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EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
This is a Registration Rights Agreement made as of the 5th day of
July, 2000, by and between inFOREtech Wireless Technology Inc., a Nevada company
(the "Company") and all Abacus Capital L.L.C. ("Abacus"), TMR Investments 1 LLC,
a Washington limited liability company ("TMR"), or its assigns (collectively,
"Holder" or "Holders").
WHEREAS:
A. TMR is the assignee of that certain Loan Agreement between inFOREtech
Golf Technology 2000, Inc. ("Inforetech 2000") and Abacus Capital, L.L.C.
("Abacus"), dated September 2, 1998, and the assignee of a warrant issued to
Abacus to acquire 200,000 Class "A" shares of Inforetech 2000 (the "Inforetech
Warrant"). Capitalized terms used herein and not defined herein shall have the
meanings assigned to them in the Loan Agreement.
B. Holder agreed to convert the principal and accumulated interest into
230,000 Units of Inforetech 2000, each Unit consisting of one (1) Class "A"
Share of Inforetech 2000 and a warrant to purchase a further Class "A" share of
Inforetech 2000.
C. In consideration of the Loan, Inforetech 2000 agreed to provide
registration rights with respect to the 20,000 Class "A" shares of Inforetech
2000 issued to Abacus in consideration of the grant of the Loan (the
"Consideration Shares") and for any shares issued upon conversion of the warrant
of the Loan (the "Inforetech Conversion Shares") and for any shares issued upon
exercise of Inforetech Warrants and of the warrants included in the Units (the
"Inforetech Warrant Shares") granted upon such conversion.
D. In consideration of the conversion of the Loan into Units of
Inforetech 2000, Inforetech 2000 agreed to provide registration rights with
respect to the Units issued upon conversion.
E. The Company has agreed to exchange the Units issued by Inforetech 2000
for Units in the capital of the Company, and offered to exchange all other
securities issued by Inforetech 2000 into equivalent securities of the Company,
and to provide registration rights in regard thereto.
NOW THEREFORE, in consideration of the premises and the mutual covenants set
forth herein, the parties agree as follows:
1. Definitions
For the purposes of this Agreement:
(a) The term "Act" means the Securities of 1933, as amended;
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(b) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement
in compliance with the Act and the declaration or ordering of
effectiveness of such registration statement;
(c) The term "Registrable Securities" means:
(i) the 20,000 Class "A" shares in the capital stock of the Company
issued to Abacus in exchange for the Consideration Shares; and
(ii) the 230,000 Class "A" shares in the capital stock of the
Company and any shares issued upon exercise of the warrant to
purchase 230,000 Class "A" shares in the capital of the Company
issued to Holder in exchange for the Inforetech 2000 shares
issued upon conversion of the Loan and for the shares issued
upon exercise of the Inforetech Warrant.
(iii) any of the 200,000 Class "A" shares in the capital stock of the
Company that may be issued on exercise of the warrants of the
Company issued in exchange for the Inforetech warrants.
(d) The term "Holder" or "Holders" menas Abacus, TMR1 and any person
holding Registrable Securities to whom these registration rights have
been transferred pursuant to paragraph 9 of this Agreement.
2. Company Registration
If at any time the Company, either on its behalf or on behalf of any
selling shareholder, proposes to register any of its stock under the Act in
connection with the public offering of such securities solely for cash on a form
that would also permit the registration of the Registrable Securities, the
Company shall, each such time, promptly give Abacus and Holder written notice of
such determination. Upon the written request of Abacus or Holder given within
twenty (20) days after mailing of any such notice by the Company, the Company
shall cause to be registered under the Act all of the Registrable Securities
that Abacus and each such Holder has requested to be registered at the Company's
cost and expense and at no cost or expense to Abacus or Holder except as set
forth in Paragraph 4 of this Agreement.
3. Obligations of the Company
Whenever required under this Agreement to effect the registration of
any Registrable Securities, the Company shall, as expeditiously as reasonably
possible;
(a) Prepare and file as promptly as possible with the Securities and
Exchange Commission ("SEC") a registration statement with respect to
such Registrable Securities and cause such registration statement to
become and remain effective, and, if any stop order shall be issued by
the SEC in connection therewith, obtain the removal of such order,
until the earlier of (i) the public sale of all of the Registrable
Securities registered thereunder or (ii) the expiration of one hundred
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eighty (180) days for the date such registration statement has been
declared effective by the SEC.
(b) Prepared and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with the
such registration statement as may be necessary to comply with the
provision of the Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to Abacus and the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may
reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) Register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such
jurisdiction as shall be appropriate for the distribution of the
securities covered by the registration statement, provided that the
Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdiction, and
further provided that (anything in this Agreement to the contrary
notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the securities shall be qualified shall required
that expensed incurred in connection with the qualification of the
securities in that jurisdiction be borne by selling shareholders pro
rata, to the extent required by such jurisdiction.
4. Registration Expenses
The Company shall bear the entire cost and expense of any registration
of the Registrable Securities, provided, however, that Abacus and the Holder
shall be solely responsible for the fees of any counsel, accountants or other
professionals retained by Abacus or the Holder in connection with such
registration and any transfer taxes or underwriting discounts or commissions
applicable to the Registrable Securities sold by Abacus or such Holder pursuant
thereto and any additional registration fees attributable to the registration of
Abacus or such Holder's Registrable Securities.
5. Underwriting Requirements
If securities are proposed to be offered for sale pursuant to a
registration statement by other security holders of the Company and the total
number of securities to be offered by the holders of the Registrable Securities
and such other selling security holders is required to be reduced pursuant to a
request from the managing underwriter, and such request is consented by Abacus
and the Holder, the aggregate number of Registrable Securities to be offered by
Abacus and the Holders pursuant to such registration statement shall equal the
number which bears the same ratio to the maximum number of securities as are
included in the registration statement (including those of Abacus and the
Holders) as the original number of Registrable Securities
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proposed to be sold by Abacus and the Holders bears to the total original number
of securities proposed to be offered by Abacus and the Holders and the other
selling security holders.
6. Indemnification
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless Abacus and each Holder requesting or joining in a
registration, any underwriter (as defined in the Act) for it, and each
person, if any, who controls such Holder or underwriter within the
meaning of the Act, against any losses, claims, damages, or
liabilities, joint or several, to which they may become subject under
the Act or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based
on any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the omission or
alleged omission not state therein a material fact required to be
stated therein, or necessary to make the statements therein not
misleading or arise out of any violation by the Company of any rule or
regulation promulgated under the Act applicable to the Company and
relating to action or inaction required of the Company in connection
with any such registration; and will reimburse each such Holder, such
underwriter, or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this
paragraph 6(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not
be unreasonably withheld) nor shall the Company be liable in any such
case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
connection with the registration statement, preliminary prospectus,
final prospectus, or amendments or supplements thereto, in reliance
upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder,
underwriter, or controlling person.
(b) Promptly after receipt by an indemnified party under this paragraph of
notice of the commencement of any action, such indemnified party will,
if a claim in respect hereof is to be made against any indemnifying
party under this paragraph, notify the indemnifying party in writing
of the commencement thereof and the indemnifying shall have the right
to participate in, and, to the extent the indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to notify an indemnifying
party promptly of the commencement of any such action, if prejudicial
to his ability to
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defend such action, shall relieve such indemnifying party of any
liability to the indemnifying party under this paragraph, but the
omission so to notify the indemnifying party will not relieve him of
any liability that he may have to any indemnified party otherwise than
under this paragraph.
7. Registrations on Form S-3
(a) If (i) Abacus or a Holder request in writing (specifying that it is
being made pursuant to this paragraph 7) that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3
regardless of its designation) for a public offering of shares of the
Registrable Securities the reasonably anticipated aggregate price to
the public of which would exceed One Million Dollars ($1,000,000), and
(ii) the Company is a registrant entitled to use Form S-3 to register
such shares, then the Company shall cause such shares to be registered
on Form S-3 (or any successor to Form S-3).
(b) Abacus and Holders' rights to registration under this paragraph 7 are
in addition to, and not in lieu of, their rights to registration under
paragraph 2.
8. Reports Under Securities Exchange Act of 1934
With a view to making available to Abacus and the Holders the Benefits
of Rule 144 promulgated under the Act and any other rule or regulation of the
SEC that may at any time permit Abacus or a Holder to sell securities of the
Company to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times subsequent to ninety
(90) days after the effective date of the first registration statement
covering an underwritten public offering filed by the Company;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Act and the Securities Exchange Act
of 1934, as amended (the "1934 Act"); and
(c) furnish to Abacus and any Holder, so long as Abacus or such Holder
owns any of the Registrable Securities, forthwith upon request a
written statement by the Company that it has complied with the
reporting requirements of Rule 144 (at any time after ninety (90) days
after the effective date of said first registration statement filed by
the Company), and of the Act and the 1934 Act (at any time after it
has become subject to such reporting requirements), a copy of the most
annual or quarterly report of the Company, an such other reports and
documents so filed by the Company as may be reasonably requested in
availing Abacus or any Holder of any rule or regulation of the SEC
permitting the selling of any such securities without registration.
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9. Transfer of Registration Rights
The registration rights of the Holder(s) under this Agreement may be
transferred to any transferee who acquires at least ten thousand (10,000)
shares; provided, however, that the Company is given written notice by Abacus or
the Holder at the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which the rights under
this Agreement are being assigned.
10. General Provisions
(a) Neither the giving of any notice by Abacus or any Holder, the filing
of a registration statement by the Company pursuant to this Agreement
nor the making of any request for prospectuses by Abacus or the Holder
shall impose upon Abacus or the Holder any obligation to sell any
Registrable Securities.
(b) This Agreement may only be amended by a written instrument executed by
the Company and Abacus or the Holder(s).
(c) This Agreement constitutes the entire agreement of the parties hereto
and supersedes any understanding of the parties, oral and written,
with respect to the subject matter hereof, and in particular
supersedes and replaces the Registration Rights Agreement dated
September 2, 1999 by and between Inforetech 2000 and Abacus.
(d) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same document.
(e) All notices, requests, demands and other communications hereunder
shall be in writing, and delivered by personal delivery (including
recognised courier or delivery service), United States mail, first
class postage prepaid and properly addressed, or by facsimile with
confirmation of receipt, to the addresses set forth below, or to such
other address as may be provided by any of the parties hereto or
transferees of any rights herein"
If to the Company, to: Inforetech Wireless Technology Inc.
214 - 5500 - 152/nd/ Street
Surrey, B.C., V3S 8E7
Facsimile: (604) 576-7442
with a copy to: Holmes Greenslade
Attention: John W. Greenslade
1880 - 1066 West Hastings Street
Vancouver, B.C., V6E 3X1
Facsimile: (604) 688-0426
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If to Abacus or TMR 1, to: Abacus Capital L.L.C.
Attention: Jerry L. Smith
10900 NE 8/th/ Street, Suite 900
Bellevue, WA 98004
Facsimile: (425) 450-0764
with a copy to: Monahan & Biagi, PLLC
Attention: Susan E. Lehr
701 Fifth Avenue, Suite 5701
Seattle, WA 98104
Facsimile: (206) 587-5710
Notices shall be deemed delivered upon receipt if personally delivered
or sent by facsimile on a normal business day during normal business
hours (otherwise on the next business day after transmission), or
three (3) business days after deposit with the United States Post
Office.
(f) The headings contained herein are for the sole purpose of convenience
of reference, and shall not in any way limit or affect the meaning or
interpretation of any of the terms or provisions of this Agreement.
(g) Any provision of this Agreement which is held by a court of competent
jurisdiction to be prohibited or unenforceable in any jurisdiction(s)
shall be, as to such jurisdiction(s), ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
(h) This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the
State of Washington.
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(i)
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
InFOREtech Wireless Technology, Inc.
By: _____________________________
Its: _____________________________
Abacus Capital L.L.C.
By: /s/ Jerry Smith
______________________________
Jerry L. Smith, Manager
TMR 1 Investments L.L.C.
By Abacus Capital L.L.C., Manager
By: /s/ Jerry Smith
______________________________
Jerry L. Smith, Manager
