THIS AMENDMENT IS DATED JANUARY 9, 2006 TO THE ORIGINAL AGREEMENT DATED AUGUST 12, 2005, BELOW. IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
Exhibit
10.8
THIS
AMENDMENT IS DATED JANUARY 9, 2006 TO THE ORIGINAL AGREEMENT DATED AUGUST 12,
2005, BELOW.
IRREVOCABLE
TRANSFER AGENT INSTRUCTIONS
August
12, 2005
Fidelity
Transfer
Xx.
Xxxxx
Xxxxxxxx
0000
Xxxxx Xxxx Xxxxxx #000
Xxxx
Xxxx
Xxxx, XX 00000
(000)
000-0000 x00
Fax
(000)
000-0000 or 000.000.0000
RE:
Hyperdynamics Corp.
Ladies
and Gentlemen:
Reference
is made to that certain Subscription
Agreement (the "Subscription Agreement") of even date herewith by and between
Hyperdynamics Corp., a Delaware corporation (the "Company"), and Dutchess
Private Equities Fund, II, LP (the "Holder"). Pursuant to the Subscription
Agreement, the Company shall sell to the Holder, an the Holder shall purchase
from the Company, convertible debentures (collectively, the "Debentures") in
the
aggregate principal amount of One Million Five Hundred Thousand Dollars
($1,500,000), 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
Holder's discretion. The Company has also issued to the Holder a warrant to
purchase up to 500,000 shares of Common Stock, at the Holder's discretion
("Warrant"). These instructions relate to the following stock or proposed stock
issuances or transfers:
1.
The
Company has agreed to issue to the Holder up to: that number of shares included
in the registration statement for the Debentures based on the Face Amount
divided by the Fixed Conversion Price, of the Company's Common Stock upon
conversion of the Debentures ("Conversion Shares") plus the shares of Common
Stock to be issued to the Holder upon conversion of accrued interest and
liquidated damages into Common Stock (the "Interest Shares").
2.
Up to
500,000 shares of Common Stock to be issued upon the exercise of the Warrant
("Warrant Shares").
This
letter shall serve as our irrevocable authorization and direction to Fidelity
Transfer (the "Transfer Agent") to do the following:
1.
Conversion Shares.
a.
Instructions Applicable to Transfer Agent. With respect to the Conversion Shares
and the Interest Shares, the Transfer Agent shall issue the Conversion Shares
and the Interest Shares to the Holder 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 hereto as Exhibit 1, delivered on
behalf of the Company to the Transfer Agent. Upon receipt of a Conversion
Notice, the Transfer Agent shall within three (3) Trading Days thereafter to
issue and surrender to a national recognized overnight carrier for overnight
delivery to the address as specified in the Conversion Notice, a certificate,
registered in the name of the Holder or their designees, for the number of
shares of Common Stock to which the Holder shall be entitled as set forth in
the
Conversion Notice For purposes hereof "Trading Day" shall mean any day on which
the US Stock Markets are open for customary trading. The Transfer agent shall
promptly give the Company notice of all new security issuances
hereunder.
b.
The
Company hereby confirms to the Transfer Agent and the Holder that certificates
representing the Conversion 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 2 attached hereto and (ii) an opinion of counsel in the
form set forth in Exhibit 3 attached hereto and (iii) board resolutions
authorizing the issuance of such shares until such time as the Maturity Date
of
the Debentures, as set forth in Exhibit 4 or (iv) the Share are deemed sellable
under an exemption from the Securities Act of 1993, as amended (the "Act")
when
accompanied with the proper paperwork for that exemption. The Shares shall
be
issued free-trading directly from Fidelity Transfer, as no sale is necessary
for
the Shares to be issued without legend free trading and all requirements for
delivery of a Prospectus pursuant to the Shares have been met and satisfied.
If
the Conversion Shares and the Interest Shares are not registered for sale under
the Act , as amended, then the certificates for the Conversion Shares and
Interest Shares shall bear the following legend substantially as follows:
"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."
c.
In the
event that counsel to the Company fails or refuses to render an opinion as
required to issue the Conversion Shares in accordance with the preceding
paragraph (either with or without restrictive legends, as applicable), then
the
Company irrevocably and expressly authorizes counsel to the Holder to render
such opinion. The Transfer Agent shall accept and be entitled to rely on such
opinion for the purposes of issuing the Conversion Shares and Interest Shares.
Any
costs
incurred by Holder for such opinion letter shall be added to the Face Amount
of
the Debenture.
2.
Warrant Shares.
a.
Instructions Applicable to Transfer Agent. With respect to the Warrant Shares,
the Transfer Agent shall issue the Warrant Shares to the Holder from time to
time upon delivery to the Transfer Agent of a properly completed and duly
executed notice of the Holder's election to exercise the Warrant (the "Exercise
Notice"), in the form attached hereto as Exhibit 5, specifying the number of
Warrant Shares to be issued, delivered on behalf of the Company to the Transfer
Agent. Upon receipt of an Exercise Notice, the Transfer Agent shall within
three
(3) Trading Days thereafter to issue and surrender to a nationally recognized
carrier for overnight delivery to the address as specified in the Exercise
Notice, a certificate, registered in the name of the Holder or its designees,
for the number of shares of Common Stock to which the Holder shall be entitled
as set forth in the Exercise Notice . For purposes hereof "Trading Day" shall
mean any day on which the US Markets are open for customary trading. The
Transfer agent shall promptly give the Company notice of all new issuances
hereunder.
The
Company hereby confirms to the Transfer Agent and Holder that certificates
representing 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 2 attached hereto and
(ii)
an
opinion of counsel in the form set forth in Exhibit 3 attached hereto, and
that
if the Warrant Shares are not registered for sale under the Securities Act
of
1933, as amended, then the certificates for the Warrant Shares shall bear the
restrictive legend referenced above in Section 1b.
b.
In the
event that counsel to the Company fails or refuses to render an opinion as
required to issue the Warrant Shares in accordance with the preceding paragraph
(either with or without restrictive legends, as applicable), then the Company
irrevocably and expressly authorizes counsel to the Holder to render such
opinion. The Transfer Agent shall accept and be entitled to rely on such opinion
for the purposes of issuing the Warrant Shares. Any
costs
incurred by Holder for such opinion letter shall be added to the Face Amount
of
the Debenture.
3.
All
Shares.
a.
The
Transfer Agent shall reserve for issuance to the Holder the Conversion Shares
and the Warrant Shares. All such shares shall remain in reserve with the
Transfer Agent until the Holder 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
Transfer Agent shall rely exclusively on the Conversion Notice or the Exercise
Notice and shall have no liability for relying on such instructions. Any
Conversion 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, email or any commercially reasonable method.
c.
The
Company hereby confirms to the Transfer Agent and the Holder 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.
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 Holder.
The
Company does hereby agree to keep up-to-date with all payments due to the
Transfer Agent during this period. In the event, the Company is not current
in
all its outstanding payment obligations for services provided by the Transfer
Agent, and the Transfer Agent refuses issuance of Common Shares to the Holder
due to the unpaid balance, the Company does hereby authorize Holder to pay
any
amounts due to Transfer Agent directly from the Closing of a Put (as defined
in
the Investment Agreement). The Transfer Agent hereby acknowledges that upon
receipt of confirmation of a Put Settlement which includes instructions of
payment toward the delinquent account, the Transfer Agent will issue Shares
in
accordance with Section 1(a) and 2(a).
The
Transfer Agent shall provide ten days' advance written notice to the Holder
before any attempt by the Transfer Agent to cease to provide any issuance or
transfer agent services as contemplated by this agreement shall become
effective. Upon notice that the Transfer Agent is resigning, the Company shall
have the obligation to retain a new transfer agent that will agree to be bound
by the terms of this agreement.
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 Holder is relying on the
representations and covenants made by the Company and the Transfer Agent
hereunder and are a material inducement to the Holder purchasing convertible
debentures under the Subscription Agreement and Debenture 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 Holder
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 Holder
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 Holder 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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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. Duly authorized to sign on behalf of:
COMPANY:
/s/Xxxx
Xxxxx
Xxxx
Xxxxx, CEO
Fidelity
Transfer
/s/Xxxxx
Xxxxxxxx
Xx.
Xxxxx
Xxxxxxxx
EXHIBIT
1
(INCLUDED
IN IRREVOCABLE TRANSFER AGENT AGREEMENT DATED AUGUST 12, 2005 BETWEEN THE
COMPANY AND THE INVESTOR)
EXHIBIT
2
(INCLUDED
IN IRREVOCABLE TRANSFER AGENT AGREEMENT DATED AUGUST 12, 2005 BETWEEN THE
COMPANY AND THE INVESTOR)
EXHIBIT
3
(INCLUDED
IN IRREVOCABLE TRANSFER AGENT AGREEMENT DATED AUGUST 12, 2005 BETWEEN THE
COMPANY AND THE INVESTOR)
EXHIBIT
4
(INCLUDED
IN IRREVOCABLE TRANSFER AGENT AGREEMENT DATED AUGUST 12, 2005 BETWEEN THE
COMPANY AND THE INVESTOR)
EXHIBIT
5
(INCLUDED
IN IRREVOCABLE TRANSFER AGENT AGREEMENT DATED AUGUST 12, 2005 BETWEEN THE
COMPANY AND THE INVESTOR)
