EXHIBIT 10.4
EXECUTION COPY
SILVER KEY MINING COMPANY, INC.
A Nevada Corporation
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of October 22, 2002 (the
"Agreement"), is entered into by and among Silver Key Mining Company, Inc., a
Nevada corporation (the "Company"), and the holders (the "Investors") of the
Company's capital stock and Warrants set forth on the signature page hereof.
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Securities Purchase Agreement (as hereinafter defined).
WHEREAS, heretofore, Healthcare Quality Systems, Inc., a Florida
corporation wholly owned by Company entered into and consummated Merger
Agreement with Provider Acquisition, LLC ("PAL") pursuant to which the Investors
exchanged all their membership interests in PAL for 1,915,842 shares of the
Company's Common Stock (the "Merger"); and
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Investors are agreeing to purchase from the Company, pursuant to
the Securities Purchase Agreement dated as of October 16, 2002 among the
Company, certain of its stockholders and Stanford Venture Capital Holdings,
Inc., a Delaware corporation (the "Securities Purchase Agreement") 1,880,342
shares of the Series A Preferred Stock and the Warrants; and
WHEREAS, the Company desires to grant to the Investors the registration
rights set forth herein with respect to the shares of Common Stock issuable upon
conversion of the Series A Preferred Stock (the "Conversion Shares"), the shares
of Common Stock issuable as a result of the Merger (the "Merger Shares"), the
shares of Common Stock issuable upon exercise of the Warrants (the "Warrant
Shares"), the shares of Common Stock issuable upon the exercise of the warrants
issuable in the event of a registration default pursuant to Section 4(e) (the
"Default Warrant Shares"), the 500,000 shares of Common Stock registered in the
name of Deluxe Investment Company. and held in escrow under an Escrow Agreement
of even date herewith among the Company, Stanford Venture Capital Holdings, Inc.
and Boylan, Brown, Xxxxxx & Xxxxxx LLP, as escrow agent (the "Escrow Shares")
and the shares of Common Stock issued as a dividend or other distribution with
respect to the Conversion Shares, Merger Shares, Warrant Shares, Escrow Shares
or Default Warrant Shares (the "Distribution Shares") (all the shares of the
Series A Preferred Stock, the Conversion Shares, the Merger Shares, the Warrant
Shares, the Default Warrant Shares, the Escrow Shares and the Distribution
Shares, collectively and interchangeably, are referred to herein as the
"Securities").
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. CERTAIN DEFINITIONS
As used herein the term "Registrable Security" means the Conversion
Shares, Warrant Shares, Merger Shares, Default Warrant Shares and the
Distribution Shares, until (i) the Registration Statement (as defined below) has
been declared effective by the Securities and Exchange Commission (the
"Commission"), and all Securities have been disposed of pursuant to the
Registration Statement, (ii) all Securities have been sold under circumstances
under which all of the applicable conditions of Rule 144 ("Rule 144") (or any
similar provision then in force) under the Securities Act of 1933, as amended
(the "Securities Act") are met, or (iii) such time as, in the opinion of counsel
to the Company reasonably satisfactory to the Investors and upon delivery to the
Investors of such executed opinion, all Securities may be sold without any time,
volume or manner limitations pursuant to Rule 144 (or any similar provision then
in effect). In the event of any merger, reorganization, consolidation,
recapitalization or other change in corporate structure affecting the Common
Stock, such adjustment shall be deemed to be made in the definition of
"Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Agreement. As used herein the
term "Holder" means any Person owning or having the right to acquire Registrable
Securities or any assignee thereof in accordance with Section 10 hereof. As used
herein "Trading Day" shall mean any business day on which the market on which
the Common Stock trades is open for business.
2. RESTRICTIONS ON TRANSFER
Each of the Investors acknowledges and understands that prior to the
registration of the Securities as provided herein, the Securities are
"restricted securities" as defined in Rule 144. Each of the Investors
understands that no disposition or transfer of the Securities may be made by any
of the Investors in the absence of (i) an opinion of counsel to such Investor,
in form and substance reasonably satisfactory to the Company, that such transfer
may be made without registration under the Securities Act or (ii) such
registration.
3. COMPLIANCE WITH REPORTING REQUIREMENTS
With a view to making available to the Investors the benefits of Rule
144 or any other similar rule or regulation of the Commission that may at any
time permit the holders of the Securities to sell securities of the Company to
the public pursuant to Rule 144, the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144;
(b) file with the Commission in a timely manner all reports and
other documents required to be filed with the Commission pursuant to Section 13
or 15(d) under the Securities Exchange Act of 1934 (the "Exchange Act") by
companies subject to either of such sections, irrespective of whether the
Company is then subject to such reporting requirements; and
(c) Upon request by any Holder or the Company's transfer agent, the
Company shall provide an opinion of counsel, which opinion shall be reasonably
acceptable to the Holder and/or the Company's transfer agent, that the such
Holder has complied with the applicable conditions of Rule 144 (or any similar
provision then in force).
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4. REGISTRATION RIGHTS WITH RESPECT TO THE REGISTRABLE SECURITIES
(a) The Company agrees that it will prepare and file with the
Commission, (i) within 180 calendar days from the Last Closing Date, a
registration statement (on Form S-1 or SB-2, or other appropriate registration
statement form) under the Securities Act (the "Registration Statement"), and
(ii) if at least 20% of the Registrable Securities covered under the
Registration Statement filed under (i) remain unsold during the effective period
of such Registration Statement, then within 20 days following receipt of a
written notice from the holders representing a majority of such unsold
Registrable Securities, another Registration Statement so as to permit a resale
of the Securities under the Securities Act by the Holders as selling
stockholders and not as underwriters.
The Company shall use diligent best efforts to cause the Registration
Statement to become effective as soon as practical following the filing of the
Registration Statement. The number of shares designated in the Registration
Statement to be registered shall include 150% of the Warrant Shares, 150% of the
Merger Shares, 150% of the Default Warrant Shares, if any, and 150% of the
Conversion Shares and shall include appropriate language regarding reliance upon
Rule 416 to the extent permitted by the Commission. The Company will notify the
Holders and its transfer agent of the effectiveness of the Registration
Statement within one Trading Day of such event.
(b) The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 4 effective under the
Securities Act until the earlier of (i) the date that none of the Registrable
Securities covered by such Registration Statement are or may become issued and
outstanding, (ii) the date that all of the Registrable Securities have been sold
pursuant to such Registration Statement, (iii) the date all the Holders receive
an opinion of counsel to the Company, which counsel shall be reasonably
acceptable to the Holders, that the Registrable Securities may be sold under the
provisions of Rule 144 without limitation as to volume, (iv) all Registrable
Securities have been otherwise transferred to persons who may trade such shares
without restriction under the Securities Act, and the Company has delivered a
new certificate or other evidence of ownership for such securities not bearing a
restrictive legend, or (v) two years from the Effective Date.
(c) All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and filing of the
Registration Statement under this Section 4 and in complying with applicable
securities and blue sky laws (including, without limitation, all attorneys' fees
of the Company) shall be borne by the Company. The Company shall also reimburse
the fees and expenses of counsel to the Holders incurred in connection with such
counsel's review of the Registration Statement and advice concerning the
Registration Statement and its filing subject to a cap of $15,000. The Holders
shall bear the cost of underwriting and/or brokerage discounts, fees and
commissions, if any, applicable to the Registrable Securities being registered.
The Holders and their counsel shall have a reasonable period, not to exceed 15
Trading Days, to review the proposed Registration Statement or any amendment
thereto, prior to filing with the Commission, and the Company shall provide the
Holders with copies of any comment letters received from the Commission with
respect thereto within two Trading Days of receipt thereof. The Company shall
qualify any of the Registrable Securities for sale in such states as the Holders
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reasonably designate and shall furnish indemnification in the manner provided in
Section 7 hereof. However, the Company shall not be required to qualify in any
state which will require an escrow or other restriction relating to the Company
and/or the Holders, or which will require the Company to qualify to do business
in such state or require the Company to file therein any general consent to
service of process. The Company at its expense will supply each of the Investors
with copies of the applicable Registration Statement and the prospectus included
therein and other related documents in such quantities as may be reasonably
requested by any of the Investors.
(d) The Company shall not be required by this Section 4 to include
the Registrable Securities in any Registration Statement which is to be filed
if, in the opinion of counsel for both the Holders and the Company (or, should
they not agree, in the opinion of another counsel experienced in securities law
matters acceptable to counsel for the Holders and the Company) the proposed
offering or other transfer as to which such registration is requested is exempt
from applicable federal and state securities laws and would result in all
purchasers or transferees obtaining securities which are not "restricted
securities," as defined in Rule 144.
(e) In the event that (i) the Registration Statement is not filed by
the Company in a timely manner as set forth in Section 4(a); or (ii) such
Registration Statement is not maintained as effective by the Company for the
period set forth in Section 4(b) above (each a "Registration Default"), then the
Company will issue to each of the Holders as of the first day of such
Registration Default and for every consecutive month in which such Registration
Default is occurring, as liquidated damages, and not as a penalty, warrants to
purchase one (1) share of the Common Stock ("Default Warrants") for each share
of Series A Preferred Stock issued to the Holders pursuant to the Securities
Purchase Agreement until such corresponding Registration Default no longer
exists ("Liquidated Damages"); provided, however, that the issuance of such
Default Warrants shall not relieve the Company from its obligations to register
the Registrable Securities pursuant to this Section.
If the Company does not issue the Default Warrants to the Holders as
set forth above, the Company will pay any Holder's reasonable costs of any
action in a court of law to cause compliance with this Section 4(e), including
reasonable attorneys' fees, in addition to the Default Warrants. The
registration of the Registrable Securities pursuant to this Section shall not
affect or limit a Holder's other rights or remedies as set forth in this
Agreement.
(f) The Company shall be precluded from including in any
Registration Statement which it is required to file pursuant to this Section 4
any other securities apart from the Registrable Securities, without the prior
written consent of the Holders.
(g) If, at any time any Registrable Securities are not at the time
covered by any effective Registration Statement, the Company shall determine to
register under the Securities Act (including pursuant to a demand of any
stockholder of the Company exercising registration rights) any of its shares of
the Common Stock (other than in connection with a merger or other business
combination transaction that has been consented to in writing by holders of the
Series A Preferred Stock, or pursuant to Form S-8 when such filing has been
consented to in writing by holders of the Series A Preferred Stock), it shall
send to each Holder written notice of such determination and, if within 20 days
after receipt of such notice, such Holder shall so request in writing, the
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Company shall its best efforts to include in such registration statement all or
any part of the Registrable Securities that such Holder requests to be
registered. Notwithstanding the foregoing, if, in connection with any offering
involving an underwriting of the Common Stock to by issued by the Company, the
managing underwriter shall impose a limitation on the number of shares of the
Common Stock included in any such registration statement because, in such
underwriter's judgment, such limitation is necessary based on market conditions:
(a) if the registration statement is for a public offering of common stock on a
"firm commitment" basis with gross proceeds to the Company of at least
$15,000,000 (a "Qualified Public Offering"), the Company may exclude, to the
extent so advised by the underwriters, the Registrable Securities from the
underwriting; provided, however, that if the underwriters do not entirely
exclude the Registrable Securities from such Qualified Public Offering, the
Company shall be obligated to include in such registration statement, with
respect to the requesting Holder, only an amount of Registrable Securities equal
to the product of (i) the number of Registrable Securities that remain available
for registration after the underwriter's cutback and (ii) such Holder's
percentage of ownership of all the Registrable Securities then outstanding (on
an as-converted basis) (the "Registrable Percentage"); and (b) if the
registration statement is not for a Qualified Public Offering, the Company shall
be obligated to include in such registration statement, with respect to the
requesting Holder, only an amount of Registrable Securities equal to the product
of (i) the number of Registrable Securities that remain available for
registration after the underwriter's cutback and (ii) such Holder's Registrable
Percentage; provided, however, that the aggregate value of the Registrable
Securities to be included in such registration may not be so reduced to less
than 30% of the total value of all securities included in such registration. If
any Holder disapproves of the terms of any underwriting referred to in this
paragraph, it may elect to withdraw therefrom by written notice to the Company
and the underwriter. No incidental right under this paragraph shall be construed
to limit any registration required under the other provisions of this Agreement.
5. COOPERATION WITH COMPANY
Each Holder will cooperate with the Company in all respects in
connection with this Agreement, including timely supplying all information
reasonably requested by the Company (which shall include all information
regarding such Holder and proposed manner of sale of the Registrable Securities
required to be disclosed in any Registration Statement) and executing and
returning all documents reasonably requested in connection with the registration
and sale of the Registrable Securities and entering into and performing its
obligations under any underwriting agreement, if the offering is an underwritten
offering, in usual and customary form, with the managing underwriter or
underwriters of such underwritten offering. Nothing in this Agreement shall
obligate any Holder to consent to be named as an underwriter in any Registration
Statement. The obligation of the Company to register the Registrable Securities
shall be absolute and unconditional as to those Registrable Securities which the
Commission will permit to be registered without naming any Holder as
underwriters. Any delay or delays caused by a Holder by failure to cooperate as
required hereunder shall not constitute a Registration Default as to such
Holder.
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6. REGISTRATION PROCEDURES
If and whenever the Company is required by any of the provisions of
this Agreement to effect the registration of any of the Registrable Securities
under the Securities Act, the Company shall (except as otherwise provided in
this Agreement), as expeditiously as possible, subject to the Holders'
assistance and cooperation as reasonably required with respect to each
Registration Statement:
(a) (i) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Securities covered by such Registration
Statement whenever any of the Holder shall desire to sell or otherwise dispose
of the same (including prospectus supplements with respect to the sales of
Registrable Securities from time to time in connection with a registration
statement pursuant to Rule 415 promulgated under the Securities Act) and (ii)
take all lawful action such that each of (A) the Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (B) the prospectus
forming part of the Registration Statement, and any amendment or supplement
thereto, does not at any time during the Registration Period include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(b) (i) prior to the filing with the Commission of any Registration
Statement (including any amendments thereto) and the distribution or delivery of
any prospectus (including any supplements thereto), provide draft copies thereof
to the Holders as required by Section 4(c) and reflect in such documents all
such comments as the Holders (and their counsel) reasonably may propose; (ii)
furnish to each of the Holders such numbers of copies of a prospectus including
a preliminary prospectus or any amendment or supplement to any prospectus, as
applicable, in conformity with the requirements of the Securities Act, and such
other documents, as any of the Holders may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities
owned by such Holder; and (iii) provide to the Holders copies of any comments
and communications from the Commission relating to the Registration Statement,
if lawful to do so;
(c) register and qualify the Registrable Securities covered by the
Registration Statement under such other securities or blue sky laws of such
jurisdictions as any of the Holders shall reasonably request (subject to the
limitations set forth in Section 4(c) above), and do any and all other acts and
things which may be necessary or advisable to enable such Holder to consummate
the public sale or other disposition in such jurisdiction of the Registrable
Securities owned by such Holder;
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(d) list such Registrable Securities on the markets where the Common
Stock of the Company is listed as of the effective date of the Registration
Statement, if the listing of such Registrable Securities is then permitted under
the rules of such markets;
(e) notify the Holders at any time when a prospectus relating
thereto covered by the Registration Statement is required to be delivered under
the Securities Act, of the happening of any event of which it has knowledge as a
result of which the prospectus included in the Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and the
Company shall prepare and file a curative amendment under Section 6(a) as
quickly as reasonably possible and during such period, the Holders shall not
make any sales of Registrable Securities pursuant to the Registration Statement;
(f) after becoming aware of such event, notify each of the Holders
who holds Registrable Securities being sold (or, in the event of an underwritten
offering, the managing underwriters) of the issuance by the Commission of any
stop order or other suspension of the effectiveness of the Registration
Statement at the earliest possible time and take all lawful action to effect the
withdrawal, rescission or removal of such stop order or other suspension;
(g) cooperate with the Holders to facilitate the timely preparation
and delivery of certificates for the Registrable Securities to be offered
pursuant to the Registration Statement and enable such certificates for the
Registrable Securities to be in such denominations or amounts, as the case may
be, as any of the Holders reasonably may request and registered in such names as
any of the Holders may request; and, within three Trading Days after a
Registration Statement which includes Registrable Securities is declared
effective by the Commission, deliver and cause legal counsel selected by the
Company to deliver to the transfer agent for the Registrable Securities (with
copies to the Holders) an appropriate instruction and, to the extent necessary,
an opinion of such counsel;
(h) take all such other lawful actions reasonably necessary to
expedite and facilitate the disposition by the Holders of their Registrable
Securities in accordance with the intended methods therefor provided in the
prospectus which are customary for issuers to perform under the circumstances;
(i) in the event of an underwritten offering, promptly include or
incorporate in a prospectus supplement or post-effective amendment to the
Registration Statement such information as the managers reasonably agree should
be included therein and to which the Company does not reasonably object and make
all required filings of such prospectus supplement or post-effective amendment
as soon as practicable after it is notified of the matters to be included or
incorporated in such prospectus supplement or post-effective amendment; and
(j) maintain a transfer agent and registrar for the Common Stock.
7. INDEMNIFICATION
(a) To the maximum extent permitted by law, the Company agrees to
indemnify and hold harmless each of the Holders, each person, if any, who
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controls any of the Holders within the meaning of the Securities Act, and each
director, officer, shareholder, employee, agent, representative, accountant or
attorney of the foregoing (each of such indemnified parties, a "Distributing
Investor") against any losses, claims, damages or liabilities, joint or several
(which shall, for all purposes of this Agreement, include, but not be limited
to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees and expenses), to which the Distributing Investor may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, or any related final prospectus or
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the extent, and
only to the extent, that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, preliminary prospectus,
final prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to the Company by the
Distributing Investor, its counsel, or affiliates, specifically for use in the
preparation thereof or (ii) by such Distributing Investor's failure to deliver
to the purchaser a copy of the most recent prospectus (including any amendments
or supplements thereto). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) To the maximum extent permitted by law, each Distributing
Investor agrees that it will indemnify and hold harmless the Company, and each
officer and director of the Company or person, if any, who controls the Company
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include, but not
be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees and expenses) to which the Company or any such
officer, director or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, or any related final prospectus or amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, final prospectus or amendment or supplement
thereto in reliance upon, and in conformity with, written information furnished
to the Company by such Distributing Investor, its counsel or affiliates,
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which the Distributing Investor may otherwise
have under this Agreement. Notwithstanding anything to the contrary herein, the
Distributing Investor shall be liable under this Section 7(b) for only that
amount as does not exceed the net proceeds to such Distributing Investor as a
result of the sale of Registrable Securities pursuant to the Registration
Statement.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action against such indemnified
party, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the indemnifying
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party in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party except to the extent the failure of
the indemnified party to provide such written notification actually prejudices
the ability of the indemnifying party to defend such action. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, assume the defense thereof,
subject to the provisions herein stated and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified parties shall have
the right to employ one or more separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any interpleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by its counsel that there may be one or more legal defenses
available to the indemnifying party different from or in conflict with any legal
defenses which may be available to the indemnified party or any other
indemnified party (in which case the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of one
separate firm of attorneys for the indemnified party, which firm shall be
designated in writing by the indemnified party). No settlement of any action
against an indemnified party shall be made without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld so long
as such settlement includes a full release of claims against the indemnified
party.
All fees and expenses of the indemnified party (including reasonable
costs of defense and investigation in a manner not inconsistent with this
Section and all reasonable attorneys' fees and expenses) shall be paid to the
indemnified party, as incurred, within 10 Trading Days of written notice thereof
to the indemnifying party; provided, that the indemnifying party may require
such indemnified party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such indemnified party is
not entitled to indemnification hereunder.
8. CONTRIBUTION
In order to provide for just and equitable contribution under the
Securities Act in any case in which (i) the indemnified party makes a claim for
indemnification pursuant to Section 7 hereof but is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that the express provisions of Section 7 hereof provide for indemnification in
such case, or (ii) contribution under the Securities Act may be required on the
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part of any indemnified party, then the Company and the applicable Distributing
Investor shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees and expenses), in either such
case (after contribution from others) on the basis of relative fault as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the applicable Distributing Investor on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Distributing Investor
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 8. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 8 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
Notwithstanding any other provision of this Section 8, in no event
shall (i) any of the Distributing Investors be required to undertake liability
to any person under this Section 8 for any amounts in excess of the dollar
amount of the proceeds received by such Distributing Investor from the sale of
such Distributing Investor's Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) pursuant to any Registration
Statement under which such Registrable Securities are registered under the
Securities Act and (ii) any underwriter be required to undertake liability to
any person hereunder for any amounts in excess of the aggregate discount,
commission or other compensation payable to such underwriter with respect to the
Registrable Securities underwritten by it and distributed pursuant to such
Registration Statement.
9. 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 following
addresses, 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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Company: Silver Key Mining Company, Inc.
000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: President
Tel: 000-000-0000
Facsimile: 813-282-8907
with a copy to: Xxxxxx & Xxxx, P.A.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Tel: 000-000-0000
Facsimile: 000-000-0000
Investors: At the address and facsimile set
forth on the signature page hereof
10. ASSIGNMENT
The registration rights granted to any Holder under this Agreement may
be transferred or assigned provided the transferee is bound by the terms of this
Agreement and the Company is given written notice of such transfer or
assignment.
11. ADDITIONAL COVENANTS OF THE COMPANY
For so long as it shall be required to maintain the effectiveness of
the Registration Statement, it shall file all reports and information required
to be filed by it with the Commission in a timely manner and take all such other
action so as to maintain such eligibility for the use of the applicable form.
12. CONFLICTING AGREEMENTS
The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise prevents the Company from complying with all of its
obligations hereunder.
13. 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, 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.
11
14. 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, together with the other Primary Documents, including any
certificate, schedule, exhibit or other document delivered pursuant to their
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 and each of the Primary Documents
have 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, including any transferees of the Securities.
(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.
(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 ON FOLLOWING PAGE]
12
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, on this 22nd day of October, 2002.
SILVER KEY MINING COMPANY, INC.
By: /s/ X. Xxxxxxxx Xxxxx
------------------------------------
Name: X. Xxxxxxxx Xxxxx
------------------------------------
Title: President
INVESTORS:
STANFORD VENTURE CAPITAL HOLDINGS, INC.
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
------------------------------------
Title: President
/s/ XXXXXX XXXXX
----------------------------------
XXXXXX XXXXX
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
/s/ XXXXXX XXXXX
-----------------------------------
XXXXXX XXXXX
0000 Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
/s/ XXXXXXX PI
-----------------------------------
XXXXXXX PI
0000 XX 000 Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
/s/ XXXXXXX XXXXXXXXXX
-----------------------------------
XXXXXXX XXXXXXXXXX
000 Xxxxxxx Xxxxxxxxx, #000
Xxx Xxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
DELUXE INVESTMENT COMPANY
By: /s/ Xxx Xxxxxxxxx
--------------------------------
Xxx Xxxxxxxxx
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
13
