Exhibit 4.6
IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
January 7, 2004
American Registrar and Transfer Co.
000 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxxxx Xxx
RE: BIB HOLDINGS, LTD.
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement (the
"Securities Purchase Agreement"), dated the date hereof, by and between BIB
Holdings, Ltd., a Nevada corporation (the "Company"), and the Buyers set forth
on Schedule I attached thereto (collectively the "Buyer"), pursuant to which the
Company shall sell to the Buyer up to One Million Two Hundred Thousand Dollars
($1,200,000) of the Company's secured convertible debentures, which shall be
convertible into shares of the Company's common stock, par value $.001 per share
(the "Common Stock"). The shares of Common Stock to be converted thereunder plus
interest which may be converted into Common Stock and any Liquidated Damages,
which may be converted into Common Stock thereunder 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 in shares of the
Company's Common Stock, in the event the Buyer has elected to have the interest
of the Convertible Debenture, pursuant to Section 1.07 of the Convertible
Debenture, paid in Common Stock (the "Interest Shares"), or the Buyer has
elected to have Liquidated Damages (the "Liquidated Damages Shares"), pursuant
to Section 2(c) of the Investor Registration Rights Agreement dated the date
hereof paid in Common Stock. to the Buyer 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 Buyer or its designee, for the number of shares of Common Stock to which the
Buyer 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 Buyer shall be entitled
to the Buyer's or its designee's 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. ("Trading Day" shall mean any day on
which the Nasdaq Market is open for customary trading.)
The Company hereby confirms to you and the Buyer that certificates
representing the Conversion Shares, the Interest Shares, and/or the Liquidated
Damages 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, the
Interest Shares, and/or the Liquidated Damages 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 American Registrar and Transfer Co
("American Registrar") acknowledges that in the event Counsel to the Company
does not issue an opinion of counsel as required to issue the Conversion Shares
free of legend the Company authorizes and American Registrar will accept an
opinion of Counsel from Xxxxxx Xxxxxxxx LLP.
The Company hereby confirms to you and the Buyer 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 American Registrar as the Company's transfer agent without the prior
written consent of the Buyer and acknowledgement from the replacement transfer
agent that they have agreed to serve as transfer agent and to be bound by the
terms and conditions of these Transfer Agent Instructions.
2
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 American Registrar acknowledge that the Buyer is relying
on the representations and covenants made by the Company American Registrar
hereunder and are a material inducement to the Buyer purchasing convertible
debentures under the Securities Purchase Agreement. The Company and American
Registrar further acknowledge that without such representations and covenants of
the Company and American Registrar made hereunder, the Buyer would not enter
into the Securities Purchase Agreement and purchase convertible debentures
pursuant thereto.
The Company and American Registrar hereby acknowledge and confirm that
complying with the terms of this Agreement does not and shall not prohibit
American Registrar from satisfying any and all fiduciary responsibilities and
duties it may owe to the Company. .
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
Buyer 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 Buyer 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.
* * * * *
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:
BIB HOLDINGS, LTD.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx, Esq.
AMERICAN REGISTRAR AND TRANSFER CO.
By: /s/ Xxxxxxx Xxx
--------------------------------
Name: Xxxxxxx Xxx
Title:
4
SCHEDULE I
SCHEDULE OF BUYERS
Address/Facsimile
Name Signature Number of Buyer
----------------------------- -------------------------------- ---------------------------------
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: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Its: Portfolio Manager
EXHIBIT A-1
