Exhibit 10.45
SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement (this "Agreement") is made and entered
into as of the 15th day of September, 1998, by and between American Physicians
Service Group, Inc., a Texas corporation ("APS") and Xxxxxx Xxxxxxxx, M.D. (the
"Shareholder").
R E C I T A L S:
WHEREAS, pursuant to that certain Agreement and Plan of Reorganization
(the "Merger Agreement") entered into by Shareholder of even date herewith and
the other contracts and agreements to which Shareholder was, or was to be, a
party as contemplated in the Merger Agreement (the Merger Agreement and all such
other contracts and agreements are hereinafter referred to collectively as the
"Acquisition Documents"), Shareholder has acquired or will acquire Seventy Four
Thousand Four Hundred Forty Eight (74,448) shares (the "PM Shares") of the
$0.001 par value per share common stock of Syntera HealthCare Corporation, a
Texas corporation ("Syntera") for a consideration of $5 per PM Share (in
aggregate, the "Exchange Value"); and
WHEREAS, APS has agreed, on the terms and subject to the conditions
hereof, to exchange certain shares of its $0.10 par value per share common stock
("APS Common") for the PM Shares.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. CONDITIONS TO EXCHANGE RIGHT. In addition to the other terms and
conditions contained in this Agreement, Shareholder shall only be entitled to
exchange the PM Shares for shares of APS Common if each of the following
conditions has been satisfied:
(a) There shall not have been, on or before September 1, 2000
(the "Determination Date"), any registered public offering of the common stock
of Syntera, or any other transaction or event pursuant to which shares of
Syntera of the same class as the PM Shares shall have become publicly traded, at
a per share price of greater than $5; and
(b) Shareholder shall not be, on the date of the closing of
any exchange of stock pursuant to this Agreement (the "Closing Date"), in breach
of, or default under, this Agreement, any of the Acquisition Documents or any
other contract or agreement to which Shareholder and Syntera and/or APS are
parties; and
(c) At the Closing Date, Shareholder has all requisite legal
capacity and authority to engage in the transactions contemplated by this
Agreement, is the owner of all the PM Shares, and the PM Shares are free of any
and all liens, claims or encumbrances of any kind whatsoever; and
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(d) At or before the Closing Date, Syntera shall not be, or
have been, a party to any merger, consolidation or similar transaction or
agreement with respect thereto, pursuant to which (i) Syntera was not, or would
not be, the named surviving entity after such merger, consolidation or other
transaction and (ii) dissenting shareholders have a legal right of redemption or
appraisal.
2. EXCHANGE NOTICE. In the event the conditions described in
subsections (a) and (d) of Section 1 are satisfied as of the Determination Date
and Shareholder elects to exercise its right to exchange its PM Shares for
shares of APS Common, Shareholder shall provide written notice thereof (the
"Exchange Notice") to APS, which Exchange Notice must be received by APS not
later than the date (the "Expiration Date") which is ninety (90) calendar days
after the Determination Date. In the event (i) any of the conditions required
for an exchange to be permissible, as described in subsections (a) and (d) of
Section 1 above, fail to be satisfied on or prior to the Determination Date, or
(ii) any of the conditions specified in subsections (b) or (c) of Section 1 fail
to be satisfied on the Closing Date, or (iii) APS fails to receive an Exchange
Notice from Shareholder on or prior to the Expiration Date; then, in any such
case, all of Shareholder's rights under this Agreement shall automatically
terminate and be of no further force or effect whatsoever.
3. SHARE CONVERSION. Shareholder's right to exchange its PM Shares
hereunder shall apply as to all, but not less than all, of the PM Shares. In the
event Shareholder has complied with all of the conditions allowing for an
exchange pursuant to this Agreement, the closing of any such exchange (the
"Closing") shall occur at the offices of APS in Austin, Texas, on such day and
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at such time as the parties hereto may mutually agree upon, or in the failure to
so agree, at 10:00 a.m. Austin, Texas time on the first business day that falls
thirty (30) days after the later of (i) the Expiration Date, or (ii) in the
event a Lock-Up Period (as hereinafter defined) is imposed pursuant to Section 4
hereof, the day on which such Lock-Up Period ends. For purposes hereof, any
additional shares of Syntera stock of any class which Shareholder obtains
pursuant to stock dividends, stock splits, reverse stock splits or
recapitalizations to which Syntera or the PM Shares are subject after the date
this Agreement was originally entered into as first written above shall also be
considered to be included in the PM Shares; however, no adjustment or
modification will be made to the Exchange Value as a result of any such
transaction. At the Closing, Shareholder shall be entitled to receive such
shares of APS Common as is determined by dividing Three Hundred Seventy Two
Thousand Two Hundred Forty Dollars ($372,240) by the average of the "bid" and
"ask" prices for APS Common as quoted by the National Association of Securities
Dealers Automated Quotation System at the close of trading on each of the last
five (5) business days immediately preceding the Closing Date.
At the Closing, Shareholder shall tender its share certificate(s) for
all of the PM Shares, duly endorsed in blank, to APS, and shall also provide APS
with an executed blank stock power, in form and substance reasonably acceptable
to APS, wherein Shareholder represents and warrants to APS (i) that Shareholder
has all necessary legal capacity, power and authority to engage in the
transactions contemplated hereby, and (ii) that Shareholder owns all interests
in and to the PM Shares and that the PM Shares are being transferred to APS free
and clear of all liens, claims or encumbrances of any kind whatsoever.
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The shares of APS Common that Shareholder receives in the exchange are
hereinafter referred to as the "New APS Shares." The parties acknowledge and
agree that Shareholder shall receive a whole number of shares of APS Common
only, and that any fractional share amounts resulting from the foregoing
conversion calculation shall be rounded up or down, as the case may be, to the
next whole number of shares. APS shall be under no obligation to pay any cash or
other amounts with respect to any fractional share amounts, or to issue any
fractional share amounts to Shareholder. At the Closing, Shareholder shall
either receive a share certificate for all its New APS Shares or, if APS'
transfer agent is unable to produce such certificate by the Closing Date, will
receive a copy of a registered letter sent from APS to the transfer agent
instructing the transfer agent to deliver such certificate in the name of
Shareholder directly to Shareholder or Shareholder's designee.
4. NEW APS SHARES TRANSFERABILITY. APS will have registered the New APS
Shares with the Securities and Exchange Commission, and made such other filings
and taken such other steps as necessary, so that Shareholder may immediately
sell, or otherwise convey, the New APS Shares without restriction (except as
otherwise provided below). Shareholder agrees to cooperate fully and in all
respects with APS in connection with any such registration, whether such
cooperation is requested before or after the Determination Date. Failure of
Shareholder to cooperate fully, including without limitation, promptly providing
complete and accurate information to APS, in connection with the registration of
any APS Common shares, whether such cooperation and/or information is requested
before or after the Determination Date or before or after Shareholder delivers
any Exchange Notice, shall automatically terminate Shareholder's rights under
this Agreement. Notwithstanding anything contained herein to the contrary, in
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the event that APS is in the process, either at the Closing Date or at the
Determination Date, of registering and/or selling any of its capital stock in or
pursuant to any underwritten public offering, upon the written request of the
lead underwriter involved therein, Shareholder agrees, and shall then agree in
writing in form and substance reasonably acceptable to APS, to not sell, attempt
to sell, or solicit or accept any offers to sell or otherwise convey, any of the
New APS Shares for such period of time (not to exceed one hundred eighty (180)
days) as may be requested by such lead underwriter ( the "Lock-Up Period").
5. MISCELLANEOUS.
(a) FEES AND EXPENSES. Each party hereto agrees to bear all
fees and expenses (including without limitation all fees and expenses for its
legal counsel and any accountants or other professional advisors) incurred in
connection with the transactions contemplated hereby.
(b) GOVERNING LAW AND VENUE. This Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of
Texas (except the laws of Texas that would render such choice of law
ineffective). Venue for any action relating to this Agreement shall be proper
only in Texas.
(c) COUNTERPARTS. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
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(d) INUREMENT. This Agreement shall be binding upon the
parties hereto and their respective heirs, legal representatives, successors and
permitted assigns. No party hereto may assign this Agreement, or any of their
rights or obligations hereunder, without the express prior written consent of
all parties hereto in each instance.
(e) Notices. Any notices required or permitted to be given
under this Agreement shall be given in writing and shall be deemed received (a)
when personally delivered to the relevant party at its address as set forth
below or (b) if sent by mail, on the third day following the date when deposited
in the United States mail, certified or registered mail, postage pre-paid to the
relevant party at its address indicated below:
APS: American Physicians Service Group, Inc.
0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx X-000
Xxxxxx, Xxxxx 00000-0000
Attn: President
Shareholder: Xxxxxx Xxxxxxxx, M.D.
0000 Xxxxxxx 000, Xxxxx 000
Xxxxxxxxx, Xxxxx 00000-0000
Any party may change its address for purposes of this Agreement by proper notice
to the other party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
intending to be legally bound hereby, as of the date first above written.
APS: AMERICAN PHYSICIANS SERVICE GROUP, INC.
By: /s/ Xxxxxxx X Xxxxx
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Printed Name: Xxxxxxx X Xxxxx
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Title: Sr. VP Finance
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SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxxxx, M.D.
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