EXHIBIT 4.2
WARRANT AGREEMENT
This Warrant Agreement (the "Agreement"), made and entered into as of June
___, 2005, by and between A4S SECURITY, INC., a Colorado corporation (the
"Company"), and CORPORATE STOCK TRANSFER, INC., a Colorado corporation, as
Warrant Agent (the "Warrant Agent").
WITNESSETH THAT:
WHEREAS, pursuant to its initial public offering (the "IPO"), the Company
will offer 1,300,000 units (1,495,000 units if the over-allotment option is
exercised in full) ("Units"), each Unit consisting of one share of the Company's
no par value common stock (the "Common Stock") and one warrant to purchase one
share of Common Stock (a "Warrant").
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange and redemption of the Warrants, the
issuance of Warrant Certificates, the exercise of the Warrants, and the rights
of the holders thereof.
NOW THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth and for the purposes of defining the terms and provisions
of the Warrants and the certificates representing the Warrants (the "Warrant
Certificates") and the respective rights and obligations thereunder of the
Company, the Registered Holders and the Warrant Agent, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS.
As used herein, the following terms shall have the following meanings,
unless the context shall otherwise require:
1.1. "Corporate Office" shall mean the office of the Warrant Agent (or its
successor) at which at any particular time its principal business shall be
administered, which office is located at the date hereof at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1.2. "Exercise Date" shall mean the date on which the Warrant Agent shall
have received both (a) the Warrant Certificate representing a Warrant, with the
exercise form thereon duly executed by the Registered Holder thereof or his
attorney duly authorized in writing, and (b) payment in case, or by official
bank or certified check made payable to the Company, of an amount in lawful
money of the United States of America equal to the applicable Purchase Price.
1.3. "Initial Warrant Exercise Date" shall mean the date which is the
earlier of (i) 90 days immediately following the date of the Company's
prospectus used in connection with the IPO or (ii) 30 days following the date on
which the underwriter's over-allotment option is exercised in full.
1.4. "Purchase Price" shall mean the purchase price to be paid upon
exercise of each Warrant in accordance with the terms hereof, which price shall
be equal to 150% of the initial offering price of the Unit offered in the IPO
through June __, 2010 subject to adjustment from time to time pursuant to the
provisions of Section 8 hereof.
1.5. "Registered Holder" shall mean the person in whose name any
certificate representing Warrants shall be registered on the books maintained by
the Warrant Agent pursuant to Section 6.
1.6. "Transfer Agent" shall mean Corporate Stock Transfer, Inc., as the
Company's transfer agent, or its authorized successor, as such.
1.7. "Warrant Expiration Date" shall mean 5:00 p.m., Denver, Colorado time,
on that date which is 5 years after the date of the prospectus used in
connection with the Company's IPO; provided that if such date shall in the State
of Colorado be a holiday or a day on which banks are authorized to close, then
5:00 p.m., Denver, Colorado time, on the next following day which in the State
of Colorado is not a holiday or a day on which banks are authorized to close.
Upon notice to the Registered Holders, the Company shall have the right to
extend the warrant expiration date of the Warrants.
SECTION 2. WARRANTS AND ISSUANCE OF WARRANT CERTIFICATES.
2.1. A Warrant shall initially entitle the Registered Holder of the Warrant
Certificate representing such Warrant to purchase one share of Common Stock upon
the exercise thereof, in accordance with the terms hereof; subject to
modification and adjustment as provided in Section 8.
2.2. Upon execution of this Agreement, the Company shall furnish the
Warrant Agent with a sufficient quantity of blank Warrant Certificates and from
time to time will renew such supply upon the reasonable request of the Warrant
Agent. Such blank Warrant Certificates shall be properly signed by the Company
authorized by law and in accordance with the Company's by-laws to sign such
Warrant Certificates. Upon written order of the Company signed by its President
and by another duly authorized officer, the Warrant Certificates shall be
manually countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned, issued and delivered by the Warrant Agent
pursuant to this Agreement.
2.3. From time to time, up to the Warrant Expiration Date, the Transfer
Agent shall countersign and deliver stock certificates in required whole number
denominations representing an aggregate of 1,300,000 shares of Common Stock
(1,495,000 shares if the over-allotment option is exercised in full), subject to
adjustment as described herein, upon the exercise of the Warrants in accordance
with this Agreement.
2.4. From time to time, up to the applicable Warrant Expiration Date, the
Warrant Agent shall countersign and deliver Warrant Certificates in required
whole number denominations to the persons entitled thereto in connection with
any transfer or exchange permitted under this Agreement; provided that no
Warrant Certificates shall be issued except
(a) those initially issued hereunder;
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(b) those issued on or after the Initial Warrant Exercise Date, upon the
exercise of fewer than all Warrants represented by the respective
Warrant Certificate, to evidence any unexercised Warrants held by the
exercising Registered Holder;
(c) those issued upon any transfer or exchange pursuant to Section 6;
(d) those issued in replacement of lost, stolen, destroyed or mutilated
Warrant Certificates pursuant to Section 7; and
(e) at the option of the Company, in such form as may be approved by its
Board of Directors, to reflect any adjustment or change in the
Purchase Price, or the number of shares of Common Stock purchasable
upon exercise of the Warrants.
SECTION 3. FORM AND EXECUTION OF WARRANT CERTIFICATES.
3.1. The Warrant Certificates shall be substantially in the form annexed
hereto as Exhibit A (the provisions of which are hereby incorporated herein) and
may have such letters, numbers or other marks of identification or designation
and such legends, summaries or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be dated the date of issuance thereof
(whether upon initial issuance, transfer, exchange or in lieu of mutilated,
lost, stolen or destroyed Warrant Certificates) and issued in registered form.
Warrants shall be numbered serially with the letter W.
3.2. Warrant Certificates shall be properly signed on behalf of the Company
by officers of the Company authorized by law and in accordance with the
Company's by-laws to sign such Warrant Certificates. Warrant Certificates shall
be manually countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Warrant Certificates shall cease to be such officer of
the Company before the date of issuance of the Warrant Certificates or before
countersignature by the Warrant Agent, such Warrant Certificate may be issued
and delivered with the same force and effect as though the person who signed
such Warrant Certificates had not ceased to be such officer of the Company.
After countersignature by the Warrant Agent, Warrant Certificates shall be
delivered by the Warrant Agent to the Registered Holder without further action
by the Company, except as otherwise provided by Section 4 hereof.
SECTION 4. EXERCISE AND REDEMPTION
4.1. Each Warrant may be exercised by the Registered Holder thereof at any
time on or after the Initial Exercise Date, but not after the Warrant Expiration
Date, upon the terms and subject to the conditions set forth herein and in the
Warrant Certificate. A Warrant shall be deemed to have been exercised
immediately prior to the close of business on the Exercise Date and the person
entitled to receive the Common Stock deliverable upon such exercise shall be
treated for all purposes as the holder upon exercise thereof as of the close of
business on the Exercise Date. As soon as practicable on or after the Exercise
Date, the Warrant Agent shall deposit the proceeds received from the exercise of
a Warrant and shall notify the Company in
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writing, by mail or by telecopy of the exercise of the Warrants. Promptly
following, and in any event within three (3) days after the date of such notice
from the Warrant Agent, the Warrant Agent, on behalf of the Company, shall cause
to be issued and delivered by the Transfer Agent, to the person or persons
entitled to receive the same, a certificate or certificates for the securities
deliverable upon such exercise, (plus a Warrant Certificate for any remaining
unexercised Warrants of the Registered Holder) unless within 24 hours of the
receipt of the notice, the Company shall instruct the Warrant Agent by telecopy
to refrain from causing such issuance of Warrant Certificates pending clearance
of checks received in payment of the Purchase Price pursuant to such Warrants.
Upon the exercise of any Warrant and clearance of the funds received, the
Warrant Agent shall promptly remit the payment received for the Warrant to the
Company or as the Company may direct in writing.
4.2. The Company reserves the right to call the Warrants, at any time after
__________, 2008 and prior to their exercise, with a notice of call in writing
to the Registered Holders, giving 30 days' notice of such call at any time after
the Warrant becomes exercisable if the last sale price of the Common Stock has
been at least $_______ per share on each of 30 consecutive trading days prior to
the date on which notice of such call is given. The call price of the Warrants
is to be $.10 per Warrant. Any Warrant either not exercised, or tendered back to
the Company by the end of the date specified in the notice of call, shall be
canceled on the books of the Company and have no further value except for the
$.10 call price.
SECTION 5. RESERVATION OF SHARES; LISTING; PAYMENT OF TAXES; ETC.
5.1. The Company's Articles of Incorporation authorize the issuance of
25,000,000 shares of Common Stock. The Company covenants that it will at all
times reserve and keep available out of its authorized Common Stock, solely for
the purpose of issue upon exercise of Warrants, such number of shares of Common
Stock as shall be issuable upon the exercise of all outstanding Warrants. The
Company covenants that all shares of Common Stock which shall be issuable upon
exercise of the Warrants shall, at the time of delivery, be duly and validly
issued, fully paid, nonassessable and free from all taxes, liens and charges
with respect to the issue thereof (other than those which the Company shall
promptly pay or discharge).
5.2. Warrants may not be exercised by, or shares of Common Stock issued to,
any Registered Holder in any state in which such exercise would be unlawful. The
Warrant Agent will not have any duty or responsibility for determining if the
registration would be unlawful.
5.3. The Company shall pay all documentary, stamp or similar taxes and
other governmental charges that may be imposed with respect to the issuance of
Warrants, or the issuance, or delivery of any shares upon exercise of the
Warrants; provided, however, that if the shares of Common Stock are to be
delivered in a name other than the name of the Registered Holder of the Warrant
Certificate representing any Warrant being exercised, then no such delivery
shall be made unless the person requesting the same has paid to the Warrant
Agent the amount of transfer taxes or charges incident thereto, if any.
5.4. The Warrant Agent is hereby irrevocably authorized to requisition the
Company's Transfer Agent from time to time for certificates representing shares
of Common Stock required upon exercise of the Warrants, and the Company will
authorize the Transfer Agent to comply
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with all such proper requisitions. The Company will file with the Warrant Agent
a statement setting forth the name and address of the Transfer Agent of the
Company for shares of Common Stock issuable upon exercise of the Warrants.
SECTION 6. EXCHANGE AND REGISTRATION OF TRANSFER.
6.1. Warrant Certificates may be exchanged for other Warrant Certificates
representing an equal aggregate number of Warrants of the same class or may be
transferred in whole or in part. Warrant Certificates to be exchanged shall be
surrendered to the Warrant Agent at the Corporate Office, and upon satisfaction
of the terms and provisions hereof, the Company shall execute and the Warrant
Agent shall countersign, issue and deliver in exchange therefore the Warrant
Certificate or Certificates which the Registered Holder making the exchange
shall be entitled to receive.
6.2. The Warrant Agent shall keep at the Corporate Office books in which,
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates and the transfer thereof in accordance with its regular
practice. Upon due presentment for registration or transfer of any Warrant
Certificate at such office, the Company shall execute and the Warrant Agent
shall issue and deliver to the transferee or transferees a new Warrant
Certificate or Certificates representing an equal aggregate number of Warrants
of the same class.
6.3. With respect to all Warrant Certificates presented for registration or
transfer, or for exchange or exercise, the Warrant Agent shall from time to time
register the transfer, exchange or exercise of any outstanding Warrant
Certificate upon records maintained by the Warrant Agent for such purpose upon
surrender of such Warrant Certificate to the Warrant Agent, accompanied by
appropriate instruments of transfer in form satisfactory to the Company and the
Warrant Agent and duly executed by the Registered Holder or a duly authorized
attorney.
6.4. A service charge may be imposed by the Warrant Agent for registration
or transfer or for exchange of Warrant Certificates. In addition, the Company
may require payment by such holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
6.5. All Warrant Certificates surrendered for exercise or for exchange in
case of mutilated Warrant Certificates shall be promptly canceled by the Warrant
Agent and thereafter retained by the Warrant Agent until termination of this
Agreement or resignation as Warrant Agent, or, disposed of or destroyed, at the
direction of the Company, within the retention guidelines prescribed by any
Federal, State or banking regulatory authority.
6.6. Prior to due presentment for registration or transfer thereof, the
Company and the Warrant Agent may deem and treat the Registered Holder of any
Warrant Certificate as the absolute owner thereof and of each Warrant
represented thereby (notwithstanding any notations of ownership or writing
thereon made by anyone other than a duly authorized officer of the Company or
the Warrant Agent) for all purposes and shall not be affected by any notice to
the contrary.
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SECTION 7. LOSS OR MUTILATION.
7.1. Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and loss, theft, destruction or
mutilation of any Warrant Certificate and (in case of loss, theft or
destruction) of indemnity satisfactory to them, and (in the case of mutilation)
upon surrender and cancellation thereof the Company shall execute and the
Warrant Agent shall (in the absence of notice to the Company and/or Warrant
Agent that the Warrant Certificate has been acquired by a bonafide purchaser)
countersign and deliver to the Registered Holder in lieu thereof a new Warrant
Certificate of like tenor representing an equal aggregate number of Warrants of
that same class. Applicants for a substitute Warrant Certificate shall comply
with such other reasonable regulations and pay such other reasonable charges as
the Warrant Agent may prescribe.
SECTION 8. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES OF COMMON STOCK
OR WARRANTS.
8.1. The Company may elect, upon any adjustment of the Purchase Price
hereunder, to adjust the number of Warrants of each or any class outstanding, in
lieu of the adjustment in the number of shares of Common Stock purchasable upon
the exercise of each Warrant as hereinabove provided, so that each Warrant
outstanding after such adjustment shall represent the right to purchase one
share of Common Stock. Each Warrant held of record prior to such adjustment of
the number of Warrants of each or any class shall become that number of Warrants
(calculated to the nearest tenth) determined by multiplying the number one by a
fraction, the numerator of which shall be the Purchase Price in effect
immediately prior to stock adjustment and the denominator of which shall be the
Purchase Price in effect immediately after such adjustment. Upon each adjustment
of the number of Warrants pursuant to this Section 8.1, the Company shall, as
promptly as practicable, cause to be distributed to each Registered Holder of
Warrant Certificates on the date of such adjustment Warrant Certificates
evidencing, subject to Section 9 hereof, the number of additional Warrants of
each class to which such Registered Holder shall be entitled as a result of such
adjustment or, at the option of the Company, cause to be distributed to such
Registered Holder in substitution and replacement for the Warrant Certificates
held by him prior to the date of adjustment (and upon surrender thereof, if
required by the Company) new Warrant Certificates evidencing the number of
Warrants of each class to which such Registered Holder shall be entitled after
such adjustment.
8.2. In case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock, or in case of any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
which does not result in any reclassification, capital reorganization or other
change of outstanding shares of Common Stock), or in case of any sale or
conveyance to another corporation of the property of the Company as, or
substantially as, an entirety (other than a sale/leaseback, mortgage or other
financing transaction), the Company shall cause effective provision to be made
so that each holder of a Warrant then outstanding shall have the right
thereafter, by exercising such Warrant, to purchase the kind and number of
shares of stock or other securities or property (including cash) receivable upon
such reclassification, capital reorganization or other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
that might have been purchased upon exercise of such
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Warrant immediately prior to such reclassification, capital reorganization or
other change, consolidation, merger, sale or conveyance. Any such provision
shall include provision for adjustments that shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 8.2. The
foregoing provisions shall similarly apply to successive reclassifications,
capital reorganizations and other changes of outstanding shares of Common Stock
and to successive consolidations, mergers, sales or conveyances.
8.3. After each adjustment of the Purchase Price pursuant to this Section
8, the Company will promptly prepare a certificate signed by the President and
by the Secretary or an Assistant Secretary, of the Company setting forth:
(a) the Purchase price as so adjusted,
(b) the number of shares of Common Stock purchasable upon exercise of each
Warrant after such adjustment, and, if the Company shall have elected
to adjust the number of Warrants, the number of Warrants to which the
Registered Holder of each Warrant shall then be entitled, and
(c) a brief statement of facts accounting for such adjustment. The Company
will promptly file such certificate with the Warrant Agent and cause a
brief summary thereof to be sent by ordinary first class mail to each
registered holder of Warrants at his last address as it shall appear
on the registry books of the Warrant Agent. No failure to mail such
notice nor any defect therein or in the mailing thereof shall affect
the validity thereof except as to the Registered Holder to whom the
Company failed to mail such notice, or except as to the Registered
Holder whose notice was defective. The affidavit of an officer of the
Warrant Agent or the Secretary or an Assistant Secretary of the
Company that such notice has been mailed shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
8.4. As used in this Section 8, the term "Common Stock" shall mean and
include the Company's Common Stock authorized on the date of the original issue
of the Warrants and shall also include any capital stock of any class of the
Company thereafter authorized which shall not be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary liquidation,
dissolution or winding up of the Company; provided, however, that the shares
issuable upon exercise of the Warrants shall include only shares of such class
designated in the Company's Articles of Incorporation as Common Stock on the
date of the original issue of the Warrants or (i), in the case of any
reclassification, change, consolidation, merger, sale or conveyance of the
character referred to in Section 8.2, hereof, the stock, securities or property
provided for in such section or (ii), in the case of any reclassification or
change in the outstanding shares of Common Stock issuable upon exercise of the
Warrants as a result of a subdivision or combination or consisting of a change
in par value, or from par value to no par value, or from no par value to par
value, such shares of Common Stock as so reclassified or changed.
8.5. Any determination as to whether an adjustment in the Purchase Price in
effect hereunder is required pursuant to Section 8, or as to the amount of any
such adjustment, if
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required, shall be binding upon the holders of the Warrants and the Company if
made in good faith by the Board of Directors of the Company.
8.6. The Warrant Agent assumes no responsibility for any determination
under this Section and will act only in accordance with the written directions
of the Company and its counsel.
SECTION 9. FRACTIONAL WARRANTS AND FRACTIONAL SHARES.
9.1. If the number of shares of Common Stock purchasable upon the exercise
of each Warrant is adjusted pursuant to Section 8 hereof, the Company shall
nevertheless not be required to issue fractions of shares, upon exercise of the
Warrants or otherwise, or to distribute certificates that evidence fractional
shares. With respect to any fraction of a share called for upon any exercise
hereof, the Company shall pay to the Holder an amount in cash equal to such
fraction multiplied by the current market value of such fractional shares,
determined as follows:
(a) If the Common Stock is listed on a national securities exchange or
admitted to unlisted trading privileges on such exchange or listed for
trading on the Nasdaq Stock Market, the current value shall be the
last reported sale price of the Common Stock on such exchange on the
last business day prior to the date of exercise of this Warrant or if
no such sale is made on such day, the average closing bid and asked
prices for such day on such exchange; or
(b) If the Common Stock is not listed or admitted to unlisted trading
privileges, the current value shall be the mean of the last reported
bid and asked prices reported by the National Quotation Bureau, Inc.
on the last business day prior to the date of the exercise of this
Warrant; or
(c) If the Common Stock is not so listed or admitted to unlisted trading
privileges and bid and asked prices are not so reported, the current
value shall be an amount determined in such reasonable manner as may
be prescribed by the Board of Directors of the Company.
SECTION 10. WARRANT HOLDERS NOT DEEMED STOCKHOLDERS.
10.1. No Registered Holder shall, as such, be entitled to vote or to
receive dividends or be deemed the holder of Common Stock that may at any time
be issuable upon exercise of such Warrants for any purpose whatsoever, nor shall
anything contained herein be construed to confer upon the Registered Holder, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue or reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger or conveyance or
otherwise), or to receive notice of meetings, or to receive dividends or
subscription rights, until such Registered Holder shall have exercised such
Warrants and been issued shares of Common Stock in accordance with the
provisions hereof.
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SECTION 11. RIGHTS OF ACTION.
11.1. All rights of action with respect to this Agreement are vested in the
respective Registered Holders, and any Registered Holder, without consent of the
Warrant Agent or of the holder of any other Warrant, may, in his own behalf and
for his own benefit, enforce against the Company his right to exercise his
Warrants for the purchase of shares of Common Stock in the manner provided in
the Warrant Certificate and this Agreement.
SECTION 12. AGREEMENT OF WARRANT HOLDERS.
12.1. Every Registered Holder, by his acceptance thereof, consents and
agrees with the Company, the Warrant Agent and every other holder of a Warrant
that:
(a) The Warrants are transferable only on the registry books of the
Warrant Agent by the Registered Holder thereof in person or by his
attorney duly authorized in writing and only if the Warrant
Certificates representing such Warrants are surrendered at the office
of the Warrant Agent, duly endorsed or accompanied by a proper
instrument of transfer satisfactory to the Warrant Agent and the
Company in their sole discretion, together with payment of any
applicable transfer taxes; and
(b) The Company and the Warrant Agent may deem and treat the person in
whose name the Warrant Certificate is registered as the holder and as
the absolute, true and lawful owner of the Warrants represented
thereby for all purposes, and neither the Company nor the Warrant
Agent shall be affected by an notice of knowledge to the contrary,
except as otherwise expressly provided in Section 6 hereof.
SECTION 13. CANCELLATION OF WARRANT CERTIFICATES.
13.1. If the Company shall purchase or acquire any Warrant or Warrants, the
Warrant Certificate or Warrant Certificates evidencing the same shall thereupon
be delivered to the Warrant Agent and canceled by it and retired.
SECTION 14. CONCERNING THE WARRANT AGENT.
14.1. The Warrant Agent shall act hereunder as agent and in a ministerial
capacity for the Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not, by issuing and delivering
Warrant Certificates or by any other act hereunder be deemed to make any
representations as to the validity, value or authorization of the Warrant
Certificates or the Warrants represented thereby or of any securities or other
property delivered upon exercise of any Warrant or whether any stock issued upon
exercise of any Warrant is fully paid and nonassessable.
14.2. The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of Warrant Certificates to make or cause to be made
any adjustment of the Purchase Price provided in this Agreement, or to determine
whether any fact exists which may require any such adjustments, or with respect
to the nature or extent of any such adjustment, when made, or with respect to
the method employed in making the same. It shall not (i) be liable for any
recital or statement of facts contained herein or for any action taken, suffered
or omitted by it in reliance
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on any Warrant Certificate or other document or instrument believed by it in
good faith to be genuine and to have been signed or presented by the proper
party or parties, (ii) be responsible for any failure on the part of the Company
to comply with any of its covenants and obligations contained in this Agreement
or in any Warrant Certificate, or (iii) be liable for any act or omission in
connection with this Agreement except for its own negligence or willful
misconduct.
14.3. The Warrant Agent may at any time consult with counsel satisfactory to it
(who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken, suffered or omitted by it in good faith in
accordance with the opinion or advice of such counsel. Any notice, statement,
instruction, request, direction, order or demand of the Company shall be
sufficiently evidenced by an instrument signed by the President, its Secretary,
or Assistant Secretary (unless other evidence in respect thereof is herein
specifically prescribed). The Warrant Agent shall not be liable for any action
taken, suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand believed by it to be genuine.
14.4. The Company agrees to pay the Warrant Agent compensation for its
services hereunder and to reimburse it for its expenses hereunder in accordance
with the fees listed on Schedule I attached hereto; it further agrees to
indemnify the Warrant Agent and save it harmless against any and all losses,
expenses and liabilities, including judgments, costs and counsel fees, for
anything done or omitted by the Warrant Agent in the execution of its duties and
powers hereunder except losses, expenses and liabilities arising as a result of
the Warrant Agent's negligence or willful misconduct.
14.5. The Warrant Agent may resign its duties and be discharged from all
further duties and liabilities hereunder (except liabilities arising as a result
of the Warrant Agent's own negligence or willful misconduct), after giving 60
days' prior written notice to the Company. At least 30 days prior to the date
such resignation is to become effective, the Warrant Agent shall cause a copy of
such notice of resignation to be mailed to the Registered Holder of each Warrant
Certificate at the Company's expense. Upon such resignation, or any inability of
the Warrant Agent to act as such hereunder, the Company shall appoint a new
warrant agent in writing. If the Company shall fail to make such appointment
within a period of 30 days after it has been notified in writing of such
resignation by the resigning Warrant Agent, then the Registered Holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Any new Warrant Agent, whether appointed by
the Company or by such a court, shall be a bank or trust company having a
capital and surplus, as shown by its last published report to its stockholders,
of not less than $10,000,000 or a stock transfer company. After acceptance in
writing of such appointment by the new warrant agent is received by the Company,
such new warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as the Warrant Agent,
without any further assurance, conveyance, act or deed; but, if for any reason
it shall be necessary or expedient to execute and deliver any further assurance,
conveyance, act or deed, the same shall be done at the expense of the Company
and shall be legally and validly executed and delivered by the resigning Warrant
Agent. Not later than the effective date of any such appointment, the Company
shall file notice thereof with the resigning Warrant Agent and shall forthwith
cause a copy of such notice to be mailed to the Registered Holder of each
Warrant Certificate.
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14.6. Any corporation into which the Warrant Agent or any new warrant agent
may be converted or merged or any corporation resulting from any consolidation
to which the Warrant Agent or any new warrant agent shall be a party or any
corporation succeeding to the trust business of the Warrant Agent shall be a
successor warrant agent under this Agreement without any further act, provided
that such corporation is eligible for appointment as successor to the Warrant
Agent under the provisions of the preceding paragraph. Any such successor
warrant agent shall promptly cause notice of its succession as warrant agent to
be mailed to the Company and to the Registered Holder of each Warrant
Certificate.
14.7. The Warrant Agent, its subsidiaries and affiliates, and any of its or
their officers or directors, may buy and hold or sell Warrants or other
securities of the Company and otherwise deal with the Company in the same manner
and to the same extent and with like effects as though it were not Warrant
Agent. Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
SECTION 15. MODIFICATION OF AGREEMENT.
15.1. The Warrant Agent and the Company may by supplemental agreement make
any changes or corrections in this Agreement (i) that they shall deem it
appropriate to cure any ambiguity or to correct any defective or inconsistent
provision or manifest mistake or error herein contained; or (ii) that they may
deem necessary or desirable and which shall not adversely affect the interests
of the Registered Holders; provided, however, that this Agreement shall not
otherwise be modified, supplemented or altered in any respect except with the
consent in writing of the Registered Holders representing not less than
two-thirds of the Warrants, other than such changes as are specifically
prescribed by this Agreement as originally executed.
SECTION 16. NOTICES.
16.1. All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been made when delivered or
mailed first class registered or certified mail, postage prepaid as follows: if
to the Registered Holder of a Warrant Certificate, at the address of such holder
as shown on the registry books maintained by the Warrant Agent; if to the
Company, at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
Siemens, or at such other address as may have been furnished to the Warrant
Agent in writing by the Company; if to the Warrant Agent, at the Corporate
Office.
SECTION 17. GOVERNING LAW.
17.1. This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado, without reference to principles of conflicts
of law.
SECTION 18. BINDING EFFECT.
18.1. This Agreement shall be binding upon and inure to the benefit of the
Company and, the Warrant Agent and their respective successors and assigns, and
the Registered Holders of the Warrant Certificates. Nothing in this Agreement is
intended or shall he construed to confer upon any other person any right, remedy
or claim, in equity or at law, or to impose upon any other person any duty,
liability or obligation.
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SECTION 19. TERMINATION.
19.1. This Agreement shall terminate at the close of business on the
Warrant Expiration Date or such earlier date upon which all Warrants have been
exercised, except that the obligation of the Warrant Agent to account to the
Company for cash held by it and the provisions of Section 13 hereof shall
survive such termination.
SECTION 20. COUNTERPARTS.
20.1. This Agreement may be executed in several counterparts, which taken
together shall constitute a single document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
A4S SECURITY, INC.
By:
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Name: ▇▇▇▇▇▇▇ Siemens
Title: President
CORPORATE STOCK TRANSFER, INC.
By:
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Name:
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Title:
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