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EXHIBIT 4.5
FIRST ADDENDUM
TO
FOUNDERS' AGREEMENT
THIS FIRST ADDENDUM TO FOUNDERS' AGREEMENT ("Addendum") is made as of
the 28th day of May, 1999, by and among XXXXXXX.XXX, INC., a Delaware
corporation, and formerly known as WP Holding, Inc. (the "Company"), and the
stockholders of the Company executing this Addendum (the "Stockholders").
WITNESSETH:
WHEREAS, the parties have entered into that certain Founders' Agreement
dated as of the 26th day of March, 1999 (as amended hereby and from time to
time, the "Founders' Agreement"), pursuant to which the Stockholders and the
Company agreed to certain rights, restrictions and obligations among such
Stockholders, including, among others, a right of certain Stockholders referred
to in the Founders' Agreement as the "SCI Group" to purchase from certain
Stockholders referred to in the Founders' Agreement as the "AV Group" all of the
AV Group's Common Stock of the Company, under the terms and conditions and as
further described in Section 10(a) thereof (the "Rights of Purchase") (other
capitalized terms used herein having the meanings ascribed to such terms in the
Founders' Agreement, unless otherwise defined herein); and
WHEREAS, under the terms of the Founders' Agreement, the SCI Group's
said Right of Purchase was to terminate and be of no further force or effect
upon the occurrence of certain events further described therein, which events as
of the date hereof have occurred; and
WHEREAS, the parties desire to execute this Addendum to the Founders'
Agreement to: (a) modify, amend, terminate and void the Right of Purchase in
light of the occurrence of the events described in the Founders' Agreement; (b)
enable the Stockholders to transfer their Shares to a family trust or limited
partnership of which such Stockholder retains sole and exclusive control over
the voting and disposition of the said Shares until the termination of the
Founders' Agreement; and (c) make such other clarifications as are necessary and
appropriate.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree to amend the Founders' Agreement as follows:
1. Recitals. The Recitals set forth above are true and correct and are
incorporated herein by reference.
2. Termination of Right to Purchase. The parties hereto acknowledge and
agree that as of the date hereof no "Purchase Event" (as defined in Section
10(a) of the Founders' Agreement) has occurred or after the date hereof no
Purchase Event can occur, and accordingly the SCI Group's Right of Purchase as
set forth in Section 10 shall hereby be terminated without further action by any
of the
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parties hereto and without further rights or obligations on the part of the AV
Group or any of its successors, transferees or assigns and said Right of
Purchase shall be void and no further force or effect.
3. Transfer for Estate Planning Purposes. Section 4 of the Founders'
Agreement is hereby amended by inserting a new paragraph at the end of such
Section as follows:
Notwithstanding the above, a Stockholder may, without complying
with the provisions of this Section 4 and for estate planning
purposes only, transfer all or any of his Shares to, or for the
benefit of, any family trust or limited partnership so long as
with respect to (i) the trust, the trust instrument governing
said trust shall provide, or (ii) the limited partnership, the
limited partnership agreement shall provide that such
Stockholder, as trustee, general partner or otherwise, as the
case may be, shall retain sole and exclusive control over the
voting and disposition of such Shares until the termination of
the Founders' Agreement; and any such transfers made on or prior
to the date of this Addendum are specifically authorized and
permitted.
4. Additional Permitted Transfer. Xxxxx X. Xxxxx is specifically
authorized and permitted to transfer 50,000 shares of common stock in the
Company to the Xxxx Blue Dynasty Trust, Xxxxxx X. Xxxxxxx, Trustee.
5. Clarification of Transfer Upon Initial Public Offering or Sale.
Notwithstanding any provision contained in Section 2 or 3 of the Founders'
Agreement which may be to the contrary, the total percentage of outstanding
shares of Common Stock of the Company owned in the aggregate by the AV Group and
the SCI Group referenced in Section 2(a) or (b) or Section 3(a) or (b) of the
Founders' Agreement for the purpose of computing the Minimum Sale Proceeds
transfer amount pursuant to Section 2 or the share transfer amount pursuant to
Section 3 shall be the respective percentage of Common Stock held by the AV
Group and the SCI Group as of the date of the merger between SCI and WP Holding,
Inc. and shall not include any stock options, restricted stock or series A
preferred stock which may be acquired such parties, but such respective
percentages may be diluted through any subsequent issuance of shares.
Furthermore, while each group's total percentage may be diluted through any
subsequent issuance of shares, the ratio of stock ownership between the SCI
Group and the AV Group shall remain 4:1.
6. Survival of Founders' Agreement Provisions upon Initial Public
Offering. Section 13 of the Founders' Agreement shall be restated in its
entirety to rad as follows:
"13. TERM.
(a) This Agreement shall terminate upon the earliest to
occur of: (i) the voluntary written agreement by all of
the Stockholders of the Company who are, at that time,
bound by the terms of this Agreement; (ii) the
dissolution, bankruptcy or receivership of the
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Company; (iii) a Sale Transaction that is duly approved
by the Company and in accordance with the terms hereof;
or (iv) there is a public offering of the capital stock
of the Company pursuant to an effective registration
statement filed on any form promulga xxx by the SEC
under the Securities Act of 1933, as amended, which
generates trading in the Shares on an established
securities market or permits the Shares to be readily
tradable on a secondary market. Upon termination of this
Agreement, the Stockholders shall surrender to the
Company their stock certificates and the Company shall
issue to them an equal number of Shares without the
legend set forth in this Agreement.
(b) Notwithstanding the provisions of this Agreement
referenced above, the following provisions shall survive
any termination of this Agreement by reason of an
Initial Public Offering, pursuant to Section 13(a)(iv):
(i) The Registration Rights Agreement dates as
referenced in Section __ of this Agreement shall
survive the registration of an initial public
offering;
(ii) The provisions of Section 3 of this Agreement
shall survive the registration of an initial
public offering until such time as the transfer
of shares pursuant to said Section 3 takes
place, or until such right expires according to
its terms; and
(c) Notwithstanding the provisions of this Agreement
referenced above, the following provisions shall survive
any termination of this Agreement by reason of a sale of
the Company, pursuant to section 13(a)(iii):
(i) The provisions of Section 2 of the Founders'
Agreement shall survive the sale of the Company
only until such time as the transfer of funds
pursuant to said Section 2 takes place.
provided, however, Section 2 shall terminate in the
event that an IPO occurs as referenced in Section
13(a)(iv), above prior to any Sale transaction
referenced in Section 13(a)(iii), above."
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7. Confirmation of Share Ownership. Each of the Stockholders and the
Company hereby confirms the stock ownership of the Stockholders is as set forth
on the attached Exhibit A and each Stockholder represents and warrants to the
Company and the other Stockholders that said Stockholder's ownership is
correctly set forth on Exhibit A.
8. Survival of Founders' Agreement. This Addendum modifies and amends
only that portion of the Founders' Agreement stated herein. In all other
respects, the Founders' Agreement as so modified is ratified and affirmed by the
parties and all other provisions and obligations of the Founders' Agreement
remain unaltered and in full force and effect and shall apply to this Addendum
with full force and effect as if this Addendum were a part thereof. To the
extent that any term or provision of this Addendum is or may be deemed expressly
inconsistent with any term or provision in the Founders' Agreement or any other
document executed in connection with the transactions contemplated thereby, the
terms and provisions hereof shall control.
This Addendum may be executed in one or more counterparts, each of which
shall constitute an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have signed, sealed and delivered
this Addendum in the presence of:
COMPANY:
XXXXXXX.XXX, INC. (formerly WP
Holding, Inc.), a Delaware
corporation
By:_________________________________
Name:_______________________________
Title:______________________________
STOCKHOLDERS:
SCI GROUP:
____________________________________
XXXXXXX XXXX, Individually
____________________________________
XXXXX XXXXXX, Individually
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____________________________________
XXXXX XXXXX, Individually
____________________________________
XXXX XXXXX, Individually
____________________________________
XXXX XXXXXXXX, Individually
____________________________________
XXXXXX XXXXXX, Individually
____________________________________
XXXXXXX XXXXXX, Individually
AV GROUP:
____________________________________
XXXXXXXXX X. XXXX, Individually
____________________________________
XXXXXXXX XXXXXXX, Individually
____________________________________
XXXXX XXXXXX, Individually
____________________________________
XXXXX XXXXXXX, Individually
____________________________________
XXXX XXXXXX, Individually
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