EXHIBIT 10.26
TRANSFER AGENT INSTRUCTIONS
November 29, 2001
INTERSTATE TRANSFER COMPANY
0000 XX 000 XXXX
XXXXX 000
XXXX XXXX XXXX, XX 00000
ATTN: XXXXXX XXXXXXXXX
RE: OCEAN POWER CORPORATION
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement (the
"SECURITIES PURCHASE AGREEMENT"), dated as of November __, 2001, by and between
Ocean Power Corporation, a Delaware corporation (the "COMPANY"), and Cornell
Capital Partners, LP (the "BUYER"), pursuant to which the Company shall sell to
the Buyer up to Five Hundred Thousand Dollars ($500,000) of the Company's
convertible debentures, which shall be convertible into shares of the Company's
common stock, par value $0.01 per share (the "COMMON STOCK"). The shares of
Common Stock to be converted thereunder 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 upon
surrender to you of a properly completed and duly executed Conversion Notice, in
the form attached hereto as Exhibit I, and a Company Confirmation of Conversion
Notice delivered on behalf of the Company by Xxxxx Xxxxxxxx, Esq., in the form
attached hereto as Exhibit II.
Specifically, upon receipt by the Company or 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
Company Confirmation of Conversion Notice to the Buyer and to you, which
confirmation shall constitute an irrevocable instruction to you to process such
Conversion Notice in accordance with the terms of these instructions and the
Company Confirmation of Conversion Notice. Upon your receipt of a copy of the
executed Conversion Notice and a copy of the applicable Company Confirmation of
Conversion Notice, you shall use your best efforts to, within two (2) Trading
Days following the date of receipt of the Company Confirmation of 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 Company Confirmation of
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.)
The Company hereby confirms to you and the Buyer that certificates
representing the Conversion 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 III attached hereto and (ii) an
opinion of counsel in the form set forth in Exhibit IV attached hereto, and that
if the Conversion 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 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 Interstate Transfer Company as the Company's transfer agent without the
prior written consent of Cornell Capital Partners, LP.
The Company and Interstate Transfer Company acknowledge that the Buyer is
relying on the representations and covenants made by the Company and Interstate
Transfer Company hereunder and are a material inducement to the Buyer purchasing
convertible debentures under the Securities Purchase Agreement. The Company and
Interstate Transfer Company further acknowledge that without such
representations and covenants of the Company and Interstate Transfer Company
made hereunder, the Buyer would not enter into the Securities Purchase Agreement
and purchase convertible debentures pursuant thereto.
* * * * *
2
IN WITNESS WHEREOF, the parties have caused this letter agreement
regarding Transfer Agent Instructions to be duly executed and delivered as of
the date first written above.
THE COMPANY:
OCEAN POWER CORPORATION
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Portfolio Manager
/s/ Xxxxx Xxxxxxxx
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XXXXX XXXXXXXX, ESQ.
ACKNOWLEDGED AND AGREED:
INTERSTATE TRANSFER COMPANY
By:_________________________________
Name:_______________________________
Title:______________________________
3
EXHIBIT I
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TO TRANSFER AGENT INSTRUCTIONS
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FORM OF CONVERSION NOTICE
Reference is made to the Securities Purchase Agreement (the "SECURITIES
PURCHASE AGREEMENT") between Ocean Power Corporation (the "COMPANY") and Cornell
Capital Partners, LP, dated November __, 2001. In accordance with and pursuant
to the Securities Purchase Agreement, the undersigned hereby elects to convert
convertible debentures into shares of common stock, par value $0.01 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: $
------------------------------------
Please confirm the following information:
Conversion Price per share: $
------------------------------------
Number of shares of Common Stock to be issued:
--------------------------
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*:
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* NOTE THAT RECEIVING BROKER MUST INITIATE TRANSACTION ON DWAC SYSTEM.
EXHIBIT II
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TO TRANSFER AGENT INSTRUCTIONS
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FORM OF COMPANY CONFIRMATION OF CONVERSION NOTICE
Reference is made to the Securities Purchase Agreement (the "SECURITIES
PURCHASE AGREEMENT") between Ocean Power Corporation (the "COMPANY") and Cornell
Capital Partners, LP, dated November ___, 2001. In accordance with and pursuant
to the Securities Purchase Agreement, the undersigned hereby confirms and
authorizes the issuance of shares of common stock, par value $0.01 per share
(the "COMMON STOCK") of the Company, in connection with the Conversion Notice
(as defined in the Securities Purchase Agreement) attached hereto. Specifically,
the Company hereby confirms the following information:
Conversion Date:
------------------------------------
Amount to be converted:
------------------------------------
Conversion Price per share: $
------------------------------------
Number of shares of Common
Stock to be issued:
------------------------------------
The shares of Common Stock shall be issued in the name and to the address as set
forth in the applicable Conversion Notice.
Authorized Signature
------------------------------------
Name:
------------------------------
Title:
-----------------------------
Phone #:
----------------------------
Fax #:
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EXHIBIT III
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TO TRANSFER AGENT INSTRUCTIONS
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
________ __, 2001
___________________________
RE: OCEAN POWER CORPORATION
Ladies and Gentlemen:
We are counsel to Ocean Power Corporation, a Delaware corporation (the
"COMPANY"), and have represented the Company in connection with that certain
Securities Purchase Agreement, dated as of November __, 2001 (the "SECURITIES
PURCHASE AGREEMENT"), entered into by and among the Company and Cornell Capital
Partners, LP (the "BUYER") pursuant to which the Company has agreed to sell to
the Buyer up to Five Hundred Thousand Dollars ($500,000.00) of convertible
debentures, which shall be convertible into shares (the "CONVERSION SHARES") of
the Company's common stock, par value $0.01 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 November __, 2001, with the Buyer (the
"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 _______, 2001, 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 5:00 P.M.
on __________, 2001 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.
The Buyer have 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,
[Company Counsel]
By:____________________
EXHIBIT IV
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TO TRANSFER AGENT INSTRUCTIONS
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FORM OF OPINION
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____________ ___, 2001
VIA FACSIMILE AND REGULAR MAIL
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Re: TORQUE ENGINEERING CORPORATION
------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Ocean Power Corporation (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 S-___, as amended (the "REGISTRATION Statement"),
filed by the Company with the SEC on _________ ___, 2001. 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
__________ ___, 2001.
We understand that the Selling Stockholders acquired, or will acquire, 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.
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,
XXXXXXXXXXX & XXXXXXXX LLP
cc: Xx. Xxxxxx Xxxxxx
EXHIBIT "A"
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(LIST OF SELLING STOCKHOLDERS)
NAME: NO. OF SHARES:
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