Exhibit 10.8
IRREVOCABLE
TRANSFER AGENT INSTRUCTIONS
July ___, 2002
Whitemark Homes Inc.
Transfer Agent Department
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
RE: Whitemark Homes Inc.
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement (the
"Securities Purchase Agreement"), dated as of July ___, 2002, by and between
Whitemark Homes Inc., a Colorado corporation (the "Company"), and the Buyers set
forth on Schedule I attached thereto (the "Buyer"), pursuant to which the
Company shall sell to the Buyer up to Five Hundred Fifty Thousand Dollars
($550,000) of the Company's convertible debentures, 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 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.)
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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
Whitemark Homes Inc., Transfer Agent Department, 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.
The Company and Whitemark Homes Inc. Transfer Agent Department acknowledges
that the Buyer is relying on the representations and covenants made by the
Company and Whitemark Homes Inc. Transfer Agent Department hereunder and are a
material inducement to the Buyer purchasing convertible debentures under the
Securities Purchase Agreement. The Company and Whitemark Homes Inc. Transfer
Agent Department further acknowledge that without such representations and
covenants of the Company made hereunder, the Buyer would not enter into the
Securities Purchase Agreement and purchase convertible debentures pursuant
thereto.
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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 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 these Irrevocable Transfer
Agent Instructions to be duly executed and delivered as of the date first
written above.
TRANSFER AGENT: COMPANY:
WHITEMARK HOMES INC.
By:___________________________
Name:_________________________
Title:__________________________ By:___________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By:___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
_______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
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EXHIBIT I
TO TRANSFER AGENT INSTRUCTIONS
FORM OF CONVERSION NOTICE
Reference is made to the Securities Purchase Agreement (the "Securities
Purchase Agreement") between Whitemark Homes Inc. (the "Company"), and the
Buyers set forth on Schedule I attached thereto dated July 1, 2002. In
accordance with and pursuant to the Securities Purchase 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 indicated below as of the date specified below.
Conversion Date: _____________________________________________________
Amount to be converted: $ ____________________________________________
Amount of Debenture unconverted: $ ___________________________________
Please confirm the following information:
Conversion Price per share: $ ________________________________________
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*: _____________________________________________________
* Note that receiving broker must initiate transaction on DWAC System.
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EXHIBIT II
TO TRANSFER AGENT INSTRUCTIONS
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
July __, 2002
Whitemark Homes Inc.
Transfer Agent Department
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
RE: Whitemark Homes Inc.
Ladies and Gentlemen:
We are counsel to Whitemark Homes Inc., a Colorado corporation (the
"Company"), and have represented the Company in connection with that certain
Securities Purchase Agreement, dated as of July ___, 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 Five Hundred Fifty
Thousand Dollars ($550,000) 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 Securities Purchase Agreement. Pursuant to the Securities Purchase
Agreement, the Company also has entered into a Investor Registration Rights
Agreement, dated as of July ___, 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 Investor Registration Rights
Agreement, on _______, 2002, 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
__________, 2002 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.
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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,
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
By: _________________________________
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EXHIBIT III
TO TRANSFER AGENT INSTRUCTIONS
FORM OF OPINION
____________ ___, 2002
VIA FACSIMILE AND REGULAR MAIL
Whitemark Homes Inc.
Transfer Agent Department
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
Re: Whitemark Homes Inc.
Ladies and Gentlemen:
We have acted as special counsel to Whitemark Homes 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 _________ ___, 2002. 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
__________ ___, 2002.
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.
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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 Whitemark Homes Inc. Transfer Agent Department 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,
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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EXHIBIT "A"
(LIST OF SELLING STOCKHOLDERS)
Name: No. of Shares:
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