Exhibit 10.4
HEALTHDESK CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the ____ day of _________,
1995, by and between HealthDesk Corporation, a California corporation (the
"Company"), and each other person or entity executing this Agreement.
RECITALS
WHEREAS, certain investors (the "Investors") have purchased Series A Convertible
Preferred Stock of the Company (the "Series A Preferred Stock") in connection
with the sale by the Company and the purchase by the Investors of shares of
Series A Preferred Stock in a private placement thereof by the Company (the
"Private Placement");
WHEREAS, the Company and the Investors desire to provide for certain
arrangements with respect to the registration of shares of Common Stock of the
Company, issued upon conversion of the Series A Preferred Stock, under the
Securities Act of 1933, as amended (the "Securities Act"), held by the Investors
as provided in this Agreement:
NOW, THEREFORE, in consideration of the mutual promises and agreements contained
herein and for other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the Company and the Investors hereby agree as
follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Paragraph 1:
(a) The term "register", and "registered", and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act and the
declaration or ordering of effectiveness of such registration statement
or document;
(b) The term "Registrable Securities" means (1) the shares of Common
Stock issued or issuable upon conversion of the shares of Series A
Preferred Stock and (2) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of, such Series A
Preferred Stock or Common Stock, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which his
rights under this Section 1 are not assigned or pursuant to an effective
registration statement or to the public pursuant to an exemption from
registration requirements under the Securities Act;
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding
which are Registrable Securities, and the number of shares of Common
Stock issuable pursuant to conversion of all outstanding shares of Series
A Preferred Stock.
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any assignee thereof in accordance with
Section 1.13 hereof; and
(e) The term "Form S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the Securities and Exchange Commission
("SEC") which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the
SEC.
1.2 Request for Registration.
(a) If the Company shall receive at any time one year or more after the
effective date of the Company's first underwritten public offering of
shares of Common Stock pursuant to a registration statement in which the
aggregate gross proceeds to the Company equal or exceeds $5,000,000 (the
"Initial Public Offering") and prior to December 31, 2000, a written
request from the Holders of more than fifty percent (50%) of the
Registrable Securities then outstanding that the Company file a
registration statement under the Securities Act covering the registration
of at least fifty percent (50%) of the Registrable Securities then
outstanding, then the Company shall promptly give written notice of such
request to all Holders and shall, subject to the limitations of
subsection 1.2 (b), effect as soon as practicable the registration under
the Securities Act of all Registrable Securities which the Holders
request to be registered within thirty (30) days of the mailing of such
notice by the Company in accordance with Section 2.5.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities
covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this
Section 1.2 and the Company shall include such information in the written
notice referred to in subsection 1.2(a). The underwriter will be selected
by a majority in interest of the Initiating Holders and approved by the
Company, which approval shall not unreasonably be withheld. In such
event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation
in such underwriting (unless otherwise mutually agreed by a majority in
interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company as provided in
subsection 1.4(e)) enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders. Notwithstanding any other
provision of this Section 1.2, if the underwriter advises the Initiating
Holders in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the Initiating Holder shall so
advise all Holders of Registrable Securities that may be included in the
underwriting that such number of Registrable Securities to be included
shall be allocated among all such Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the
amount of Registrable Securities of the Company owned by each Holder;
provided, however, that the number of shares of Registrable Securities to
be included in such underwriting shall not be reduced unless all other
securities are first entirely excluded from the underwriting.
(c) The Company is obligated to effect only one (1) such registration
pursuant to this Section 1.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2
a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors of the Company it would be
seriously detrimental to the Company and its shareholders for such
registration statement to be filed and it is therefore essential to defer
the filing of such registration statement, the Company shall have the
right to defer taking action with respect to such filing for a period of
not more than 60 days after receipt of the request of the Initiating
Holders; provided, however, that the Company may not utilize this right
more than once in any twelve month period.
1.3 Company Registration.
(a) If (but without any obligation to do so) at any time one year or more
after the Initial Public Offering and prior to December 31, 2000, the
Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of
its stock or other securities under the Securities Act in connection with
the public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in
a Company stock plan, or a registration on any form which does not
include substantially the same information as would be required to be
included in a registration statement covering the sale of the Registrable
Securities), the Company shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of each
Holder given within thirty (30) days after mailing of such notice by the
Company in accordance with Section 2.5, the Company shall, subject to the
provisions of Section 1.8, cause to be registered under the Securities
Act all of the Registrable Securities that each such Holder has requested
to be registered.
(b) The Company is obligated to effect only two (2) such registrations
pursuant to this Section 1.3.
1.4 Obligations of the Company. Whenever required under this Paragraph 1 to
effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective and, upon the request of the
Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one
hundred twenty (120) days for the purpose of selling all stock or
securities registered with the SEC.
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by them.
(d) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file
a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter or such offering. Each
Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such 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.
(g) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Paragraph 1, on the date that
such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Paragraph 1 if such
securities are being sold through underwriters, or, if such securities
are not being sold through underwriters on the date that the registration
statement with respect to such securities becomes effective, (i) an
opinion dated such date of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to
the underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a "cold comfort" letter dated such date
from the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration
of Registrable Securities.
1.5 Furnish Information.
(a) It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Holder that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such
Holder's Registrable Securities.
(b) The Company shall have no obligation with respect to any registration
requested pursuant to Section 1.2 or Section 1.12 if, due to the
operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in
the registration does not equal or exceed the number of shares or the
anticipated aggregate offering price required to originally trigger the
Company's obligation to initiate such registration as specified in
subsection 1.2(a) or subsection 1.12(b)(2), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings,
or qualifications pursuant to Section 1.2, including without limitation all
registration, filing and qualification fees, printers' and accounting fees,
fees and disbursements of counsel for the Company, and the reasonable fees
and disbursements of one counsel for the selling Holders shall be borne by
the Company; provided, however, that the Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to Section 1.2
if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in
which case all Participating Holders shall bear such expenses), unless the
Holders of a majority of the Registrable Securities agree to forfeit their
right to demand registration pursuant to Section 1.2; provided further,
however, that if at the time of such withdrawal, the Holders have learned of
a material adverse change in the condition, business, or prospects of the
Company from that known to the Holders at the time of their request and have
withdrawn the request with reasonable promptness following disclosure by the
Company of such material adverse change, then the Holders shall not be
required to pay any of such expenses and shall retain their rights pursuant
to Section 1.2. Fees and disbursements of counsel and accountants for the
selling Holders and any other expenses incurred by the selling Holders not
expressly included above shall be borne by the selling Holders.
1.7 Expenses of Company Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to all registrations
pursuant to Section 1.3 for each Holder (which right may be assigned as
provided in Section 1.13), including without limitation all registration,
filing, and qualification fees, printers and accounting fees relating or
apportionable thereto and the fees and disbursements of one counsel for the
selling Holders selected by them, but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.8 Underwriting Requirements. In connection with any offering involving an
underwriting of shares of the Company's capital stock, the Company shall not
be required under Section 1.3 to include any of the Holders' securities in
such underwriting unless they accept the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (or by other
persons entitled to select the underwriters), and then only in such quantity
as the underwriters determine in their sole discretion will not jeopardize
the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be
required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters determine in their
sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling
shareholders according to the total amount of securities entitled to be
included therein owned by each selling shareholder or in such other
proportions as shall mutually be agreed to by such selling shareholders) but
in no event shall (i) the amount of securities, including Registrable
Securities and all other securities the holders of which have similar rights,
of the selling shareholders included in the offering be reduced below thirty
percent (30%) of the total amount of securities included in such offering,
unless it is the Initial Public Offering by the Company, or (ii)
notwithstanding (i) above, any shares being sold by a shareholder exercising
a demand registration right similar to that granted in Section 1.2 be
excluded from such offering. For purposes of the preceding parenthetical
concerning apportionment of any selling shareholder which is a holder of
Registrable Securities and which is a partnership or corporation, the
partners, retired partners and shareholders of such holder, or the estates
and family members of any such partners and retired partners and any trusts
for the benefit of any of the foregoing persons shall be deemed to be a
single "selling shareholder", and any pro-rata reduction with respect to such
"selling shareholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included
in such "selling shareholder", as defined in this sentence.
1.9 Delay of Registration. No Holder shall have any right to obtain or seek
any injunction restraining or otherwise delaying any such registration as a
result of any controversy that might arise with respect to the interpretation
or implementation of this Paragraph 1.
1.10 Indemnification. In the event any Registrable Securities are included in
a registration statement under this Paragraph 1:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, any underwriter (as defined in the Securities Act)
for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Securities
and Exchange Act of 1934, as amended (the "1934 Act"), against any
losses, claims, damages, or liabilities (joint or several) to which they
may become subject under the Securities Act, or the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations
(collectively a "Violation:): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) 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, or
(iii) any violation or alleged violation by the Company of the Securities
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Securities Act, or the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter
or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 1.10(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with
such registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter, any other Holder selling securities in such registration
statement and any controlling person of any such underwriter or other
Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under
the Securities Act, or the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon and in conformity with
written information furnished by such Holder expressly for use in
connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 1.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.10(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided that in no event shall any
indemnity under this subsection 1.10(b) exceed the gross proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
1.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section
1.10, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, assume the
defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the
fees and expenses to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing
interests between such indemnified proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 1.10, but the omission to
deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than
under this Section 1.10.
(d) If the indemnification provided for in this Section 1.10 is held by a
court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage, or expenses referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as it appropriate to reflect
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage, or
expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent
such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Holders under this Section 1.10
shall survive the completion of any offering of Registrable Securities in
a registration statement under this Paragraph 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the Act
and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration
or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the Initial Public Offering filed by the
Company for the offering of its securities to the general public;
(b) take such action as is necessary to enable the Holders to utilize
Form S-3 for the sale of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days following the effective date of the
Initial Public Offering), the Securities Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that
it qualifies as a registrant who securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
1.12 Form S-3 Registration. In case the Company shall receive from any Holder
or Holders a written request or requests that the Company effect a
registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities
of any other Holder or Holders joining in such request as are specified
in a written request given within 15 days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification, or compliance,
pursuant to this Section 1.12: (1) if Form S-3 is not available for such
offering by the Holders; (2) if the Holders, together with the holders of
any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $250,000; (3) if the
Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to
the Company and its shareholders for such Form S-3 registration to be
effected at such time, in which event the Company shall have the right to
defer the filing of the Form S-3 registration statement for a period of
not more than 60 days after receipt of the request of the Holder or
Holders under this Section 1.12; provided, however, that the Company
shall not utilize this right more than once in any twelve month period;
(4) if the Company has, within the twelve (12) month period preceding the
date of such request, already effected a registration on Form S-3 for the
Holders pursuant to this Section 1.12; (5) in any particular jurisdiction
in which the Company would be required to qualify to do business or to
execute a general consent to service of process in effecting such
registration, qualification, or compliance; (6) if the Company has
previously effected two (2) such registrations; or (7) if it is to be
effected after December 31, 2000.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so
requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All expenses incurred in connection
with a registration requested pursuant to this Section 1.12, including
(without limitation) all registration, filing, qualification, printing
and accounting fees and the reasonable fees and disbursements of counsel
of the Company shall be borne by the Company. Registrations effected
pursuant to this Section 1.12 shall not be counted as demands for
registration or registrations effected pursuant to Section 1.2 or Section
1.3, respectively.
1.13 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Paragraph 1 may be assigned
(but only with all related obligations) by a Holder to a transferee or
assignee of such securities provided the Company is within a reasonable time
after such transfer furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
1.14 Limitation on Subsequent Registration Rights. From and after the date of
this Agreement, the Company shall not, without the prior written consent of
the Holders of a majority of the outstanding Registrable Securities, enter
into any agreement with any holder or prospective holder of any securities of
the Company which would allow such holder or prospective holder (a) to
include such securities in any registration filed under Section 1.2 hereof,
unless under the terms of such agreement, such holder or prospective holder
may include such securities in any such registration only to the extent that
the inclusion of his securities will
not reduce the amount of the Registrable Securities of the Holders which is
included or (b) to make a demand registration which could result in such
registration statement being declared effective prior to the first
anniversary of the effective date of the Initial Public Offering.
1.15 "Market Stand-Off" Agreement. Each Investor hereby agrees that, during
the period of duration specified by the Company and an underwriter of common
stock or other securities of the Company, following the effective date of a
registration statement of the Company filed under the Securities Act, it
shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any securities of the Company held by it at any time during
such period except common stock included in such registration; provided
however, that:
(a) such agreement shall be applicable only to the first such
registration statement of the Company which covers common stock (or other
securities) to be sold on its behalf to the public in an underwritten
offering; and
(b) all officers and directors of the Company and all other persons with
registration rights (whether or not pursuant to this Agreement) enter
into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of
each Investor (and the shares or securities of every other person subject
to the foregoing restriction) until the end of such period.
1.16 Termination of Registration Rights. No Holder shall be entitled to
exercise any right provided for in this Section 1 after December 31, 2000.
2. Miscellaneous.
2.1 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and
be binding upon the respective successors and assigns of the parties
(including transferees of the Series A Preferred Stock or the Registrable
Securities). Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California without giving effect to
principles of conflicts of laws.
2.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing
or interpreting this Agreement.
2.5 Notices. Unless otherwise provided, any noticed required or permitted
under this Agreement shall be given in writing and shall be deemed
effectively given upon person delivery to the party to be notified or
upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified
at the address indicated for such party on the signature page hereto, or
at such other address as such party may designate by ten (10) days
advance written notice to the other parties.
2.6 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
holders of a majority of the Registrable Securities then outstanding,
except that this Agreement may be amended to include as parties hereto
all holders of Common Stock of the Company on the date hereof (the
"Common Holders") by a written instrument executed by the Company and
each Common Holder electing to be included as a party hereto. Any
amendment or waiver effected in accordance with this Section 2.7 shall be
binding upon each holder of any Registrable Securities then outstanding,
each future holder of all such Registrable Securities, and the Company.
2.7 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted
as if such provision were so excluded and shall be enforceable in
accordance with its terms.
2.8 Aggregation of Stock. All shares of Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
2.9 Entire Agreement:. This Agreement (including the Exhibits hereto, if
any) constitutes the full and entire understanding and agreement between
the parties with regard to the subjects hereof and thereof.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first above written.
HealthDesk Corporation
By: ______________________
Peter S. O'Donnell
Chairman and Chief Executive Officer
Address: 1521 Fifth Street
Suite B
Berkeley, CA 94710
INVESTOR:
__________________________________
[Type or Print Name]
By:_______________________________
Print Title:______________________
Address __________________________
__________________________