EXHIBIT 10.33
IRREVOCABLE
TRANSFER AGENT INSTRUCTIONS
July ___, 2002
STOCK TRANS INC.
00 X. XXXXXXXXX XXXXXX
XXXXXXX, XXXXXXXXXXXX 19003
ATTENTION: XXX XXXXXXX
RE: DALECO RESOURCES CORPORATION
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement (the
"SECURITIES PURCHASE AGREEMENT"), dated as of July ___, 2002, by and between
Daleco Resources Corporation, a Nevada corporation (the "COMPANY"), and the
Buyers set forth on Schedule I attached thereto (the "BUYER"), pursuant to which
the Company shall sell to the Buyer up to Three Hundred Thousand Dollars
($300,000) 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,
delivered on behalf of the Company by Xxxxx Xxxxxxxx, Esq.
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
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.)
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 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 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 Stock Trans Inc. 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 either 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 Transfer Agent Instructions, or the
expiration of the forty-five (45) day period commencing on the date of your
notice of intended termination to the Company. Notwithstanding the foregoing to
the contrary should the Company breach its contract with StockTrans ("Breach"),
StockTrans may resign after having given Buyer not less than five (5) business
days written notice of such Breach and intent to resign ("Notice"). Should the
Breach be cured on or before the close of business on the fifth (5th) day after
the delivery of the Notice, StockTrans agrees that it will not resign without
the giving of a new Notice of a Breach or continuing Breach.
The Company and Stock Trans Inc. acknowledge that the Buyer is relying
on the representations and covenants made by the Company and Stock Trans Inc.,
hereunder and are a material inducement to the Buyer purchasing convertible
debentures under the Securities Purchase Agreement. The Company and Stock Trans
Inc., further acknowledge that without such representations and covenants of the
Company and Stock Trans Inc., 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 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 in a manner other than described in the
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fifth paragraph of this letter, 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 a decree for specific performance of the provisions of these Transfer
Agent Instructions.
The Company hereby indemnifies, defends and holds StockTrans, its
successors, assigns, employees, representatives and agents harmless from and
against any and all claims, damages, expenses and losses (to include reasonable
attorney's fees and settlements costs, if any) ("Damages") assessed, incurred or
sustained by StockTrans, its successors, assigns, employees, representatives and
agents with respect to or arising out of its compliance with this Irrevocable
Transfer Agent Instructions and any action taken or not takenby StockTrans
hereunder, and from and against Damages arising from any breach, alleged breach
or threatened breach hereof by the Company or its representatives or arising
from any failure or alleged failure by the Company or its representatives to
perform their duties hereunder, provided, however, that the indemnification
obligations under this paragraph shall not be applicable if the Damages are the
result of StockTrans' or its successors, assigns, employees, representatives
and/or agents gross negligence, willful misconduct, or bad faith.
StockTrans may consult legal counsel selected by it in the event of any
dispute or question as to any provision hereof or instruction received by it
hereunder, and shall be indemnified fully from any liability, except such
liability arising from its malfeasance or nonfeasance, by both the Company and
the Buyer for acting in accordance with the advice of counsel. Any and all
reasonable costs of such counsel shall be paid by the Company.
Any and all notices to be given by StockTrans hereunder regarding a
Breach or claim for indemnification shall be effective upon receipt and may be
hand delivered or sent by overnight courier or facsimile transmission. The
original of any Notice sent by facsimile transmission shall be delivered to the
addressee by close of business the first business day following the date of the
facsimile transmission.
All notices shall be sent to the addressee at the address set forth
under their name on the signature page. Any party may change its address for
notice by giving the other parties hereto not less than ten (10) days written
notice.
* * * * *
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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.
COMPANY:
DALECO RESOURCES CORPORATION
By:
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Name: XXXX X. XXXXXXXXX
---------------------------------------
Title: PRESIDENT
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000 XXXXX XXXXXX XXXXXX
XXXX XXXXXXX, XX 00000
FAX NO: 000-000-0000
CORNELL CAPITAL PARTNERS, LP
BY: YORKVILLE ADVISORS, LLC
ITS: GENERAL PARTNER
By:
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Portfolio Manager
000 XXXXXX XXXXXX, XXXXX 0000
XXXXXX XXXX, XX 00000
FAX NO: 000-000-0000
-------------------------------
XXXXX XXXXXXXX, ESQ.
XXXXXX XXXXXXXX, LLP 0000 XXXXXXXXXX
XXXXXX, XXXX 0 XXXXX, XX 00000 FAX
NO: 000-000-0000
ACKNOWLEDGED AND AGREED:
STOCKTRANS, INC.
By:
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Name:
---------------------------------------
Title:
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EXHIBIT I
TO TRANSFER AGENT INSTRUCTIONS
FORM OF CONVERSION NOTICE
Reference is made to the Securities Purchase Agreement (the "SECURITIES
PURCHASE AGREEMENT") between Daleco Resources Corporation (the "COMPANY"), and
the Buyers set forth on Schedule I thereto, dated July ___, 2002. 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:
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Amount to be converted: $
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Amount of Debenture unconverted: $
-----------------------------------
Please confirm the following information:
Conversion Price per share: $
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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:
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Authorized Signature:
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Name:
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Title:
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Phone #:
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Broker DTC Participant Code:
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Account Number*:
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* NOTE THAT RECEIVING BROKER MUST INITIATE TRANSACTION ON DWAC SYSTEM.
EXHIBIT II
TO TRANSFER AGENT INSTRUCTIONS
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
July __, 2002
Stock Trans Inc.
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
ATTENTION: XXX XXXXXXX
RE: DALECO RESOURCES CORPORATION
Ladies and Gentlemen:
We are counsel to Daleco Resources Corporation, a Nevada corporation
(the "Company"), and have represented the Company in connection with that
certain Securities Purchase Agreement, dated as of July ___, 2002 (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 Three
Hundred Thousand Dollars ($300,000) 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 June ___, 2002, 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 _______, 2002, 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 __________, 2002 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 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,
XXXXXXXXXXX & XXXXXXXX LLP
By:
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EXHIBIT III
TO TRANSFER AGENT INSTRUCTIONS
FORM OF OPINION
____________ ___, 2002
VIA FACSIMILE AND REGULAR MAIL
Stock Trans Inc.
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Re: DALECO RESOURCES CORPORATION
Ladies and Gentlemen:
We have acted as special counsel to Daleco Resources 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 SB-2, as amended (the "REGISTRATION STATEMENT"),
filed by the Company with the SEC on _________ ___, 2002. 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
__________ ___, 2002.
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 Stock Trans Inc., 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
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EXHIBIT "A"
(LIST OF SELLING STOCKHOLDERS)
NAME: NO. OF SHARES:
