Exhibit 10.8
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
December 22, 2005
Pacific Stock Transfer Company
▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 "Buyers"). Pursuant to the
Securities Purchase Agreement, the Company shall sell to the Buyers, an the
Buyers shall purchase from the Company, convertible debentures (collectively,
the "Debentures") in the aggregate principal amount of One Million One Hundred
Thousand Dollars ($1,100,000), plus accrued interest, which are convertible into
shares of the Company's common stock, par value $0.001 per share (the "Common
Stock"), at the Buyers discretion. The Company has also issued to the Buyer
warrants to purchase up to 20,904,875 shares of Common Stock, at the Buyer's
discretion (the "Warrant"). These instructions relate to the following stock or
proposed stock issuances or transfers:
1. 145,587,520 Shares of Common Stock to be issued to the Buyers
upon conversion of the Debentures ("Conversion Shares") plus
the shares of Common Stock to be issued to the Buyers upon
conversion of accrued interest and liquidated damages into
Common Stock (the "Interest Shares").
2. Up to 20,904,875 shares of Common Stock to be issued to the
Buyers upon exercise of the Warrant (the "Warrant Shares").
This letter shall serve as our irrevocable authorization and direction
to Pacific Stock Transfer Company (the "Transfer Agent") to do the following:
1. Conversion Shares and Warrant Shares.
a. Instructions Applicable to Transfer Agent. With respect to the
Conversion Shares, Warrant Shares and the Interest Shares, the
Transfer Agent shall issue the Conversion Shares, Warrant
Shares and the Interest Shares to the Buyers from time to time
upon delivery to the Transfer Agent of a properly completed
and duly executed Conversion Notice (the "Conversion Notice")
in the form attached as Exhibit A to the Debentures, or a
properly completed and duly executed Exercise Notice (the
"Exercise Notice") in the form attached as Exhibit A to the
Warrant, delivered to the Transfer Agent by the Escrow Agent
on behalf of the Company. Upon receipt of a Conversion Notice
or an Exercise Notice, the Transfer Agent shall within three
(3) Trading Days thereafter (i) issue and surrender to a
common carrier for overnight delivery to the address as
specified in the Conversion Notice or the Exercise Notice, a
certificate, registered in the name of the Buyer or its
designees, for the number of shares of Common Stock to which
the Buyer shall be entitled as set forth in the Conversion
Notice or Exercise Notice or (ii) provided the Transfer Agent
is participating in The Depository Trust Company ("DTC") Fast
Automated Securities Transfer Program, upon the request of the
Buyers, credit such aggregate number of shares of Common Stock
to which the Buyers shall be entitled to the Buyer's or their
designees' 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.
For purposes hereof "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 the Escrow Agent.
b. The Company hereby confirms to the Transfer Agent and the
Buyer that certificates representing the Conversion Shares and
the Warrant Shares shall not bear any legend restricting
transfer 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 counsel to the
Company delivers (i) the Notice of Effectiveness set forth in
Exhibit I attached hereto and (ii) an opinion of counsel in
the form set forth in Exhibit II attached hereto, and that if
the Conversion Shares, Warrant Shares and the Interest Shares
are not registered for sale under the Securities Act of 1933,
as amended, then the certificates for the Conversion Shares,
Warrant Shares and Interest 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."
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The Company hereby confirms that in the event that a stop
order suspending the effectiveness of the Registration
Statement has been issued by the SEC or any proceedings for
that purpose are threatened by the SEC you will be notified by
us immediately of such order or notice. In addition, the
Company shall promptly inform Pacific Stock transfer of any
voluntary suspension of the effectiveness of the Registration
Statement and confirm the continued effectiveness of the
Registration Statement upon inquiry by Pacific Stock
Transfer,Company, Inc.
c. In the event that counsel to the Company fails or refuses to
render an opinion as required to issue the Conversion Shares
or the Warrant Shares in accordance with the preceding
paragraph (either with or without restrictive legends, as
applicable), then the Company irrevocably and expressly
authorizes and the Transfer Agent shall accept and be entitled
to rely on an opinion of Counsel from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.,
counsel to the Buyer, for the purposes of issuing the
Conversion Shares.
d. Instructions Applicable to Escrow Agent. Upon the Escrow
Agent's receipt of a properly completed Conversion Notice or
Exercise Notice and the Aggregate Exercise Price (as defined
in the Warrant), the Escrow Agent shall, within one (1)
Trading Day thereafter, send to the Transfer Agent the
Conversion Notice or Exercise Notice as the case may be, which
shall constitute an irrevocable instruction to the Transfer
Agent to process such Conversion Notice or Exercise Notice in
accordance with the terms of these instructions.
2. All Shares.
a. The Transfer Agent shall reserve for issuance to the Buyers a
minimum of 145,587,520 Conversion Shares and 20,904,875
Warrant Shares. All such shares shall remain in reserve with
the Transfer Agent until the Buyers provides the Transfer
Agent instructions that the shares or any part of them shall
be taken out of reserve and shall no longer be subject to the
terms of these instructions.
b. The Company hereby irrevocably appoints the Escrow Agent as a
duly authorized agent of the Company for the purposes of
authorizing the Transfer Agent to process issuances and
transfers specifically contemplated herein.
c. The Transfer Agent shall rely exclusively on the Conversion
Notice, the Escrow Notice, or the Exercise Notice and shall
have no liability for relying on such instructions. Any
Conversion Notice, Escrow Notice, or Exercise Notice delivered
hereunder shall constitute an irrevocable instruction to the
Transfer Agent to process such notice or notices in accordance
with the terms thereof. Such notice or notices may be
transmitted to the Transfer Agent by facsimile or any
commercially reasonable method.
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d. The Company hereby confirms to the Transfer Agent and the
Buyers that no instructions other than as contemplated herein
will be given to Transfer Agent by the Company with respect to
the matters referenced herein. The Company hereby authorizes
the Transfer Agent, and the Transfer Agent shall be obligated,
to disregard any contrary instructions received by or on
behalf of the Company.
Certain Notice Regarding the Escrow Agent. The Company and the Transfer
Agent hereby acknowledge that the Escrow Agent is general counsel to the Buyers,
a partner of the general partner of the Buyers and counsel to the Buyers in
connection with the transactions contemplated and referred herein. The Company
and the Transfer Agent agree that in the event of any dispute arising in
connection with this Agreement or otherwise in connection with any transaction
or agreement contemplated and referred herein, the Escrow Agent shall be
permitted to continue to represent the Buyers and neither the Company nor the
Transfer Agent will seek to disqualify such counsel.
The Company hereby agrees that it shall not replace the Transfer
Agent as the Company's transfer agent without the prior written consent of the
Buyers.
If for any reason, during the term of this Agreement, Pacific Stock
Transfer Company Inc., resigns as transfer agent, Pacific Stock Transfer Company
Inc., shall provide the Company and Investor with thirty (30) days prior written
notice. The Company shall have five (5) business days after the date of Pacific
Stock Transfer Company Inc.'s notice to obtain a suitable replacement transfer
agent which agent shall have agreed to serve as transfer agent and to be bound
by the terms and conditions of these Transfer Agent Instructions.
Notwithstanding the foregoing in the event the Company does not obtain a new
transfer agent within five (5) business days after giving notice to the
Investor, Pacific Stock Transfer Company Inc., shall be able to resign.
Nothwithstanding the aforementioned, the Transfer Agent is under no
obligation to continue and/or provide any issuance or transfer agent services as
contemplated by this agreement if the Company is not current in all its
outstanding payment obligations for services provided by the Transfer Agent
during the last thirty (30) day period, provided, however, the Buyer may pay for
the costs associated with any issuance of stock contemplated by the Convertible
Debenture and this Agreement, and the Transfer Agent shall than continue to
provide issuance and transfer agent services as stipulated by this Agreement
until the end of the thirty day notice period set forth above.
The Company herby confirms and the Transfer Agent acknowledges that
while any portion of the Debenture remains unpaid and unconverted the Company
and the Transfer Agent shall not, without the prior consent of the Buyers, (i)
issue any Common Stock or Preferred Stock without consideration or for a
consideration per share less than closing bid price determined immediately prior
to its issuance, (ii) issue any Preferred Stock, warrant, option, right,
contract, call, or other security or instrument granting the holder thereof the
right to acquire Common Stock without consideration or for a consideration per
share less than the closing bid price of the Common Stock determined immediately
prior to its issuance, (iii) issue any S-8 shares of the Company's Common Stock
other than those shares eligible to be issued pursuant to the Company's existing
Bonafide Employee Stock Option and S-8 plans which shall not exceed ten percent
(10%) of the outstanding shares of the Company's Common Stock. However, the
Transfer Agent may issue, without the prior consent of the Buyers, shares due
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, pursuant to his Employment Agreement, so that the total
shares issued to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall equal 7.5% of the Company's authorized
and issued shares. The Transfer Agent may also issue, without the prior consent
of the Buyers, shares due directors of the Company for services rendered as
directors.
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The Company and the Transfer Agent hereby acknowledge and confirm
that complying with the terms of this Agreement does not and shall not prohibit
the Transfer Agent from satisfying any and all fiduciary responsibilities and
duties it may owe to the Company.
The Company and the Transfer Agent acknowledge that the Buyers is
relying on the representations and covenants made by the Company and the
Transfer Agent hereunder and are a material inducement to the Buyers purchasing
convertible debentures under the Securities Purchase Agreement. The Company and
the Transfer Agent further acknowledge that without such representations and
covenants of the Company and the Transfer Agent made hereunder, the Buyers would
not purchase the Debentures.
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 Buyers 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 Buyers 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.
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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:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
PACIFIC STOCK TRANSFER COMPANY
By:
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Name:
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Title:
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SCHEDULE I
SCHEDULE OF BUYERS
Address/Facsimile
Name Signature Number of Buyers
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Cornell Capital Partners, LP By: Yorkville Advisors, LLC ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇
Its: Portfolio Manager
EXHIBIT I
TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
_________, 2005
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Attention:
RE: POWER TECHNOLOGY, INC.
Ladies and Gentlemen:
We are counsel to Power Technology, Inc., (the "Company"), and have
represented the Company in connection with that certain Securities Purchase
Agreement, dated as of December __, 2005 (the "Securities Purchase Agreement"),
entered into by and among the Company and the Buyers set forth on Schedule I
attached thereto (collectively the "Buyers") pursuant to which the Company has
agreed to sell to the Buyers up to $1,100,000 of secured convertible debentures,
which shall be convertible into shares (the "Conversion Shares") of the
Company's common stock, par value $0.001 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 December ___, 2005, with the Buyers (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 _______, 2005, 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 the Transfer Agent 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 __________, 2005 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 Buyers 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,
By:
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EXHIBIT II
TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
FORM OF OPINION
________________ 2005
VIA FACSIMILE AND REGULAR MAIL
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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 _________ ___, 2005. 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 __________ ___, 2005.
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.
This opinion is furnished to Transfer Agent specifically in connection
with the sale or transfer of the Shares, and solely for your information and
benefit. This letter may not be relied upon by Transfer Agent 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,
EXHIBIT A
(LIST OF SELLING STOCKHOLDERS)
Name: No. of Shares:
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