EXHIBIT 10.23
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IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
November ___, 2002
American Stock Transfer & Trust Company
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▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: ADVANCED COMMUNICATIONS TECHNOLOGIES, INC.
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement (the
"SECURITIES PURCHASE AGREEMENT"), dated as of November ___, 2002, by and between
Advanced Communications Technologies, Inc., a Florida 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 Two Hundred Fifty Thousand Dollars ($250,000) of the Company's
secured convertible debentures, which shall be convertible into shares of the
Company's common stock, no par value per share (the "COMMON STOCK"). The shares
of Common Stock to be converted 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 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
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Specifically, upon receipt by the Company or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. of a
copy of a Conversion Notice, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 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 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 Stock Transfer & Trust Company as the Company's transfer agent
without the prior written consent of the Buyer.
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.
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.
* * * * *
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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:
ADVANCED COMMUNICATIONS TECHNOLOGIES,
INC.
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Financial Officer
BUYER:
CORNELL CAPITAL PARTNERS, LP
BY: YORKVILLE ADVISORS, LLC
ITS: GENERAL PARTNER
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Portfolio Manager
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
ACKNOWLEDGED AND AGREED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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Name:
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Title:
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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 Securities Purchase Agreement (the "Securities
Purchase Agreement") between Advanced Communications Technologies, Inc. (the
"Company"), and the Buyers identified on Schedule I thereto, dated November ___,
2002. In accordance with and pursuant to the Securities Purchase Agreement, the
undersigned hereby elects to convert secured 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:
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Amount to be converted: $
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Amount of Debenture unconverted: $
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Please confirm the following information:
Conversion Price per share: $
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Number of shares of Common Stock to be issued:
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Please issue the shares of Common Stock in the following name and to the
following address:
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: ------------------------------------------------
Account Number*:
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* NOTE THAT RECEIVING BROKER MUST INITIATE TRANSACTION ON DWAC SYSTEM.
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EXHIBIT II
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TO TRANSFER AGENT INSTRUCTIONS
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FORM OF NOTICE OF EFFECTIVENESS
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OF REGISTRATION STATEMENT
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November __, 2002
American Stock Transfer & Trust Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: ADVANCED COMMUNICATIONS TECHNOLOGIES, INC.
Ladies and Gentlemen:
We are counsel to Advanced Communications Technologies, Inc., a Florida
corporation (the "COMPANY"), and have represented the Company in connection with
that certain Securities Purchase Agreement, dated as of November ___, 2002 (the
"SECURITIES PURCHASE AGREEMENT"), entered into by and among the Company and the
Buyers set forth on Schedule I attached thereto (collectively the "BUYER")
pursuant to which the Company has agreed to sell to the Buyer up to Two Hundred
Fifty Thousand Dollars ($250,000) of secured convertible debentures, which shall
be convertible into shares (the "CONVERSION SHARES") of the Company's 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 November ___, 2002, with the Buyer (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 _______, 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.
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.
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Very truly yours,
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
By:
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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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American Stock Transfer & Trust Company
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▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: ADVANCED COMMUNICATIONS TECHNOLOGIES, INC.
Ladies and Gentlemen:
We have acted as special counsel to Advanced Communications 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 _________ ___, 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.
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 American Stock Transfer & Trust Company 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.
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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,
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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EXHIBIT "A"
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(LIST OF SELLING STOCKHOLDERS)
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NAME: NO. OF SHARES:
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