EXHIBIT 10.6
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
December 19, 2003
Transfer Online
227 S.W. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attention:
RE: ALLIANCE TOWERS, INC.
Ladies and Gentlemen:
Reference is made to that certain Standby Equity Distribution Agreement
(the "Standby Equity Distribution Agreement") dated as of December 19, 2003,
pursuant to which the Company shall issue to the Cornell Capital Partners, LP
(the "Holder") Four Hundred Ninety Thousand Dollars ($490,000) of the Company's
convertible debenture, which shall be convertible into shares of the Company's
common stock, par value $ 0.001 per share (the "Common Stock"). The shares of
Common Stock to be converted there under are referred to herein as, the
"Conversion Shares." This letter shall serve as our irrevocable authorization
and direction to you (provided that you are the transfer agent of the Company at
such time) to issue the Conversion Shares or shares of the Company's Common
Stock, in the event that the Buyer has elected to have the interest of the
Convertible Debenture, pursuant to Section 1.06 therein, paid in common stock,
to the Holder from time to time upon surrender to you of a properly completed
and duly executed Conversion Notice, in the form attached hereto as Exhibit I,
delivered on behalf of the Company by Xxxxx Xxxxxxxx, Esq.
Specifically, upon receipt by the Company or Xxxxx Xxxxxxxx, Esq. of a copy
of a Conversion Notice, Xxxxx Xxxxxxxx, Esq., on behalf of the Company, shall as
soon as practicable, but in no event later than one (1) Trading Day (as defined
below) after receipt of such Conversion Notice, send, via facsimile, a
Conversion Notice, which shall constitute an irrevocable instruction to you to
process such Conversion Notice in accordance with the terms of these
instructions. Upon your receipt of a copy of the executed Conversion Notice, you
shall use your best efforts to, within three (3) Trading Days following the date
of receipt of the Conversion Notice, (A) 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 Holder or its designee, for the
number of shares of Common Stock to which the Holder shall be entitled as set
forth in the Conversion Notice or (B) provided you are participating in The
Depository Trust Company ("DTC") Fast Automated Securities Transfer Program,
upon the request of the Buyer, credit such aggregate number of shares of Common
Stock to which the Holder shall be entitled to the Holder's or its designee's
balance account with DTC through its Deposit Withdrawal At Custodian ("DWAC")
system provided the Holder causes its bank or broker to initiate the DWAC
transaction. ("Trading Day" shall mean any day on which the Nasdaq Market is
open for customary trading.)
The Company hereby confirms to you and the Holder that certificates
representing the Conversion Shares shall not bear any legend restricting
transfer of the Conversion Shares thereby 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 the Company counsel 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 are not registered for sale under the Securities
Act of 1933, as amended, then the certificates for the Conversion 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."
The Company hereby confirms and Transfer Online acknowledges that in the
event Counsel to the Company does not issue an opinion of counsel as required to
issue the Conversion Shares and or the shares common stock issuable for the
interest, free of legend the Company authorizes and Transfer Online will accept
an opinion of Counsel from Xxxxxx Xxxxxxxx LLP.
The Company hereby confirms to you and the Holder that no instructions
other than as contemplated herein will be given to you by the Company with
respect to the Conversion Shares. The Company hereby agrees that it shall not
replace Transfer Online, as the Company's transfer agent without the prior
written consent of the Holder.
Any attempt by you to resign as transfer agent hereunder shall not be
effective until such time as the Company provides to you written notice that a
suitable replacement has agreed to serve as transfer agent and to be bound by
the terms and conditions of these Transfer Agent Instructions.
The Company and Transfer Online hereby acknowledge and confirm that
complying with the terms of this Agreement does not and shall not prohibit
Transfer Online from satisfying any and all fiduciary responsibilities and
duties it may owe to the Company.
The Company and Transfer Online, acknowledge that the Holder is relying on
the representations and covenants made by the Company hereunder and are a
material inducement to the Holder entering into the Standby Equity Distribution
Agreement. The Company and Transfer Online, further acknowledge that without
such representations and covenants of the Company and Transfer Online, made
hereunder, the Holder would not enter into the Standby Equity Distribution
Agreement.
2
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 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 Transfer Agent Instructions.
* * * * *
3
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:
ALLIANCE TOWERS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: President
/s/ Xxxxx Xxxxxxxx, Esq.
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Xxxxx Xxxxxxxx, Esq.
ACKNOWLEDGED AND AGREED:
TRANSFER ONLINE
By:
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Name:
------------------------------------
Title:
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4
SCHEDULE I
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SCHEDULE OF HOLDER
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ADDRESS/FACSIMILE
NAME SIGNATURE NUMBER OF BUYER
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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 X. Xxxxxx
Its: Portfolio Manager
SCHEDULE I-1
EXHIBIT I
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TO TRANSFER AGENT INSTRUCTIONS
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FORM OF CONVERSION NOTICE
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Reference is made to the Standby Equity Distribution Agreement (the
"Standby Equity Distribution Agreement") between Alliance Towers, Inc., (the
"Company"), and Cornell Capital Partners, LP, dated December ___, 2003. In
accordance with and pursuant to the Standby Equity Distribution 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 indicate below as of the date specified below.
Conversion Date: _______________________________
Amount to be converted: $________________________
Amount of Debenture unconverted: $________________________
Conversion Price per share: $________________________
Amount of Interest: $________________________
Conversion Price per share: $________________________
Shares of Common Stock Issuable: $________________________
Please confirm the following information:
Total Number of shares of Common Stock to be issued: ________________
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*: ____________________________________________
EXHIBIT I-1
* Note that receiving broker must initiate transaction on DWAC System.
2
EXHIBIT II
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TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
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FORM OF NOTICE OF EFFECTIVENESS
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OF REGISTRATION STATEMENT
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December __, 2003
Transfer Online
227 S.W. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attention:________________
RE: ALLIANCE TOWERS, INC.
Ladies and Gentlemen:
We are counsel to Alliance Towers, Inc., a Florida corporation (the
"Company"), and have represented the Company in connection with that certain
Standby Equity Distribution Agreement, dated as of December ___, 2003 (the
"Standby Equity Distribution Agreement"), entered into by and among the Company
and the Investor as set forth therein pursuant to which the Company has agreed
to issue to the Investor Four Hundred Ninety Thousand Dollars ($490,000) of
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 Standby Equity Distribution
Agreement. Pursuant to the Standby Equity Distribution Agreement, the Company
also has entered into a Registration Rights Agreement, dated as of December ___,
2003, with the Investor (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 Standby Equity Distribution
Agreement and the Registration Rights Agreement, on _______, 2003, 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 you 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 5:00 P.M. on
__________, 2003 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 Buyer 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
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TO TRANSFER AGENT INSTRUCTIONS
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FORM OF OPINION
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____________ ___, 2002
VIA FACSIMILE AND REGULAR MAIL
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Transfer Online
227 S.W. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attention:
RE: ALLIANCE TOWERS, INC.
Ladies and Gentlemen:
We have acted as special counsel to Alliance Towers, 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 _________ ___, 2003. 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
__________ ___, 2003.
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 A-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 Oxford Transfer Agent 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 you specifically in connection with the issuance of
the Shares, and solely for your information and benefit. This letter may not be
relied upon by you 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"
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(LIST OF SELLING STOCKHOLDERS)
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Name: No. of Shares:
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