LOCK-UP AGREEMENT
Exhibit
10.2
THIS
LOCK-UP AGREEMENT
is dated
as of April 6, 2006 (the “Agreement”), is entered into by and among Health
Systems Solutions, Inc., a Nevada corporation (the “Company”), VantaHealth
Technologies, LLC, a limited liability company organized and existing under
the
laws of the State of Pennsylvania (“Vanta”), and the members of Vanta identified
on the signature page hereto (the “Members,” and collectively with Vanta, the
“Vanta Parties”).
W
I T N E S S E T H:
WHEREAS,
simultaneously with the execution and delivery of this Agreement, the Vanta
Parties have entered into an Asset Purchase Agreement (the “Asset Purchase
Agreement”) with VHT Acquisition Company (“Buyer”) pursuant to which Vanta will
sell substantially all of its assets to Buyer; and
WHEREAS,
as part
of the consideration under the Asset Purchase Agreement, the Buyer will deliver
to 50,000 shares of the common stock of the Company to each of the Members
(collectively, the “Shares”); and
WHEREAS,
the
Vanta
Parties have agreed to a lock-up of the Shares for a 36-month period ending
April 1, 2009 (the “Lock-Up Termination Date”); and
WHEREAS,
it is
condition to the consummation of the Asset Purchase Agreement that this
Agreement be executed and delivered by the Vanta Parties.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties agree as follows:
1. PROHIBITED
TRANSFERS
(a) Each
of
the Vanta Parties shall not sell, assign, transfer, pledge, hypothecate,
mortgage, encumber or otherwise dispose (a “Transfer”) of all or any of the
Shares prior to the Lock-Up Termination Date. The term “dispose”
includes, but is not limited to, the act of selling, assigning, transferring,
pledging, hypothecating, encumbering, mortgaging, giving and any other form
of
disposing or conveying, whether voluntary or by operation of law, except for,
a
private sale where the purchaser agrees to be bound by each and all the
restrictions in this Agreement as if such purchaser was an original holder
of
the Shares.
(b) No
transfer of Shares otherwise permitted by this Agreement may be made unless
(i)
the Shares shall have first been registered under the Securities Act of 1933,
as
amended (the “Securities Act”); (ii) the Company shall have first been furnished
with an opinion of legal counsel, reasonably satisfactory to the Company, to
the
effect that such transfer is exempt from the registration requirements of the
Securities Act; or (iii) such transfer is within the limitations of and in
compliance with Rule 144 under the Securities Act.
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(b) Any
transfer or other disposition of Shares in violation of the restrictions on
transfer contained herein shall be null and void and shall not entitle any
of
the Vanta Parties or any proposed transferee or other person to have any shares
of Company Common Stock transferred upon the books of the Company.
2. VOTING
AND DIVIDEND RIGHTS
It
is
understood that each of the Vanta Parties has the right to vote all of the
Shares held by it and that it shall be entitled to all dividends or
distributions made by the Company arising in respect of the Shares, in cash,
stock or other property, including warrants, options or other
rights.
3. SPECIFIC
ENFORCEMENT
The
parties hereby acknowledge and agree that they may be irreparably damaged in
the
event that this Agreement is not specifically enforced. Upon a breach or
threatened breach of the terms, covenants and/or conditions of this Agreement
by
any party, any other party shall, in addition to all other remedies, be entitled
to a temporary or permanent injunction, without showing any actual damage,
and/or a decree for specific performance, in accordance with the provisions
hereof.
4. LEGEND
All
certificates evidencing any of the Shares subject to this Agreement shall also
bear a legend substantially as follows during the term of this
Agreement:
“The
shares represented by this certificate are subject to restrictions on transfer
and may not be sold, exchanged, transferred, pledged, hypothecated or otherwise
disposed of except in accordance with and subject to all the terms and
conditions of a certain Lock-Up Agreement effective as of April 1, 2006 as
it
may be amended from time to time, a copy of which may be obtain from the Company
upon request and without charge.”
5. NOTICES
Any
notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be effective upon personal delivery,
via
facsimile (upon receipt of confirmation of error-free transmission and mailing
a
copy of such confirmation, postage prepaid by certified mail, return receipt
requested) or two business days following deposit of such notice with an
internationally recognized courier service, with postage prepaid and addressed
to each of the other parties thereunto entitled at the addresses set forth
in
the Asset Purchase Agreement, or at such other addresses as a party may
designate by five days advance written notice to each of the other parties
hereto.
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6. GOVERNING
LAW;
JURISDICTION
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Florida, without regard to its principles of conflict of laws.
Any
action or proceeding seeking to enforce any provision of, or based on any right
arising out of, this Agreement may be brought against any party in the federal
courts of Florida or the state courts of the State of Florida, Miami-Dade
County, and each of the parties consents to the jurisdiction of such courts
and
hereby waives, to the maximum extent permitted by law, any objection, including
any objections based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions.
7. MISCELLANEOUS
(a) Entire
Agreement. This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof. This Agreement, including
any
certificate, schedule, exhibit or other document delivered pursuant to its
terms, constitutes the entire agreement among the parties hereto with respect
to
the subject matters hereof and thereof, and supersedes all prior agreements
and
understandings, whether written or oral, among the parties with respect to
such
subject matters.
(b) Amendments.
This
Agreement may not be amended except by an instrument in writing signed by the
party to be charged with enforcement.
(c) Waiver.
No
waiver
of any provision of this Agreement shall be deemed a waiver of any other
provisions or shall a waiver of the performance of a provision in one or more
instances be deemed a waiver of future performance thereof.
(d) Construction.
This
Agreement has been entered into freely by each of the parties, following
consultation with their respective counsel, and shall be interpreted fairly
in
accordance with its respective terms, without any construction in favor of
or
against either party.
(e) Binding
Effect of Agreement. This
Agreement shall inure to the benefit of, and be binding upon the successors
and
assigns of each of the parties hereto.
(f) Severability.
If
any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement or the validity or
unenforceability of this Agreement in any other jurisdiction.
(g) Attorneys’
Fees. If
any
action should arise between the parties hereto to enforce or interpret the
provisions of this Agreement, the prevailing party in such action shall be
reimbursed for all reasonable expenses incurred in connection with such action,
including reasonable attorneys’ fees.
(h) Headings.
The
headings of this Agreement are for convenience of reference only and shall
not
form part of, or affect the interpretation of this Agreement.
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(i) Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall be
deemed an original and all of which, when taken together, will be deemed to
constitute one and the same agreement.
[Signatures
Begin on Following Page]
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IN
WITNESS WHEREOF,
this
Lock Up Agreement has been duly executed by each of the
undersigned.
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Health
Systems Solutions, Inc.
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By:
/s/ X. X.
Xxxxxxx
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X.
X. Xxxxxxx
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VantaHealth
Technologies, LLC
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By:
/s/ Xxxx
Xxxxx
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Xxxx
Xxxxx, President
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Rivendell
Technologies, Inc.
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By:
/s/ Xxxx
Xxxxx
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Xxxx
Xxxxx, President
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ZAC
Capital Partners, LLC
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By:
/s/ Xxxxxxx X.
Xxxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxxx, Manager
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