EXHIBIT 4.05
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
XXXXXXX ENERGY SYSTEMS OF AMERICA, INC.
[Transfer Agent Address]
Gentlemen:
Reference is made to that certain Secured Convertible Debenture
Purchase Agreement (the "Purchase Agreement"), dated as of March 26, 2002, among
XxXxxxx Energy Systems of America, Inc. , a Utah corporation (the "Company"),
and the purchasers named therein (the "Holders") pursuant to which the Company
is issuing to the Holders its 10% Secured Convertible Debentures (the
"Debentures") which shall be convertible into shares of the Company's common
stock, $.001 par value per share (the "Common Stock). The shares of Common Stock
issuable upon conversion of the Debentures is referred to herein as "Underlying
Shares."
The Company has agreed with the Holders that it will issue the
Underlying Shares (or reissue such Underlying Shares if issued at a time when
there was not an effective registration statement covering the resale thereof),
in either case, free of all restrictive and other legends when there is an
effective registration statement covering the resale of the Underlying Shares.
In furtherance of this instruction, upon the effectiveness of the
Registration Statement (as defined in the Purchase Agreement) we have instructed
our counsel to deliver to you their opinion letter in the form attached hereto
as Exhibit I to the effect that the Registration Statement has been declared
effective by the Securities and Exchange Commission and that Underlying Shares
are freely transferable by the Holders and accordingly may be issued (or
reissued, as applicable) and delivered to the Holders free of all restrictive
and other legends.
You need not require further letters from us or our counsel to effect
any future legend-free issuance of shares of Common Stock to the Holders as
contemplated by this letter and this letter shall serve as our standing opinion
and instructions with regard to this matter.
Please be advised that the Holders have relied upon this instruction
letter as an inducement to enter into the Purchase Agreement. Please execute
this letter in the space indicated to acknowledge your agreement to act in
accordance with these instructions.
Very truly yours,
XXXXXXX ENERGY SYSTEMS OF AMERICA, INC.
By: /S/ Xxxxxx X. XxXxxxx
-------------------------
Name: Xxxxxx X. XxXxxxx
Title: President/Chief Operating Officer
ACKNOWLEDGED AND AGREED:
-------------------------------
By:
Name:
Title:
2
Exhibit I
[Legal Opinion]
[Addressee]
[Address]
To Whom It May Concern:
We are counsel to XxXxxxx Energy Systems of America, Inc.. (the
"Company"). Reference is made to that certain Secured Convertible Debenture
Purchase Agreement (the "Purchase Agreement"), dated as of March 26, 2002, among
XxXxxxx Energy Systems of America, Inc. , a Utah corporation (the "Company"),
and the purchasers named therein (the "Holders") pursuant to which the Company
is issuing to the Holders its 10% Secured Convertible Debentures (the
"Debentures") which shall be convertible into shares of the Company's common
stock, $.001 par value per share (the "Common Stock). The shares of Common Stock
issuable upon conversion of the Debentures is referred to herein as "Underlying
Shares."
The Company has agreed with the Holders that it will issue the
Underlying Shares (or reissue such Underlying Shares if issued at a time when
there was not an effective registration statement covering the resale thereof),
in either case, free of all restrictive and other legends when there is an
effective.
The Registration Statement on Form S-3 (File No. 333-______________) of
the Company (the "Registration Statement") was declared effective at ___:____
__.M. Eastern Time on _____________, 2002.
This letter shall serve as our standing opinion to you that the
Underlying Shares are freely transferable by the Holders pursuant to the
Registration Statement and, accordingly, you may issue the Underlying Shares (or
reissue such Underlying Shares if issued at a time when there was not an
effective registration statement covering the resale thereof), in either case,
free of all restrictive and other legends.
You need not require further letters from us to effect any future
legend-free issuance of shares of Common Stock to the Holders as contemplated by
this letter and this letter shall serve as our standing opinion with regard to
this matter.
Very truly yours,
ACKNOWLEDGED AND AGREED:
--------------------------------
By:
Name:
Title:
3
