EXHIBIT 10.2
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IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
March 30, 2007
RE: IVOICE TECHNOLOGIES, INC.
Ladies and Gentlemen:
Reference is made to that certain Convertible Debenture of even date
herewith issued by iVoice Technology, Inc., a New Jersey corporation (the
"Company") to Cornell Capital Partners, LP ("Cornell") in the aggregate
principal amount of Seven Hundred Thousand Dollars ($700,000) (the "Debenture"),
plus accrued interest, which is convertible into shares of the Company's common
stock, no par value per share (the "Common Stock"), at Cornell's discretion.
These instructions relate to the following stock or proposed stock issuances or
transfers:
1. The Company has agreed to issue to Cornell shares of the
Company's Common Stock upon conversion of the Debenture
("Conversion Shares") plus the shares of Common Stock to be
issued to Cornell 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 Cornell 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 Cornell. Upon receipt of a Conversion 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 Cornell or their designees, for the number of shares
of Common Stock to which Cornell 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 Cornell, credit such aggregate number of
shares of Common Stock to which Cornell shall be entitled
to Cornell's 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
Cornell 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 paragraph (either
with or without restrictive legends, as applicable), then
the Company irrevocably and expressly authorizes counsel
to Cornell 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.
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2. ALL SHARES.
a. The Transfer Agent shall reserve for issuance to Cornell
the Conversion Shares. All such shares shall remain in
reserve with the Transfer Agent until Cornell 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 Escrow Notice and shall have no
liability for relying on such instructions. Any
Conversion Notice or Escrow 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 Cornell
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 Cornell.
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.
Except for shares issued upon the conversion of convertible debt, Class
B Common Stock or the payment of legal fees to Lawrence A. Muenz, Esq. and/or
patent counsel, 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 Cornell
(i) issue any Common Stock or Preferred Stock without consideration or for a
consideration per share less than its closing bid price determined immediately
prior to its issuance, except for the issuance of an equity security pursuant to
an agreement to acquire another entity, the assets of another entity or merge
with another entity into the Company or a subsidiary of the Company whereby
(provided Cornell is given at least ten (10) days written notice of the same):
(A) the shareholders of the Company immediately prior to the consummation of the
contemplated transaction continue to hold a majority of the outstanding Common
Stock shares of the Company immediately subsequent to the consummation of the
transaction or (B) the Company holds a majority of the outstanding Common Stock
shares of the
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subsidiary Company immediately subsequent to the consummation of the transaction
(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 the
closing bid price of such Common Stock determined immediately prior to its
issuance, (iii) issue any shares of the Company's Common Stock registered under
the 1933 Act on Form S-8, except for shares issued pursuant to a Company stock
option or incentive plan.
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.
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, Cornell 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]
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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 TECHNOLOGY, INC.
By: __________________________________
Name: Jerome Mahoney
Title: President and Chief Executive Officer
CORNELL CAPITAL PARTNERS LP
_____________________________________
Name: David Gonzalez
Title:______________.
FIDELITY TRANSFER COMPANY
By: _____________________________
Name: _____________________________
Title:_____________________________
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SCHEDULE I
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SCHEDULE OF BUYERS
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ADDRESS/FACSIMILE
NAME SIGNATURE NUMBER OF BUYERS
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Cornell Capital Partners, LP By: Yorkville Advisors, LLC 101 Hudson Street - Suite 3700
Its: General Partner Jersey City, NJ 07303
Facsimile: (201) 985-8266
By: _______________________
Name: Mark Angelo
Its: Portfolio Manager
SCHEDULE I-1
EXHIBIT I
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TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
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FORM OF CONVERSION NOTICE
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Reference is made to that certain Convertible Debenture issued by
iVoice Technologies, Inc., a New Jersey corporation (the "Company") to Cornell
Capital Partners, LP ("Cornell") dated March ____ 2007 (the "Debenture"), plus
accrued interest, which is convertible into shares of the Company's 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.
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.
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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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_________, 2007
_________
Attention:
RE: IVOICE TECHNOLOGIES, INC.
Ladies and Gentlemen:
We are counsel to iVoice Technologies, Inc., (the "Company"), and have
represented the Company in connection with that certain Securities Purchase
Agreement, dated as of March __, 2007 (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 Seven Hundred Thousand Dollars ($700,000) 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 March ___, 2007, 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.
SCHEDULE 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:
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SCHEDULE II-2
EXHIBIT III
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TO IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
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FORM OF OPINION
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________________ 2007
VIA FACSIMILE AND REGULAR MAIL
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________________
Attention:
RE: IVOICE TECHNOLGIES, INC.
Ladies and Gentlemen:
We have acted as special counsel to iVoice Technologies, 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.
SCHEDULE 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 sale or transfer 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,
SCHEDULE III-2
EXHIBIT "A"
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(LIST OF SELLING STOCKHOLDERS)
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NAME: NO. OF SHARES:
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EXHIBIT A-1