Exhibit 10.12
AMENDED AND RESTATED
INVESTOR RELATIONS AGREEMENT
This Amended and Restated Investor Relations Agreement is made as of
this __ day of August, 2004, by and between Health Systems Solutions, Inc. (the
"Company"), a corporation duly organized and existing under the laws of the
State of Nevada, having its principal place of business at 000 X. Xxx Xxxxxx,
Xxxxx 000, Xxxxx, Xxxxxxx 00000 and American Capital Ventures, Inc. (the
"Consultant"), a corporation duly organized and existing under the laws of the
State of Florida, with offices at 0000 X.X. 000xx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxx 00000, and amends and restates in its entirety the Investor Relations
Agreement dated as of July 1, 2004.
WHEREAS, the Company is a public company engaged in developing software
solutions for companies in the healthcare industry;
WHEREAS, the Consultant is experienced in providing investor relations
advice to publicly-traded companies; and
WHEREAS, the Company wishes to retain the services of the Consultant on
a non-exclusive basis on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree that the foregoing preliminary
statements are true and further agree as follows:
1. The Company hereby retains the services of the Consultant for a
period of eighteen months (the "Initial Term"), which shall automatically be
renewed for successive one-year terms (the "Successive Terms"). Following the
expiration of the Initial Term, either party may terminate any Successive Term
upon fifteen (15) days written notice. The cancellation and termination of this
Agreement shall not impact the rights of the parties as set forth in any other
agreements the Consultant and the Company have executed or may execute in the
future, said agreements shall remain in full force and effect.
2. In exchange for the Consulting Services (as that term is defined
below) rendered during the Initial Term, the Consultant shall receive a fee of
$12,000 per month payable on the 1st day of every month commencing on July 1,
2004. The Consultant shall also be reimbursed actual reasonable travel and other
out of pocket expenses which will be billed in arrears and are due and payable
within thirty (30) days of the Company's receipt of the subject xxxx(s). The
Consultant shall also receive a fee of 225,000 shares of common stock of the
Company. Certificates for such shares will be delivered to Consultant as
follows: 50,000 shares within fourteen days of the date hereof, 10,000 per month
for the months of August 2004 through December 2005 and 5,000 shares on January
2006. In the event that this Agreement is terminated prior to the end of the
initial Term, the Company shall be under no obligation to deliver any
certificates not delivered to the Consultant prior to the date of notice of
termination. The Company and the Consultant agree that the value of the 225,000
shares as of the date of this Agreement is an aggregate of $2,250.00.
3. The Company agrees to include the underlying common stock issued
pursuant to this Agreement in connection with a Registration Statement on Form
SB-2 it filed on or about July 9, 2004 (the "SB-2 Registration Statement"). The
Company shall bear all fees and expenses incurred by the Company in connection
with the preparation and filing of such registration statement(s). The Company
will use commercially reasonable efforts to keep such registration statement
current for nine (9) months.
4. The Consultant shall utilize its best efforts to provide the
following services to the Company: (a) assist the Company in making
presentations to interested brokerage firms, hedge funds and institutional
investors that buy and follow health care related and technology stocks, (b)
assist and facilitate the Company's initial listing application to trade its
shares of common stock on the American Stock Exchange ("AMEX") or Nasdaq
National Market System or SmallCap Market ("Nasdaq"), and introduce the Company
to one or more qualified specialists on the AMEX trading floor or market markers
in connection with Nasdaq trading, (c) coordinate meetings with analysts to
cover the Company's stock and help disseminate the Company's investment profile
to these analysts, as well as brokerage firms, hedge fund managers and
institutional investors through a variety of electronic and manual sources, (d)
a review of public relations and marketing materials that have been, or may be,
distributed to the U.S. financial community and make appropriate suggestions as
to how these materials can or should be changed, (e) advise the Company on
symposium presentations, as well as investor conferences, (f) assist the Company
through Consultant's existing and future relationships in areas relating to
future financings, mergers, acquisitions and potential buyouts; the parties
agree that any such transaction will be subject to a separate fee agreement
between the parties and limited to transactions generated by the Consultant,
excluding any transactions generated by other parties for which the Consultant
will not be entitled to compensation, (g) at the appropriate time, have the
Company deliver presentations to the staff of the Consultant, as well as the
offices of other brokerage firms with whom the Consultant maintains a
relationship, and (h) through media contacts, attempt to initiate interviews for
the Company on news shows such as CNBC, CNN and Bloomberg. The services referred
to in this paragraph shall be known as the "Consulting Services." In connection
with the provision of the Consulting Services, the Consultant shall make
available to the Company the personal services of Xxxxxx Xxxxxxxxx.
5. The Consultant shall be an independent contractor and shall have no
right or authority to assume or create any obligations or responsibility,
express or implied, on behalf of or in the name of the Company, unless
specifically authorized in writing by the Company. No provision of this
Agreement shall be construed to preclude the Consultant, or any officer,
director, agent, assistant, affiliate or employee of the Consultant from
engaging in any activity whatsoever, including, without limitation receiving
compensation for managing investments, or acting as an advisor, broker or dealer
to, or participate in, any corporation, partnership, trust or other business
entity or from receiving compensation or profit therefore. The Consultant shall
have no obligation to present any business combination to the Company and shall
incur no liability for its failure to do so.
6. The Consultant (including any person or entity acting for or on
behalf of the Consultant) shall not be liable for any mistakes of fact, errors
of judgment, for losses sustained by the Company or any subsidiary or for any
acts or omissions of any kind, unless caused by the gross negligence or
intentional misconduct of the Consultant or any person or entity acting for or
on behalf of the Consultant.
7. The Company may terminate Consultant at any time upon 30 days' prior
written notice. In the event of such termination, the Company shall have no
further obligation to make any payments to, or bestow any benefits on,
Consultant from and after the date of termination, other than payments or
benefits accrued by Consultant through the date of termination. Notwithstanding
the foregoing, the Company may terminate this Agreement immediately in the event
that at any time during the term hereof Xxxxxx Xxxxxxxxx is no longer a
full-time employee of the Consultant; it being understood that the foregoing
shall not prevent Xxxxxx Xxxxxxxxx from having other business interests.
8. The Company and the Consultant (along with their respective
affiliates, successors and assigns, officers, directors, partners, members,
managers, stockholders, employees and agents thereof), as the case may be, shall
indemnify and hold harmless the other (the party seeking indemnification being
referred to as the "Indemnified Party") from and against any and all claims,
losses, liabilities, judgment, award, fine, penalty, sanction, cost and damages,
including, without limitation, amounts paid in settlement, reasonable costs of
investigation and reasonable fees and disbursements of counsel, accountants and
other advisors (collectively, "Damages"), arising out of or resulting from the
inaccuracy of any representation or warranty, or the breach of any covenant or
agreement, contained herein or in any instrument or certificate delivered
pursuant hereto, by the party against whom indemnification is sought (the
"Indemnifying Party"). The Indemnified Party shall promptly notify the
Indemnifying Party in writing of any claim for indemnification, specifying in
reasonable detail the factual and legal bases of such claim, the facts
pertaining thereto and, if known, the amount, or an estimate of the amount, of
the Damages arising therefrom.
Upon the receipt of a claim notice involving the assertion of
liability, or the commencement of any action, suit or proceeding, by a person
other than an Indemnifying Party or an Indemnified Party (such person, a "Third
Party" and such claim, a "Third Party Claim"), the Indemnifying Party shall have
the option to assume the defense and control of such Third Party Claim. Failure
by the Indemnifying Party to notify the Indemnified Party of its election to
defend any such claim, action or proceeding within a reasonable time, but in no
event more than fifteen days after notice thereof shall have been given to the
Indemnifying Party, shall be deemed a waiver by the Indemnifying Party of its
right to defend such claim, action or proceeding; provided, however, that the
Indemnifying Party shall not be deemed to have waived its right to contest and
defend against any claim of the Indemnified Party for indemnification hereunder
based upon or arising out of such claim, action or proceeding.
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If the Indemnifying Party assumes the defense of any such
Third Party Claim, the obligation of the Indemnifying Party as to such Third
Party Claim shall be limited to taking all steps necessary in the defense or
settlement thereof; provided, however, that the Indemnifying Party shall select
counsel, contractors and consultants of recognized standing and competence after
consultation with the Indemnified Parties and shall at all times diligently and
promptly pursue the resolution of such Third Party Claim. If the Indemnifying
Party is held to be liable for indemnification hereunder, the Indemnifying Party
will pay all Damages caused by or arising out of any settlement approved by the
Indemnifying Party or any judgment or award rendered in connection with such
Third Party Claim. The Indemnified Party may participate, at its expense, in the
defense of such Third Party Claim provided that the Indemnifying Party shall
direct and control the defense of such Third Party Claim. The Indemnified Party
agrees to cooperate and make available to the Indemnified Party all books and
records and such officers, employees and agents as are reasonably necessary and
useful in connection with the defense. The Indemnifying Party shall not, in the
defense of such Third Party Claim, consent to the entry of any judgment or
award, or enter into any settlement, except in either event with the prior
consent of the Indemnified Party, which does not include as an unconditional
term thereof the giving by the claimant or the plaintiff to the Indemnified
Party of a release from all liability in respect of such Third Party Claim.
Notwithstanding the foregoing, the Indemnifying Party shall not enter into any
non-cash settlement without the prior consent of the Indemnified Party.
If the Indemnifying Party does not assume the defense of any
such Third Party Claim, the Indemnified Party may defend against such Third
Party Claim in such manner as it may deem appropriate. The Indemnifying Party
agrees to cooperate and make available to the Indemnified Party all books and
records and such officers, employees and agents as are reasonably necessary and
useful in connection with the defense. If the Indemnifying Party, within ten
days after notice shall have been given to it by the Indemnified Party of the
latter's intention to effect a settlement of any such Third Party Claim, which
notice shall describe with particularity the terms of any such proposed
settlement, shall not deposit with an escrow mutually satisfactory to the
Indemnified Party and the Indemnifying Party a sum equivalent to the total
amount demanded in such Third Party Claim or deliver to the Indemnified Party a
surety bond or an irrevocable letter of credit for such sum in form and
substance reasonably satisfactory to the Indemnified Party, then the Indemnified
Party may settle such Third Party Claim on the terms detailed in its notice to
the Indemnifying Party, and the Indemnifying Party shall be deemed to have
agreed to the terms of such settlement and shall not thereafter in any
proceeding by the Indemnified Party for indemnification question the propriety
of such settlement. Notwithstanding the foregoing, the Indemnified Party shall
not, in the defense of such Third Party Claim, consent to the entry of any
judgment or award, or enter into any settlement, except in either event with the
prior consent of the Indemnifying Party, which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to the
Indemnifying Party of a release from all liability in respect of such Third
Party Claim. In defending any Third Party Claim, the Indemnified Party shall
select counsel, contractors and consultants of recognized standing and
competence and shall at all times diligently and promptly pursue the resolution
of such Third Party Claim.
The Indemnifying Parties shall also be liable for the
reasonable fees and expenses of counsel incurred by each Indemnified Party in
defending any Third Party Claim if (i) such Third Party Claim, if successful, is
likely to result in a judgment, decree or order of injunction or other equitable
relief or relief for other than money Damages against such Indemnified Party; or
(ii) the Indemnified Party reasonably concludes that the Indemnifying Parties
and such Indemnified Party have conflicting interests or different defenses
available with respect to such Third Party Claim.
In the event any claim notice that does not involve a Third
Party Claim, if the Indemnifying Party does not notify the Indemnified Party
within thirty (30) calendar days following its receipt of such Claim Notice that
the Indemnifying Party disputes the matters set forth in the Claim Notice, or
the amount thereof, the claim specified by the Indemnified Party in such Claim
Notice shall be conclusively deemed a liability of the Indemnifying Party
hereunder, and the Indemnifying Party shall pay or cause to be paid the amount
of such liability to the Indemnified Party on demand or, in the case of any
notice in which the amount of the claim (or any portion of the claim) is
estimated, on such later date when the amount of such claim (or such portion of
such claim) becomes finally determined. If the Indemnifying Party has timely
disputed the liability of the Indemnifying Parties with respect to such claim as
provided above, or the amount thereof, the Indemnifying Party and the
Indemnified Party shall resolve such dispute in accordance with Section 15,
below.
9. This Agreement shall be binding upon the Company and the Consultant
and their respective successors and assigns. This Agreement may not be assigned
by the Consultant, without the Company's consent.
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10. Consultant acknowledges that as a result of its engagement with the
Company, Consultant will acquire knowledge of and may make use of certain
information which is of a special and unique nature which may include, but is
not limited to, such information concerning the Company's financial condition,
prospects, technology, customers, suppliers, sources of leads and methods of
doing business and any other information disclosed to Consultant or known by
Consultant as a consequence of or through its engagement by the Company prior to
or after the date hereof, and not generally known, about the Company
(collectively, the "Confidential Information"). Consultant agrees to keep in
strict secrecy and confidence any and all Confidential Information of which
Consultant knows of or to which Consultant has access that has not been publicly
disclosed and is not a matter of common knowledge with respect to the Company.
Consultant will not, without the Company's prior written consent, disclose any
such Confidential Information to any third person or entity. The terms and
conditions of this Agreement shall be deemed Confidential Information.
11. The relationship between Company and Consultant shall be solely as
independent contractor and neither party shall be deemed a joint venturer,
partner agent, representative or employee of the other. Nothing contained in
this Agreement shall constitute any form of employment agreement between
Consultant and the Company. Consultant further acknowledges and agrees that
Consultant is an independent contractor and not an agent, representative or
employee of Company and that Consultant is not entitled to any benefits,
insurance, salary, commission, incentives, or other compensation, other than as
expressly set forth herein. Consultant is solely responsible for securing, at
its sole cost, Workers' Compensation insurance, disability benefits insurance
and any other insurance as may be required by law.
12. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever; (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (ii) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held, invalid
illegal or unenforceable.
13. No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by both parties hereto. No waiver of any
other provisions hereof (whether or not similar) shall be binding unless
executed in writing by both parties hereto nor shall such waiver constitute a
continuing waiver.
14. This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original but all of which shall
constitute one and the same Agreement.
15. This Agreement shall be governed by the laws of the State of
Florida. All claims or disputes relating in any way to the performance,
interpretation, validity, or breach of this Agreement shall be referred to final
and binding arbitration, before a panel of three arbitrators, under the
commercial arbitration rules of the American Arbitration Association (the "AAA")
in Miami-Dade County, Florida. Each party shall appoint an arbitrator and the
third arbitrator shall be selected by the two appointed arbitrators within
twenty days, following the receipt of written notice of arbitration, as
prescribed by the AAA. In the event that both appointed arbitrators are unable
to select the third arbitrator within a period twenty days, the AAA shall be
permitted to submit an appointment. The arbitrators' award shall be in writing,
made by a majority thereof, and include findings of fact and conclusions of law.
Judgment upon the award rendered by the arbitrators shall be final, binding and
conclusive upon the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns. The expenses of
the arbitration shall be borne by the losing party or in such proportion as the
arbitrators shall decide. The successful party shall recover as expenses and
costs all reasonable attorney's fees incurred by it in connection with the
arbitration proceeding or any appeals from the proceeding. All information,
documents and other communications delivered, made or exchanged between the
parties and their representatives in connection with any arbitration proceeding
shall be deemed Confidential Information and subject to the provisions of
Section 10, above
16. This Agreement contains the entire agreement between the parties
with respect to the services to be provided to the Company by the Consultant and
supersedes any and all prior understandings, agreement or correspondence between
the parties, including without limitation the version of this agreement executed
by the parties on or about July __, 2004.
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IN WITNESS WHEREOF, the Company and the Consultant have caused this
Agreement to be signed by their duly authorized representatives as of the day
and year first above written.
HEALTH SYSTEMS SOLUTIONS INC.
By:/s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
AMERICAN CAPITAL VENTURES, INC.
By:/s/ Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
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