EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of the ____ day of __________, 2002, between the person whose
name and address appears in the Purchaser Questionnaire (individually, a
"Holder" or, collectively with the holders of the Securities issued in the
Offering, each as defined below, the "Holders"), and H3EALTH INC., a Delaware
corporation having its principal executive office at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company")
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Holders are purchasing from the Company (the "Offering") an
aggregate of up to 100,000 Units (the "Units"), each Unit consisting of 150
shares of Common Stock, $.001 par value (the "Common Stock") of the Company and
Series A, Series B and Series C Warrants (the "Warrants") each to purchase 20,
50, 50 shares of Common Stock of the Company accordingly.
WHEREAS, the Company desires to grant to the Holder the registration
rights set forth herein with respect to the Shares.
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Registrable Securities. As used herein the term "Registrable
Security" means each of the shares of Common Stock included in the Units or
underlying the Warrants; provided, however, that with respect to any particular
Registrable Security, such security shall cease to be a Registrable Security
when, as of the date of determination, (i) it has been effectively registered
under the Securities Act of 1933, as amended (the "Securities Act") and disposed
of pursuant thereto, or (ii) registration under the Securities Act is no longer
required for the immediate public distribution of such security. The term
"Registrable Securities" means any and/or all of the securities falling within
the foregoing definition of a "Registrable Security." In the event of any
merger, reorganization, consolidation, recapitalization or other change in
corporate structure affecting the Common Stock, such adjustment shall 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 Section 1.
2. Registration. The Company agrees to file a registration statement (a
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") within 90 days of the completion of the Offering in order to
register the resale of the Registrable Securities under the Securities Act. Once
effective, the Company will be required to maintain the effectiveness of the
Registration Statement until the earlier of (i) the date that all of the
Registrable Securities have been sold, or (ii) the date that the Company
receives an opinion of counsel to the Company that all of the Registrable
Securities may be freely traded without registration under the Securities Act,
under Rule 144 promulgated under the Securities Act or otherwise. The foregoing
notwithstanding, the Company may elect not to maintain the effectiveness of the
Registration Statement if the trading price of the Company's Common Stock is
less than $0.05 per share.
3. Covenants of the Company With Respect to Registration. The Company
covenants and agrees as follows:
(1) Connection with any registration filed pursuant hereto,
the Company shall use its best efforts to cause the Registration Statement to
become effective as promptly as possible and, if any stop order shall be issued
by the Commission in connection therewith, to use its reasonable efforts to
obtain the removal of such order. Following the effective date of a Registration
Statement, the Company shall, upon the request of the Holder, forthwith supply
such reasonable number of copies of the Registration Statement, preliminary
prospectus and prospectus meeting the requirements of the Securities Act, and
other documents necessary or incidental to the public offering of the
Registrable Securities, as shall be reasonably requested by the Holder to permit
the Holder to make a public distribution of the Holder's Registrable Securities.
The obligations of the Company hereunder with respect to the Holder's
Registrable Securities are subject to the Holder's furnishing to the Company
such appropriate information concerning the Holder, the Holder's Registrable
Securities and the terms of the Holder's offering of such Registrable Securities
as the Company may reasonably request in writing.
(2) The Company shall pay all costs, fees and expenses in
connection with all Registration Statements filed pursuant to Section 2 hereof
including, without limitation, the Company's legal and accounting fees, printing
expenses, and blue sky fees and expenses; provided, however, that the Holder
shall be solely responsible for the fees of any counsel retained by the Holder
in connection with such registration and any transfer taxes or underwriting
discounts, commissions or fees applicable to the Registrable Securities sold by
the Holder pursuant thereto.
(3) The Company will take all necessary action which may be
required in qualifying or registering the Registrable Securities included in a
Registration Statement for offering and sale under the securities or blue sky
laws of such states as are reasonably requested by the holders of such
securities, provided that the Company shall not be obligated to execute or file
any general consent to service of process or to qualify as a foreign corporation
to do business under the laws of any such jurisdiction.
4. Additional Terms.
(1) The Company shall indemnify and hold harmless the Holder
and each underwriter, within the meaning of the Securities Act, who may purchase
from or sell for the Holder, any Registrable Securities, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
of a material fact contained in the Registration Statement, any other
registration statement filed by the Company under the Securities Act with
respect to the registration of the Registrable Securities, any post-effective
amendment to such registration statements, or any prospectus included therein or
caused by any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission based upon information furnished or required to be
furnished in writing to the Company by the Holder or underwriter expressly for
use therein, which indemnification shall include each person, if any, who
controls either the Holder or underwriter within the meaning of the Securities
Act and each officer, director, employee and agent of the Holder and
underwriter; provided, however, that the indemnification in this Section 5(a)
with respect to any prospectus shall not more to the benefit of the Holder or
underwriter (or to the benefit of any person controlling the Holder or
underwriter) on account of any such loss, claim, damage or liability arising
from the sale of Registrable Securities by the Holder or underwriter, if a copy
of a subsequent prospectus correcting the untrue statement or omission in such
earlier prospectus was provided to the Holder or underwriter by the Company
prior to the subject sale and the subsequent prospectus was not delivered or
sent by the Holder or underwriter to the purchaser prior to such sale and
provided further, that the Company shall not be obligated to so indemnify the
Holder or any such underwriter or other person referred to above unless the
Holder or underwriter or other person, as the case may be, shall at the same
time indemnify the Company, its directors, each officer signing the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement of a material fact contained in the
Registration Statement, any registration statement or any prospectus required to
be filed or furnished by reason of this Agreement or caused by any omission to
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state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or omission based upon
information furnished in writing to the Company by the Holder or underwriter
expressly for use therein.
(2) If for any reason the indemnification provided for in the
preceding section is held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any loss, claim, damage, liability or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim, damage
or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnified party and the indemnifying party,
but also the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations.
(3) Neither the filing of a Registration Statement by the
Company pursuant to this Agreement nor the making of any request for
prospectuses by the Holder shall impose upon the Holder any obligation to sell
the Holder's Registrable Securities.
(4) The Holder, upon receipt of notice from the Company that
an event has occurred which requires a Post-Effective Amendment to the
Registration Statement or a supplement to the prospectus included therein, shall
promptly discontinue the sale of Registrable Securities until the Holder
receives a copy of a supplemented or amended prospectus from the Company, which
the Company shall provide as soon as practicable after such notice.
(5) If the Company fails to keep the Registration Statement
referred to above continuously effective during the requisite period, then the
Company shall, promptly upon the request of the Holders of at least a majority
of the unsold Registrable Securities, use its best efforts to update the
Registration Statement or file a new registration statement covering the
Registrable Securities remaining unsold, subject to the terms and provisions
hereof.
(6) The Holder agrees to provide the Company with any
information or undertakings reasonably requested by the Company in order for the
Company to include any appropriate information concerning the Holder in the
Registration Statement or in order to promote compliance by the Company or the
Holders with the Securities Act.
5. Governing Law. The Registrable Securities will be, if and when
issued, delivered in Florida. This Agreement shall be deemed to have been made
and delivered in the State of Florida and shall be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
substantive laws of the State of Florida, without giving effect to the choice of
law rules thereof.
6. Amendment. This Agreement may only be amended by a written
instrument executed by the Company and the Holder.
7. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings of the parties, oral and written, with
respect to the subject matter hereof.
8. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
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9. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered by
hand or mailed by registered or certified mail, postage prepaid, return receipt
requested, as follows:
If to the Holder, to his, her or its address set forth in the
Purchaser Questionnaire.
If to the Company, to the address set forth on the first page
of this Agreement.
10. Binding Effect; Benefits. The Holder may assign his, her or its
rights hereunder. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective heirs, legal representatives and
successors. Nothing herein contained, express or implied is intended to confer
upon any person other than the parties hereto and their respective heirs, legal
representatives and successors, any rights or remedies under or by reason of
this Agreement.
11. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
12. Severability. Any provision of this Agreement which is held by a
court of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
IHEALTH INC.
By: ----------------------------------
Name:
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Its:
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HOLDER:
Name:
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