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VOTING AGREEMENT
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VOTING AGREEMENT, dated as of July 8, 2005 (the "Agreement"), among
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LocatePLUS Holdings Corporation, a Delaware corporation (the "Company"), ▇▇▇ ▇.
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▇▇▇▇▇▇▇▇▇ (the "Stockholder") and the investors listed on the signature pages
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hereto (the "Investors").
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W I T N E S S E T H
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WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company is entering into a Purchase Agreement, dated as of the
date hereof (as such agreement may hereafter be amended from time to time, the
"Purchase Agreement"), with the Investors which provides for, upon the terms and
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subject to the conditions set forth therein, the sale of up to $8,000,000 in
aggregate face amount of the Company's 3% Senior Convertible Notes and warrants
to purchase up to an aggregate of 32,000,000 shares of Common Stock (subject to
adjustment) at an exercise price of $0.15 per share (subject to adjustment) (the
"Securities"); and
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WHEREAS, pursuant to the Purchase Agreement, the Company has agreed to call a
special meeting of its stockholders for the purpose of seeking approval of the
Company's stockholders for the recapitalization (the "Recapitalization") of the
Company's outstanding Class A Voting Common Stock and Class B Nonvoting Common
Stock into shares of Common Stock, which will include a one-for-fifty reverse
split of the Common Stock (the "Proposal");
WHEREAS, as of the date hereof, the Stockholder owns beneficially the number of
shares of Common Stock set forth opposite the Stockholder's name on Schedule I
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hereto (all such shares so owned and which may hereafter be acquired by such
Stockholder prior to the termination of this Agreement, whether upon the
exercise of options, conversion of convertible securities, exercise of warrants
or by means of purchase, dividend, distribution or otherwise, being referred to
herein as the Stockholder's "Shares");
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WHEREAS, approval of the Proposal by the Company's stockholders is required in
order to effect the Recapitalization;
WHEREAS, as a condition to the Investors' willingness to enter into the Purchase
Agreement, the Investors have required the Stockholder to enter into this
Agreement; and
WHEREAS, in order to induce the Investors to enter into the Purchase Agreement,
the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, the
Company and the Stockholder hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDER
SECTION 1.1. Voting of Shares. From the date hereof until termination of
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this Agreement pursuant to Section 3.2 hereof (the "Term"), at any meeting of
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the stockholders of the Company, however called and at any adjournment or
postponement thereof, and in any action by consent of the stockholders of the
Company, the Stockholder shall (A) appear at such meeting or otherwise cause his
Shares to be counted as present thereat for purposes of establishing a quorum
and (B) vote (or cause to be voted) his Shares in favor of the Proposal and such
other matters as may be necessary or advisable to consummate the
Recapitalization.
SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by this
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Agreement, the Stockholder shall not during the Term (i) transfer, or consent to
any transfer of, any or all of the Stockholder's Shares or any interest therein,
or create or permit to exist any lien or other encumbrance on such Shares, (ii)
enter into any contract, option or other agreement or understanding with respect
to any transfer of any or all of such Shares or any interest therein, (iii)
grant any proxy, power-of-attorney or other authorization in or with respect to
such Shares, (iv) deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares, or (v) take any other
action that would in any way restrict, limit or interfere with the performance
of his obligations hereunder or the transactions contemplated hereby or by the
Purchase Agreement.
SECTION 1.3. Proxy; Reliance. The Stockholder hereby revokes any and all prior
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proxies or powers of attorney in respect of any of the Stockholder's Shares and
constitutes and appoints such person as the Company shall nominate, with full
power of substitution and resubstitution, at any time during the Term, as his
true and lawful attorney and proxy (his "Proxy"), for and in his name, place and
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stead, to vote each of such Shares as his Proxy in favor of the matters set
forth in Section 1.1, at every annual, special, adjourned or postponed meeting
of the stockholders of the Company, including the right to sign his name (as
stockholder) to any consent, certificate or other document relating to the
Company that the Delaware General Corporation Law may permit or require as
provided in Section 1.1.
THE FOREGOING PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST THROUGHOUT THE TERM.
SECTION 1.4. Stop Transfer. The Stockholder shall not attempt to effect any
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transfer of the Stockholders Shares, and any such request shall be null and
void, ab initio. The Stockholder will not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Stockholder's Shares. The Company shall issue
stop-transfer instructions to the transfer agent for the Common Stock
instructing the transfer agent not to register any transfer of Shares during the
Term except in compliance with the terms of this Agreement.
SECTION 1.5. Additional Shares. The Stockholder hereby agrees, while this
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Agreement is in effect, to promptly notify the Company of the number of any new
Shares acquired (whether upon the exercise of options, conversion of convertible
securities, exercise of warrants or by means of purchase, dividend, distribution
or otherwise) by such Stockholder, if any, after the date hereof.
SECTION 1.6. Disclosure. The Stockholder hereby authorizes the Company to
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publish and disclose in the Proxy Statement (including all documents and
schedules filed with the SEC), his identity and ownership of the Shares and the
nature of his commitments, arrangements and understandings under this Agreement.
SECTION 1.7. Share Legend. As promptly as practicable following the date of
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this Agreement and, in any event, no more than five (5) Business Days after the
date hereof, the Stockholder shall cause the certificate(s) representing the
Stockholders' Shares to be delivered to the Company and the Company shall place
the following legend on such certificates:
"The voting of the shares represented by this certificate is governed by the
terms of a Voting Agreement, a copy of which is available from the Secretary of
the Company."
Promptly after the legending of the certificates as provided above, the
Company shall return such certificates to the Stockholder or as the Stockholder
may other direct. Upon the termination of this Agreement in accordance with its
terms, the Stockholder shall have the right to cause the Company to reissue the
certificates representing the Stockholders' Shares without the legend set forth
above.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company and the
Investors as follows:
SECTION 2.1. Due Authorization, etc. The Stockholder has all requisite power
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and authority to execute, deliver and perform this Agreement, to appoint the
Proxy and to consummate the transactions contemplated hereby all of which have
been duly authorized by all action necessary on the part of the Stockholder.
The execution, delivery and performance of this Agreement, the appointment of
the Proxy and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of Stockholder. This
Agreement has been duly executed and delivered by or on behalf of the
Stockholder and constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the court before
which any proceeding for such remedy may be brought.
SECTION 2.2. Required Filings and Consents. The execution and delivery of this
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Agreement by the Stockholder does not, and the performance of this Agreement by
the Stockholder will not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental or regulatory authority
(other than any necessary filing under the Exchange Act), domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by the Stockholder of the Stockholder's obligations under this
Agreement.
SECTION 2.3. Ownership of Shares. The Stockholder is the record and beneficial
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owner of the Shares set forth opposite its name on Schedule I hereto. On the
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date hereof, such Shares constitute all of the Shares owned of record or
beneficially by such Stockholder.
ARTICLE III.
MISCELLANEOUS
SECTION 3.1. Definitions. Terms used but not otherwise defined in this
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Agreement have the meanings ascribed to such terms in the Purchase Agreement.
SECTION 3.2. Termination. This Agreement shall terminate and be of no further
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force and effect (i) by the written mutual consent of the parties hereto, (ii)
upon the approval of the Proposal by the Company's stockholders at a meeting
duly called and held for such purpose at which a quorum was present and acting
throughout, or (iii) automatically and without any required action of the
parties hereto upon termination of the Purchase Agreement in accordance with its
terms. No such termination of this Agreement shall relieve any party hereto
from any liability for any breach of this Agreement prior to termination.
SECTION 3.3. Further Assurance. From time to time, at another party's request
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and without consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
SECTION 3.4. No Waiver. The failure of any party hereto to exercise any right,
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power or remedy provided under this agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, or any custom or practice of the parties
at variance with the terms hereof shall not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
SECTION 3.5. Specific Performance. The Stockholder acknowledges that if the
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Stockholder fails to perform any of his obligations under this Agreement,
immediate and irreparable harm or injury would be caused to the Company and the
Investors for which money damages would not be an adequate remedy. In such
event, the Stockholder agrees that the Company and each Investor shall have the
right, in addition to any other rights they may have, to specific performance of
this Agreement. Accordingly, should the Company or any Investor institute an
action or proceeding seeking specific enforcement of the provisions hereof, the
Stockholder hereby waives the claim or defense that the Company or such Investor
has an adequate remedy at law and hereby agrees not to assert in any such action
or proceeding the claim or defense that such a remedy at law exists.
SECTION 3.6. Notice. All notices and other communications given or made
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pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, and (ii) on the third business day after deposit in
the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
(a) If to the Company:
LocatePLUS Holdings Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Stockholder, at the address set forth below the
Stockholder's name on Schedule I hereto.
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(c) If to an Investor, at the address set forth below the Investor's name on
the signature pages to the Purchase Agreement.
SECTION 3.7. Expenses. All fees, costs and expenses incurred in connection
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with this Agreement and the transactions contemplated hereby shall be paid by
the Company, including, without limitation, the fees, costs and expenses
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incurred by the Stockholder.
SECTION 3.8. Headings. The headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 3.9. Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the maximum extent possible.
SECTION 3.10. Entire Agreement; Third-Party Beneficiaries. This Agreement
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constitutes the entire agreement and supersedes any and all other prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof, and this Agreement is not
intended to confer upon any other person any rights or remedies hereunder
SECTION 3.11. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise.
SECTION 3.12. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
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This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York located in New
York County and the United States District Court for the Southern District of
New York for the purpose of any suit, action, proceeding or judgment relating to
or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT
TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
SECTION 3.13. Amendment. This Agreement may not be amended except by an
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instrument in writing signed on behalf of the Company, the Stockholder and the
Investors agreeing to acquire a majority of the Notes pursuant to the Purchase
Agreement.
SECTION 3.14. Waiver. Any party hereto may (a) extend the time for the
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performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 3.15. Descriptive Headings; Interpretation. The descriptive headings
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herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
SECTION 3.16. Counterparts. This Agreement may be executed (including by
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facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which shall constitute one and the same
agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
LOCATEPLUS HOLDINGS CORPORATION
By:______________________
Name:
Title:
______________________________
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
[investors]
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7/13/05 BOS-#875593-v3-LocatePLUS_--_Latorella_Voting_Agreement.DOC
SCHEDULE I
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Name and Address of Stockholder Number of Shares Beneficially Owned
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 24,188,000
