EXHIBIT 4.1
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WARRANT AND UNIT AGREEMENT
LocatePLUS Holdings Corporation, 100 Cummings Center, Suite 235M,
Beverly, Massachusetts 01915 (the "Company"), and Transfer Online, Inc. 227 SW
Pine Street, Suite 300, Portland, Oregon 97204 (the "Transfer Agent"), agree as
follows:
1. PURPOSE. The Company proposes to publicly offer and issue in an
initial public offering (the "Offering") 10,000,000 units (the "Units"). Each
Unit will entitle the registered holder of a Unit (a "Unit Holder") to: (I) one
(1) share of the Company's Class B Non-voting Common Stock, par value $0.01; and
(II) one (1) warrant to purchase of one (1) share of the Company's Class A
Voting Common Stock, par value $0.01 (the "Warrant").
2. WARRANTS. Each Warrant will entitle the registered holder of a
Warrant (a "Warrant Holder") to purchase from the Company one (1) share of Class
A Voting Common Stock for $0.50 (the "Exercise Price"). A Warrant Holder may
exercise all or any number of Warrants resulting in the purchase of a whole
number of shares of Class A Voting Common Stock.
3. EXERCISE PERIOD. The Warrants may be exercised at any time during
the period commencing on the closing date of the Offering (the "Offering Date")
and ending at the close of business on the first (1st) anniversary date of the
Offering Date (the "Expiration Date"), except as changed by Section 15 of this
Agreement.
4. NON-DETACHABILITY. A Warrant Certificate (as defined below) may
not be detached from a certificate for a share of Class B Non-voting Common
Stock (a "Share Certificate") contained in a Unit for at least one hundred and
eighty-five (185) days following the Offering Date. Until such time, a Warrant
Certificate may be split up, combined, exchanged or transferred on the books of
the Transfer Agent only together with the Share Certificate.
5. CERTIFICATES. The Warrant certificates shall be in registered
form only and shall be substantially in the form set forth in EXHIBIT A attached
to this Agreement (a "Warrant Certificate"). The Unit certificates shall be in
registered form only and shall be substantially in the form set forth in EXHIBIT
B attached to this Agreement (a "Unit Certificate"). Warrant and Unit
Certificates shall be signed by, or shall bear the facsimile signature of, the
Chief Executive Officer, President or a Vice President of the Company and the
Secretary or an Assistant Secretary of the Company. If any person, whose
facsimile signature has been placed upon any Warrant or Unit Certificate, shall
have ceased to be such officer before such Warrant or Unit Certificate is
countersigned, issued and delivered, such Warrant or Unit Certificate shall be
countersigned, issued and delivered with the same effect as if such person had
not ceased to be such officer. Any Warrant or Unit Certificate may be signed by,
or made to bear the facsimile signature of, any person who at the actual date of
the preparation of such Warrant or Unit Certificate shall be a proper officer of
the Company to sign such Warrant or Unit Certificate, even though such person
was not such an officer upon the date of this Agreement.
6. ISSUANCE OF NEW CERTIFICATES. Notwithstanding any of the
provisions of this Agreement or the several Warrant or Unit Certificates to the
contrary, the Company may, at its option, issue new Warrant or Unit Certificates
in such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Exercise Price or the number or kind of shares
purchasable under the several Warrant or Unit Certificates made in accordance
with the provisions of this Agreement.
7. COUNTERSIGNING. Warrant and Unit Certificates shall be manually
countersigned by the Transfer Agent and shall not be valid for any purpose
unless so countersigned. The Transfer Agent hereby is authorized to countersign
and deliver to, or in accordance with the instructions of, any Warrant or Unit
Holder any Warrant or Unit Certificate, respectively, which is properly issued.
8. REGISTRATION OF TRANSFER AND EXCHANGES. The Transfer Agent will
keep or cause to be kept books for registration of ownership or transfer of
Warrant and Unit Certificates issued hereunder. Such registers shall show the
names and addresses of the respective holders of the Warrant and Unit
Certificates and the number of Warrants and Units evidenced by each such Warrant
or Unit Certificate. Subject to the provisions of Section 4, the Transfer Agent
shall from time to time register the transfer of any outstanding Warrant or Unit
Certificate upon records maintained by the Transfer Agent for such purpose upon
surrender of such Warrant or Unit Certificate to the Transfer Agent for
transfer, accompanied by appropriate instruments of transfer in form
satisfactory to the Company and the Transfer Agent and duly executed by the
Warrant or Unit Holder or a duly authorized attorney. Upon any such registration
of transfer, a new Warrant or Unit Certificate shall be issued in the name of
and to the transferee and the surrendered Warrant or Unit Certificate shall be
cancelled.
9. EXERCISE OF WARRANTS.
(A) Any one Warrant or any multiple of one Warrant evidenced by any
Warrant Certificate may be exercised on or after the Offering Date and on or
before the Expiration Date. A Warrant shall be exercised by the Warrant Holder
by surrendering to the Transfer Agent the Warrant Certificate evidencing such
Warrant with the exercise form on the reverse of such Warrant Certificate duly
completed and executed and delivering to the Transfer Agent, by good check or
bank draft payable to the order of the Company, the Exercise Price for each
share of Class A Voting Common Stock to be purchased. No fractional warrant may
be exercised, but will be redeemed for cash equal to the current market value of
such fractional warrant, as defined in Section 18 of this Warrant and Unit
Agreement.
(B) Upon receipt of a Warrant Certificate with the exercise form
thereon duly executed together with payment in full of the Exercise Price (and
an amount equal to any applicable taxes or government charges) for the shares of
Class A Voting Common Stock for which Warrants are then being exercised, the
Transfer Agent shall requisition from any transfer agent for the shares of Class
A Voting Common Stock, and upon receipt shall make delivery of, certificates
evidencing the total number of whole shares of Class A Voting Common Stock for
which Warrants are then being exercised in such names and denominations as are
required for delivery to, or in accordance with the instructions of, the
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Warrant Holder. Such certificates for the shares of Class A Voting Common Stock
shall be deemed to be issued, and the person to whom such shares of Class A
Voting Common Stock are issued of record shall be deemed to have become a holder
of record of such shares of Class A Voting Common Stock, as of the date of the
surrender of such Warrant Certificate and payment of the Exercise Price (and an
amount equal to any applicable taxes or government charges), whichever shall
last occur, provided that if the books of the Company with respect to the shares
of Class A Voting Common Stock shall be deemed to be closed, the person to whom
such shares of Class A Voting Common Stock are issued of record shall be deemed
to have become a record holder of such shares of Class A Voting Common Stock as
of the date on which such books shall next be open (whether before, on or after
the Expiration Date). The Company covenants and agrees that it shall not cause
its stock transfer books to be closed for a period of more than twenty (20)
consecutive business days except upon consolidation, merger, sale of all of its
assets, dissolution or liquidation or as otherwise provided by law.
(C) In addition, if it is required by law and upon instruction by
the Company, the Transfer Agent will deliver to each Warrant Holder a prospectus
that complies with the provisions of Section 5 of the Securities Act, as
amended, and the Company agrees to supply the Transfer Agent with a sufficient
number of prospectuses to effectuate that purpose.
(D) Any Warrant Certificate or Certificates may be exchanged at the
option of the holder thereof for another Warrant Certificate or Certificates of
different denominations, of like tenor and representing in the aggregate the
same number of Warrants, upon surrender of such Warrant Certificate or
Certificates, with the Form of Assignment duly filled in and executed, to the
Transfer Agent, at any time or from time-to-time after the close of business on
the date hereof and prior to the close of business on the Expiration Date. The
Transfer Agent shall promptly cancel the surrendered Warrant Certificate or
Certificates and deliver the new Warrant Certificate or Certificates pursuant to
the provisions of this Section.
(E) If less than all the Warrants evidenced by a Warrant Certificate
are exercised upon a single occasion, a new Warrant Certificate for the balance
of the Warrants not so exercised shall be issued and delivered to, or in
accordance with, transfer instructions properly given by the Warrant Holder
until the Expiration Date.
(F) All Warrant Certificates surrendered upon exercise of the
Warrants shall be cancelled.
(G) Upon the exercise or conversion of any Warrant, the Transfer
Agent shall account promptly to the Company with respect to Warrants exercised
and concurrently pay to the Company all moneys received by the Transfer Agent
for the purchase of securities or other property through the exercise of such
Warrants.
(H) Expenses incurred by the Transfer Agent while acting in the
capacity as Transfer Agent, in accordance with this Agreement, will be paid by
the Company. A detailed accounting statement relating to the number of shares
exercised, names of registered Warrant Holder(s) and the net amount of exercise
funds remitted will be given to the Company with the payment of each exercise
amount.
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10. TAXES. The Company will pay all taxes attributable to the
initial issuance of shares of Class A Voting Common Stock upon exercise of
Warrants. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in any issue of Warrant or Unit
Certificates or in the issue of any certificates of shares of Class A Voting
Common Stock in the name other than that of the Warrant or Unit Holder upon the
exercise of any Warrant or Unit, as the case may be.
11. MUTILATED OR MISSING CERTIFICATES. If any Warrant or Unit
Certificate is mutilated, lost, stolen or destroyed, the Company and the
Transfer Agent may, on such terms as to indemnity or otherwise as they may in
their discretion impose (which shall, in the case of a mutilated Warrant or Unit
Certificate, include the surrender thereof), and upon receipt of evidence
satisfactory to the Company and the Transfer Agent of such mutilation, loss,
theft or destruction, issue a substitute Warrant or Unit Certificate,
respectively, of like denomination or tenor as the Warrant or Unit Certificate
so mutilated, lost, stolen or destroyed. Applicants for substitute Warrant or
Unit Certificates shall comply with such other reasonable regulations and pay
any reasonable charges as the Company or the Transfer Agent may prescribe.
12. SUBSEQUENT ISSUE OF CERTIFICATES. Subsequent to their original
issuance, no Warrant or Unit Certificates shall be reissued except: (I) such
Certificates issued upon transfer thereof in accordance with Section 8 hereof;
(II) such Certificates issued upon any combination, split-up or exchange of
Warrant or Unit Certificates pursuant to Section 8 hereof; (III) such
Certificates issued in replacement of mutilated, destroyed, lost or stolen
Warrant or Unit Certificates pursuant to Section 11 hereof; (IV) Warrant
Certificates issued upon the partial exercise of Warrant Certificates pursuant
to Section 9 hereof; and (V) Warrant Certificates issued to reflect any
adjustment or change in the Exercise Price or the number or kind of shares
purchasable thereunder pursuant to Section 6 hereof. The Transfer Agent is
hereby irrevocably authorized to countersign and deliver, in accordance with the
provisions of said Sections 6, 8, 9 and 11, the new Warrant or Unit
Certificates, as the case may be, required for purposes thereof, and the
Company, whenever required by the Transfer Agent, will supply the Transfer Agent
with Warrant and Unit Certificates duly executed on behalf of the Company for
such purposes.
13. RESERVATION OF SHARES. For the purpose of enabling the Company
to satisfy all obligations to issue shares of Class A Voting Common Stock upon
exercise of Warrants, the Company will at all times reserve and keep available
free from preemptive rights, out of the aggregate of its authorized but unissued
shares of Class A Voting Common Stock, the full number of shares of Class A
Voting Common Stock which may be issued upon the exercise of the Warrants. The
Company covenants all shares of Class A Voting Common Stock which shall be so
issuable, will upon issue be fully paid and nonassessable by the Company and
free from all taxes, liens, charges and security interests with respect to the
issue thereof.
14. GOVERNMENTAL RESTRICTIONS. If any shares of Class A Voting
Common Stock issuable upon the exercise of Warrants require registration or
approval of any governmental authority, the Company will use commercially
reasonable efforts to secure such registration or approval and, to the extent
practicable, take action in
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anticipation of and prior to the exercise of the Warrants necessary to permit a
public offering of the securities underlying the Warrants during the term of
this Agreement; provided that in no event shall such shares of Class A Voting
Common Stock be issued, and the Company shall have the authority to suspend the
exercise of all Warrants, until such registration or approval shall have been
obtained; but all Warrants, the exercise of which is requested during any such
suspension, shall be exercisable at the Exercise Price. If any such period of
suspension continues past the Expiration Date, all Warrants, the exercise of
which have been requested on or prior to the Expiration Date, shall be
exercisable upon the removal of such suspension until the close of business on
the business day immediately following the expiration of such suspension.
15. ADJUSTMENTS OF NUMBER AND KIND OF SHARES PURCHASABLE AND
EXERCISE PRICE. The number and kind of securities or other property purchasable
upon exercise of a Warrant shall be subject to adjustment from time to time upon
the occurrence, after the date hereof, of any of the following events:
(A) In case the Company shall (I) pay a dividend in, or make a
distribution of, shares of capital stock on its outstanding Class A Voting
Common Stock, (II) subdivide its outstanding shares of Class A Voting Common
Stock into a greater number of such shares or (III) combine its outstanding
shares of Class A Voting Common Stock into a smaller number of such shares, the
total number of shares of Class A Voting Common Stock purchasable upon the
exercise of each Warrant outstanding immediately prior thereto shall be adjusted
so that the holder of any Warrant Certificate thereafter surrendered for
exercise shall be entitled to receive at the same aggregate Exercise Price the
number of shares of capital stock (of one or more classes) which such holder
would have owned or have been entitled to receive immediately following the
happening of any of the events described above had such Warrant been exercised
in full immediately prior to the record date with respect to such event. Any
adjustment made pursuant to this subsection shall, in the case of a stock
dividend or distribution, become effective as of the record date therefor and,
in the case of a subdivision or combination, be made as of the effective date
thereof. If, as a result of an adjustment made pursuant to this subsection, the
holder of any Warrant Certificate thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock of the
Company, the Board of Directors of the Company, (whose determination shall be
conclusive and shall be evidenced by a Board resolution filed with the Transfer
Agent) shall determine the allocation of the adjusted Exercise Price between or
among shares of such classes of capital stock.
(B) In the event of a capital reorganization or a reclassification
of the Class A Voting Common Stock (except as provided in subsection (a) above
or subsection (e) below), any Warrant Holder, upon exercise of Warrants, shall
be entitled to receive, in substitution for the Class A Voting Common Stock to
which he would have become entitled upon exercise immediately prior to such
reorganization or reclassification, the shares (of any class or classes) or
other securities or property of the Company (or cash) that he would have been
entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if such Warrants had been exercised
immediately prior to the record date with respect to such event; and in any such
case, appropriate provision (as determined by the Board of Directors of the
Company, whose determination shall be conclusive and shall be evidenced by a
certified Board resolution filed with the Transfer
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Agent) shall be made for the application of this Section with respect to the
rights and interests thereafter of the Warrant Holders (including but not
limited to the allocation of the Exercise Price between or among shares of
classes of capital stock), to the end that this Section (including the
adjustments of the number of shares of Class A Voting Common Stock or other
securities purchasable and the Exercise Price thereof) shall thereafter be
reflected, as nearly as reasonably practicable, in all subsequent exercises of
the Warrants for any shares or securities or other property (or cash) thereafter
deliverable upon the exercise of the Warrants.
(C) Whenever the number of shares of Class A Voting Common Stock or
other securities purchasable upon exercise of a Warrant is adjusted as provided
in this Section, the Company will promptly file with the Transfer Agent a
certificate signed by the Chief Executive Officer, the President or a Vice
President of the Company and by the Secretary or an Assistant Secretary of the
Company setting forth the number and kind of securities or other property
purchasable upon exercise of a Warrant, as so adjusted, stating that such
adjustments in the number or kind of shares or other securities or property
conform to the requirements of this Section, and setting forth a brief statement
of the facts accounting for such adjustments. Promptly after receipt of such
certificate, the Company, or the Transfer Agent at the Company's request, will
deliver, by first-class, postage prepaid mail, a brief summary thereof (to be
supplied by the Company) to the registered holders of the outstanding Warrant
Certificates; provided, however, that failure to file or to give any notice
required under this subsection, or any defect therein, shall not affect the
legality or validity of any such adjustments under this Section; and provided,
further, that, where appropriate, such notice may be given in advance and
included as part of the notice required to be given pursuant to Section 17
hereof.
(D) In case of any consolidation of the Company with, or merger of
the Company into, another corporation (other than a consolidation or merger
which does not result in any reclassification or change of the outstanding Class
A Voting Common Stock), or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the corporation formed by such consolidation or merger or the
corporation which shall have acquired such assets, as the case may be, shall
execute and deliver to the Transfer Agent a supplemental warrant agreement
providing that the holder of each Warrant then outstanding shall have the right
thereafter (until the expiration of such Warrant) to receive, upon exercise of
such Warrant, solely the kind and amount of shares of stock and other securities
and property (or cash) receivable upon such consolidation, merger, sale or
transfer by a holder of the number of shares of Class A Voting Common Stock of
the Company for which such Warrant might have been exercised immediately prior
to such consolidation, merger, sale or transfer. Such supplemental warrant
agreement shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided in this Section. The above
provision of this subsection shall similarly apply to successive consolidations,
mergers, sales or transfers.
The Transfer Agent shall not have any responsibility to determine
the correctness of any provision contained in any such supplemental warrant
agreement relating to either the kind or amount of shares of stock or securities
or property (or cash) purchasable by holders of Warrant Certificates upon the
exercise of their Warrants after any such consolidation, merger, sale or
transfer or of any adjustment to be made with respect thereto, but subject to
the provisions of 22 hereof, may accept as conclusive evidence of the
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correctness of any such provisions, and shall be protected in relying upon, a
certificate of a firm of independent certified public accountants (who may be
the accountants regularly employed by the Company) with respect thereto.
(E) Irrespective of any adjustments in the number or kind of shares
issuable upon exercise of Warrants, Warrant Certificates theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the similar Warrant Certificates initially issuable
pursuant to this Agreement.
(F) The Company may retain a firm of independent public accountants
of recognized standing, which may be the firm regularly retained by the Company,
selected by the Board of Directors of the Company, and not disapproved by the
Transfer Agent, to make any computation required under this Section, and a
certificate signed by such firm shall, in the absence of fraud or gross
negligence, be conclusive evidence of the correctness of any computation made
under this Section.
(G) For the purpose of this Section, the term "Common Stock" shall
mean (I) the Class A Voting Common Stock or (II) any other class of stock
resulting from successive changes or reclassifications of such Class A Voting
Common Stock consisting solely of changes in par value, or from par value to no
par value, or from no par value to par value. In the event that at any time as a
result of an adjustment made pursuant to this Section, the holder of any Warrant
thereafter surrendered for exercise shall become entitled to receive any shares
of capital stock of the Company other than shares of Class A Voting Common
Stock, thereafter the number of such other shares so receivable upon exercise of
any Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Class A Voting Common Stock contained in this Section, and all other provisions
of this Agreement, with respect to the Class A Voting Common Stock, shall apply
on like terms to any such other shares.
(H) The Company may, from time to time and to the extent permitted
by law, reduce the exercise price of the Warrants by any amount for a period of
not less than twenty (20) days. If the Company so reduces the exercise price of
the Warrants, it will give not less than fifteen (15) days' notice of such
decrease, which notice may be in the form of a press release, and shall take
such other steps as may be required under applicable law in connection with any
offers or sales of securities at the reduced price.
16. REDUCTION OF EXERCISE PRICE BELOW PAR VALUE. Before taking any
action that would cause an adjustment pursuant to Section 15 hereof reducing the
portion of the Exercise Price required to purchase one share of capital stock
below the then par value (if any) of a share of such capital stock, the Company
will use its best efforts to take any corporate action which, in the opinion of
its counsel, may be necessary in order that the Company may validly and legally
issue fully paid and non-assessable shares of such capital stock.
17. NOTICE TO WARRANT HOLDERS. In case the Company after the date
hereof shall propose (I) to offer to the holders of Class A Voting Common Stock,
generally, rights to subscribe to or purchase any additional shares of any class
of its capital stock, any
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evidences of its indebtedness or assets, or any other rights or options or (II)
to effect any reclassification of the Class A Voting Common Stock (other than a
reclassification involving merely the subdivision or combination of outstanding
shares of Class A Voting Common Stock) or any capital reorganization, or any
consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company is required, or any sale, transfer or other
disposition of its property and assets substantially as an entirety, or the
liquidation, voluntary or involuntary dissolution or winding-up of the Company,
then, in each such case, the Company shall file with the Transfer Agent and the
Company, or the Transfer Agent on its behalf, shall mail (by first-class,
postage prepaid mail) to all registered holders of the Warrant Certificates
notice of such proposed action, which notice shall specify the date on which the
books of the Company shall close or a record be taken for such offer of rights
or options, or the date on which such reclassification, reorganization,
consolidation, merger, sale, transfer, other disposition, liquidation, voluntary
or involuntary dissolution or winding-up shall take place or commence, as the
case may be, and which shall also specify any record date for determination of
holders of Class A Voting Common Stock entitled to vote thereon or participate
therein and shall set forth such facts with respect thereto as shall be
reasonably necessary to indicate any adjustments in the Exercise Price and the
number or kind of shares or other securities purchasable upon exercise of
Warrants which will be required as a result of such action. Such notice shall be
filed and mailed in the case of any action covered by clause (i) above, at least
ten (10) days prior to the record date for determining holders of the Class A
Voting Common Stock for purposes of such action or, if a record is not to be
taken, the date as of which the holders of shares of Class A Voting Common Stock
of record are to be entitled to such offering; and, in the case of any action
covered by clause (ii) above, at least twenty (20) days prior to the earlier of
the date on which such reclassification, reorganization, consolidation, merger,
sale, transfer, other disposition, liquidation, voluntary or involuntary
dissolution or winding-up is expected to become effective and the date on which
it is expected that holders of shares of Class A Voting Common Stock of record
on such date shall be entitled to exchange their shares for securities or other
property deliverable upon such reclassification, reorganization, consolidation,
merger, sale, transfer, other disposition, liquidation, voluntary or involuntary
dissolution or winding-up. Failure to give any such notice or any defect therein
shall not affect the legality or validity of any transaction listed in this
Section.
18. NO FRACTIONAL WARRANTS, UNITS OR SHARES. The Company shall not
be required to issue fractions of Warrants or shares of Class A Voting Common
Stock upon the separation of the Units into shares of Class A Voting Common
Stock and Warrants, any adjustments as described in Section 15 or otherwise.
19. RIGHTS OF WARRANT HOLDERS. No Warrant Holder, as such, shall
have any rights of a shareholder of the Company, either at law or equity, and
the rights of the Warrant Holders, as such, are limited to those rights
expressly provided in this Agreement or in the Warrant Certificates. The Company
and the Transfer Agent may treat the registered Warrant Holder in respect of any
Warrant Certificates as the absolute owner thereof for all purposes
notwithstanding any notice to the contrary.
20. RIGHT OF ACTION. All rights of action in respect to this
Agreement are vested in the respective registered holders of the Warrant and
Unit Certificates; and any registered holder of any Warrant or Unit Certificate,
without the consent of the Transfer
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Agent or of any other holder of a Warrant or Unit Certificate, may, in his own
behalf for his own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company suitable to enforce, or otherwise in
respect of, his right to exercise the Warrants evidenced by such Warrant
Certificate, for the purchase of shares of the Class A Voting Common Stock in
the manner provided in the Warrant Certificate and in this Agreement.
21. AGREEMENT OF WARRANT AND UNIT HOLDERS. Every holder of a Warrant
or Unit Certificate by accepting the same consents and agrees with the Company,
the Transfer Agent and with every other holder of a Warrant or Unit Certificate,
respectively, that:
(A) The Warrant and Unit Certificates are transferable on the
registry books of the Transfer Agent only upon the terms and conditions set
forth in this Agreement; and
(B) The Company and the Transfer Agent may deem and treat the person
in whose name the Warrant or Unit Certificate is registered as the absolute
owner of the Warrant or Unit, as the case may be, (notwithstanding any notation
of ownership or other writing thereon made by anyone other than the Company or
the Transfer Agent) for all purposes whatever and neither the Company nor the
Transfer Agent shall be affected by any notice to the contrary.
22. TRANSFER AGENT. The Company hereby appoints the Transfer Agent
to act as the agent of the Company and the Transfer Agent hereby accepts such
appointment upon the following terms and conditions by all of which the Company
and every Warrant and Unit Holder, by acceptance of his Warrants or Units, shall
be bound:
(A) Statements contained in this Agreement and in the Warrant and
Unit Certificates shall be taken as statements of the Company. The Transfer
Agent assumes no responsibility for the correctness of any of the same except
such as describes the Transfer Agent or for action taken or to be taken by the
Transfer Agent.
(B) The Transfer Agent shall not be responsible for any failure of
the Company to comply with any of the Company's covenants contained in this
Agreement or in the Warrant or Unit Certificates.
(C) The Transfer Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Transfer Agent
shall incur no liability or responsibility to the Company or to any Warrant or
Unit Holder in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel,
provided the Transfer Agent shall have exercised reasonable care in the
selection and continued employment of such counsel.
(D) The Transfer Agent shall incur no liability or responsibility to
the Company or to any Warrant or Unit Holder for any action taken in reliance
upon any notice, resolution, waiver, consent, order, certificate or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
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(E) The Company agrees to pay to the Transfer Agent reasonable
compensation for all services rendered by the Transfer Agent in the execution of
this Agreement, to reimburse the Transfer Agent for all expenses, taxes and
governmental charges and all other charges of any kind or nature incurred by the
Transfer Agent in the execution of this Agreement and to indemnify the Transfer
Agent and save it harmless against any and all liabilities, including judgments,
costs and counsel fees, arising from the Transfer Agent's engagement under this
Agreement except as a result of the Transfer Agent's negligence, bad faith or
willful misconduct.
(F) The Transfer Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more Warrant or Unit Holders shall furnish
the Transfer Agent with reasonable security and indemnity for any costs and
expenses which may be incurred in connection with such action, suit or legal
proceeding, but this provision shall not affect the power of the Transfer Agent
to take such action as the Transfer Agent may consider proper, whether with or
without any such security or indemnity. All rights of action under this
Agreement or under any of the Warrants or Units may be enforced by the Transfer
Agent without the possession of any of the Warrant or Unit Certificates or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Transfer Agent shall be
brought in its name as Transfer Agent, and any recovery of judgment shall be for
the ratable benefit of the Warrant or Unit Holders as their respective rights or
interest may appear.
(G) The Transfer Agent and any shareholder, director, officer or
employee of the Transfer Agent may buy, sell or deal in any of the Warrants,
Units or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Transfer Agent under this Agreement. Nothing herein shall preclude the Transfer
Agent from acting in any other capacity for the Company or for any other legal
entity.
23. SUCCESSOR TRANSFER AGENT. Any legal entity into which the
Transfer Agent may be merged or converted or with which it may be consolidated,
or any legal entity resulting from any merger, conversion or consolidation to
which the Transfer Agent shall be a party, or any legal entity succeeding to the
corporate trust business of the Transfer Agent, shall be the successor to the
Transfer Agent hereunder without the execution or filing of any paper or any
further act of a party or the parties hereto provided such legal entity is
eligible to be appointed under Section 24 below. In any such event or if the
name of the Transfer Agent is changed, the Transfer Agent or such successor may
adopt the countersignature of the original Transfer Agent and may countersign
such Warrant or Unit Certificates either in the name of the predecessor Transfer
Agent or in the name of the successor Transfer Agent.
24. CHANGE OF TRANSFER AGENT. The Transfer Agent may resign or be
discharged by the Company from its duties under this Agreement by the Transfer
Agent or the Company, as the case may be, giving notice in writing to the other,
and by giving a date when such resignation or discharge shall take effect, which
notice shall be sent at least thirty (30) days prior to the date so specified.
If the Transfer Agent shall resign, be
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discharged or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Transfer Agent. If the Company shall fail to make
such appointment within a period of thirty (30) days after it has been notified
in writing of such resignation or incapacity by the resigning or incapacitated
Transfer Agent or by any Warrant or Unit Holder or after discharging the
Transfer Agent, then the Company agrees to perform the duties of the Transfer
Agent hereunder until a successor Transfer Agent is appointed. Any successor
Transfer Agent shall be a bank or a trust company, in good standing, organized
under the laws of any state of the United States of America, having a combined
capital and surplus of at least $4,000,000 at the time of its appointment as
Transfer Agent. After appointment, the successor Transfer Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Transfer Agent without further act or deed, and the former
Transfer Agent shall deliver and transfer to the successor Transfer Agent any
property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for effecting the delivery or
transfer. Failure to give any notice provided for in this Section, however, or
any defect therein, shall not affect the legality or validity of the resignation
or removal of the Transfer Agent or the appointment of the successor Transfer
Agent, as the case may be.
25. NOTICES. Any notice or demand authorized by this Agreement to be
given or made by the Transfer Agent or by any Warrant or Unit Holder to or on
the Company shall be sufficiently given or made if sent by mail, first class,
certified or registered, postage prepaid, addressed (until another address is
filed in writing by the Company with the Transfer Agent), as follows:
LocatePLUS Holdings Corporation
100 Cummings Center
Suite 235M
Beverly, Massachusetts 01915
Any notice or demand authorized by this Agreement to be given or
made by any Warrant or Unit Holder or by the Company to or on the Transfer Agent
shall be sufficiently given or made if sent by mail, first class, certified or
registered, postage prepaid, addressed (until another address is filed in
writing by the Transfer Agent with the Company), as follows:
Transfer Online, Inc.
227 SW Pine Street
Suite 300
Portland, Oregon 97204
Any distribution, notice or demand required or authorized by this
Agreement to be given or made by the Company or the Transfer Agent to or on the
Warrant or Unit Holders shall be sufficiently given or made if sent by mail,
first class, certified or registered, postage prepaid, addressed to the Warrant
or Unit Holders at their last known addresses as they shall appear on the
registration books for the Warrant or Unit Certificates maintained by the
Transfer Agent.
26. SUPPLEMENTS AND AMENDMENTS. The Company and the Transfer Agent
may from time to time supplement or amend this Agreement without the approval of
any Warrant or Unit Holders in order to cure any ambiguity or to correct or
supplement any
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provision contained herein which may be defective or inconsistent with any other
provisions herein, or to make any other provisions in regard to matters or
questions arising hereunder which the Company and the Transfer Agent may deem
necessary or desirable.
27. SUCCESSORS. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Transfer Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
28. TERMINATION. This Agreement shall terminate at the close of
business on the Expiration Date or such earlier date upon which all Warrants
have been exercised; provided, however, that if exercise of the Warrants is
suspended pursuant to Section 14 and such suspension continues past the
Expiration Date, this Agreement shall terminate at the close of business on the
business day immediately following expiration of such suspension. The provisions
of Section 22 shall survive such termination.
29. GOVERNING LAW. This Agreement and each Warrant and Unit
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be construed in
accordance with the laws of said State.
30. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give any person or corporation other than the Company, the Transfer
Agent and the Warrant and Unit Holders any legal or equitable right, remedy or
claim under this Agreement, and this Agreement shall be for the sole and
exclusive benefit of the Company, the Transfer Agent and the Warrant and Unit
Holders.
31. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to be
an original and all such counterparts shall together constitute but one and the
same instrument.
32. INTEGRATION. As of the date hereof, this Agreement contains the
entire and only agreement, understanding, representation, condition, warranty or
covenant between the parties hereto with respect to the matters herein,
supersedes any and all other agreements between the parties hereto relating to
such matters, and may be modified or amended only by a written agreement signed
by both parties hereto pursuant to the authority granted by Section 26.
33. DESCRIPTIVE HEADINGS. The descriptive headings of the Sections
of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
[SIGNATURE PAGE FOLLOWS]
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Date: March 22, 2002
LOCATEPLUS HOLDINGS CORPORATION
By: /s/ Jon Latorella
--------------------------------------
Its President and Chief Executive Officer
SEAL
ATTEST:
Robert A. Goddard
- ----------------------------
Its Secretary
TRANSFER ONLINE, INC.
By: /s/ Lori Livingston
--------------------------------------
Its President
SEAL
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