Exhibit 6.7
TRANSFER
AGENT AND REGISTRAR AGREEMENT
This Transfer
Agent and Registrar Agreement (the “Agreement”), dated as of January 29, 2019, by and between Prometheum, Inc.
a corporation duly organized and existing under the laws of the State of Delaware (“Corporation”), and VStock
Transfer, LLC, a California limited liability company (“Transfer Agent”), is for the purpose of performing
the services described therein.
RECITALS
WHEREAS,
the Corporation desires that certain services be provided by the Transfer Agent with regard to the issuance, transfer and registration
of certain securities of the Corporation;
WHEREAS,
the Transfer Agent is engaged in the business of providing services for issuers of securities and seeks to provide such services
to the Corporation; and
WHEREAS,
the parties hereto desire to set forth the terms and conditions for the providing of services by the Transfer Agent to the Corporation.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:
| I. | GENERAL APPOINTMENT OF TRANSFER
AGENT; DOCUMENTS |
| | |
| a. | The
Corporation hereby appoints the Transfer Agent as the sole transfer agent for the issuance,
cancellation, transfer and registration of the securities of the Corporation set forth
in the Preliminary Information Form annexed hereto as Exhibit B (the “Securities”)
and to perform such other services related to the Securities as provided for in this
Agreement and is authorized and directed to maintain records showing the name and address
of, and the number of Securities issued to each holder of said Securities together with
such other records as the Transfer Agent may deem necessary or advisable to discharge
its duties as set forth herein. |
| b. | The
Transfer Agent is authorized and directed to issue Securities of the Corporation from
time to time upon receiving from the Corporation (i) written instructions as to the issuance
from an authorized officer of the Corporation, and (ii) an opinion of counsel that (1)
the Securities are duly authorized, validly issued, fully paid and nonassessable, (2)
issuance of the Securities has been registered (stating effective date thereof) under
the Securities Act of 1933 (as amended) (the “Act”) and the class
of Securities represented by the Securities has been registered under the Securities
Exchange Act of 1934 (as amended), or, if exempt from registration, the basis of such
exemption, (3) no order or consent of any governmental or regulatory authority other
than that provided to the Transfer Agent is required in connection with the issuance
of the Securities or, if no such order or consent is required, a statement to that effect.
The opinion should also indicate whether it is necessary that the Securities bear a restrictive
legend and the wording of the legend or a statement to the effect that all Securities
to be issued are freely transferable upon presentation to the Transfer Agent for that
purpose, and (iii) such further documents as the Transfer Agent may reasonably request. |
| c. | The
Transfer Agent is further authorized and directed to make transfers of Securities from
time to time upon the books of the Corporation as maintained by the Transfer Agent. Securities,
in either certificated or book entry form (or other appropriate form of ownership), will
be transferred or exchanged upon the surrender of the old Securities (or appropriate
instructions in the case of noncertificated shares) in a form reasonably deemed by the
Transfer Agent to be properly endorsed for transfer and accompanied by such documents
as the Transfer Agent may deem necessary to evidence the authority of the person making
the transfer. The Transfer Agent reserves the right to refuse to transfer Securities
until it has received reasonable assurance that each necessary endorsement is genuine
and effective, that the transfer of the Securities is legally valid and genuine and that
the requested transfer is otherwise legally in order. For that purpose, Transfer Agent
may require an acceptable guaranty of the signature of the person signing and appropriate
assurance of authority to do so. The Transfer Agent may rely upon the Uniform Commercial
Code, applicable law or regulation, and generally accepted industry practice in effecting
transfers, or in delaying or refusing to effect transfers. The Transfer Agent may delay
or refuse to process any transfer that in its reasonable judgment appears improper or
unauthorized. Upon a request for the transfer of a restricted item, the Transfer Agent
may require an opinion of either presenter’s counsel or the Corporation’s
counsel to process such transfer. |
| d. | The
Transfer Agent may conclusively rely and act or refuse to act without further investigation
upon any list, instruction, certification, authorization, stock certificate or other
communication, including electronic communication, instrument or paper believed by it
in good faith to be genuine and unaltered, and to have been signed, countersigned or
executed by any duly authorized person or persons, or upon the instruction of any officer
of the Corporation or the advice of counsel for the Corporation. The Transfer Agent may
make any transfer or registration of ownership for such securities which is believed
by it in good faith to have been duly authorized or may refuse to make any such transfer
or registration if in good faith the Transfer Agent deems such refusal necessary in order
to avoid any liability upon either the Corporation or itself. Corporation agrees that
it shall not give Transfer Agent direction to take any action or refrain from taking
any action, if implementing such direction would be a violation of applicable law or
regulation. Corporation agrees that it shall not direct Transfer Agent to transfer any
security if such security is subject to any restriction or prohibition on transfer to
or from a securities intermediary in its capacity as such, and Transfer Agent shall be
protected in refusing to effect any such transfer. |
| e. | When
the Transfer Agent deems it expedient it may apply to the Corporation, or counsel for
the Corporation, or to its own counsel for instructions and advice; that the Corporation
will promptly furnish or will cause its counsel to furnish, and, for any action taken
in accordance with such instructions or advice, or in case such instructions and advice
shall not be promptly furnished, the Corporation will indemnify and hold harmless the
Transfer Agent from any and all liability, including attorney’s fees and court
costs. |
| f. | The
Corporation will at all times advise the Transfer Agent of any and all stop transfer
notices or adverse claims lodged against Securities of the Corporation and further, will
promptly notify the Transfer Agent when any such notices or claims have expired or been
removed. The Transfer Agent is not otherwise responsible for stop transfer notices or
adverse claims from either the Corporation or third parties unless it has received actual
written notice. Notwithstanding, the Transfer Agent’s responsibility with respect
to any such stop transfer notice or adverse claim is subject to the rights of the registered
holder of the Securities in accordance with applicable law. |
| a. | Specimen
signatures of the officers of the Corporation authorized to sign the physical evidence
of Securities, including any certificate together with any applicable specimen certificates,
shall be provided to the Transfer Agent to be used by it. The Transfer Agent shall be
protected and held harmless in recognizing and acting upon any signature, certificates
or other document believed by it in good faith to be genuine. When any officer of the
Corporation shall no longer be vested with the authority to sign evidence of Securities
for the Corporation, a written notice thereof shall be given to the Transfer Agent and
until receipt of such notice the Transfer Agent shall be fully protected and held harmless
in recognizing and acting upon the evidence of Securities bearing the signature of such
officer or any signature believed by it in good faith to be such genuine signature. |
| b. | The
Transfer Agent shall not be charged with notice of any change in the officers of the
Corporation until notice of such change shall be given in writing by the Corporation
to the Transfer Agent. |
| c. | In
the event any officer of the Corporation who shall have signed blank stock certificates
or other evidence of Securities (or whose facsimile signature shall have been used) shall
die, resign or be removed prior to the issuance of such certificates or other evidence
of Securities, the Transfer Agent in its capacity as Transfer Agent or Registrar, may
issue or register such stock certificates or other evidence of securities as the stock
certificates or evidence of Securities of the Corporation, notwithstanding such death,
resignation or removal, unless directed to the contrary by the Corporation in writing. |
| d. | Transfer
Agent shall be fully protected and held harmless in recognizing and acting upon written
instructions of an authorized officer of the Corporation. |
| III. | RESPONSIBILITIES AND INDEMNITIES,
AND COMPENSATION |
| | |
| a. | The
Transfer Agent may conclusively and in good faith rely and act, or refuse to act, upon
the records and information provided to it by the Corporation and its prior transfer
agent or recordkeeper without independent review and shall have no responsibility or
liability for the accuracy or inaccuracy of such records and information. |
| b. | The
Corporation will indemnify, defend, protect and hold harmless the Transfer Agent and
its managers, affiliates, agents, officers and employees (the “Indemnitees”)
from and against any and all: losses, costs, claims, damages, suits, judgments, penalties,
liabilities, and expenses, including, without limitation, reasonable attorney’s
fees and expenses, incurred or made, arising out of or in connection with any act or
omission of a prior transfer agent of the Corporation or the performance of the Transfer
Agent’s obligations under the provisions of this Agreement, including but not limited
to, acting, or refusing to act, in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, report, record, instructions or other instrument
or document believed by the Transfer Agent in good faith to be valid, genuine and sufficient
(the foregoing are referred to as “Indemnifiable Costs”); provided, however,
such indemnification shall not apply to any such act or omission finally adjudicated
to have been directly caused by the bad faith or gross negligence of the Transfer Agent.
The Indemnitees shall be under no obligation to institute or defend any action, suit,
or legal proceeding in connection herewith or to take any other action likely to involve
the Indemnitees in expense, unless first indemnified to the Transfer Agent’s satisfaction.
The indemnities provided by this paragraph shall survive the resignation or removal of
the Transfer Agent or the termination of this Agreement. If the indemnification provisions
of this Agreement are inadequate or unavailable for any reason, the Indemnitees shall
be entitled to contribution from the Corporation and any third-party payors including
insurers for all Indemnifiable Costs. |
| c. | Anything
in the Agreement to the contrary notwithstanding, in no event shall either party or its
respective affiliates, agents, officers, directors, managers and employees be liable
under or in connection with this Agreement for special, indirect, incidental, punitive,
or consequential losses or damages of any kind whatsoever, including but not limited
to lost profits, whether or not foreseeable, even if advised of the possibility thereof
and regardless of the form of action in which such damages are sought. |
| d. | The
Transfer Agent may, in connection with the services described in the Agreement, engage
subcontractors, agents, co- transfer agents or attorneys-in-fact, provided the same shall
have been selected with reasonable care. The Transfer Agent is authorized by the Corporation
to execute all agreements, appoint agents or sub-agents and do all other acts deemed
necessary to carry out the general purposes of this Agreement. The Corporation shall
provide to the Transfer Agent any books, records, or memoranda which are required in
defense of any claim which may arise in the performance of the Transfer Agent’s
duties hereunder. |
| e. | The
Corporation agrees that the Transfer Agent shall be paid fees for its services and reimbursed
for expenses in accordance with the attached fee schedule (See attached Fee Schedule
– Exhibit C), which may be updated by the Transfer Agent from time to time.
Requests for payment of fees and expenses shall be submitted by the Transfer Agent in
the form of a written invoice at the beginning of each month for the services provided
for the prior month. The Corporation shall make payment upon receipt of all invoices
and all invoices shall be considered late if not paid in full by the last day of each
month. |
| f. | The
Transfer Agent will not have any liability for failure to perform or delay in performing
duties set forth herein if the failure or delay is due to an event of force majeure.
An event of force majeure is an event or condition beyond the Transfer Agent’s
control including, but not limited to acts of God, natural disaster, civil unrest, state
of war, fire, power failure, equipment failure, act of terrorism, or similar events beyond
the Transfer Agent’s control. The Transfer Agent will make reasonable efforts to
minimize performance delays or disruptions in the event of such occurrences. |
| g. | Nothing
in the Agreement shall be construed to give any person or entity other than the Transfer
Agent and the Corporation, and their successors and assigns, any legal or equitable right,
remedy or claim under this Agreement. The Agreement shall be for the sole and exclusive
benefit of the Transfer Agent and the Corporation. |
| IV. | CONSENT TO USE OF NAME AND
LOGO |
| | |
Each
party may disclose in regulatory filings, marketing materials and in other communications the fact Transfer Agent has been appointed
pursuant to this Agreement.
| V. | UNCLAIMED PROPERTY ADMINISTRATION |
| | |
| a. | The
Transfer Agent will provide unclaimed property reporting services for unclaimed Securities
and related cash payments, which may be deemed abandoned or otherwise subject to applicable
unclaimed property law or regulation. |
| b. | The
Corporation shall assist the Transfer Agent and provide such cooperation as may reasonably
be necessary in the performance of the services hereunder including delivery to the Transfer
Agent of any and all such unclaimed property which may not otherwise be in the Transfer
Agent’s possession. |
| VI. | LOST SECURITY HOLDER SEARCH
SERVICES |
| | |
| a. | Pursuant
to SEC rules (See SEC Rule 240.17Ad-17, as amended), the Transfer Agent is required to
provide certain services regarding lost security holder accounts for the Securities. |
| b. | The
Corporation agrees to reimburse the Transfer Agent for reasonable fees and expenses incurred
by the Transfer Agent in the course of providing the referenced search services. |
| VII. | CONFIDENTIAL INFORMATION |
| | |
| a. | The
Transfer Agent and Corporation acknowledge that during the course of the Agreement, the
parties (the Discloser being the “Discloser” and the Recipient the
“Recipient”) may make confidential data available to each other or
may otherwise have access to proprietary or confidential information regarding the Corporation,
its stockholders, or the Transfer Agent, or its or their affiliates (collectively, “Confidential
Data”). Confidential Data includes all information not generally known or used
by others and which gives, or may give the possessor of such information an advantage
over its competitors or which could cause Corporation or Transfer Agent injury, loss
of reputation or goodwill if disclosed. Such information includes, but is not necessarily
limited to: data or information that identifies past, current or potential customers,
stockholders, business practices, financial results, fees, research, development, systems
and plans; certain information and material identified by the Discloser as “Proprietary”
or “Confidential”; data that the Transfer Agent furnishes to the Corporation
from the Transfer Agent’s database; data received from the Corporation and enhanced
by the Transfer Agent; and/or data or information that the Recipient should reasonably
be expected to know is confidential, but does not include any information which has become
public without violation of this Agreement. Confidential Data may be written, oral, recorded,
or maintained on other forms of electronic media. This Agreement, together with the exhibits
and schedules referred to herein or delivered pursuant hereto, are Confidential and Proprietary,
and shall be treated as Confidential Data by the parties hereto. The parties agree to
maintain security measures to protect Confidential Data in its possession. |
| b. | The
Recipient agrees to hold as confidential all Confidential Data it receives from the Discloser.
As between the Recipient and Discloser, ownership of Confidential Data shall remain with
the Discloser, and Recipient shall not take any ownership interest in or right to use
the Confidential Data unless expressly agreed in writing by the Discloser. The Recipient
will use at least the same care and discretion to avoid unauthorized use and disclosure
of the Discloser’s Confidential Data as it uses with its own similar information
that it does not wish disclosed, but in no event less than a reasonable standard of care
and no less than is required by law. The Recipient may only use and disclose Confidential
Information of the Discloser only as necessary for the following “Permitted
Purposes”: (1) performing its obligations under this Agreement, (2) in the
case of Corporation, deriving the reasonable and intended benefit from the services provided
by Transfer Agent under this Agreement, and (3) as otherwise specifically permitted in
writing by the Discloser in this Agreement or elsewhere. The Recipient may disclose Confidential
Data to: (i) its employees and employees of permitted subcontractors and affiliates who
have a need to know; (ii) its attorneys and accountants as necessary in the ordinary
course of its business; (iii) any regulatory authority, including the Securities and
Exchange Commission (“SEC”) and the Depository Trust & Clearing
Corporation (“DTCC”), (iv) to the New York Stock Exchange, NASDAQ
or OTC Markets as applicable and (iv) any other party with the Discloser’s prior
written consent. |
| c. | Except
as prohibited by applicable law or regulation or upon request of any regulatory authority,
the Recipient shall promptly notify the Discloser in writing of any subpoena, summons
or other legal process served on the Recipient for the purpose of obtaining Confidential
Data consisting of a stockholder list, such as an identified class of Corporation stockholders.
In such cases, the Discloser shall have a reasonable opportunity to seek appropriate
protective measures; provided, however, that this subsection shall not require the Transfer
Agent to notify the Corporation of its receipt of any subpoena, summons or other legal
process seeking Confidential Data for a single stockholder or group of related stockholders
in connection with routine tax levies or other routine third party litigation or investigation
involving a stockholder. The Discloser will indemnify the Recipient for all reasonable
expenses incurred by the Recipient in connection with determining the lawful release
of the Confidential Data that is subject to a subpoena, summons or other legal process. |
| a. | The
Agreement shall have a term of three (3) years, which term shall automatically renew
for successive three (3) year terms without any action unless either party shall provide
written notice of cancellation thirty (30) days prior to the end of any applicable term
period. In addition, either party may terminate the Agreement upon thirty (30) days advance
written notice that the other party is in material breach of its obligations hereunder,
unless the breaching party has cured such breach within such thirty (30) day period.
Any notice of termination by the Corporation shall include a certified copy of a resolution
of the Board of Directors of the Corporation related to such termination and payment
for all amounts due and owing to the Transfer Agent pursuant to this Agreement. |
| b. | Upon
the effective date of termination in accordance with the provisions noted above the Transfer
Agent shall deliver, at the expense of the Corporation, to the Corporation, or to a successor
transfer agent as directed in writing by the Corporation (and if no successor transfer
agent has been identified at the time of resignation or removal, then the following shall
be provided directly to the Corporation), all records of the Corporation in the possession
of the Transfer Agent. |
All notices to be given
by one party to the other under the Agreement shall be in writing and shall be sufficient if made to such party at their respective
address.
If notice to the Corporation:
As set forth in the Certificate of Appointment.
If notice to the Transfer
Agent:
V Stock Transfer, LLC
Attn: Chief Executive Officer
00 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
All notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if mailed, by registered or certified mail, return receipt
requested, or, if by other means, including facsimile capable of transmitting or creating a written record directly to the office
of the recipient, when received by the recipient party at the address shown above, or at such other addresses as may hereafter
be furnished to the parties by like notice. Any such demand, notice or communication hereunder shall be deemed to have been received
on the date received at the premises of the addressee (as evidenced, in the case of registered or certified mail, by the date
noted on the return receipt, or in the case of facsimile, the date noted on the confirmation of such transmission).
| X. | GOVERNING LAW AND COURTS |
| | |
The Agreement shall
be construed, performed and enforced in accordance with, and governed by, the laws of the State of New York, without regard to
the conflict of laws doctrine applied in such state. All disputes arising out of or in connection with this Agreement, or in respect
of any legal relationship associated with or derived from this Agreement, shall only be heard in any competent court residing
in New York, New York, USA. The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any manner provided by law. The parties further waive
any objection to venue in any such action or proceeding on the basis of inconvenient forum.
| XI. | AMENDMENT; ENTIRE AGREEMENT;
SEVERABILITY |
| | |
| a. | The
Agreement may be amended or modified only by a written document authorized, executed
and delivered by the Corporation and the Transfer Agent. Such document may be in the
form of a resolution of the Corporation adopting a written amendment approved by the
Transfer Agent. |
| b. | The
Agreement, together with the exhibits and schedules referred to herein or delivered pursuant
hereto, constitute the entire agreement and understanding of the parties with respect
to the matters and transactions contemplated by this Agreement and supersede any prior
agreement and understandings, including any fee proposals, with respect to those matters
and transactions. Each provision and agreement herein shall be treated as separate and
independent from any other provision or agreement herein and shall be enforceable notwithstanding
the unenforceability of any such other provision or agreement. |
IN
WITNESS WHEREOF, the Corporation and Transfer Agent have caused this Transfer Agent and Registrar Agreement to be duly executed
and delivered as of the date first written above.
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VSTOCK TRANSFER, LLC |
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By: |
/s/ Xxxx Xxxxxxx |
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Name: Xxxx Xxxxxxx |
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Title: Chairman |
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Corporation Name: |
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PROMETHEUM, INC. |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Co-Chief Executive Officer |
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By: |
/s/ Xxxxxxxx X. Xxxxxx |
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Name: Xxxxxxxx X. Xxxxxx |
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Title: Co-Chief Executive Officer |
Exhibit
A
LEGAL
DOCUMENTATION CHECKLIST
Exhibit
B
PRELIMINARY INFORMATION FORM
Exhibit
C
Services
Included in Set-Up and
Ongoing
Transfer and Registrar
Exhibit
D
Payment
Authorization
Exhibit
E
Signature
Specimen
