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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is entered into this 18th day of May, 1999, by and among
WP HOLDING, INC., a Delaware corporation (the "Company") and the investors in
the Company's Series A Convertible Preferred Stock, par value $.0001 per share
that are signatories hereto (the "Investors");
WHEREAS, pursuant to that certain Subscription Agreement dated on an
even date herewith by and between the Company and the Investors, the Investors
have agreed to purchase collectively 13,745,455 shares of the Company's Series A
Convertible Preferred Stock, par value $.0001 per share (the "Preferred
Shares").
WHEREAS, the Preferred Shares are automatically convertible into shares
of the Company's common stock, par value $.0001 per share (the "Common Stock"),
on a one-for-one basis (subject to adjustment in certain events) upon the
occurrence of a Conversion Event (as defined below).
WHEREAS, as a condition to their willingness to purchase the Preferred
Shares, Investors desire that the Company grant to them certain registration
rights with respect to the common stock of the Company which they may acquire
upon a Conversion Event.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein contained, the Investors and the Company hereby agree as follows:
1. Definitions.
As used herein:
(a) The term "Conversion Event" shall mean any of the following events
in which the Preferred Stock is converted into Common Stock: (i) consummation of
an underwritten initial public offering of the Company's Common Stock, yielding
gross proceeds to the Company of at least $15,000,000 at a per share price of
not less than two (2) times the Subscription Price, (ii) a sale of all or
substantially all of the capital stock or assets of the Company or (iii)
conversion at the request of the Holder of the Preferred Stock to convert such
Preferred Stock into Common Stock.
(b) The term "Exchange Act" means the Securities Exchange Act of 1934,
as amended. (c) The term "Holder" means the holder or holders of Registrable
Securities or any person who will hold Registrable Securities upon a Conversion
Event.
(d) The terms "register," "registered," and "registration" refer to a
registration
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effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
(e) The term "Person" shall have the meaning set forth in Section 2(2)
of the Securities Act.
(f) The term "Prospectus" shall have the meaning set forth in Section
2(10) of the Securities Act.
(g) The term "Registrable Percentage" shall have the meaning set forth
in Section 2.
(h) The term "Registrable Securities" means all of the Company's Common
Stock which was or will be converted from Preferred Stock upon a Conversion
Event.
(i) The term "Registration Expenses" shall mean any and all expenses
incident to the performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC or National Association of Securities
Dealers, Inc. (the "NASD") registration and filing fees, including, if
applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any Holder of Registrable
Securities in accordance with the rules and regulations of the NASD, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of one counsel for
any underwriters or Holder in connection with blue sky qualification of any of
the Registrable Securities) and compliance with the rules of the NASD, (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus and any
amendments or supplements thereto, and in preparing or assisting in preparing,
printing and distributing any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) the fees and disbursements
of counsel for the Company and of the independent certified public accountants
of the Company, including the expenses of any "cold comfort" letters required by
or incident to such performance and compliance, (vi) the fees and expenses of
any exchange agent or custodian, (vii) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges, and (viii) the reasonable fees and expenses of
any special experts retained by the Company in connection with any Registration
Statement.
(j) The term "Registration Statement" shall mean any registration
statement of the Company that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
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(k) The term "Securities Act" means the Securities Act of 1933, as
amended.
(l) The term "SEC" means the Securities and Exchange Commission.
(m) The term "Subscription Price" means the purchase price of $0.6547618
per share of Preferred Stock.
2. Company Registration.
If at any time or from time to time, the Company shall determine to
register any of its Common Stock under the Securities Act, the Company will: (a)
promptly give to the Holder written notice thereof (which shall include a list
of the jurisdictions in which the Company intends to attempt to qualify its
Common Stock under the applicable blue sky or other state securities laws); and
(b) include in such registration (and any related qualification under blue sky
laws or other compliance) and in any underwriting involved therein, all the
Registrable Securities specified in a written request made within thirty days
after receipt of such written notice from the Company by the Holders; except
that if, in connection with any offering involving an underwriting of Common
Stock to be issued by the Company, the managing underwriter shall impose a
limitation on the number of shares of Common Stock which may be included in the
Registration Statement because, in its judgment, such limitation is necessary to
effect an orderly public distribution, then the Company shall be only obligated
to include in such Registration Statement the Registrable Percentage (as defined
below) of the Registrable Securities. "Registrable Percentage" shall be a
percentage equal to the following: (i) the total maximum number of shares of
Common Stock outstanding prior to the filing of the Registration Statement that
the managing underwriter determines may be included in the Registration
Statement, (ii) divided by the sum of the total number of shares of Registrable
Securities that the Holders request to be registered in the Registration
Statement, plus the total number of shares of Common Stock outstanding prior to
the filing of the Registration Statement (which are not Registrable Securities)
that the Company desires to register under the Registration Statement, and (iii)
multiplied by one hundred percent (100%). To the extent that the Registrable
Percentage is less than one hundred percent (100%), then only the Registrable
Percentage of Registrable Securities shall, concurrent with the registration of
Common Stock, be registered and such registration of Registrable Securities
shall be on a pro rata basis among the Holders, who have requested that their
Registrable Securities be registered, based on their percentage of ownership of
such Registrable Securities.
3. Effectiveness.
A Registration Statement pursuant to which any Registrable Securities
are being offered will not be deemed to have become effective unless it has been
declared effective by
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the SEC; provided, however, that if, after it has been declared effective, the
offering of the Registrable Securities pursuant to such registration statement
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such registration
statement will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
registration statement may legally resume. The Company will be deemed not to
have used best efforts to cause the Registration Statement to become, or to
remain, effective during the requisite period if it voluntarily takes any action
that would result in any such registration statement not being declared
effective or that would result in the Holder not being able to offer and sell
the Registrable Securities during that period unless such action is required by
applicable laws and regulations or currently prevailing interpretations of the
staff of the SEC. The Company shall use best efforts to maintain the
effectiveness for up to one hundred twenty (120) days (or such shorter period of
time as the underwriters need to complete the distribution of the registered
offering) of any Registration Statement pursuant to which any of the Registrable
Securities are being offered, and from time to time will amend or supplement
such Registration Statement and the Prospectus contained therein to the extent
necessary to comply with the Securities Act and any applicable state securities
laws or regulations. The Company shall also provide the Holder with as many
copies of the Prospectus contained in any such Registration Statement as the
Holder may reasonably request.
4. Expenses of Registration.
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Agreement shall be borne by the
Company. Except as provided herein, the Holder shall pay all fees and expenses
of its legal counsel, underwriters' fees, discounts or commissions or transfer
taxes, if any, relating to the sale or disposition of the Holder's Registrable
Securities.
5. Registration Procedures.
In the case of each registration, qualification, or compliance effected
by the Company pursuant to this Agreement, the Company will keep the Holder
advised in writing as to the initiation of each registration, qualification and
compliance and as to the completion thereof. At its expense, the Company will:
(a) Prepare and file with the SEC a Registration Statement with respect
to such Registrable Securities as described in Section 2 and use its best
efforts to cause such Registration Statement to become effective and to remain
effective in accordance with Section 3 (provided that before filing a
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the Holder copies of all
such documents proposed to be filed, which documents will be subject
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to the review of such counsel);
(b) Prepare and file with the SEC such amendments and supplements to
such Registration Statement and the Prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective and current for a
period of not less than one hundred twenty (120) days and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof as
set forth in such Registration Statement;
(c) (i) Furnish to the Holder, and to each underwriter, if any, without
charge, such number of copies of such Registration Statement, each amendment and
supplement thereto, the Prospectus included in such Registration Statement
(including each preliminary Prospectus), and such other documents as the Holder
or underwriters may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by the Holder; and (ii) consent to the use of
the Prospectus or any amendment or supplement thereto by the Holder of
Registrable Securities included in the Registration Statement in connection with
the offering and sale of the Registrable Securities covered by the Prospectus or
any amendment or supplement thereto;
(d) Use its best efforts to register or qualify such Registrable
Securities under all applicable securities or blue sky laws of such
jurisdictions of the United States by the time the applicable Registration
Statement is declared effective by the SEC as the Holder and any underwriters
reasonably request in writing and do any other related acts which may be
reasonably necessary or advisable to enable the Holder and underwriters to
consummate the disposition in such jurisdictions of the Registrable Securities;
provided, however, that the Company shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 5(d), (ii) file
any general consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject;
(e) Notify the Holder, its counsel, and the managing underwriters, if
any, promptly, and promptly confirm such notice in writing, (i) 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, or the fact that, the
Prospectus included in such Registration Statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the reasonable request of a majority of the Holders, the
Company will prepare a supplement or amendment to such Prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state any fact necessary to make
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the statements therein not misleading; (ii) when a Registration Statement has
become effective and when any post-effective amendments and supplements thereto
become effective, (iii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement has
become effective, (iv) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the qualification of the Registrable Securities or the initiation
of any proceedings for that purpose, (v) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company contained in
any purchase agreement, securities sales agreement or other similar agreement,
if any, cease to be true and correct in all material respects, and (vi) the
Company's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate;
(f) If applicable, use its best efforts to cause all such Registrable
Securities to be listed or quoted on each securities exchange or interdealer
quotation system on which similar securities issued by the Company are then
listed or quoted;
(g) Provide a transfer agent for all such Registrable Securities not
later than the effective date of such Registration Statement;
(h) Enter into such customary agreements (including underwriting
agreements on customary terms) and take all such other actions as the
underwriters, if any, reasonably requests in order to expedite or facilitate the
disposition of such Registrable Securities;
(i) Obtain for delivery to the Company and the managing underwriters, if
any, with copies to the Holders of the Registrable Securities being registered,
a comfort letter from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the Holders shall reasonably request, dated the effective date of the
Registration Statement and brought down to the closing;
(j) If necessary, obtain a CUSIP number for the Registrable Securities
not later than the effective date of the Registration Statement; and
(k) Make available for inspection by the Holder, any underwriter
participating in any disposition pursuant to such Registration Statement and any
attorney, accountant or any other agent retained by the Investor or any such
underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by the Holder, any such
underwriter, attorney, accountant or agent in connection with such Registration
Statement.
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(l) Cooperate with the Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and registered in such names as the Holder or
the underwriters may reasonably request at least two Business Days prior to the
closing of any sale of Registrable Securities pursuant to such Registration
Statement;
(m) Cooperate with the Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and registered in such names as the Holder or
the underwriters may reasonably request at least two Business Days prior to the
closing of any sale of Registrable Securities pursuant to such Registration
Statement; (n) upon the occurrence of any circumstance contemplated by Section
5(e)(iii), 5(e)(iv), or 5(e)(v) hereof, use best efforts to prepare a supplement
or post-effective amendment to such Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and to notify the Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and the Holder
hereby agrees to suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(n) cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD; and
(o) use best efforts to take all other steps necessary to effect the
registration of the Registrable Securities covered by a Registration Statement
contemplated hereby.
6. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company shall
indemnify and hold harmless the Holder and each underwriter who participates in
an offering of the Registrable Securities, each Person, if any, who controls any
of such parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and each of their respective directors, officers,
employees and agents, as follows:
(i) from and against any and all loss, liability, claim, damage
and
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expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto)
covering Registrable Securities, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage
and expense whatsoever, joint or several, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the prior written consent
of the Company; and
(iii) from and against any and all expenses whatsoever, as
incurred (including reasonable fees and disbursements of counsel chosen
by Holder or any underwriter (except to the extent otherwise expressly
provided in Section 6(c) hereof)), incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding
by any court or governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) of this Section
6(a);
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished in writing to the
Company by the Holder, or any underwriter with respect to the Holder, or any
underwriter, as the case may be, expressly for use in a Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) and (ii) the Company shall not be liable to the Holder, any underwriter
or controlling Person, with respect to any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary Prospectus to the
extent that any such loss, liability, claim, damage or expense of the Holder,
any underwriter or controlling Person results from the fact that the Holder or
any underwriter, sold Registrable Securities to a Person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the final Prospectus as then amended or supplemented if the Company had
previously furnished copies thereof to the Holder or any underwriter or
controlling Person and the loss, liability,
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claim, damage or expense of the Holder or underwriter, or controlling Person
results from an untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the final Prospectus. Any amounts
advanced by the Company to an indemnified party pursuant to this Section 6 as a
result of such losses shall be returned to the Company if it shall be finally
determined by such a court in a judgment not subject to appeal or final review
that such indemnified party was not entitled to indemnification by the Company.
(b) A selling Holder agrees to indemnify and hold harmless the Company,
any underwriter and each of their respective directors, officers (including each
officer of the Company who signed the Registration Statement), employees and
agents, any underwriter or any other selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all loss, liability, claim, damage and expense whatsoever
described in the indemnity contained in Section 6(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in a Registration Statement or any Prospectus in
reliance upon and in conformity with written information furnished to the
Company by such selling Holder with respect to such Holder expressly for use in
such Registration Statement, or any such Prospectus;
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(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, enclosing a copy of all papers properly served on such
indemnified party, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have under this
Section 6, except to the extent that it is materially prejudiced by such
failure. An indemnifying party may participate at its own expense in the defense
of such action, or, if it so elects within a reasonable time after receipt of
such notice, assume the defense of any suit brought to enforce any such claim;
but if it so elects to assume the defense, such defense shall be conducted by
counsel chosen by it and approved by the indemnified party or parties, which
approval shall not be unreasonably withheld. In the event that an indemnifying
party elects to assume the defense of any such suit and retain such counsel, the
indemnified party or parties shall bear the fees and expenses of any additional
counsel thereafter retained by such indemnified party or parties; provided,
however, that the indemnified party or parties shall have the right to employ
counsel (in addition to local counsel) to represent the indemnified party or
parties who may be subject to liability arising out of any action in respect of
which indemnity may be sought against the indemnifying party if, in the
reasonable judgment of counsel for the indemnified party or parties, there may
be legal defenses available to such indemnified party or parties which are
different from or in addition to those available to the indemnifying party, in
which event the fees and expenses of appropriate separate counsel shall be borne
by the indemnifying party. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to local
counsel), separate from its own counsel, for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release in form and substance satisfactory to the
indemnified parties of each indemnified party from ail liability arising out of
such litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 6 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company and the Holder
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company and the Holder, as incurred; provided that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled
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to contribution from any Person that was not guilty of such fraudulent
misrepresentation. As between the Company and the Holder, such parties shall
contribute to such aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by such indemnity agreement in such proportion as
shall be appropriate to reflect the relative fault of the Company, on the one
hand, and the Holder, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or expense, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, 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 by or on behalf of the Holder, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Holder agree that it would not be just and equitable if contribution
pursuant to this Section 6 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section 6, each affiliate of the
Holder, and each director, officer, employee, agent and Person, if any, who
controls a Holder or such affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Holder, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company.
7. Information by Holder.
The Holder or Holders of Registrable Securities included in any
registration shall furnish to the Company such written information regarding
such Holder or Holders and the distribution proposed by such Holder or Holders
as the Company may reasonably request in writing and as shall be required in
connection with any registration, qualification, or compliance referred to in
this paragraph.
8. Transfer of Registration Rights.
The rights to cause the Company to register the Registrable Securities
granted to the Holder by the Company under Section 2 may be assigned by a Holder
to a transferee or assignee of any of such Holder's Registrable Securities (or
Preferred Stock), provided, that the Company is given written notice by such
Holder at the time of, or within a reasonable time after, said transfer, stating
the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being assigned.
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9. No Preferred Stock Registration Rights.
Nothing in this Agreement shall be construed to impose on the Company
any obligations or duties as to the registration of Preferred Stock nor grant
any holder of Preferred Stock any registration rights enforceable against the
Company with respect to the Preferred Stock prior to such Preferred Stock being
converted to Common Stock upon a Conversion Event.
10. Holding Period for Preferred Stock.
Upon the consummation of the event set forth in subclause 1(a)(i) to the
definition of Conversion Event, the Investors (and any subsequent holder) of
Preferred Stock agree that upon the reasonable request of the managing
underwriter selected for the IPO the Holders will allow for restrictions on
sales of their shares pursuant to the Registration Statement for the period
selected by the managing underwriter.
11. No Inconsistent Agreements.
The Company has not entered into nor will the Company on or after the
date of this Agreement enter into any agreement which is inconsistent with the
rights granted to the Investor with respect to the Shares in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Investor hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
12. Assignability.
This Agreement shall be binding upon and inure to the benefit of the
respective heirs, successors and assigns of the parties hereto.
13. Changes in Capital Stock.
If, and as often as, there is any change in the Preferred Stock or
Common Stock by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Shares as so changed.
14. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of Delaware, without regard to the conflict of laws provisions thereof.
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15. Amendment.
Any modification, amendment or waiver of this Agreement or any provision
hereof shall be in writing and executed by Holders of not less than 66-2/3
percent of the Registrable Securities; provided, however, that no such
modification, amendment or waiver shall reduce the aforesaid percentage of
Registrable Securities without the consent of the record or beneficial holders
of no less than 90 percent of the Registrable Securities.
16. Severability.
In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
17. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
successors, assigns and transferees of the Investor, including, without
limitation and without the need for an express assignment, subsequent Holders.
If any transferee of the Investor shall acquire Registrable Securities or
Preferred Stock, in any manner, whether by operation of law or otherwise, such
Registrable Securities or Preferred Stock shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
or Preferred Stock, such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof.
18. Entire Agreement.
This Agreement and the other writings referred to herein contain the
entire understandings among the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to its subject matter.
19. Headings.
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
20. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall
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be an original, but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned holder of securities and the Company
have executed this Agreement on the day and year first above written.
COMPANY: WP HOLDING, INC.
By: /s/
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: CEO
Address for Notices:
INVESTORS: INVESTOR IN SERIES A
CONVERTIBLE PREFERRED STOCK
By:
---------------------------------
Name:
Title (if applicable):
Address for Notices:
