Exhibit 10.9
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
August 27, 2004
Pacific Stock Transfer Company
000 X Xxxx Xxxxxxx Xx., Xxxxx 000
Xxx Xxxxx, XX 00000
Attention:
RE: POWER TECHNOLOGY, INC
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement (the
"Securities Purchase Agreement") of even date herewith by and between Power
Technology, Inc., a Nevada corporation (the "Company"), and the Buyers set forth
on Schedule I attached thereto (collectively the "Buyer"), pursuant to which the
Company shall sell to the Buyer up to Five Hundred Thousand Dollars ($500,000)
of the Company's secured convertible debentures, which shall be convertible into
shares of the Company's common stock, par value $0.001 per share (the "Common
Stock"). The shares of Common Stock to be issued upon a periodic conversion (a
"Conversion") of the secured convertible debentures (including, without
limitation, principal, interest and liquidated damages) are referred to herein
as the "Conversion Shares." This letter shall serve as our irrevocable
authorization and direction to you (provided that you are the transfer agent of
the Company at such time) to issue the Conversion Shares to the Buyer from time
to time in the event of a Conversion upon your receipt of a properly completed
and duly executed Conversion Notice, in the form attached hereto as Exhibit I,
delivered on behalf of the Company by Xxxxx Xxxxxxxx, Esq.
Specifically, upon receipt by Xxxxx Xxxxxxxx, Esq. of a copy of a
Conversion Notice, Xxxxx Xxxxxxxx, Esq., on behalf of the Company, shall as soon
as practicable, but in no event later than one (1) Trading Day (as defined
below) after receipt of such Conversion Notice, send, via facsimile, a
Conversion Notice, which shall constitute an irrevocable instruction to you to
process such Conversion Notice in accordance with the terms of these
instructions. Upon your receipt of a copy of the executed Conversion Notice, you
shall use your best efforts to, within three (3) Trading Days following the date
of receipt of the Conversion Notice, (A) issue and surrender to a common carrier
for overnight delivery to the address as specified in the Conversion Notice, a
certificate, registered in the name of the Buyer or its designee, for the number
of shares of Common Stock to which the Buyer shall be entitled as set forth in
the Conversion Notice or (B) provided you are participating in The Depository
Trust Company ("DTC") Fast Automated Securities Transfer Program, upon the
request of the Buyer, credit such aggregate number of shares of Common Stock to
which the Buyer shall be entitled to the Buyer's or its designee's balance
account with DTC through its Deposit Withdrawal At Custodian ("DWAC") system
provided the Buyer causes its bank or broker to initiate the DWAC transaction.
("Trading Day" shall mean any day on which the Nasdaq Market is open for
customary trading.) .) Notwithstanding anything to the contrary herein, you are
under no obligation to process such Conversion Notice unless it is delivered by
Xxxxxx Xxxxxxxx, LLP.
The Company hereby confirms to you and the Buyer that certificates
representing the Conversion Shares, the Interest Shares, and/or the Liquidated
Damages Shares shall not bear any legend restricting transfer of the Conversion
Shares thereby and should not be subject to any stop-transfer restrictions and
shall otherwise be freely transferable on the books and records of the Company
provided that the Company counsel delivers (i) the Notice of Effectiveness set
forth in Exhibit II attached hereto and (ii) an opinion of counsel in the form
set forth in Exhibit III attached hereto, and that if the Conversion Shares, the
Interest Shares, and/or the Liquidated Damages Shares are not registered for
sale under the Securities Act of 1933, as amended, then the certificates for the
Conversion Shares shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS,
OR AN OPINION OF COUNSEL, IN A FORM REASONABLY ACCEPTABLE TO
THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO
RULE 144 UNDER SAID ACT."
The Company hereby confirms and Pacific Stock Transfer Company
acknowledges that in the event Counsel to the Company does not issue an opinion
of counsel as required to issue the Conversion Shares free of legend the Company
authorizes and Pacific Stock Transfer Company will accept an opinion of Counsel
from Xxxxxx Xxxxxxxx LLP.
The Company hereby confirms to you and the Buyer that no instructions
other than as contemplated herein will be given to you by the Company with
respect to the Conversion Shares. The Company hereby agrees that it shall not
replace Pacific Stock Transfer Company as the Company's transfer agent without
the prior written consent of the Buyer.
Any attempt by you to resign as transfer agent hereunder shall not be
effective until such time as the Company provides to you written notice that a
suitable replacement has agreed to serve as transfer agent and to be bound by
the terms and conditions of these Irrevocable Transfer Agent Instructions.
Notwithstanding the foregoing, if the Company has not paid fees in accordance
with the agreed upon fee schedule for a period of sixty (60) days from the date
of any invoice and notice has been given to the Company and the Buyer of such
non-payment and the non-payment has not been cured within fifteen (15) days of
the notice, the preceding sentences shall be deemed null and void and any
resignation by you will be effective upon receipt.
2
The Company and Pacific Stock Transfer Company hereby acknowledge and
confirm that complying with the terms of this Agreement does not and shall not
prohibit Pacific Stock Transfer Company from satisfying any and all fiduciary
responsibilities and duties it may owe to the Company.
The Company and Pacific Stock Transfer Company acknowledge that the
Buyer is relying on the representations and covenants made by the Company and
Pacific Stock Transfer Company hereunder and are a material inducement to the
Buyer purchasing convertible debentures under the Securities Purchase Agreement.
The Company and Pacific Stock Transfer Company further acknowledge that without
such representations and covenants of the Company and Pacific Stock Transfer
Company made hereunder, the Buyer would not enter into the Securities Purchase
Agreement and purchase convertible debentures pursuant thereto.
Each party hereto specifically acknowledges and agrees that in the
event of a breach or threatened breach by a party hereto of any provision
hereof, the Buyer will be irreparably damaged and that damages at law would be
an inadequate remedy if these Irrevocable Transfer Agent Instructions were not
specifically enforced. Therefore, in the event of a breach or threatened breach
by a party hereto, including, without limitation, the attempted termination of
the agency relationship created by this instrument, the Buyer shall be entitled,
in addition to all other rights or remedies, to an injunction restraining such
breach, without being required to show any actual damage or to post any bond or
other security, and/or to a decree for specific performance of the provisions of
these Irrevocable Transfer Agent Instructions.
* * * * *
3
IN WITNESS WHEREOF, the parties have caused this letter agreement
regarding Irrevocable Transfer Agent Instructions to be duly executed and
delivered as of the date first written above.
COMPANY:
POWER TECHNOLOGY, INC.
By:
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
------------------------------
Xxxxx Xxxxxxxx, Esq.
PACIFIC STOCK TRANSFER COMPANY
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Assistant Secretary
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4
SCHEDULE I-1
SCHEDULE I
SCHEDULE OF BUYERS
Address/Facsimile
Name Signature Number of Buyer
Cornell Capital Partners, LP By: Yorkville Advisors, LLC 000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxx: Xxxxxxx Xxxxxxx Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
By:____________________________________ With a copy to:
Name: Xxxx X. Xxxxxx Xxxx X. Xxxxx
Its: Portfolio Manager 000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
EXHIBIT I
TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
FORM OF CONVERSION NOTICE
Reference is made to the Securities Purchase Agreement (the "Securities
Purchase Agreement") between Power Technology, Inc., (the "Company"), and
Cornell Capital Partners, LP, dated as of August ____ 2004. In accordance with
and pursuant to the Securities Purchase Agreement, the undersigned hereby elects
to convert convertible debentures into shares of common stock, no par value per
share (the "Common Stock"), of the Company for the amount indicated below as of
the date specified below.
Conversion Date: ____________________________
Amount to be converted: $____________________________
Conversion Price: $____________________________
Shares of Common Stock Issuable: _____________________________
Amount of Debenture unconverted: $____________________________
Amount of Interest Converted: $____________________________
Conversion Price of Interest: $____________________________
Shares of Common Stock Issuable: ____________________________
Amount of Liquidated Damages: $____________________________
Conversion Price of Liquidated Damages: $____________________________
Shares of Common Stock Issuable: ____________________________
Total Number of shares of Common Stock to be issued:____________________________
EXHIBIT I-1
Please issue the shares of Common Stock in the following name and to the
following address:
Issue to: _____________________________
Authorized Signature: _____________________________
Name: _____________________________
Title: _____________________________
Phone #: _____________________________
Broker DTC Participant Code: _____________________________
Account Number*: _____________________________
* Note that receiving broker must initiate transaction on DWAC System.
2
EXHIBIT II
TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
_________, 2004
[Insert address]
Attention:
RE: POWER TECHNOLOGY, INC
Ladies and Gentlemen:
We are counsel to Power Technology, Inc, a Nevada corporation (the
"Company"), and have represented the Company in connection with that certain
Securities Purchase Agreement, dated as of August __, 2004 (the "Securities
Purchase Agreement"), entered into by and among the Company and the Buyers set
forth on Schedule I attached thereto (collectively the "Buyer") pursuant to
which the Company has agreed to sell to the Buyer up to Five Hundred Thousand
Dollars ($500,000) of secured convertible debentures, which shall be convertible
into shares (the "Conversion Shares") of the Company's common stock, no par
value per share (the "Common Stock"), in accordance with the terms of the
Securities Purchase Agreement. Pursuant to the Securities Purchase Agreement,
the Company also has entered into a Registration Rights Agreement, dated as of
August __, 2004, with the Buyer (the "Investor Registration Rights Agreement")
pursuant to which the Company agreed, among other things, to register the
Conversion Shares under the Securities Act of 1933, as amended (the "1933 Act").
In connection with the Company's obligations under the Securities Purchase
Agreement and the Registration Rights Agreement, on _______, 2004, the Company
filed a Registration Statement (File No. ___-_________) (the "Registration
Statement") with the Securities and Exchange Commission (the "SEC") relating to
the sale of the Conversion Shares.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at ____ P.M.
on __________, 2004 and we have no knowledge, after telephonic inquiry of a
member of the SEC's staff, that any stop order suspending its effectiveness has
been issued or that any proceedings for that purpose are pending before, or
threatened by, the SEC and the Conversion Shares are available for sale under
the 1933 Act pursuant to the Registration Statement.
EXHIBIT II-1
The Buyer has confirmed it shall comply with all securities laws and
regulations applicable to it including applicable prospectus delivery
requirements upon sale of the Conversion Shares.
Very truly yours,
[SECURITIES LAW FIRM]
By:
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EXHIBIT II-2
EXHIBIT III
TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
FORM OF OPINION
________________ 2004
VIA FACSIMILE AND REGULAR MAIL
[Insert address]
Attention: _______
RE: POWER TECHNOLOGY, INC
Ladies and Gentlemen:
We have acted as special counsel to Power Technology, Inc (the
"Company"), in connection with the registration of ___________shares (the
"Shares") of its common stock with the Securities and Exchange Commission (the
"SEC"). We have not acted as your counsel. This opinion is given at the request
and with the consent of the Company.
In rendering this opinion we have relied on the accuracy of the
Company's Registration Statement on Form SB-2, as amended (the "Registration
Statement"), filed by the Company with the SEC on _________ ___, 2004. The
Company filed the Registration Statement on behalf of certain selling
stockholders (the "Selling Stockholders"). This opinion relates solely to the
Selling Shareholders listed on Exhibit "A" hereto and number of Shares set forth
opposite such Selling Stockholders' names. The SEC declared the Registration
Statement effective on __________ ___, 2004.
We understand that the Selling Stockholders acquired the Shares in a
private offering exempt from registration under the Securities Act of 1933, as
amended. Information regarding the Shares to be sold by the Selling Shareholders
is contained under the heading "Selling Stockholders" in the Registration
Statement, which information is incorporated herein by reference. This opinion
does not relate to the issuance of the Shares to the Selling Stockholders. The
opinions set forth herein relate solely to the sale or transfer by the Selling
Stockholders pursuant to the Registration Statement under the Federal laws of
the United States of America. We do not express any opinion concerning any law
of any state or other jurisdiction.
In rendering this opinion we have relied upon the accuracy of the
foregoing statements.
Based on the foregoing, it is our opinion that the Shares have been
registered with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, and that _______ may remove the restrictive legends
contained on the Shares. This opinion relates solely to the number of Shares set
forth opposite the Selling Stockholders listed on Exhibit "A" hereto.
EXHIBIT III-1
This opinion is furnished to you specifically in connection with the
issuance of the Shares, and solely for your information and benefit. This letter
may not be relied upon by you in any other connection, and it may not be relied
upon by any other person or entity for any purpose without our prior written
consent. This opinion may not be assigned, quoted or used without our prior
written consent. The opinions set forth herein are rendered as of the date
hereof and we will not supplement this opinion with respect to changes in the
law or factual matters subsequent to the date hereof.
Very truly yours,
[SECURITIES LAW FIRM]
EXHIBIT III-2
EXHIBIT "A"
(LIST OF SELLING STOCKHOLDERS)
Name: No. of Shares:
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EXHIBIT A-1
