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A M E R I C A N S E C U R I T I E S T R A N S F E R & T R
U S T, I N C.
AGREEMENT APPOINTING TRANSFER AGENT AND REGISTRAR
THIS AGREEMENT is made and entered into this 27th day of August, 1998 ,
by and between the following:
(a) AMERICAN SECURITIES TRANSFER & TRUST, INC. ("AST"), a Colorado
corporation, whose address is 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000; and
(b) BioShield Technologies, Inc. (the "Company"), a corporation
organized under the laws of the State of Georgia , whose business address is
0000 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx X-000, Xxxxxxxx, Xxxxxxx 00000.
IN CONSIDERATION of the covenants and agreements set forth herein, the
parties agree as follows:
1. Appointment of Transfer Agent and Registrar. The Company hereby
appoints AST as transfer agent and registrar of all of the shares of the
Company's capital stock as described below:
Shares Authorized by the
Stock Class Articles or Certificate of
Shares Issued
(Par Value) Incorporation and Outstanding
common (no par value) 50,000,000 4,819,125
By special resolution adopted by the Company's Board of Directors, AST may, from
time to time, be appointed as transfer agent for additional classes of the
Company's stock and may be appointed to act in the capacity of dividend
disbursing agent, warrant agent, exchange agent, redemption agent, escrow agent
or any other similar capacity as may be agreed upon by AST and the Company.
2. Fees. The Company shall pay to AST such fees for AST's services as
are set forth in the Fee Schedule (as presented in AST's proposal or attached
hereto as Exhibit A) incorporated herein, and shall reimburse AST for all
extraordinary out-of-pocket expenses incurred in the performance of its duties
hereunder. Such Fee Schedule may be amended by AST from time to time upon thirty
(30) days advance written notice from AST to the Company.
3. Instructions. At any time AST may apply to the Company or its
counsel for instructions or information, and may consult with its own counsel,
with respect to any matter arising in connection with the agency created hereby
and AST shall not be liable for any action taken or omitted in accordance with
such instructions, information or the advice or opinion of such officer or
counsel. AST shall not be liable for acting upon any paper or document believed
by it to be genuine and to have been signed by the proper person(s) and shall
not be held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Company. AST shall also not be liable
for recognizing stock certificates which it reasonably believes bear the proper
manual or facsimile signatures of the officers of the Company and the proper
counter-signature of a transfer agent or registrar, or of a co-transfer agent or
co-registrar. AST, if it so elects, may rely conclusively, for any and all
purposes, upon any advices of transfer or transfers made in the course of
transferring or registering original issuances, retirements or cancellation of
shares; upon advices of stop transfer orders placed, released or in effect
against outstanding certificates; and upon any certification or notification as
to the number of shares issued, the certificates representing such shares and
other information which AST may receive from time to time from any co-transfer
agent or co-registrar. AST shall further not be liable for relying upon all
information contained in Certification of Corporate Secretary or otherwise
supplied to AST by the Company in accordance with the terms of this Agreement.
4. Term. This Agreement shall be effective, subject to receipt of
documents referenced in Section 17 of this Agreement, commencing on the date of
this Agreement as set forth above and shall continue in effect until terminated
in accordance with the terms hereof.
5. Other Provisions. The additional terms and conditions on the
attachment hereto entitled "Other Conditions and Agreements" (Sections 6 through
22) are incorporated herein by this reference and made a part of this Agreement.
EXECUTED as of the date and year first written above.
AMERICAN SECURITIES TRANSFER BioShield Technologies, Inc.
& TRUST, INC.
By /s/ Xxxxx Xxxxxx By /s/Xxxxxxx X. Xxxxx
Xxxxx Xxxxxx Xxxxxxx X. Xxxxx
Its Marketing Officer President/Chief Operating
Officer
OTHER CONDITIONS AND AGREEMENTS
6. Originally Issued Shares. AST is hereby authorized to originally
issue, register and countersign certificates of the Company's stock covered by
this Agreement upon being furnished with an appropriate written request signed
by an officer of the Company, a certified copy of a resolution of the Board of
Directors or a copy of the Board of Directors minutes authorizing such original
issue and, if specifically requested by AST, an opinion of counsel concerning
the status of such stock, including shares which are reserved for specific
purposes, under the Securities Act of 1933 and other applicable Federal or State
statute (i.e., if registration is necessary, the effective date of the
registration statement or, if exempt, the specific basis therefor).
7. Transfer of Outstanding Shares. AST is hereby authorized to accept
for transfer any outstanding certificates representing the Company's stock
covered by this Agreement, and to issue and countersign new certificates in
place thereof, except that AST may refuse to transfer such certificate if it in
good faith believes that the certificate, when surrendered for transfer, is not
validly or genuinely endorsed or is otherwise not valid. AST incurs no liability
and assumes no responsibility with respect to the transfer of restricted
securities when Company's counsel advised AST that such transfer may be properly
effected. AST reserves the right to refuse to transfer shares until it is
satisfied that the requested transfer is legally authorized and it shall incur
no liability for the refusal in good faith to make transfers which it, in its
judgment, believes may be improper, unauthorized or for any other reason not
permitted by law. AST may, in effecting transfers, rely upon the Securities Act
of 1933, the Securities Exchange Act of 1934, any state securities law, and
rules and regulations promulgated pursuant to such laws, the Simplification Acts
or the Uniform Commercial Code in transferring or refusing the transfer of any
securities, included but not limited to provisions relating to adverse claims.
In cases in which AST is not directed or otherwise required to maintain the
primary records of stockholders' accounts (i.e., co-transfer agent), AST shall
not be liable for any loss which may arise by reason of not having such records
where AST has exercised ordinary diligence. AST shall be under no duty to use a
greater degree of diligence by reason of not having such records.
8. Transfer or Cancellation of Treasury Shares. AST is hereby
authorized to transfer or cancel certificates of the Company's stock covered by
this Agreement in the name of or belonging to the Treasury of the Company, upon
receipt of the certificate(s) endorsed by an officer of the Company, a certified
copy of a resolution of the Board of Directors authorizing such endorsement and
such transfer or cancellation, and, in the case of a transfer only, an opinion
of counsel as described in paragraph 6 above.
9. Lost or Destroyed Certificates. In accordance with the Board of
Directors' resolution contained in the Certification of Corporate Secretary, AST
may issue or register new certificates to replace certificates represented to
have been lost, stolen or destroyed upon receiving an open penalty bond issued
by a surety company satisfactory to AST. AST is further authorized in its
discretion to issue or register a new certificate in exchange for, and upon
surrender of, an identifiable but mutilated stock certificate.
10. Delivery of Certificates by Mail. AST is hereby authorized to
forward stock certificates, warrants and other securities of the Company by mail
in accordance with the terms of a blanket bond or other satisfactory indemnity
covering nonreceipt of such mailed instruments. Said bond shall name, directly
or indirectly, the Company and AST as obligees. In the event of the nonreceipt
of such certificates mailed by AST, the Company hereby authorizes the issuance
of new certificates for a like amount in place thereof upon receipt of a
properly executed affidavit and proof of loss or non-receipt provided for under
said blanket bond and the issuance by the surety company of an assumption of the
loss under said blanket bond, all without further action or approval of the
Board of Directors or the officers of the Company.
11. Unclaimed or Undelivered Stock Certificates. Where a stock
certificate, for any reason, is in the possession of AST and has not been
claimed by the registered holder or cannot be delivered to the registered holder
through usual channels, AST shall continue to hold said certificate for the
registered holder subject to applicable escheat or other laws.
12. Books and Records. AST is hereby authorized to establish and
maintain such books and records as may be required for the performance of its
agency duties and responsibilities, and to establish and maintain ledgers for
the Company and to make entries therein of all certificates issued, canceled and
transferred. AST may deliver to the Company from time to time at its discretion,
for safekeeping or disposition by the Company in accordance with law, such
records, papers, stock certificates which have been cancelled in transfer or
exchanges and other documents accumulated in the execution of its duties
hereunder as AST may deem expedient, other than those which AST is itself
required to maintain pursuant to applicable laws and regulations. Upon delivery
of such records, the Company shall assume all responsibility for any failure
thereafter to produce any record, paper, cancelled stock certificate or other
document so returned, if and when required. AST will endeavor to notify the
Company of, and will follow instructions received from the Company with respect
to, any request or demand for the inspection of the Company's stock books.
However, AST reserves the right to exhibit the records to any person if it is
advised by its counsel that it may be held liable for the failure to exhibit
such records to such person.
13. Stock Certificates and Signatures. The Company shall furnish AST
with a sufficient supply of blank stock certificates and from time to time will
renew such supply upon the request of AST. Such blank stock certificates shall
be properly signed by the officers of the Company authorized by law or by the
Company's Bylaws to sign stock certificates and, if requested, shall bear the
corporate seal or facsimile thereof.
The Company shall promptly file with AST written notice of any change
in the officers authorized to sign stock certificates, written instructions or
requests, together with specimen signature of each newly authorized officer. In
case any officer of the Company who has properly signed blank stock certificates
shall die, resign or be removed prior to the issuance of such certificates, AST
as transfer agent and/or as registrar may issue or register such stock
certificates as the stock certificates of the Company notwithstanding such
death, resignation or removal; and the Company shall file promptly with AST such
approval, adoption or ratification as may be required by law.
14. Indemnification. AST shall not be liable for any act or omission in
connection with this agency or the performance of its duties as transfer agent
taken in good faith, with due diligence and without gross negligence or willful
misconduct. The Company assumes full responsibility and shall indemnify AST and
save it harmless from and against any and all actions or suits, whether
groundless or otherwise, and from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liabilities arising out of
the agency relationship or the performance of AST's duties as transfer agent,
where AST has acted without gross negligence or willful misconduct. AST shall
not be under any obligation to prosecute or defend any action or suit in respect
to any agency relationship or its duties as transfer agent which, in its sole
judgment, may subject it to expense or liability. In any action or suit, the
Company shall, as often as requested, furnish AST with satisfactory indemnity
and security against any expense or liability growing out of such action or suit
by or against AST. In addition, the Company shall provide AST with any books,
records, memoranda or other documents required by AST to prosecute or defend any
claim or action.
15. Previous Transfer Agent. The Company shall indemnify, protect and
hold AST harmless from any liability arising from any actions, or failures to
act, on the part of any previous stock transfer agent(s) used by the Company,
specifically including, but not limited to, liability arising from lack of
completeness or validity of the records maintained by any such previous transfer
agents or provided to AST by such previous stock transfer agents.
AST agrees to exercise reasonable diligence in converting the records
and information of any such previous stock transfer agent to AST's system, and
in researching the records of any such previous stock transfer agent to identify
and resolve errors and discrepancies contained therein.
16. Compliance with Law. AST may, without liability to the Company,
refuse to perform any act in connection with this agency where, in good faith
reliance upon opinion of counsel, it believes that such act may subject it or
its officers or employees to civil or criminal liability under any law of any
state or of the United States and, in particular, under the Securities Act of
1933 and the Securities Exchange Act of 1934.
17. Necessary Documentation. Prior to the effective date of this
Agreement, the Company shall furnish AST with the following documents:
(a) A Certification of the Secretary of the Company which
Certification shall be in the form of the Certification of Corporate Secretary
and shall have attached thereto copies of the following documents:
(i) Specimen stock certificates for each class of stock (outstanding or to
be outstanding) of the Company for which AST is being appointed transfer agent
and registrar.
(ii) A copy of the Company's Articles and Certificate of Incorporation, and
all amendments thereto, certified by the Secretary of State of the State of the
Company's incorporation.
(iii) A copy of the Bylaws of the Company and all
amendments thereto certified by the
Secretary of the Company.
(vi) If applicable, a shareholder list, certified by the Secretary of the
Company or the previous transfer agent which AST is succeeding, showing the
number and the date of each outstanding certificate, the name in which issued,
the number of shares represented thereby, the address and taxpayer
identification number of the stockholder, all restricted or legended
certificates, all stop transfer orders in respect to such certificate and the
reason for such order and, finally, all certificates issued as replacements for
those reported lost, stolen, or destroyed.
(b) Any additional information or documents as may be
specifically requested by AST in connection with this Agreement or the
performance of its duties including, without limitation, an opinion of counsel
concerning the status of the Company's stock under the Securities Act of 1933
and any other applicable Federal or State statute (i.e., if registration
occurred, the effective date of such registration statement or, if exempt, the
specific basis therefor).
18. Future Amendments of Charter and Bylaws. The Company shall file
with AST certified copies of all amendments to its articles of incorporation or
bylaws made after the date of creation of the agency.
19. Termination. The Company may terminate this Agreement by providing
written notice to AST which notice shall be effective as of the first calendar
month-end thirty (30) days after AST's receipt of the Company's termination
notice. At AST's election, however, the Company shall not be entitled to
terminate AST services under this Agreement until the Company has paid to AST
all amounts due it under this Agreement. AST further reserves the right to
terminate this Agreement as of such month-end by similar thirty (30) days'
notice to the Company, or on notice to the Company in the event of a
disagreement concerning the lawfulness of any transfer or other action requested
by the Company, failure to timely pay fees due AST or other cause, whether or
not similar to the foregoing. Upon termination of this Agreement by either
party, the Company shall pay AST such fees and expenses established in the then
effective Fee Schedule, and the Company shall reimburse AST for all costs and
expenses incurred in connection with termination including, without limitation,
charges for the shipment of records and other similar charges.
20. Security Interest. AST shall have a security interest in all
records of the Company which it maintains pursuant to this agency, and all
canceled and blank certificates of the Company, to secure payment of any fees,
charges or other amounts due AST from the Company pursuant to this Agreement.
21. Attorneys Fees. If either party commences legal action against the
other for damages or breach hereof or to otherwise enforce any remedy hereunder,
the prevailing party shall be entitled to recovery from the other party any and
all of its costs and expenses, including reasonable attorney's fees, as may be
incurred.
22. General Provisions. This Agreement shall be construed and governed
by the laws of the State of Colorado and shall be binding upon the parties
hereto and their successors and assigns. This Agreement embodies the entire
agreement and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof, and this
Agreement (except for any amendments made by AST pursuant to Section 2 above)
may not be modified or amended or any term or provisions hereof waived or
discharged except in writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced. The headings of this
Agreement are for convenience in reference only and shall not limit or otherwise
affect the meaning hereof. In the event of any controversy arising out of this
Agreement, the parties hereto consent to the jurisdiction of the District Court
of the City and County of Denver, Colorado. This Agreement may be executed in
counterparts and facsimile signatures of any party shall be binding and
enforceable.
