EXHIBIT 10.7
------------
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
May 25, 2006
Fidelity Transfer Company
0000 X. Xxxx Xxxxxx - Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
RE: IVOICE, INC.
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement (the
"Securities Purchase Agreement") of even date herewith by and between IVoice,
Inc., a New Jersey 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 Eight Million Five
Hundred Forty Seven Thousand Eight Hundred Eighty Six Dollars ($8,547,886), plus
accrued interest, which are convertible into shares of the Company's Class A
common stock, no par value 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
1,092,178,413 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").
This letter shall serve as our irrevocable authorization and direction to
Fidelity Transfer Company (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 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, delivered on behalf of the
Company to the Transfer Agent by Xxxxx Xxxxxxxx, 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, 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 (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
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 and the Interest Shares are
not registered for sale under the Securities Act of 1933,
as amended, then the certificates for the Conversion 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."
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
2
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, 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, which
shall constitute an irrevocable instruction to the Transfer
Agent to process such Conversion 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. 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 and shall have no liability for relying on such
instructions. Any Conversion 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.
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.
3
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, 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.
Notwithstanding anything to the contrary, the Company may issue Common Stock
issuable pursuant to the Company's obligations upon the conversion of stock
options, convertible debt or Class B Common Stock or the payment of legal fees
Xxxxxxxx X. Xxxxx, Esq.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT 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.
COMPANY:
IVOICE, INC.
By: _________________________
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
_____________________________
Xxxxx Xxxxxxxx, Esq.
FIDELITY TRANSFER COMPANY
By: _________________________
Name: _______________________
Title: ______________________
5
SCHEDULE I
----------
SCHEDULE OF BUYERS
------------------
---------------------------------- ---------------------------------- ----------------------------------
ADDRESS/FACSIMILE
NAME SIGNATURE NUMBER OF BUYERS
---------------------------------- ---------------------------------- ----------------------------------
Cornell Capital Partners, LP By: Yorkville Advisors, LLC 000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxx: Xxxxxxx Xxxxxxx Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
By: ____________________________
Name: Xxxx Xxxxxx
Its: Portfolio Manager
SCHEDULE I-1
EXHIBIT I
---------
TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
------------------------------------------
FORM OF CONVERSION NOTICE
-------------------------
Reference is made to the Securities Purchase Agreement (the "Securities
Purchase Agreement") between IVoice, Inc., (the "Company"), and the Buyers set
forth on Schedule I attached thereto dated May ____ 2006. In accordance with and
pursuant to the Securities Purchase Agreement, the undersigned hereby elects to
convert convertible debentures into shares of common stock, no par value per
share (the "Common Stock"), of the Company for the amount indicated below as of
the date specified below.
Conversion Date: _________________________
Amount to be converted: $ _________________________
Conversion Price: $ _________________________
Shares of Common Stock Issuable: _________________________
Amount of Debenture unconverted: $ _________________________
Amount of Interest Converted: $ _________________________
Conversion Price of Interest: $ _________________________
Shares of Common Stock Issuable: _________________________
Amount of Liquidated Damages: $ _________________________
Conversion Price of Liquidated Damages: $ _________________________
Shares of Common Stock Issuable: _________________________
Total Number of shares of Common Stock to be issued: _________________________
EXHIBIT I-1
Please issue the shares of Common Stock in the following name and to the
following address:
Issue to: _________________________
Authorized Signature: _________________________
Name: _________________________
Title: _________________________
Phone #: _________________________
Broker DTC Participant Code: _________________________
Account Number*: _________________________
* NOTE THAT RECEIVING BROKER MUST INITIATE TRANSACTION ON DWAC SYSTEM.
2
EXHIBIT II
----------
TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
------------------------------------------
FORM OF NOTICE OF EFFECTIVENESS
-------------------------------
OF REGISTRATION STATEMENT
-------------------------
_________, 2006
_________
Attention:
RE: IVOICE, INC.
Ladies and Gentlemen:
We are counsel to IVoice, Inc., (the "Company"), and have represented
the Company in connection with that certain Securities Purchase Agreement, dated
as of May __, 2006 (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 Eight Million Five Hundred Forty Seven Thousand Eight Hundred
Eighty Six Dollars ($8,547,886) of secured convertible debentures, which shall
be convertible into shares (the "Conversion Shares") of the Company's Class A
common stock, no par value 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 May ___, 2006, 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 _______, 2006, 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 __________, 2006 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.
EXHIBIT II-1
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: _________________________
EXHIBIT II-2
EXHIBIT III
-----------
TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
------------------------------------------
FORM OF OPINION
---------------
________________ 2006
VIA FACSIMILE AND REGULAR MAIL
------------------------------
_________
Attention:
RE: IVOICE, INC.
Ladies and Gentlemen:
We have acted as special counsel to IVoice, 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 _________ ___, 2006. 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 __________ ___, 2006.
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.
EXHIBIT 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,
EXHIBIT III-2
EXHIBIT "A"
-----------
(LIST OF SELLING STOCKHOLDERS)
------------------------------
NAME: NO. OF SHARES:
----------------------------------------------------- -------------------------
EXHIBIT A-1
