EXHIBIT 4.19
VOLUNTARY RESALE RESTRICTION AGREEMENT
THIS AGREEMENT is dated for reference this 19th day of November, 2001
BETWEEN SmartGate, Inc., a Nevada corporation having offices at 0000
Xxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, (the "Issuer"), and Xxxxxx X. Xxxx,
businessman having offices at 0000 Xxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000
("Xx. Xxxx").
WHEREAS
A. Xx. Xxxx has acquired six hundred forty-four thousand two hundred
ninety-two (644,292) common shares $0.001 par value in the capital of the Issuer
incorporated under the laws of Nevada, pursuant to that certain Contribution
Agreement entered into by and among the Issuer, SmartGate, L.C. and the members
of SmartGate, L.C. which included Xx. Xxxx; and
B. Xx. Xxxx has agreed that it would be in the best interest of Xx.
Xxxx and the Issuer if Xx. Xxxx would subject all of the shares of SmartGate,
Inc., which are currently owned by Xx. Xxxx, his family or affiliates, or which
may, during the term of this Agreement, be acquired by Xx. Xxxx or his assigns
to a voluntary arrangement restricting resale (the "Arrangement") as provided
herein.
NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and conditions contained herein and for other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged), the
Parties covenant and agree as follows:
1. VOLUNTARY RESALE RESTRICTION ARRANGEMENT
1.1 STOP TRANSFER. Concurrently with the execution of this Agreement or
immediately thereafter, as any additional shares of the Issuer are issued to Xx.
Xxxx, the Issuer will instruct Liberty Transfer Company (the "Transfer Agent")
or replacement therefrom, to make a notation on its books putting a stop
transfer on the shares (except 100,000 shares as provided in Paragraph 2.2(a)
which shall not be restricted by this Agreement) registered in the name of Xx.
Xxxx. Such stop transfer will be removed from the shares as provided below in
paragraph 2.2.
1.2 VOTING RIGHTS. Xx. Xxxx may exercise all voting rights attached to
the shares while the stop transfer is in place.
1.3 No WAIVER. For greater certainty, Xx. Xxxx waives no rights attached
to the shares by reason of the execution of this Agreement, other then the right
to sell the shares while they are subject to the Arrangement provided herein.
1.4 RESTRICTION ON TRANSFER. While the shares are subject to this
Arrangement, Xx. Xxxx shall not assign, deal with, pledge, sell, trade or
transfer in any manner whatsoever, or agree to do so in the future, any of the
shares or any beneficial interest in them, except as otherwise herein provided.
Except in respect of the foregoing, the Issuer shall not effect or
acknowledge any transfer, trade, pledge, hypothecation, assignment, declaration
of trust or any other documents evidencing a change in the legal or beneficial
ownership of or interest in the shares.
1.5 DEATH OR BANKRUPTCY. Upon the death or bankruptcy of Xx. Xxxx, the
assignee of the shares shall receive said shares, subject to and shall be bound
by, the terms and provisions of this Agreement. Such assignee may be required by
the Issuer to execute a joinder to this Agreement as a condition to assigning
said shares on the books and records of the Issuer and its Transfer Agent.
1.6 LEEND. Xx. Xxxx agrees to surrender all certificate(s) representing
the shares (and any after acquired shares) so that the Transfer Agent may place
an appropriate stop-transfer legend on said certificate(s) noting the existence
of this Agreement.
1.7 RADIO METRIX INC. Xx. Xxxx is a shareholder of Radio Metrix, Inc.
Issuer and Radio Metrix, Inc. have entered into a Letter of Intent, pursuant to
which Radio Metrix, Inc. may be acquired in a merger transaction by Issuer. In
the event such Letter of Intent is concluded and additional shares or
entitlement to shares are issued or granted to Xx. Xxxx, such shares and
entitlement shall automatically and immediately be subject to this Arrangement
and the stop-transfer as set forth herein. Further, should Xx. Xxxx acquire any
other or additional shares of the Issuer during the term of this Agreement,
whether in open market or private transactions, said shares shall be subject to
the restrictions as provided herein and such restriction shall be so noted with
the Transfer Agent.
2. RELEASE FROM ARRANGEMENT
2.1 RETENTION OF STOP TRANSFER. Xx. Xxxx irrevocably directs the Issuer
to retain the stop transfer on the shares until the shares are released from
this Arrangement pursuant to Paragraph 2.2.
2.2 RELEASE INSTRUCTIONS.
(a) 100,000 shares owned by Xx. Xxxx shall not be restricted
by this Agreement and shall be released from the restrictions of this Agreement
provided such shares are sold in accordance with a private transaction, and the
Issuer shall so notify the Transfer Agent of such release of the 100,000 shares
for sale by Xx. Xxxx (provided the shares are sold in accordance with a private
transaction).
(b) At the end of 13 months from the date of this Agreement,
Issuer shall release an additional 100,000 shares from the restrictions provided
in this Agreement, provided that such shares are only sold in a private
transaction (and not in a transaction in the public trading market).
(c) All restrictions set forth in this Agreement shall lapse
and be of no further effect 19 months following the execution of this
Agreement. Upon lapse of said restrictions, the Issuer shall notify the Transfer
Agent to remove the stop transfer instructions. Upon tender of the
certificate(s) by Xxxx to the Transfer Agent, the Transfer Agent will be
instructed to issue a certificate without a legend describing or relating to
this Agreement.
2.3 PARTIAL TERMINATION. The release from this Agreement of any of
the shares shall terminate this Agreement only in respect of the shares so
released.
3. MATTERS INVOLVING ISSUER
3.1 INDEMNITY. Xx. Xxxx shall release, indemnify and save harmless
the Issuer from and against all costs, charges, claims, demands, damages, losses
and expenses resulting from administering this Agreement and compliance in good
faith with this Agreement.
4. MISCELLANEOUS
4.1 AMENDMENT OF AGREEMENT. This Agreement may be amended only by the
written agreement between the Issuer and Xx. Xxxx.
4.2 FURTHER ASSURANCES. The Parties shall execute and deliver any
documents and perform any acts necessary to carry out the intent of this
Agreement.
4.3 GOVERNING LAWS. This Agreement shall be construed in accordance
with and governed by the laws of Nevada.
4.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one agreement.
4.5 SINGULAR/PLURAL. Wherever a singular expression is used in this
Agreement, that expression is deemed to include the plural or the body
corporate where required by the context.
4.6 ENUREMENT. This Agreement enures to the benefit of and is
binding on the parties and their heirs, executors, administrators, successors
and permitted assigns.
IN WITNESS WHEREOF the parties have executed this Agreement as of the
date and year first above written.
SMARTGATE, INC.
/s/ XXXXXX X. XXXX /s/ XXXXXXX X. XXXXXXX PRESIDENT
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Xxxxxx X. Xxxx Authorized Signatory
XXXXXXX X. XXXXXXX AS PRESIDENT
AGREEMENT
This Agreement, dated November 19, 2001 between SmartGate, Inc., Xxx
Xxxx and G.M. Capital Partners, Ltd. is to set forth the parties agreement that
the Voluntary Resale Restriction Agreement dated November 19, 2001 between
SmartGate, Inc. and Xxx Xxxx, attached hereto as Exhibit A cannot be cancelled,
considered null and void or amended in any form without the written consent of
G.M. Capital Partners Ltd.
G.M. Capital Partners, Ltd. SmartGate, Inc.
/s/ XXXXXXX X. XXXXXXX, PRESIDENT
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Authorized Signatory Authorized Signatory
/s/ XXX XXXX
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Xxx Xxxx
