Exhibit 10.29
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REGISTRATION RIGHTS AGREEMENT
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THIS AGREEMENT (this "Agreement"), dated as of August 4, 2004 (the
"Effective Date"), is entered into between Warp Technology Holdings, Inc., a
Nevada corporation with a place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 (the "Corporation") and Xxxxxxx Xxxxxx, an individual having
an address at 00 Xxxx Xxxx, Xxxxxx, Xxxxxx, Xxxxxxx (the "Investor").
WHEREAS, the Investor has invested in certain private placements of the
Corporation's securities pursuant to which the Investor had certain registration
rights;
WHEREAS, the Investor previously served as an officer and director of
the Corporation and had agreed to defer exercising such registration rights upon
the request of the Corporation;
WHEREAS, the Investor no longer serves as an officer and director of
the Corporation and the Corporation agrees to extend certain registration rights
to the Investor;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Corporation and
the Investor hereby agree as follows:
1. Stock Holdings.
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(a) The Investor holds 5,400,000 shares of the Company's Common Stock,
par value $0.00001 per share (the "Common Stock") which were
purchased in private placements, and an additional 555,555 shares
of Common Stock which were issued to the Investor in connection
with his service to the Company as an officer and director. Under
that certain Amendment to the Employment Agreement (the
"Amendment") by and between the Company and the Investor dated as
of even date herewith, the Company agreed to issue 88,888 shares
of Common Stock to the Investor for services. Under the Amendment,
the Investor also was issued a Common Stock Purchase Warrant (the
"Warrant"), dated as of even date herewith, pursuant to which the
Investor has the right to purchase 2,000,000 shares of Common
Stock at an exercise price per share of $0.18. All of the
foregoing shares, whether held now by the Investor or received by
the Investor in the future as compensation for services or upon
exercise of the Warrant, are herein referred to as the "Shares".
(b) The Investor hereby represents and warrants that, other than the
Shares and the Warrant, Investor has no holdings, ownership,
beneficial or otherwise, of any shares of Common Stock, any shares
of preferred stock, or any other shares of capital stock of the
Company (or any subsidiary or affiliate of the Company), of any
class or series, any options or warrants to acquire, or any other
security convertible or exchangeable for, Common Stock, preferred
stock or other capital stock of the Company (or any subsidiary or
affiliate of the Company), or any other rights (other than the
registration rights under this Agreement or the rights to the
issuance of shares for compensation for services under the
Amendment) in or with respect to Common Stock, preferred stock,
other capital stock, options, warrants or other such securities,
whatsoever, and Investor hereby waives and
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forever releases any and all claims against the Corporation,
any subsidiary or affiliate of the Corporation, or any of their
respective officers, directors, stockholders, employees, agents or
representatives in respect of any such securities.
2. Registration Rights. For a period of two years six months from the date
hereof, the Investor shall have registration rights for the Shares as
follows:
(a) Piggyback Registration. Whenever the Company proposes to register
any of its securities (including any proposed registration of the
Company's securities by any third party) under the Securities Act
of 1933, as amended (the "Securities Act") and the registration
form to be used may be used for the registration of any of the
Shares, the Company shall give prompt written notice to the
Investor of its intention to effect such a registration and,
subject to the terms of paragraphs (b) and (c) hereof, shall
include in such registration all Shares with respect to which the
Company has received from the Investor written requests for
inclusion therein ("Piggyback Registration") within 10 days after
the receipt of the Company's notice.
(b) Priority on Primary Registrations. If a registration is an
underwritten primary registration on behalf of the Company, and
the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the
offering, the Company shall include in such registration (i)
first, the securities the Company proposes to sell, (ii) second,
the Shares and all other shares of Common Stock held by other
stockholders with similar rights who have requested to be included
in such registration, pro rata among the Investor and all such
stockholders on the basis of the number of shares requested to be
included therein by each such holder, and (iii) third, other
securities requested to be included in such registration pro rata
among the holders thereof on the basis of the number of shares
requested to be included therein.
(c) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of
the Company's securities and the managing underwriters advise the
Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such
registration (i) first, the securities requested to be included
therein by the holders requesting such registration, (ii) second,
the Shares and all other shares of Common Stock held by other
stockholders with similar rights who have requested to be included
in such registration, pro rata among the Investor and all such
stockholders on the basis of the number of shares requested to be
included therein by each such holder, and (iii) third, other
securities requested to be included in such registration pro rata
among the holders thereof on the basis of the number of shares
requested to be included therein.
3. Settlement. Except as provided in the Amendment, the Investor agrees that
this Agreement is in full and final settlement of any and all claims by or
through the Investor against the Corporation (or any subsidiary or affiliate
thereof) with respect to registration of any Shares, or any other securities,
however any claim may have arisen, including, without limitation, under any
agreement, or under any other right, obligation, understanding,
representation, warranty, or other commitment whatsoever, and
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Investor hereby forever waives and releases any and all claims to the
contrary against the Corporation, any subsidiary or affiliate of the
Corporation, or any of their respective officers, directors, stockholders,
employees, agents or representatives.
4. Representations of Investor. Investor hereby represents to and covenants with
the Company that, during the period in which any Registration Statement
effected pursuant to Section 2 remains effective, such Investor will:
(a) not engage in any stabilization activity in connection with any of
the Company's securities;
(b) cause to be furnished to any purchaser of the Shares and to the
broker-dealer, if any, through whom Shares may be offered, a copy
of the final prospectus relating to such Registration Statement;
and
(c) not bid for or purchase any securities of the Company or any
rights to acquire the Company's securities, or attempt to induce
any person to purchase any of the Company's securities or any
rights to acquire the Company's securities, in each case, other
than as permitted under the Securities and Exchange Act of 1934,
as amended (the "Exchange Act").
5. Information for Use in Registration Statement. The Investor covenants to the
Company that such Investor will complete the information requested by the
Company in connection with any registration statement, and further covenants
to the Company that all information provided by the Investor to the Company
will be true, accurate and complete as of the date provided. The Investor
understands that the written information provided to the Company, in the
Questionnaire and all written representations made in this Agreement, are
being provided to the Company specifically for use in, or in connection with,
any and all the registration statements and any prospectus, and has executed
this Agreement with such knowledge.
6. Governing Law. This Agreement and all acts and transactions pursuant hereto
and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of New
York, without giving effect to principles of conflicts of law, provided,
however, that the Revised Statutes of the State of Nevada shall govern the
enforceability of the provisions relating to the rights of a holder of stock
in a Nevada corporation, for as long as the Company remains organized under
Nevada law.
7. Successors and Assigns. No party may assign its rights or obligations under
this Agreement, except with the prior written consent of the other party.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their permitted successors and assigns.
8. Entire Agreement; Amendment; Termination. Except as provided in the
Amendment, this Agreement constitutes the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof and supersede all prior agreements and understandings among the
parties relating to the subject matter hereof. Neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the Company and the Investor.
9. Notices. Unless otherwise provided herein, any notice required or permitted
by this Agreement shall be in writing and shall be deemed duly given upon
delivery, when delivered personally or by overnight courier and addressed to
the party to be notified at such party's address as set forth on the first
page hereof, or as subsequently modified by written notice. In the event
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that any date provided for in this Agreement falls on a Saturday, Sunday or
legal holiday, such date shall be deemed extended to the next business day.
10. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
11. Captions and Headings. The captions and headings used herein are for
convenience and ease of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
12. Counterparts. This Agreement may be executed in counterparts, and each such
counterpart shall be deemed an original for all purposes.
IN WITNESS WHEREOF, this Agreement has been executed by the Corporation, by its
duly authorized representative, and by Investor, as of the date first above
written.
WARP TECHNOLOGY HOLDINGS, INC.
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: President
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
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