EXHIBIT 10.17
FORBEARANCE AGREEMENT
AGREEMENT (this "Agreement") made as of the Effective Date (as defined in
Section 18) by and among Xxxxxx Xxxxxxx, an individual residing in ____________,
_________ ("Szpicek"); 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 Xxxxx Xxxxx, 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, Szpicek and Xxxxx Xxxxx ("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 Szpicek agree to forbear
from the exercise of any of Szpicek'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 Szpicek 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
Szpicek that the Szpicek Remaining Shares (as defined in paragraph 5(b) herein),
the Szpicek Warrant Shares (as defined in paragraph 5(a) herein), and the
Szpicek 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
Szpicek 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
Szpicek Remaining Shares, the Szpicek Warrant Shares and the Szpicek 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"), Szpicek 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
Szpicek, as described in Section 1 above, E-Docs hereby agrees as follows:
(a) E-Docs shall grant to Szpicek warrants to purchase 118,750 shares of
E-Docs' Common Stock which shares are to be registered on or prior to August 15,
2000 (the "Szpicek 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 Szpicek as additional consideration for the
forbearance of Szpicek described in Section 1. Such warrants shall be
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evidenced by E-Docs' execution and delivery to Szpicek of a Warrant in the form
attached hereto as EXHIBIT "A" (the "Warrant"), which Warrant is exercisable by
Szpicek 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 Szpicek 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 Szpicek 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 711,071 shares of
E-Docs Common Stock owned by Szpicek from time to time (and issued to Szpicek by
E-Docs pursuant to Section 3 and Section 4 hereof - the "Szpicek Remaining
Shares"), which cash value will be calculated by multiplying the number of
Szpicek 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 "Szpicek Interest Shares") (if E-Docs utilizes shares of stock to pay
such interest, the Szpicek 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 Szpicek 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 Szpicek by the lower of (i)
$1.75 per share, or (ii) the 30-Day Average Closing Price. Interest is due and
payable to Szpicek within five (5) days after the end of the Forbearance Period.
6) Payment of Szpicek's Legal Fees. Within two (2) days after the
Effective Date, E-Docs shall pay $5,000 to Xxxxx Xxxxxxxx in full and complete
satisfaction of Szpicek's legal fees and expenses up to, through and including
the Effective Date of this Agreement, with respect to all claims between
Szpicek, on the one hand, and E-Docs and HCIS, on the other hand, under the
terms of, or otherwise in connection with, the Purchase Agreement and the
negotiation and execution of this Agreement. E-Docs shall cause such payment to
be transmitted by company check to Xx. Xxxxxxxx'x address set forth in Section
14 of this Agreement.
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.
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(ii) E-Docs will use its best efforts to cause the registration of the
Szpicek Remaining Shares, the Szpicek Warrant Shares and the Szpicek 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.
(iii) E-Docs shall provide Szpicek 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 Szpicek Remaining Shares, the Szpicek Warrant Shares
and the Szpicek Interest Shares, and (B) certifying to Szpicek 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 Szpicek to sell the
maximum number of shares of restricted E-Docs Common Stock issued to Szpicek
pursuant to the terms of this Agreement from time to time that Szpicek 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 Szpicek's Rule 144 Sales will cost more than $750, then E-Docs
counsel shall contact Xx. Xxxxxxx'x counsel identified in Section 14, before
incurring such expense, to determine how to proceed.
(b) Szpicek hereby covenants and agrees, at no cost or expense to
Szpicek, 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 Szpicek 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
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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) Szpicek hereby represents and warrants as of the Effective Date to
E-Docs and HCIS that this Agreement has been duly executed and delivered by
Szpicek, and no further or other action is necessary with respect to Szpicek to
make this Agreement a valid and binding obligation of Szpicek, enforceable in
accordance with its terms. Neither the execution, delivery nor performance of
this Agreement by Szpicek 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 Szpicek 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, (ii) cause
to be delivered to Szpicek within ten (10) days after the Effective Date (A) the
Szpicek Remaining Shares as defined in Paragraph 5(b) herein; and (B) the
Warrant, and (iii) cause to be delivered to Xxxxx Xxxxxxxx within two (2) days
after the Effective Date a company check for $5,000 as provided in Section 6 of
this Agreement.
(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
Szpicek.
(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
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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.
10) Penalties. In addition to Szpicek's other remedies hereunder or
otherwise available in law or equity, in the event that E-Docs fails to register
the Szpicek Remaining Shares, the Szpicek Warrant Shares and the Szpicek
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 Szpicek
Remaining Shares, the Szpicek Warrant Shares and the Szpicek 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 Szpicek a warrant per day, for each day in
default, to purchase 1,567 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 Szpicek Remaining Shares, the Szpicek
Warrant Shares and the Szpicek 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) Szpicek 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,
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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 Szpicek 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 Dagan is an E-Docs Released Party and that
Szpicek does not release either Xxxxxxxxx or Xxxxx from any claim that Szpicek
may now or in the future have against either Xxxxxxxxx or Dagan, 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 Szpicek 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 Szpicek 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 Szpicek's receipt of the
certificate representing the Szpicek 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 Dagan is included in such release and that Szpicek does not release either
Xxxxxxxxx or Xxxxx from any claim that Szpicek may now or in the future have
against either Xxxxxxxxx or Dagan,
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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.
(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) Szpicek'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) Szpicek 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 Szpicek'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 Szpicek, 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 Szpicek 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
11
nationally-recognized overnight courier or by telecopier (provided that if sent
by telecopier, confirmed by one of the other methods for notice authorized
herein):
If to Szpicek to:
Xxxxxx Xxxxxxx
________________________
________________________
________________________
Telecopy Number: (___) ___-____
with a copy to:
Xxxxx Xxxxxxxx, Esq.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
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 Szpicek, 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.
SZPICEK:
-------
Date: _________, 2000 _______________________________________
Xxxxxx Xxxxxxx
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
(Xxxxxx Xxxxxxx)
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