HEALTH SYSTEMS SOLUTIONS, INC.
A Nevada Corporation
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of July 6, 2004 (the
"Agreement"), is entered into by and among Health Systems Solutions, 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 Warrant Purchase Agreement (as hereinafter defined).
WHEREAS, Health Quality Solutions, Inc., a Florida corporation ("HQS")
is a wholly-owned subsidiary of the Company;
---
WHEREAS, Stanford Venture Capital Holdings, Inc. ("SVCH" and an
Investor as defined herein) and HQS entered into a Loan and Security Agreement
of even date herewith pursuant to which, among other things, HQS borrowed from
SVCH up to an aggregate of $1,600,000 (the "Loan Agreement"); and
WHEREAS, as partial consideration for SVCH entering into the Loan
Agreement and upon the terms and conditions of this Agreement, the Purchaser has
agreed to purchase, and the Company wishes to issue and sell to the Purchaser
and/or its assigns, warrants to purchase up to an aggregate of 720,000 of the
Company's common stock $0.001 par value per share (the "Common Stock"), at an
exercise price of $0.001 per share; and
WHEREAS, simultaneously with the execution and delivery of this
Agreement, SVCH has agreed to purchase the Warrants from the Company pursuant to
the Warrant Purchase Agreement of even date herewith by and between the Company
and SVCH (the "Warrant Purchase Agreement"); 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
exercise of the Warrants (the "Warrant Shares") and the shares of Common Stock
issuable upon the exercise of the warrants in the event of a registration
default pursuant to Section 4(e) (the "Default Warrant Shares").
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. CERTAIN DEFINITIONS
As used herein the term "Registrable Security" means the Warrant 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
1
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).
4. REGISTRATION RIGHTS WITH RESPECT TO THE REGISTRABLE SECURITIES
(a) The Company agrees that it will prepare and file with the Commission, (i) by
December 31, 2004, 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.
2
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 and 150% of
the Default Warrant Shares, if any, 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
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.
3
(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 ten Warrants issued to the
Holders pursuant to the Warrant 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 Warrants, 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 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
4
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.
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
5
(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;
(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;
6
(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 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
7
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 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
8
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
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
9
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.
Company: Health Systems Solutions, Inc.
000 Xxxxx Xxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: X. X. Xxxxxxx, President
Telephone: 000-000-0000
Facsimile: 813-282-8907
with a copy to: Stanford Financial Group
0000 Xxxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Investors: At the address and facsimile set
forth on the signature page hereof
10
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.
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.
11
(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 _____ day of July, 2004.
HEALTH SYSTEMS SOLUTIONS, INC.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
INVESTORS:
STANFORD VENTURE CAPITAL
HOLDINGS, INC.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
-----------------------------
XXXXXX XXXXX
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
-----------------------------
XXXXXX XXXXX
0000 Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
-----------------------------
XXXXXXX PI
0000 XX 000 Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
-----------------------------
XXXXXXX XXXXXXXXXX
000 Xxxxxxx Xxxxxxxxx, #000
Xxx Xxxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
13
