EXHIBIT 4.9
MODIFICATION AND SETTLEMENT AGREEMENT
THIS MODIFICATION AND SETTLEMENT AGREEMENT is made and entered into as of
this 30th day of November, 2001, by and between CHEQUEMATE INTERNATIONAL, INC.,
a Utah corporation (together with all Subsidiaries of Chequemate International,
Inc., "the Company") and CROOKS HOLLOW ROAD, LLC, a Cayman Islands Limited
Liability Company (the "Investor", together with the Company, the "Parties")
WHEREAS, the Parties entered into that certain Common Stock Purchase
Agreement ("Stock Purchase Agreement") dated May 10, 2000 and all Exhibits to
the Stock Purchase Agreement, including, but not limited to that certain
Registration Rights Agreement dated May 10, 2000 attached to the Stock Purchase
Agreement as Exhibit B ("Escrow Agreement"); and the Warrant dated May 10, 2000
attached to the Stock Purchase Agreement as Exhibit C (the "Warrant", together
with the Registration Agreement, and the Escrow Agreement, "the Exhibits"); and
WHEREAS, the Parties entered into that certain Modification Agreement dated
August 28, 2000 ("First Agreement") which Modification Agreement modified
certain terms of the Stock Purchase Agreement; and
WHEREAS, the Parties entered into that certain Amendment to Agreement dated
February 18, 2001 which Amendment to Agreement amended certain terms of the
Stock Purchase Agreement (the "Second Amendment", together with the Stock
Purchase Agreement, the Exhibits, the First Amendment, and the Second Amendment,
the "Prior Agreements"); and
WHEREAS, the Company has not complied with the requirement, pursuant to the
Prior Agreements, that it file, and have declared effective, a Registration
Statement with the Securities
and Exchange Commission; and
WHEREAS, pursuant to the terms of Article 2 of the Securities Purchase
Agreement, the Investor had certain repricing rights with respect to its shares
of Common Stock; and
WHEREAS, in lieu of the exercise by the Investor of its repricing rights
and all other rights created by any and all Prior Agreements, and payment by the
Company of amounts due to the Investor under the Registration Rights Agreement,
the parties have agreed to modify certain terms and provisions of the Prior
Agreements.
NOW, THEREFORE, it is mutually agreed by the parties as follows:
1. A complete capitalization table of the Company at November 17, 2001
including all outstanding common stock, preferred stock, securities with
conversion rights, options, warrants, and any securities having any contingent
or repricing rights, is annexed hereto as Exhibit "1." The Company warrants and
represents that Exhibit 1 is true and correct in all respects.
2. (a) The Company has represented to the Investor that on or before
November 30, 2001, the Company shall issue to the shareholders of Another World,
Inc., a corporation established under the laws of the Republic of Korea,
pursuant to an Amended and Restated Master Agreement dated June 13, 2001 (the
"Another World Issuance), approximately 38,504,275 shares of the Common Stock
constituting a fifty-one (51%) percent equity interest on a fully diluted basis
in exchange for a consideration of Three Million Five Hundred Thousand
($3,500,000) Dollars, as more specifically set forth in the Proxy Statement for
the special meeting of shareholders held July 31, 2001 and filed with the
Commission on or about July 9, 2001.
(b) Subject to the terms and conditions of this Agreement, the Company
shall issue ("Crooks Hollow Issuance") to Investor an amount of shares of the
Company's Common
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Stock, par value $.0001 per share (the "Common Stock"), equal to eight percent
(8%) of the issued and outstanding Common Stock, in the form of newly-issued
shares of the Common Stock, calculated on a fully diluted basis, including for
such purpose, the full exercise of any conversion rights or Warrants,
simultaneous with the Another World Issuance (the "Crooks Hollow Shares").
(c) The parties agree that in the event that more than 38,504,275
shares are issued to the shareholders of Another World, Inc. or their
designees under the Another World Issuance, the number of Crooks Hollow
Shares shall be appropriately adjusted in accordance with the provisions of
provisions of Paragraph 2(b) to equal eight percent (8%) of the issued and
outstanding Common Stock.
(d) The provisions of P. 2(b) and 2(c) shall apply to any Another
World Issuance up to eighty-five (85%) percent of the issued and outstanding
Common Stock.
3. Investor agrees that it will not sell, on any given trading day, a
number of shares of the Company's Common Stock in excess of twenty (20%) percent
of the aggregate trading volume of the Company's Common Stock on the prior day
as reported by the Principal Trading Market.
4. Simultaneous herewith, the Company shall execute the Restated
Registration Rights Agreement annexed hereto as Exhibit "2."
5. In the event that the Another World Issuance shall not occur on or
prior to December 31, 2001, this Agreement shall be of no force and effect, and
all amounts due to Investor under the Prior Agreements shall be deemed in full.
In such event, the effective date of the Registration Statement for calculation
of Repricing Shares shall be deemed to be July 1, 2001.
6. The Company shall use its best efforts to (a) have the Common Stock of
the Company diligently listed for trading a securities exchange or trading
market, and (b) to file all
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necessary filings with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, and/or any applicable listing or other law or
regulation. The Investor shall make such filings as may be required by law or
any applicable regulation.
7. (a) Except to the extent specially provided below, but in each such
event subject to compliance with all of the other provisions of this Agreement,
the Company covenants and agrees that it will not, without the prior written
consent of the Investor, enter into any subsequent or further offer or sale of
Common Stock or securities convertible into Common Stock (collectively, New
Common Stock") to or with any third party pursuant to a transaction in which the
purchase price per share or the exercise price per share, as applicable, of New
Common Stock is less than the Another World price ($0.09 per share) on any date
which is earlier than one hundred eighty (180) days after the effective date of
the Registration Statement.
(b) If, at any time after the expiration of the period contemplated by
Section 7(a) hereof (or prior thereto with the consent of the Investor) and
through and including the date which is twelve (12) months after the Effective
Date, the Company enters into a transaction (a "New Transaction") with a third
party on terms providing for either (A) a sale price (the "New Transaction
Price") equal to or computed based on, or a determination of a conversion price
(howsoever defined or computed) that is less than the Another World Price , then
the terms of any issuance of Crooks Hollow Shares shall be modified and the
increasing number of Crooks Hollow Shares to be equal to that as if issued under
the New Transaction Price (all such adjustments, collectively, the "New Crooks
Hollow Issue").
(c) The foregoing provisions of Section 7 do not apply to the issuance
of New Common Stock (i) to Another World Investors in connection with such
party's exercise of
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conversion or other rights if may have under documents executed and transactions
consummated prior to the date of this Agreement or (ii) pursuant to an Employee
Stock Option Plan ("ESOP") of the Company, such ESOP having been properly
approved by the shareholders of the Company prior to the date of this Agreement.
(d) By the Closing Date, the Company shall obtain the agreement (each,
a "Principal's Agreement") of each of its Principals (as defined below) that,
without the prior written consent of the Investor in each instance, such
Principal will not sell, on any given trading day, a number of shares of the
Company's Common Stock directly or indirectly held by such Principal during the
period commencing on the date of this Agreement and continuing through and
including the date which is ninety (90) days after the Effective Date, in excess
of twenty (20%) percent of the aggregate trading volume of the Company's Common
Stock on the prior day as reported by the Principal Trading Market. Each such
Principal's Agreement shall (a) specify that it is entered into as an inducement
to the Investor's execution, delivery and performance of this Agreement, (b)
name the Investor as a third party beneficiary thereof, (c) acknowledge that the
Company's transfer agent will be provided with instructions that transfers by a
Principal require the consent of the Company and the Investor, and (d)
contemplate that, in addition to any other damages or remedies that may be
appropriate, the Principal's Agreement shall be enforceable by injunction sought
by the Company and the Investor or any one or more of them. A "Principal" is a
Person who meets any one or more of the following criteria: (A) each Person who
is a director or principal officer of the Company or who, directly or
indirectly, holds in excess of five (5%) percent of the outstanding shares of
Common Stock of the Company (each, a "Company Principal"), (B) a spouse of a
Company Principal (a "Principal's Spouse") who, directly or
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indirectly, holds any shares of Common Stock of the Company, (C) a parent,
sibling or child of a Company Principal who resides in the household of a
Company Principal or of a Principal's Spouse (each, a "Principal's Relative")
and who, directly or indirectly, holds any shares of Common Stock, or (D) any
other Person or entity, including, without limitation, for profit or non-profit
corporations, partnerships and trusts, whose voting rights regarding Common
Stock of the Company is subject to the direction, control or other influence of
any Company Principal, Principal's Spouse, or Principal's Relative.
8. The Company shall pay all reasonable fees and expenses, up to and
including $20,000.00 incurred by the Investor in connection with the execution
and delivery of this Modification and Settlement Agreement, the Restated
Registration Rights Agreement, any prior Modification Agreements, and any
amendments, including, without limitation, all reasonable attorneys fees and
expenses, provided that the Investor presents a detailed summary of all expenses
and fees it had incurred. Under no circumstances, the Company shall be liable
for any expenses or fees incurred by the Investor over $20,000.00 The Company
shall pay all stamp or other similar taxes and duties levied in connection with
issuance of the Shares pursuant hereto.
9. The Company, for itself and on behalf of all affiliated persons and
entities, representatives, and all predecessors in interest, successors and
assigns (collectively, the "Releasing Parties"), hereby releases and forever
discharges each of Purchaser, and Purchaser's direct and indirect partners,
officers, directors, employees, affiliates, representatives, advisors, agents,
trustees, beneficiaries, predecessors in interest, successors in interest and
nominees, of and from any and all claims, demands, actions and causes of action,
whether known or unknown, fixed or contingent, arising prior to the date of
execution of this Agreement, that the Company may have
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had, may now have or may hereafter acquire with respect to any matters
whatsoever under, relating to or arising from Prior Agreements, including (i)
any defenses it may have with respect to honoring the terms of the Prior
Agreements, or any (ii) offsets it may have with respect to the amounts owed
under the Prior Agreements. Additionally, the Company represents, warrants and
covenants that it has not, and at the time this release becomes effective will
not have, sold, assigned, transferred, or otherwise conveyed to any other person
or entity all or any portion of its rights, claims, demands, actions, or causes
of action herein released. Except as specifically set forth herein, nothing
contained herein shall in any way be deemed to effect or modify the
representations, warranties, rights and obligations of the respective parties as
set forth in the Prior Agreements.
10. If (i) the Investor becomes involved in any capacity in any action,
proceeding or investigation brought by any stockholder of the Company, in
connection with or as a result of the consummation of the transactions
contemplated by this Agreement or the Prior Agreements, or if such the Investor
impleaded in any such action, proceeding or investigation by any person, or (ii)
the Investor becomes involved in any capacity in any action, proceeding or
investigation brought by the Securities and Exchange Commission, any
self-regulatory organization or other body having jurisdiction, against or
involving the Company or in connection with or as a result of the consummation
of the transactions contemplated by this Agreement or the Prior Agreements, or
if the Investor is impleaded in any such action, proceeding or investigation by
any person, then in any such case, the Company hereby agrees to indemnify,
defend and hold harmless the Investor from and against and in respect of all
losses, claims, liabilities, damages or expenses resulting from, imposed upon or
incurred by the Investor, directly or indirectly, and reimburse such Investor
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for its reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith, as such
expenses are incurred. In addition, the Company will reimburse the Investor for
reasonable internal and overhead costs for the time of any officers or employees
of the Investor devoted to appearing and preparing to appear as witnesses,
assisting in preparation for hearings, trials or pretrial matters, or otherwise
with respect to inquiries, hearing, trials, and other proceedings relating to
the subject matter of this Agreement. The indemnification and reimbursement
obligations of the Company under this paragraph shall be in addition to any
liability which the Company may otherwise have (other than matters specifically
addressed in the Registration Rights Agreement, which shall be governed solely
by that agreement), shall extend upon the same terms and conditions to any
affiliates of the Investor who are actually named in such action, proceeding or
investigation, and partners, directors, agents, employees and controlling
persons (if any), as the case may be, of the Investor and any such affiliate,
and shall be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of the Company, the Investor, any such
affiliate and any such person. The Company also agrees that neither the Investor
nor any such affiliate, partner, director, agent, employee or controlling person
shall have any liability to the Company or any person asserting claims on behalf
of or in right of the Company in connection with or as a result of the
consummation of this Agreement, except as specifically provided in or
contemplated by this Agreement
11. Upon the Company's full and timely compliance with all of its
obligations under this Agreement and under the Restated Registration Rights
Agreement, the Investor, for itself and on behalf of all affiliated persons and
entities, representatives, and all predecessors in interest, successors and
assigns (collectively, the "Releasing Parties"), hereby releases and forever
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discharges each of the Company, and the Company's direct and indirect partners,
officers, directors, employees, affiliates, representatives, agents, trustees,
beneficiaries, predecessors in interest, successors in interest and nominees, of
and from any and all claims, demands, actions and causes of action, whether
known or unknown, fixed or contingent, arising prior to the date of execution of
this Agreement, that the Investor may have had, may now have or may hereafter
acquire with respect to any matters whatsoever under, relating to or arising
from Prior Agreements, including (i) any defenses it may have with respect to
honoring the terms of the Prior Agreements, or any (ii) offsets it may have with
respect to the amounts owned under the Prior Agreements. Additionally, the
investor represents, warrants and covenants that it has not, and at the time
this release becomes effective will not have sold, assigned, transferred, or
otherwise conveyed to any other person or entity all or any portion of its
rights, claims, demands, actions, or causes of action herein released.
12. As hereby modified and amended, the Prior Agreements remain in full
force and effect. This Agreement supercedes any prior Modification Agreement
between the parties.
13. This Agreement has been authorized by all due corporate action on
behalf of the Company.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
CHEQUEMATE INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: President
CROOKS HOLLOW ROAD, LLC
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By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Navigator Management Ltd.
---------------------------
Title: Director
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