Exhibit 4.5
AMENDMENT TO AGREEMENT
This Amendment to Agreement ("Amendment"), is made and entered into
this 18th day of February, 2001, by and between Chequemate International, Inc.,
a Utah corporation, ("Chequemate"), and Crooks Hollow Road, LLC, a Cayman
Islands limited liability company, ("CHR"), upon the following premises:
A. On or about May 10, 2000, Chequemate and CHR entered into a
Registration Rights Agreement (the "Registration Agreement"), under the terms of
which Chequemate agreed to file, on or before July 10, 2000, a registration
statement on Form S-3, or other appropriate registration form (the "registration
statement"), and to include in the registration statement, the shares and
warrants issued to CHR pursuant to the terms of a Common Stock Purchase
Agreement between Chequemate and CHR dated May 10, 2000 (the "Stock Purchase
Agreement"), and related form of Common Stock Purchase Warrant (the "Warrant")
of the same date. On or about May 28, 2000, the parties entered into a
Modification Agreement (the "Modification Agreement"), which amended and
modified certain terms of the Stock Purchase Agreement and Registration
Agreement, as set forth therein.
B. Because of various difficulties experienced by Chequemate over the
past few months, Chequemate has not been able to complete and file a
registration statement as contemplated, but is now prepared to do so, subject to
obtaining the consent of CHR and other parties to be included in the
registration statement.
C. The parties have agreed to enter into this Amendment, in order to
amend the Registration Agreement referred to above, to clarify or amend certain
aspects of the Stock Purchase Agreement, and to allow Chequemate additional time
to file the registration statement.
NOW, THEREFORE, upon these premises and for good and valuable
consideration, the adequacy of which is hereby acknowledged, the parties agree
as follows:
1. Chequemate shall immediately, but in no event less than ten (10)
days from the date of execution of this Amendment, provide a draft copy of the
registration statement, to counsel for CHR, for its review, in accordance with
paragraph 3(b) of the Registration Agreement. The registration statement shall
include, for registration: (a) all of the initial shares issued to CHR pursuant
to the Stock Purchase Agreement (671,463 shares), and the additional shares
issued to CHR pursuant to the Modification Agreement (117,269 shares), or a
total of 788,732 shares (the "Initial Shares"); and (b) all of the additional
shares issuable to CHR pursuant to paragraph 2 below (the "Penalty Shares").
Chequemate shall have seven (7) business days following the review and comment
of the registration statement by CHR's counsel, to make the initial filing of
the registration statement with the U.S. Securities and Exchange Commission
("SEC"). Thereafter, Chequemate agrees to exercise its best efforts to prepare
such amendments to the registration statement, and to diligently undertake such
additional work as may be necessary to appropriately respond to the comments of
the staff of the SEC, and to completely and accurately update the registration
statement in all material respects, as of a recent practicable date, to attempt
to obtain effectiveness of the registration statement as soon as reasonably
practicable.
2. In consideration of the undertaking set forth in paragraph 1 above,
CHR hereby agrees to waive and release any claim it may have against Chequemate
for failure to file a registration statement prior to the date hereof, except as
provided in this paragraph 2. The parties hereby agree that, pursuant to
paragraph 2(b) of the Registration Agreement, Chequemate is required to pay to
CHR penalties and liquidated damages as set forth therein. The parties agree
that, in accordance with paragraph 2(b) of the Registration Agreement (a)
Chequemate is obligated to CHR in the amount of $509,544; and (b) each day
thereafter, until the Effective Date of the registration statement (as defined
in the Stock Purchase Agreement), Chequemate will incur an additional obligation
to CHR in the amount of $2,800, all as set forth
on the Addendum - Calculation of Penalties, attached hereto as Exhibit "A"
and incorporated herein by reference. (Such obligations are hereinafter
referred to as the "Penalties").
In lieu of cash payment(s) to cover the Penalties in accordance with
paragraph 2(b) of the Registration Agreement, CHR agrees to accept, and
Chequemate agrees to issue, restricted shares of common stock of Chequemate, on
the terms set forth in this paragraph 2 (the "Penalty Shares"). Upon the
execution of this Amendment (the "Initial Penalty Share Date"), Chequemate shall
issue to CHR Penalty Shares to cover the period from the date of execution of
the Registration Agreement to the date of this Amendment (the "Initial Penalty
Period"), based on the average Closing Bid price for the five (5) consecutive
Business Days prior to the date of this Amendment (the "Initial Penalty Share
Price"), calculated as follows: Total Penalties During Initial Penalty Period
Divided by Initial Penalty Share Price.
On the Effective Date, Chequemate shall issue to CHR additional Penalty
Shares for the period from the Initial Penalty Share Date through the Effective
Date (the "Second Penalty Period"), based on the average Closing Bid Price for
the five (5) consecutive Business Days ending five (5) days prior to the
Effective Date (hereinafter the "Second Pricing Period") (the "Second Penalty
Share Price"), calculated as follows: Total Penalties During Second Penalty
Period Divided by Second Penalty Share Price.
All capitalized terms which are not defined herein shall have the
meaning as defined in the Stock Purchase Agreement and the Registration
Agreement.
All of the Penalty Shares shall be included in the registration
statement pursuant to paragraph 1 above.
3. CHR understands and acknowledges that the registration statement
will include shares of common stock of Chequemate held by other parties (the
"Other Selling Shareholders"), as set forth on Exhibit "B" attached hereto and
incorporated herein by reference. CHR hereby consents to the inclusion in the
registration statement, of the stock of the Other Selling Shareholders, as set
forth on Exhibit "B." In addition, CHR hereby consents to the stock transactions
set forth on Exhibit "C," attached hereto and incorporated herein by reference.
4. CHR agrees to provide Chequemate with such information and
documentation as may be reasonably requested in connection with the registration
statement and other filings with the SEC, and to cooperate with Chequemate in
connection with such filing(s).
5. Except as amended and modified in this Amendment, the Stock Purchase
Agreement, Registration Agreement and Modification Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties to this Amendment have duly executed it
as of the date and year first above written.
CHEQUEMATE INTERNATIONAL, INC.
By /s/ Xxxxxxx Xxxxx
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Its: Chief Operating Officer
CROOKS HOLLOW ROAD, L.L.C.
By /s/
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Its:
