Exhibit 10.12 Exchange Agreement between us and Xxxxxxx Xxxxx
EXCHANGE AND CONVERSION AGREEMENT
BETWEEN
TELEMETRIX INC.
AND
XXXXXXX X. XXXXX
THIS EXCHANGE AND CONVERSION AGREEMENT (hereinafter called this "Agreement")
made and entered into as of this 26 day of May, 2003 by and among TELEMETRIX
INC., a Delaware corporation with offices at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000 ("the Company"), and XXXXXXX X. XXXXX, an individual residing at 000 Xxxx
00xx Xxxxxx, Xxxxxxxxxxx, XX 00000 ("Xxxxx").
WHEREAS, the Company has been organized as a Delaware corporation for the
primary purpose of engaging in the telecommunications business; and
WHEREAS, the Company and Xxxxx have entered into certain loan agreements
("notes"), a schedule of which is identified as Exhibit 1 and is attached to and
made a part of this agreement; and
WHEREAS, the Company has agreed upon the terms and conditions set forth herein,
to an exchange of the notes held by Xxxxx for shares of the common and preferred
capital stock of the Company; and
WHEREAS, the Company and Xxxxx mutually desire to set forth their agreements and
understandings with respect to such exchange of notes for shares of the common
capital stock of the Company and to provide for certain rights of Xxxxx in
connection therewith;
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, provisions and covenants herein contained and the mutual benefits
derived therefrom, the parties hereto do covenant and agree as follows:
1. Capital Structure of the Company. The Company is a Delaware corporation
authorized by its Certificate of Incorporation, to issue 25,000,000 shares
of Common Stock ("Common Stock"), par value $.001 per share, of which
18,486,176 are outstanding and 5,000,000 shares of Preferred Stock, par
value of $.001 per share, of which 0 shares are outstanding.
2. Exchange of notes for Common Stock. As of the date of this agreement, Xxxxx
shall surrender to the principal office of the Company (or such other
office or agency of the Company as the Company may designate by notice in
writing to the holder or holders of the Common Stock of the Company) all
certificates representing all shares of Common Stock which have been issued
by the Company to Xxxxxxx X. Xxxxx, his heirs, successors or assigns which
correspond or were issued in connection or association with the schedule of
notes attached hereto as Exhibit 1, as well as shares issued on the date of
reorganization as consideration and shares issued for salary and shall have
the right to exchange without further cost all notes and shares of Common
Stock issued as consideration for any of the notes listed in Exhibit 1, as
well as shares issued as in lieu of salary for 3,584,151 shares of Common
Stock of the Company and 101,551 shares of Preferred Stock. This agreement
does not contemplate the surrender of any shares of stock which are held by
Xxxxx and which were not a part of any transactions between Xxxxx and the
Company, and which shares are held by Xxxxx as either restricted or
unrestricted shares of Common Stock.
3. Authorization of Issuance of Preferred Stock. This exchange calls for the
issuance of Preferred Stock. The Company shall promptly take such steps as
may be necessary or appropriate under the laws of Delaware and the federal
securities laws to permit the issuance of the Preferred Stock. If the
authorization and issuance of such Preferred Stock requires an amendment to
the Company's Certificate of Incorporation and the adoption by the
stockholders of such amendment, the Company shall immediately initiate the
necessary and required documents and corporate meetings. The Preferred
Stock shall be non-voting stock.
4. Option of Xxxxx for Registration or Exchange of Stock. At any time, and
subject to the terms set forth in paragraph 5 of this document, Xxxxx
shall have the right by providing written notice to the Company to have the
Company register in accordance with Paragraph 6 hereof all or any part of
the Common Stock owned by Xxxxx. if any, held by Xxxxx on a registration
statement in compliance with the Securities Act of 1933 in order to permit
the sale or distribution of such stock.
5. Registration of Stock. If the Company shall receive from Xxxxx a written
request that the Company register Common Stock under a registration
statement in compliance with the Securities Act of 1933 as provided in
paragraph 6 hereof, in order to permit the sale or distribution of such
stock, the Company, as soon as practicable after giving written notice to
Xxxxx (which notice shall be given by the Company within ten (10) days
after receipt of the written request for registration from Xxxxx) that it
has elected to file a registration statement for the Common Stock held by
Xxxxx pursuant to this paragraph, will use its best efforts to effect such
registration and qualify the Common Stock in such jurisdictions as may be
requested by Xxxxx. Any such registration of shares requested by Xxxxx xxx
include shares of Common Stock owned by other shareholders of the Company,.
100,000 (One Hundred Thousand) shares in the aggregate is the minimum
number of shares that may be included in any registration. Each selling
shareholder shall bear a pro rata portion of all costs and expenses paid to
third parties (other than those paid to any affiliate or subsidiary of the
Company or any shareholder thereof) for registration and filing fees,
printing expenses, fees and disbursements of counsel, and any accounting
fees incident to or required by the registration or qualification.
Underwriting discounts and commissions shall be the pro rata expense of
each selling shareholder. The Company shall keep effective and maintain any
such registration statement for such period and to the extent as Xxxxx xxx
xxxx necessary for the purpose of selling or disposing of the shares, and
from time to time during such period shall amend or supplement the
prospectus used in connection therewith to the extent necessary in order to
comply with the applicable law. The Company shall be required to comply
with the above registration provisions only once, except that if Xxxxx
receives a Warrant which it is not entitled to exercise until after the
registration statement has become effective, then Xxxxx shall be entitled
to a second registration to cover Common Stock acquired by it upon exercise
of the Warrant an any other shares of Common Stock then still owned by
Xxxxx.
Should the Company at any time seek to register all or any part of its
Common Stock under a registration statement in compliance with the
Securities Act of 1933, without having been requested to do so by Xxxxx, in
accordance with this paragraph, Xxxxx xxx (in addition to its registration
rights set forth above) add any or all of such shares of the Company as it
may own to any such registration. The Company shall bear all costs and
expenses for registration and filing fees, printing expenses, fees and
disbursements of all counsel and any accounting fees, including expenses of
any special audit, incident to or required by any registration not
requested by Xxxxx. Underwriting discounts and commissions shall be the pro
rata expense of such selling shareholder.
6. Indemnification. Prior to the effective date of any registration statement
relating to any of the shares of Common Stock owned by Xxxxx, the Company
and Xxxxx shall enter into an agreement providing for reciprocal
indemnification against any losses, claims, damages or liabilities to which
the Company or Xxxxx (or controlling persons thereof) may become subject
under the Securities Act of 1933, as amended, or otherwise, in the form of
reciprocal indemnification provisions which customarily appear in
underwriting agreements used by reputable investment bankers.
7. Acquisition for investment. Xxxxx hereby agrees that the shares of Common
Stock are being acquired for its own account and not with a view to the
distribution or resale thereof and the same shall not be sold or
transferred in the absence of an effective registration statement under the
Securities Act of 1933 unless an exemption therefrom is available.
8. Agreements Relating to Rule 144. If and so long as the Company has
securities registered pursuant to the Securities Act of 1933, the Company
will (a) file reports in compliance with the Securities Exchange Act of
1934, and (b) at its expense, forthwith upon the request of Xxxxx, deliver
to Xxxxx a certificate, signed by the Company's principal financial
officer, stating (i) Company's name, address and telephone number
(including area code), (ii) the Company's Securities and Exchange
identification number, (iii) the Company's Securities and Exchange
Commission file number, (iv) the number of shares of stock (and other
securities) outstanding as shown by the most recent report or statement
published by the Company and (v) whether the Company has filed the reports
required to be filed under the Securities Exchange Act of 1934 for a period
of at least ninety (90) days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder. If at any time, subsequent to the exchange of Tracy's notes for
Common Stock, the Company is not required to file reports in compliance
with either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, the Company, at its expense will, forthwith upon the written request
of Xxxxx, make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144 of the
General Rules and Regulations promulgated under the Securities Act of 1933.
9. Transfer of Common Stock by Xxxxx. It is expected that Xxxxx shall and
Xxxxx shall at any time be permitted without any approval, consent or
action of the Company to, sell, transfer or assign all or any part of the
Common Stock or other voting or non-voting equity securities of the Company
then owned by Xxxxx to other individuals, corporations or other entities;
provided, however, in the event of a sale, transfer or assignment by Xxxxx
of any of its shares of Common Stock, Xxxxx shall, in the absence of an
effective registration statement under the Securities Act of 1933 covering
such shares, provide the Company with an opinion of counsel, satisfactory
in form and substance to the Company and its counsel, to the effect that
such sale, transfer or assignment will not require that such securities be
registered under the Securities Act of 1933. Any such assignee, in
proportion to its ownership of the Common Stock or other voting or
non-voting equity securities, shall be entitled to exercise or acquire all
of the rights or interests which may be exercised or acquired by Xxxxx
pursuant to the terms of this Agreement; provided, however, that the right
to request mandatory registration under paragraph 5 shall be exercisable
only by the then owners of a majority interest of the Common Stock
previously held by Xxxxx.
10. Notices and Addresses. All notices or other communications in connection
herewith shall be in writing and shall be mailed by first class or air
mail, postage prepaid to the following addresses and to the attention of
the party in question:
Xxxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX
00000
Or at such other addresses as may have been furnished to the other parties
in writing.
11. No additional Classes of Common Stock. The Company shall not create any
additional classes of common capital stock.
12. Termination of Agreement. This Agreement shall terminate only upon the
exercise by Xxxxx of all of its rights for registration or exchange of
stock as set forth in paragraphs 2, 4 and 5 hereof or by the mutual written
consent of the Company and Xxxxx.
13. Amendments. This agreement may be amended only by written amendment signed
by Xxxxx and the Company.
14. Complete Agreement. This Agreement contains all of the Agreements and
understandings between the parties here-to relative to the transaction
contemplated herein.
15. Choice of Law. This agreement and all matters pertaining thereto shall be
construed under he laws of the State of Nebraska.
16. Signatures. This Agreement may be executed in counterparts, with each such
duly executed counterpart having the same validity, force and effect as the
original.
17. Facsimile. A facsimile copy of this document and any signatures shall be
considered for all purposes and intent as legal and binding originals.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
Telemetrix Inc.
/s/Xxxxxxx X. Xxxxx /s/Xxxxxxx X. Xxxxxx
---------------------------- ----------------------------
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxx, Secretary
Telemetrix Inc.
/s/Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx, Chairman
Board of Directors
Exhibit 1
Simple Share price
Date of Interest Accrued at $0.15
Note # Loan Rate Maturity Principal Interest Total Renewal
---------------------------------------------------------------------------------------------------------
014-J 02/15/2001 Xxxxxxx Xxxxx 14.99% On Demand 6,825.00 1,943.83 8,768.83 58,459
015-CBM 02/15/2001 Xxxxxxx Xxxxx 19.53% On Demand 20,100.00 7,458.51 27,558.51 183,723
016-M 02/20/2001 Xxxxxxx Xxxxx 14.99% On Demand 6,000.00 1,696.37 7,696.37 51,309
017-AEB 02/20/2001 Xxxxxxx Xxxxx 10.00% On Demand 7,000.00 1,320.28 8,320.28 55,469
018-N 02/24/2001 Xxxxxxx Xxxxx 23.49% On Demand 4,000.00 1,761.75 5,761.75 38,412
019-COM 02/24/2001 Xxxxxxx Xxxxx 9.90% On Demand 19,570.00 3,632.68 23,202.68 154,685
020-M 02/26/2001 Xxxxxxx Xxxxx 14.99% On Demand 5,000.00 1,401.15 6,401.15 42,674
021-AR 02/27/2001 Xxxxxxx Xxxxx 21.99% On Demand 5,000.00 2,052.40 7,052.40 47,016
022-ADV 03/09/2001 Xxxxxxx Xxxxx 15.99% On Demand 5,125.00 1,506.95 6,631.95 44,213
023-M 03/09/2001 Xxxxxxx Xxxxx 14.99% On Demand 6,030.00 1,662.17 7,692.17 51,281
024-US 03/12/2001 Xxxxxxx Xxxxx 22.90% On Demand 13,000.00 5,449.56 18,449.56 122,997
025-FSB 03/15/2001 Xxxxxxx Xxxxx 11.00% On Demand 40,000.00 8,017.78 48,017.78 320,119
027-FSB 03/29/2001 Xxxxxxx Xxxxx 11.00% On Demand 20,000.00 3,923.33 23,923.33 159,489
028-W 04/03/2001 Xxxxxxx Xxxxx 8.00% On Demand 6,000.00 849.33 6,849.33 45,662
029-FSB 04/03/2001 Xxxxxxx Xxxxx 11.00% On Demand 12,000.00 2,335.67 14,335.67 95,571
035-COV 04/20/2001 Xxxxxxx Xxxxx 19.80% On Demand 4,120.00 1,404.92 5,524.92 36,833
036-FSB 04/20/2001 Xxxxxxx Xxxxx 11.00% On Demand 4,000.00 757.78 4,757.78 31,719
037 05/16/2001 Xxxxxxx Xxxxx 11.00% On Demand 50,000.00 9,075.00 59,075.00 393,833
039 05/16/2001 Xxxxxxx Xxxxx 11.00% On Demand 10,000.00 1,815.00 11,815.00 78,767
040 05/16/2001 Xxxxxxx Xxxxx 11.00% On Demand 200,000.00 36,300.00 236,300.00 1,575,333
041-FSB 05/21/2001 Xxxxxxx Xxxxx 11.00% On Demand 4,000.00 719.89 4,719.89 31,466
042-N 05/23/2001 Xxxxxxx Xxxxx 18.99% On Demand 3,525.55 1,091.66 4,617.21 30,781
043-ADV 06/11/2001 Xxxxxxx Xxxxx 15.99% On Demand 4,800.00 1,210.98 6,010.98 40,073
044-COM 06/11/2001 Xxxxxxx Xxxxx 9.90% On Demand 1,000.00 156.20 1,156.20 7,708
045-W 06/11/2001 Xxxxxxx Xxxxx 8.00% On Demand 1,000.00 126.22 1,126.22 7,508
046 06/08/2001 Xxxxxxx Xxxxx 11.00% 06/08/2002 110,000.00 19,191.94 129,191.94 861,280
047 06/15/2001 Xxxxxxx Xxxxx 11.00% 06/15/2002 17,341.12 2,988.45 20,329.57 135,530
49 07/10/2001 Xxxxxxx Xxxxx 11.00% 07/10/2002 150,000.00 24,704.17 174,704.17 1,164,694
050-W 07/10/2001 Xxxxxxx Xxxxx 13.49% On Demand 1,500.00 302.96 1,802.96 12,020
051-N 07/10/2001 Xxxxxxx Xxxxx 18.99% On Demand 3,100.00 881.40 3,981.40 26,543
052-COM 07/10/2001 Xxxxxxx Xxxxx 9.90% On Demand 1,050.00 155.64 1,205.64 8,038
053-MTP 07/20/2001 Xxxxxxx Xxxxx 11.00% On Demand 64,716.75 10,460.74 75,177.49 501,183
054-MTP 07/23/2001 Xxxxxxx Xxxxx 11.00% On Demand 3,882.52 624.01 4,506.53 30,044
055 07/27/2001 Xxxxxxx Xxxxx 11.00% On Demand 10,300.00 1,642.85 11,942.85 79,619
056 08/16/2001 Xxxxxxx Xxxxx 11.00% On Demand 60,000.00 9,203.33 69,203.33 461,356
058 07/23/2001 Xxxxxxx Xxxxx 11.00% On Demand 23,971.88 3,852.81 27,824.69 185,498
059 09/11/2001 Xxxxxxx Xxxxx 11.00% On Demand 4,800.00 698.13 5,498.13 36,654
060 10/01/2001 Xxxxxxx Xxxxx 11.00% On Demand 11,559.18 1,610.58 13,169.76 87,798
061-CC 10/10/2001 Xxxxxxx Xxxxx 15.25% On Demand 4,625.00 875.76 5,500.76 36,672
062 10/24/2001 Xxxxxxx Xxxxx 11.00% On Demand 20,105.64 2,660.09 22,765.73 151,772
062B 11/05/2001 Xxxxxxx Xxxxx 11.00% On Demand 150,000.00 19,295.83 169,295.83 1,128,639
063 11/15/2001 Xxxxxxx Xxxxx 15.25% On Demand 50,000.00 8,705.21 58705.21 391368
065 12/17/2001 Xxxxxxx Xxxxx 10.00% On Demand 374,059.93 39,380.20 413,440.13 2,756,268
070 03/29/2002 Xxxxxxx Xxxxx 11.00% On Demand 400,000.00 33,855.56 433,855.56 2,892,370
077 09/30/2002 Xxxxxxx Xxxxx 10.00% On Demand 2,655.93 67.87 2,723.80 18,159
078 10/03/2002 Xxxxxxx Xxxxx 10.00% On Demand 66,781.97 1,651.00 68,432.97 456,220
079 10/16/2002 Xxxxxxx Xxxxx 10.00% On Demand 5,000.00 105.56 5,105.56 34,037
080 10/22/2002 Xxxxxxx Xxxxx 10.00% On Demand 3,000.00 58.33 3,058.33 20,389
083 11/21/2002 Xxxxxxx Xxxxx 10.00% On Demand 2,500.00 27.78 2,527.78 16,852
Total Shares After Conversion* 15,986,346
Organization Shares 4,140,000
Salary Shares 3,726,569
038 & 063 Shares 41,428
Total 23,894,343
* Shares after conversion represent a change of simple interest to 10.00% on all
notes.
