-Docs and HCIS have received an instrument dated as of March 2,
2000, apparently executed by Xxxxxxxxx and Szpicek (the "March 2 Instrument"),
pursuant to which issues were raised regarding the distribution of the E-Docs
Preferred Stock among Xxxxxxxxx, Szpicek and Dagan (which issues remain
unresolved and the legal effect of which March 2 Instrument remains unclear) and
which March 2 Instrument purports to reflect an agreement among Xxxxxxxxx and
Szpicek that the $575,000 worth of E-Docs Preferred Stock was to be distributed
among Xxxxxxxxx, Szpicek and Dagan as follows:
To be Immediately Distributed:
Xxxxxxxxx $232,116
Szpicek $187,116
Dagan $ 16,000
--------
Total: $435,232
The Amount Remaining From $126,134 Following the Offset of Known and
Potential Claims Under Section 6.5 of the Purchase Agreement ("Remaining
Balance"), which Remaining Balance is to be Distributed to Xxxxxxxxx,
Szpicek and Dagan in the Following Percentages:
Xxxxxxxxx 47.5%
Szpicek 47.5%
Dagan 5.0%
--------
Total: 100.0%
In addition to the amount to be immediately distributed, and the
Remaining Balance, $13,634 is a Reserve Amount (the "Reserve Amount"),
which Reserve Amount is to be distributed in accordance with Section 3 of
this Agreement.
The totals are: ($435,232 + $126,134 + $13,634 = $575,000);
WHEREAS, E-Docs and HCIS have requested that Dagan agree to forbear from
the exercise of any of Dagan's rights and remedies with respect to the Purchase
Agreement, if
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any, during the Forbearance Period (as hereinafter defined) in consideration for
the terms, and subject to the conditions, contained in this Agreement; and
WHEREAS, E-Docs, HCIS and Dagan would like to resolve all disputes among
them and the "Share Dispute" to the fullest extent possible; and
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1) Forbearance. During the period commencing as of the Effective Date and
ending on the earlier to occur of (i) the date that E-Docs (A) notifies Dagan
that the Dagan Remaining Shares (as defined in paragraph 5(b) herein), the Dagan
Warrant Shares (as defined in paragraph 5(a) herein), and the Dagan Interest
Shares (as defined in paragraph 5(b) herein), if any, have been registered
pursuant to a registration statement filed with the SEC for public offering and
sale of stock pursuant to the 1933 Act, and (B) has delivered to Dagan or the
Transfer Agent for E-Docs' common stock, as applicable, such other documents
that may be necessary to effectuate the public sale of the Dagan Remaining
Shares, the Dagan Warrant Shares and the Dagan Interest Shares, if any, pursuant
to such registration statement, including, without limitation, legal opinions of
E-Docs' securities counsel with respect thereto, or (ii) August 15, 2000 (the
"Forbearance Period"), Dagan agrees that he will not exercise any enforcement
rights or remedies under, or otherwise with respect to, the Purchase Agreement,
including, without limitation, asserting or pursuing any claim or commencing any
lawsuit or arbitration under, pursuant to or otherwise in connection with, the
Purchase Agreement. Such forbearance shall not apply to claims for breach of
this Agreement.
2) Confirmation of Agreement and Reaffirmation. As of even date hereof,
each of E-Docs, HCIS, Xxxxxxxxx and CTI have ratified and confirmed each of
their respective obligations under the Purchase Agreement, if any, and confirmed
and agreed that the Purchase Agreement remains in full force and effect in
accordance with its terms, without modification or waiver except as modified by
this Agreement and except as previously amended, restated, modified and
supplemented from time to time in accordance with the terms of the Purchase
Agreement.
3) Surrender of Stock Certificate(s) by Xxxxxxxxx and Allocation and
Reissuance to Xxxxxxxxx, Szpicek and Dagan. Upon the execution of a Forbearance
Agreement by Xxxxxxxxx, CTI, E-Docs and HCIS (the "Xxxxxxxxx Forbearance
Agreement"), Xxxxxxxxx has agreed to deliver to E-Docs (i) the stock
certificate(s) representing the Xxxxxxxxx Shares; and (ii) written instructions
addressed to E-Docs' Stock Transfer Agent instructing such Stock Transfer Agent
to cancel such stock certificate(s) and to reissue three (3) new certificates to
each of the following recipients in the following number of shares of E-Docs
Common Stock (which includes a distribution of the Reserve Amount in the
following percentages: 47.5% to Xxxxxxxxx; 47.5% to Szpicek and 5% to Dagan):
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# of Shares
Shareholder of E-Docs
Name Common Stock
----------- -------------
Xxxxxxxxx 613,126 (determined by subtracting 167,468 from 759,406
and adding 21,188)
Szpicek 633,369 (determined by adding 21,188 to 612,181)
Dagan 54,576 (determined by adding 2,230 to 52,246)
-----------
Total: 1,301,071
The certificate(s) described under subparagraph (i) above and the written
instructions described under subparagraph (ii) above, will be delivered to E-
Docs' counsel by Xxxxxxxxx and CTI by Federal Express delivery to be transmitted
on the same day as the exchange, by Facsimile, by the parties of duly executed
original counterparts of the Xxxxxxxxx Forbearance Agreement. Originals of this
duly executed Agreement shall be exchanged by the Parties by Federal Express
delivery to be transmitted the same day as they exchange Facsimile copies of
such signature pages.
4) Compromise and Settlement of Potential Offset Claims. Under the terms of
the Xxxxxxxxx Forbearance Agreement, E-Docs, HCIS, CTI and Xxxxxxxxx have
compromised and settled all Potential Offset Claims for the aggregate amount of
$25,000. As a result, E-Docs hereby agrees to issue to Xxxxxxxxx, Szpicek and
Dagan an aggregate of 50 additional shares of E-Docs Preferred Stock, allocated
among, and issued in the form of E-Docs Common Stock within five (5) days after
the Effective Date of this Agreement to, each of Xxxxxxxxx, Szpicek and Dagan as
follows (the "Compromise Shares"):
# of Shares 12/31/99 # of Shares
Shareholder of E-Docs Conversion of E-Docs
Name Preferred Stock Rate Common Stock
-------------- --------------- ----------- ------------
Xxxxxxxxx 23.75 0.3056548 77,702
Szpicek 23.75 0.3056548 77,702
Dagan 2.50 0.3056548 8,179
The Compromise Shares shall be registered by E-Docs in accordance with the same
terms as Section 1 (i) (A) and (B) of this Agreement.
5) Additional Consideration. In consideration for the forbearance of
Dagan, as described in Section 1 above, E-Docs hereby agrees as follows:
(a) E-Docs shall grant to Dagan warrants to purchase 12,500 shares of E-
Docs' Common Stock which shares are to be registered on or prior to August 15,
2000 (the "Dagan Warrant Shares"), pursuant to a registration statement filed
with the SEC for public offering and sale of stock pursuant to the 1933 Act.
Such warrants shall be issued to Dagan as additional consideration for the
forbearance of Dagan described in Section 1. Such warrants shall be
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evidenced by E-Docs' execution and delivery to Dagan of a Warrant in the form
attached hereto as EXHIBIT "A" (the "Warrant"), which Warrant is exercisable by
Dagan on or before December 31, 2000 at a purchase price per share equal to the
lower of (i) $1.75, or (ii) the average closing price for E-Docs' common stock
for the 30-day period immediately prior to the Effective Date of this Agreement
(the "30-Day Average Closing Price"). E-Docs affirms that the registration of
the Dagan Warrant Shares will remain effective continuously from the date of
registration until the end of the exercise period.
(b) E-Docs shall pay interest to Dagan at a rate of 1.00% per month (12%
per annum) for the period commencing on January 1, 2000, through the expiration
of the Forbearance Period, on the cash value of the 62,755 shares of E-Docs
Common Stock owned by Dagan from time to time (and issued to Dagan by E-Docs
pursuant to Section 3 and Section 4 hereof - the "Dagan Remaining Shares"),
which cash value will be calculated by multiplying the number of Dagan Remaining
Shares by the lower of (i) $1.75 per share, or (ii) the 30-Day Average Closing
Price (the "Cash Value"). Such aggregate interest shall be paid by E-Docs upon
the end of the Forbearance Period and shall be payable in E-Docs' sole
discretion either in (a) cash, or (b) additional shares of E-Docs common stock
(the "Dagan Interest Shares") (if E-Docs utilizes shares of stock to pay such
interest, the Dagan Interest Shares will have been registered on or prior to the
expiration of the Forbearance Period, pursuant to a registration statement filed
with the SEC for public offering and sale of stock pursuant to the 1933 Act).
The number of Dagan Interest Shares to be issued, if E-Docs utilizes shares of
stock to pay such interest, will be determined by dividing the dollar amount of
the aggregate interest due to Dagan by the lower of (i) $1.75 per share, or (ii)
the 30-Day Average Closing Price. Interest is due and payable to Dagan within
five (5) days after the end of the Forbearance Period.
6) [INTENTIONALLY DELETED]
7) Covenants.
(a) E-Docs and HCIS hereby covenant and agree as follows:
(i) From and after the Effective Date through the expiration of the
Forbearance Period, neither E-Docs nor HCIS shall pay any cash compensation to
Xxxxxxx X. Xxxxxxxx for services rendered to E-Docs or HCIS (although E-Docs and
HCIS shall be entitled to reimburse Xx. Xxxxxxxx for business expenses incurred
by Xx. Xxxxxxxx on behalf of E-Docs or HCIS in accordance with E-Docs' expense
reimbursement policy), and that any compensation provided to Xx. Xxxxxxxx during
such period shall only be in the form of shares of E-Docs common stock.
(ii) E-Docs will use its best efforts to cause the registration of the
Dagan Remaining Shares, the Dagan Warrant Shares and the Dagan Interest Shares,
if any, pursuant to a registration statement filed with the SEC for public
offering and sale of stock pursuant to the 1933 Act prior to the expiration of
the Forbearance Period, which efforts shall include, but not be limited to,
hiring appropriate accounting and legal professionals to assist E-Docs in making
the appropriate filings with the SEC.
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(iii) E-Docs shall provide Dagan with a written report on the fifteenth
day of each month following the Effective Date (commencing on May 15, 2000)
through the expiration of the Forbearance Period (A) describing the status of
the registration of the Dagan Remaining Shares, the Dagan Warrant Shares and the
Dagan Interest Shares, and (B) certifying to Dagan that no cash compensation has
been paid to Xx. Xxxxxxxx since the Effective Date through the date of such
report.
(iv) E-Docs shall take all steps necessary, including, but not limited
to, procuring all necessary opinions of counsel, to enable Dagan to sell the
maximum number of shares of restricted E-Docs Common Stock issued to Dagan
pursuant to the terms of this Agreement from time to time that Dagan may be
entitled to sell from time to time during the Forbearance Period pursuant to SEC
Rule 144 ("Rule 144 Sales"), provided, however, that E-Docs shall only be
required to expend $750 in legal fees to obtain such opinions of counsel. In
the event that it becomes apparent that the opinions of counsel necessary to
effectuate Dagan's Rule 144 Sales will cost more than $750, then E-Docs counsel
shall contact Xx. Xxxxx'x counsel identified in Section 14, before incurring
such expense, to determine how to proceed.
(b) Dagan hereby covenants and agrees, at no cost or expense to Dagan, to
reasonably cooperate with E-Docs and HCIS in connection with E-Docs' and HCIS'
efforts to correct and cure the filing and reporting deficiencies in the
Philippines with respect to OTPI, which cooperation may include, without
limitation, promptly executing such reasonably necessary affidavits,
certificates, confirmations, reports and applications as E-Docs or HCIS may
request.
8) Representations and Warranties.
(a) E-Docs and HCIS each hereby represent and warrant as of the Effective
Date to Dagan that:
(i) This Agreement has been duly executed and delivered by E-Docs and
HCIS, and no further corporate or other action is necessary with respect to E-
Docs or HCIS to make this Agreement a valid and binding obligation of E-Docs and
HCIS, enforceable in accordance with its terms. Neither the execution, delivery
nor performance of this Agreement by E-Docs and HCIS will result in a violation
or breach of any term or provision under the respective Articles of
Incorporation or Bylaws or any resolution of the Board of Directors or
shareholders of either E-Docs or HCIS or constitute a default or breach of, or
accelerate the performance required under, or require the consent of any person
or entity under any indenture, mortgage, deed of trust or other contract or
agreement to which E-Docs or HCIS is a party or by which they or any of their
respective assets are bound, or violate any order, writ, injunction or decree of
any court, administrative agency or governmental body.
(ii) Each of E-Docs and HCIS is a corporation duly organized, validly
existing and good standing under the laws of the State of Delaware and has all
requisite corporate power to enter into and perform this Agreement.
(b) Dagan hereby represents and warrants as of the Effective Date to E-
Docs and HCIS that this Agreement has been duly executed and delivered by Dagan,
and no further or other
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action is necessary with respect to Dagan to make this Agreement a valid and
binding obligation of Dagan, enforceable in accordance with its terms. Neither
the execution, delivery nor performance of this Agreement by Dagan will result
in a violation or constitute a default or breach of, or accelerate the
performance required under, or require the consent of any person or entity under
any indenture, mortgage, deed of trust or other contract or agreement to which
Dagan is a party or by which he or any of his respective assets are bound, or
violate any order, writ, injunction or decree of any court, administrative
agency or governmental body.
(c) Each of the persons executing this Agreement hereby certify to each of
the other parties hereto that they are duly authorized representatives of the
respective parties to this Agreement and that they are fully authorized to
execute this Agreement for the purposes stated herein and to effectuate the
mutual agreements set forth herein. They further acknowledge that they have read
and fully understand or have had explained to their satisfaction all of the
terms of this Agreement and are executing this Agreement knowingly and
voluntarily
9) Defaults. E-Docs and HCIS shall be deemed to be in default of the terms
and conditions of this Agreement upon any of the following (an "Event of
Default"):
(a) E-Docs shall fail to (i) complete its obligations under Section 1(i)
(A) and (B) of this Agreement by the end of the Forbearance Period, and (ii)
cause to be delivered to Dagan within ten (10) days after the Effective Date (A)
the Dagan Remaining Shares as defined in Paragraph 5(b) herein; and (B) the
Warrant.
(b) E-Docs shall fail to perform any of E-Docs' obligations under this
Agreement other than those described in Section 9(a) and such failure shall
continue for ten (10) days after E-Docs' receipt of written notice thereof from
Dagan.
(c) Any of the representations or warranties made by E-Docs or HCIS
herein is determined to be materially false.
(d) (i) E-Docs shall commence any case, proceeding or other action under
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts; or (ii) there shall be commenced against E-Docs any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment, or (B) remains undismissed, undischarged or unbonded for a period
of forty-five (45) days; or (iii) there shall be commenced against E-Docs any
case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within forty-five (45) days from the entry thereof; or (iv) E-Docs shall take
any action indicating its consent to, approval of, or acquiescence in any acts
set forth in clause (i), (ii), or (iii) above; or (v) E-Docs shall admit in
writing its inability to pay its debts as they become due.
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10) Penalties. In addition to Dagan's other remedies hereunder or otherwise
available in law or equity, in the event that E-Docs fails to register the Dagan
Remaining Shares, the Dagan Warrant Shares and the Dagan Interest Shares, if
any, pursuant to a registration statement filed with the SEC for public offering
and sale of stock pursuant to the 1933 Act by the expiration of the Forbearance
Period, then E-Docs and HCIS hereby agree that commencing on August 16, 2000,
and continuing on each day thereafter until the Dagan Remaining Shares, the
Dagan Warrant Shares and the Dagan Interest Shares, if any, have been registered
pursuant to a registration statement filed with the SEC, the following shall
apply:
(a) E-Docs shall issue to Dagan a warrant per day, for each day in
default, to purchase 166 additional shares of E-Docs common stock at a purchase
price per share equal to the lower of (i) $1.75, or (ii) the 30-Day Average
Closing Price. The shares of E-Docs common stock subject to such warrants shall
be registered pursuant to a registration statement filed with the SEC for public
offering of sale of stock pursuant to the 1933 Act at the same time as, and
contemporaneously with, the Dagan Remaining Shares, the Dagan Warrant Shares and
the Dagan Interest Shares, if any.
(b) The interest rate payable by E-Docs on the Cash Value pursuant to
Section 5 shall automatically increase to 1.5% per month (18% per annum) (which
change in rate shall not be applied retroactively).
11) Contingent Release and Waiver of Claims.
(a) In the event that (A) E-Docs and HCIS fully perform their obligations
under Section 1(i)(A) and (B) of this Agreement, (B) E-Docs and HCIS have
performed all of their other material obligations under this Agreement, and (C)
E-Docs and HCIS are not then in default of any of its obligations hereunder,
then:
(i) Dagan shall automatically be deemed to have released and discharged
E-Docs and HCIS and their respective subsidiaries, affiliates, shareholders,
officers, directors, employees, agents, representatives, successors,
predecessors and assigns (the "E-Docs Released Parties"), from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
attorneys' fees, costs, disbursements, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages
(including direct, special, consequential, remote, foreseeable, unforeseeable,
and punitive damages), judgments, extents, executions, claims, demands,
obligations and liabilities whatsoever, at law, in equity or otherwise,
liquidated, unliquidated, known or unknown, sounding in tort, in contract or
under any other legal theory, or arising by statute or under any other law or
regulation, and whether contingent or matured, against the E-Docs Released
Parties that Dagan has had, then has or thereinafter can, shall or may have for,
upon, or by reason of any matter, including, without limitation, with respect to
the Purchase Agreement, this Agreement, the Potential Offset Claims and the
prior failure of E-Docs to register the E-Docs Common Stock, from the beginning
of the world through the date of such registration of the E-Docs Common Stock;
except that the parties agree that neither Xxxxxxxxx or Szpicek is an E-Docs
Released Party and that Dagan does not release either Xxxxxxxxx or Szpicek from
any claim that Dagan may now or in the future have
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against either Xxxxxxxxx or Szpicek, whether or not such claim arises out of the
subject matter of this Agreement and/or the Purchase Agreement.
(ii) E-Docs and HCIS shall automatically be deemed to have released and
discharged Dagan and his agents, representatives, successors, heirs, executors,
administrators and assigns from all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, attorneys' fees, costs,
disbursements, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages (including direct, special,
consequential, remote, foreseeable, unforeseeable, and punitive damages),
judgments, extents, executions, claims, demands, obligations and liabilities
whatsoever, at law, in equity or otherwise, liquidated, unliquidated, known or
unknown, sounding in tort, in contract or under any other legal theory, or
arising by statute or under any other law or regulation, and whether contingent
or matured against Dagan that E-Docs or HCIS have had, then have or thereinafter
can, shall or may have for, upon, or by reason of any matter, including, without
limitation, with respect to the Purchase Agreement, this Agreement and the
Potential Offset Claims, from the beginning of the world to the date of such
registration of the E-Docs Common Stock.
(iii) Notwithstanding the conditional nature of Sections (i) and (ii)
the parties hereby acknowledge and agree that upon Dagan's receipt of the
certificate representing the Dagan Remaining Shares, the parties shall
automatically be deemed to have released and discharged, and subject to receipt
of such certificate do hereby release and discharge each other and their
respective subsidiaries, affiliates, shareholders, officers, directors,
employees, agents, representatives, successors, predecessors, heirs, executors,
administrators and assigns, from all actions, causes of action, suits, debts,
dues, sums of money, accounts, reckonings, attorneys' fees, costs,
disbursements, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages (including direct, special,
consequential, remote, foreseeable, unforeseeable, and punitive damages),
judgments, extents, executions, claims, demands, obligations and liabilities
whatsoever, at law, in equity or otherwise, liquidated, unliquidated, known or
unknown, sounding in tort, in contract or under any other legal theory, or
arising by statute or under any other law or regulation, and whether contingent
or matured, against each other that the parties have had, now have or
hereinafter can, shall or may have for, upon, or by reason of E-Docs' prior
issuance of 1,468,539 shares of E-Docs Common Stock to Xxxxxxxxx individually
(the "Initial Issuance"); except that the parties agree that neither Xxxxxxxxx
or Szpicek is included in such release and that Dagan does not release either
Xxxxxxxxx or Szpicek from any claim that Dagan may now or in the future have
against either Xxxxxxxxx or Szpicek, whether or not such claim arises out of the
subject matter of this Agreement and/or the Purchase Agreement. This is
intended as a limited release that concerns only the distribution of the shares
in the Initial Issuance, and does not release E-Docs or HCIS from all other
claims with respect to the Initial Issuance, including, but not limited to, the
fact that the shares distributed in the Initial Issuance were not registered,
and does not affect the parties' rights and remedies in any other way except in
accordance with the terms of this Agreement.
(iv) Notwithstanding anything to the contrary in Sections 2 and 12 of
this Agreement, no reservation of rights of the parties hereto shall survive the
conditional releases of Sections 11 (a)(i) and (ii), provided all of the
conditions necessary for those releases to be triggered have been met.
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(b) The parties agree that the releases set forth in this Section 11
(a)(i) and (ii) are expressly contingent upon E-Docs and HCIS performing all of
the obligations referenced in Section 1(i) (A) and (B) and 11(a) of this
Agreement by August 15, 2000, and that if they fail to do so, then (i) Dagan's
agreement to forbear from pursuing his rights, claims and remedies against E-
Docs or HCIS (which agreement to forbear is described in Section 1 hereof), and
the contingent releases set forth in Section 11(a)(i) and (ii), shall
immediately and automatically become null and void and of no further force or
effect, and (ii) Dagan shall be entitled to pursue his remedies against E-Docs
or HCIS with respect to this Agreement and nothing contained in this Agreement
or otherwise shall be deemed to have waived or modified any of Dagan's, E-Docs'
or HCIS' respective rights or remedies under or in connection with the Purchase
Agreement or this Agreement or otherwise in law or equity.
12) Amendments, Waivers. This Agreement constitutes the entire agreement
between the parties hereto with respect to the matters herein contained and any
agreement hereafter made shall be ineffective unless made in writing and signed
by all of the parties hereto. No provision of this Agreement shall be modified,
waived or terminated except by an instrument in writing signed by the party
against whom such modification, waiver or termination is to be enforced. The
failure by Dagan, E-Docs or HCIS to insist upon the strict performance of any
one of the terms or conditions of this Agreement or to exercise any right,
remedy or election herein contained or permitted by law shall not constitute or
be construed as waiver or relinquishment for the future of that term, condition,
right, remedy or election, which shall continue and remain in full force and
effect.
13) Binding Effect. This Agreement shall be binding upon, and shall inure
to the benefit of, E-Docs, HCIS and Dagan and their respective heirs,
representatives, administrators, successors and assigns, except that none of the
parties hereto may assign, delegate or transfer their rights or obligations
hereunder. In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be unenforceable or void, this
Agreement shall continue in full force and effect without such provision to the
maximum extent permitted by law.
14) Notices and Communications. All notices, demands, consents, approvals
and other communications under this Agreement shall be in writing and mailed or
delivered or sent by registered or certified mail (postage prepaid, return
receipt requested), by hand, by a nationally-recognized overnight courier or by
telecopier (provided that if sent by telecopier, confirmed by one of the other
methods for notice authorized herein):
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If to Dagan to:
Xxxxx Xxxxx
000 Xxxxxx Xxxx Xxxxx #000
Xxxxxxxxxx, Xxxxxxx 00000
_______________________________
Telecopy Number: (___) ___-____
with a copy to:
Blank Rome Xxxxxx Xxxxxxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Esq.
Telecopy Number: (000) 000-0000
If to E-Docs or HCIS to:
Applied Voice Recognition, Inc.
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telecopy Number: (000) 000-0000
or at such other address of which Dagan, E-Docs or HCIS shall have notified the
other parties in writing as aforesaid. All such notices and communications
shall be effective when received at the address specified as aforesaid.
15) Governing Law; Conflicts.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas.
(b) In the event of any conflicts between the provisions of the Purchase
Agreement and the provisions of this Agreement, the provisions of this Agreement
shall control.
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16) Counterparts. This Agreement may be executed by the parties hereto
individually or in any combination, in one or more counterparts, each of which
shall be an original and all of which shall constitute one and the same
Agreement.
17) No Third Party Beneficiaries. No individual or entity shall be a third
party beneficiary of the representations, warranties, covenants and agreements
made by any party hereto.
18) Effective Date. The date on which the parties exchange, by Facsimile,
duly executed original counterparts of this Agreement shall be the effective
date of this Agreement (the "Effective Date").
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
to be effective as of the Effective Date.
DAGAN:
-----
Date: ___________________, 2000 ________________________________
Xxxxx Xxxxx
HCIS:
----
e-DOCS HEALTH CARE INFORMATION
SERVICES, INC., a Delaware corporation
formerly known as AVRI Health Care
Information Services, Inc.
Date: ___________________, 2000 By: _____________________________
Xxxxxxx X. Xxxxxxxx, President
E-DOCS:
------
APPLIED VOICE RECOGNITION, INC., a
Delaware corporation
Date: ___________________, 2000 By: _____________________________
(the ""Effective Date") Xxxxxxx X. Xxxxxxxx, President
and Chairman
Signature Page to
Forbearance Agreement
(Xxxxx Xxxxx)
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