IRREVOCABLE TRANSFER AGENT INSTRUCTIONS November 3, 2005
Exhibit
99.7
November
3, 2005
Corporate
Stock Transfer, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Denver,
CO 80209
RE: BSI2000,
INC.
Ladies
and Gentlemen:
Reference
is made to that certain Securities Purchase Agreement (the “Securities
Purchase Agreement”)
of
even date herewith by and between BSI2000, Inc., a Delaware corporation
(the “Company”),
and
the Buyers set forth on Schedule I attached thereto (collectively
the
“Buyers”),
the
Securities Purchase Agreement dated June 17, 2005 by and between the Company
and
the Buyers, the Securities Purchase Agreement dated September 30, 2004 by
and
between the Company and the Buyers, and that certain Warrant of even date
herewith between the Company and the Buyers and the Warrant dated June 17,
2005
between the Company and the Buyers (collectively, the “Warrant”).
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 Dollars ($1,000,000), 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. These instructions relate to the following stock or
proposed stock issuances or transfers:
| 1. |
The
Company has agreed to issue to the Buyers up to 131,000,000 shares
of the
Company’s Common Stock 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. |
The
Company has agreed to issue to the Buyers up to 20,000,000 shares
(the
“Warrant
Shares”)
of the Company’s Common Stock upon exercise of the Warrant.
|
This
letter shall serve as our irrevocable authorization and direction to Corporate
Stock Transfer, Inc. (the “Transfer
Agent”)
to do
the following:
1
| 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 hereto as Exhibit I,
or a properly completed Exercise Notice in the form attached to
the
Warrant as Exhibit A thereto (the “Exercise
Notice”),
delivered on behalf of the Company to the Transfer Agent by ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq. (the “Escrow
Agent”).
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 Buyers or their designees, for the
number of
shares of Common Stock to which the Buyers shall be entitled as
set forth
in the Conversion Notice or Exercise Notice or (ii) provided Transfer
Agent are 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 Buyers’ or their designees’ balance
account with DTC through its Deposit Withdrawal At
Custodian (“DWAC”)
system provided the Buyers 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.
|
| b. |
The
Company hereby confirms to the Transfer Agent and the Buyers that
certificates representing the Conversion Shares and 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
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, 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.”
2
| 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 Buyers 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.
|
| d. |
Instructions
Applicable to Escrow Agent.
Upon the Escrow Agent’s receipt of a properly completed conversion notice
substantially in the form attached as an exhibit to the Debentures
or
instructions to exercise the Warrant, the Escrow Agent shall, within
one
(1) Trading Day thereafter, send to the Transfer Agent a Conversion
Notice
in the form attached hereto as Exhibit
I,
or an Exercise Notice, 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 the Conversion
Shares and 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
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
or
any commercially reasonable method.
|
| c. |
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.
3
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.
Any
attempt by Transfer Agent to resign as the Company’s transfer agent hereunder
shall not be effective until such time as the Company provides to the Transfer
Agent written notice that a suitable replacement has agreed to serve as transfer
agent and to be bound by the terms and conditions of these Irrevocable Transfer
Agent Instructions.
The
Company herby confirms and the Transfer Agent acknowledges that while any
portion of the Debenture
remains unpaid and unconverted with the exception Common Stock issuable to
Cornell Capital Partners, LP pursuant to the Standby Equity Distribution
Agreement, 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
its fair market value 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
such Common Stock’s fair market value determined immediately prior to its
issuance, (iii)
issue any S-8
shares of the Company’s Common Stock.
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.
[SIGNATURE
PAGE FOLLOWS; REMAINDER OF PAGE INTENTIONALLY BLANK]
4
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.
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COMPANY:
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BSI2000,
INC.
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇
▇▇▇▇▇▇
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Title: President
& CEO
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| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.
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By:
_______________________
Name:
_____________________
Title:
______________________
5
SCHEDULE
I
SCHEDULE
OF BUYERS
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Name
|
Signature
|
Address/Facsimile
Number
of Buyers
|
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Cornell
Capital Partners, LP
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By: Yorkville
Advisors, LLC
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▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
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Its: General
Partner
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Jersey
City, NJ 07303
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Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
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By: __________________
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||
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Name: ▇▇▇▇
▇▇▇▇▇▇
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||
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Its: Portfolio
Manager
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SCHEDULE
I-1
EXHIBIT
I
FORM
OF CONVERSION NOTICE
Reference
is made to the Securities Purchase Agreement (the “Securities
Purchase Agreement”)
between BSI2000, Inc., (the “Company”),
and
the Buyers set forth on Schedule I attached thereto dated November 3, 2005.
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 $0.001 per share (the “Common
Stock”),
of
the Company for the amount indicated below as of the date specified
below.
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Conversion
Date:
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Amount
to be converted:
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$
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Conversion
Price:
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$
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Shares
of Common Stock Issuable:
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Amount
of Debenture unconverted:
|
$
|
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Amount
of Interest Converted:
|
$
|
|
Conversion
Price of Interest:
|
$
|
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Shares
of Common Stock Issuable:
|
|
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Amount
of Liquidated Damages:
|
$
|
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Conversion
Price of Liquidated Damages:
|
$
|
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Shares
of Common Stock Issuable:
|
|
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Total
Number of shares of Common Stock to be issued:
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I-1
Please
issue the shares of Common Stock in the following name and to the following
address:
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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.
I-2
EXHIBIT
II
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
_________,
2005
____________________
____________________
Attention:
____________
RE: BSI2000,
INC.
Ladies
and Gentlemen:
We
are
counsel to BSI2000, Inc., (the “Company”),
and
have represented the Company in connection with that certain Securities Purchase
Agreement, dated as of November 3, 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 One
Million
Dollars ($1,000,000) 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 November ___, 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:
___________________________
II-1
EXHIBIT
III
FORM
OF OPINION
VIA
FACSIMILE AND REGULAR MAIL
____________________
____________________
____________________
Attention:
____________
RE: BSI2000,
INC.
Ladies
and Gentlemen:
We
have
acted as special counsel to BSI2000, 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.
III-1
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
issuance 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,
III-2
EXHIBIT
“A”
(LIST
OF SELLING STOCKHOLDERS)
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Name:
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No.
of Shares:
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A-1