EXHIBIT 99.10
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NATIONAL DATACOMPUTER, INC
SHARE TRANSFER AUTHORIZATION AGREEMENT
January 11, 2007
National Datacomputer, Inc.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
This Share Transfer Authorization Agreement (this "Agreement") dated as
the date first written above, is by and between National Datacomputer, Inc., a
Delaware corporation (the "Company") and the undersigned subscribing investor
(the "Investor"). Subject to the terms and conditions set forth below, the
Investor hereby authorizes the Company to take such steps as are necessary to
transfer to the Investor those number of shares of the Company's Common Stock,
$.08 par value per share received from CapitalBank AG via Xxxxx Industries, Inc.
as set forth below for the purchase price of $.0197764 per share for 20,226,157
shares (the "Shares").
In connection with the execution of this Agreement and to induce the
Company to effect the transfer of the Shares, the Investor hereby represents,
warrants and agrees as follows:
1. Subscription. Investor hereby irrevocably subscribes for and agrees
to purchase the Shares (the Shares being hereinafter collectively referred to as
the "Securities"). The obligations of the Investor in connection with the
purchase of the Securities shall be complete and binding upon his, her or its
execution of this Agreement and tender of payment to the Company of the Purchase
Price, subject only to the acceptance of the subscription by the Company. The
Investor either has executed and delivered or agrees to execute and deliver to
the Company (i) two copies of this Agreement, executed by the Investor and (ii)
any other documents reasonably requested by the Company in order to satisfy any
applicable securities laws. Upon acceptance by the Company of this subscription
the Company will deliver to the Investor one countersigned original of this
Agreement, executed by the Company.
2. Terms of Offering. The Investor has thoroughly read and understands
this Agreement.
3. Payments; Closings. The Investor shall pay the Purchase Price to the
Company in consideration of the purchase of the Securities, which amount shall
accompany this Agreement. The parties acknowledge that such payment will be
offset against the wire delivery of funds
previously provided by the Investor. Such funds will be returned to the
undersigned as soon as practicable, without interest, penalty, expense or
deduction if this Subscription Agreement is not accepted by the Company or the
offering is terminated pursuant to these terms or by the Company.
3. Accredited Investor Status.
_____ The Investor is not an Accredited Investor, as such term is
defined in Regulation D under the Securities Act of 1933, as amended (the
"Act").
_____ The Investor is an "Accredited Investor" as such term is defined
in Regulation D under the Act, for the following reason (PLEASE INITIAL ONE OR
MORE):
____ The Investor's individual income was in excess of $200,000 in
each of the past two years, or the Investor's joint income with
his or her spouse was in excess of $300,000 in each of those
years, and the Investor reasonably expects his or her income to
reach the same level in the current year.
____ The Investor's individual net worth or joint net worth with his
or her spouse exceeds $1,000,000.
____ The Investor is a trust, corporation or partnership with total
assets in excess of $5,000,000, not formed for the specific
purpose of acquiring the Securities, whose purchase of the
Securities will be directed by a person whose knowledge and
experience in financial and business matters is such that he or
she is capable of evaluating the merits and risks of the
investment in the Securities.
____ The Investor is an entity in which all of the equity owners are
Accredited Investors (as defined in Regulation D under the Act).
____ The Investor is none of the above and is not an Accredited
Investor.
4. Experience and Suitability. The Investor is qualified by his, her or
its knowledge and experience in financial and business matters to evaluate the
merits and risks of an investment in the Securities and to make an informed
decision relating thereto. The Investor has the financial capability for making
the investment and protecting his, her or its interests, and the Investor can
afford a complete loss of the investment. The investment is a suitable one for
the Investor.
5. No Need for Liquidity. The Investor is aware that he, she or it will
be unable to liquidate this investment readily in case of an emergency and that
the Securities being purchased may have to be held for an indefinite period of
time. The Investor's overall commitment to investments which are not readily
marketable is not excessive in view of the Investor's net worth and financial
circumstances and the purchase of the Securities will not cause such commitment
to become excessive. The Investor is able to bear the economic risk of this
investment.
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6. Opportunity to Investigate. Prior to the execution of this
Agreement, the Investor's advisors and the Investor have had the opportunity to
ask questions of, and receive answers from, representatives of the Company
concerning the terms and conditions of this transaction, and the finances,
operations, business and prospects of the Company, as well as to review all
prior SEC filings made by the Company. The Investor and the Investor's advisors
have also had the opportunity to obtain additional information necessary to
verify the accuracy of information furnished about the Company. Accordingly, the
Investor has independently evaluated the risks of purchasing the Securities and
the Investor is satisfied that it has received information with respect to all
matters which the Investor considers material to the Investor's decision to make
this investment.
7. Risk Factors. The Investor has carefully considered the potential
risks relating to the Company and a purchase of the Securities. The Investor
fully understands that the Company has incurred significant losses and has
limited working capital, and, as a result, the purchase of the Securities
involves a high degree of risk of loss of the Investor's entire investment. The
Investor is familiar with the general risks of investment in companies such as
the Company. The Investor understands that the Company is subject to all of such
risks, and to all of the risks inherent in any effort. Among others, the
Investor has considered each of the following risks regarding an investment in
the Company and the Securities:
(a). SPECULATIVE INVESTMENT. This is a speculative investment.
Many of the factors which may affect the Company are subject to change
or are not within the control of the Company, and the extent to which
such factors could adversely affect the value of the Securities is not
currently ascertainable. These factors include the limited operations
and revenue of the underlying business.
(b). CAPITAL NEEDS. As of the date hereof, the Company has
only limited capital with which to operate. The Company anticipates
using funds from the sale of the Shares and certain promissory notes
issued to officers and directors but which will automatically convert
to Shares upon approval by the Company's shareholders for the
Company's working capital purposes. The Company may require additional
equity capital within the next twelve months and there can be no
assurance that the Company will be able to raise sufficient funds or
that such funds will be available on terms and conditions which will
permit a reasonable rate of return to current investors in the
Company. When the Company requires additional future financing, there
is no assurance that such financing will be available on commercially
reasonable terms, if at all.
(c). NO BROKER-DEALER OR UNDERWRITER. The Securities are being
sold without the participation of a broker-dealer or underwriter.
Accordingly, any protection that would otherwise be available to
investors of the Securities because of the participation of a
broker-dealer or underwriter is not present in this offering.
(d). ABSENCE OF LIQUIDITY. The Shares are not registered under
the Act and are subject to resale limitations under Rule 144. The
Shares must therefore be held for an indefinite period of time unless
subsequently registered or unless an exemption from
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registration is available. Only a limited trading market for the
Company's Common Stock is in existence at this time and it may not
develop into an active trading market.
Accordingly, an investment in the Company cannot be expected
to be readily liquid.
(e). OTHER RISK FACTORS.. The Company is subject to a number
of risks which are described in the Company's SEC filings and
incorporated herein.
(f). CONTROL. Entities controlled by Xx. Xxxxxxx Xxxxxxxx will
hold in excess of 50% of the Common Stock now and are expected to
continue to own a substantial majority of the voting control of the
Company for the foreseeable future. As a result of this concentration
of ownership, these entities will have the ability to elect a majority
of the directors of the Company and determine all aspects of the
Company's operations and transactions, subject only to the fiduciary
duties imposed on such persons, and the voting rights available to the
holders of any securities issued by the Company under applicable law
and the Company's charter documents.
8. Representations and Warranties of the Company. The Company hereby
represents and warrants to you that each of the following is true and correct:
(a) ORGANIZATION AND STANDING. The Company is duly organized,
validly existing and in good standing under the laws of the State of
Delaware. The Company is qualified to do business in The Commonwealth
of Massachusetts and in any other jurisdiction where the failure to so
qualify may adversely affect its business. The Company has full power
and authority to own and operate its properties and assets, and to
carry on its business as presently conducted and as proposed to be
conducted, to execute and deliver this Agreement, to sell and issue
the Securities hereunder and to carry out and perform its obligations
hereunder.
(b) AUTHORIZATION. All action on the part of the Company
necessary for the authorization, execution, delivery and performance
of this Agreement by the Company, the authorization, sale, issuance
and delivery of the Shares, and the performance of all of the
Company's obligations hereunder has been or will have been duly taken
by the time of the Closing. This Agreement, when executed and
delivered by the Company, shall constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms.
The Shares, when issued in compliance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable and
will be free of any liens or encumbrances, other than restrictions
imposed by applicable securities laws.
(c) LITIGATION, ETC. There are no actions, suits or
proceedings or investigations pending against the Company or its
properties before any court or governmental agency (nor, to the
Company's knowledge, is there any reasonable basis therefor or threat
thereof).
(d) CONSENTS, ETC. No consent, approval, license or
authorization of any court or governmental authority, any party to a
material contract or any other person or entity is required in
connection with the valid execution and delivery of this Agreement, or
the
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offer, sale or issuance of the Securities or the consummation of any
other transaction contemplated hereby.
(e) OFFERING. Subject to the accuracy of your representations
in this Agreement, the offer, sale and issuance of the Securities to
be issued in conformity with the terms of this Agreement, constitute
transactions exempt from the registration requirements of Section 5 of
the Securities Act.
9. Investment Purpose.
(a) The Investor is acquiring the Securities for his, her or
its own account for the purpose of investment and not with a view to,
or for resale in connection with, the distribution thereof, nor with
any present intention of distributing or selling the Securities. The
Investor understands that the Securities Shares have not been
registered under the Act or the securities laws of any state, and
hereby agrees not to make any sale, transfer or other disposition of
any of the Securities unless either (i) the Securities first shall
have been registered under the Act and all applicable state securities
laws, or (ii) an exemption from such registration is available, and
the Company has received such documents and agreements from the
Investor and the transferee as the Company requests at such time. The
Securities will bear the legends set forth below.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, SUCH SECURITIES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED. COPIES OF THE AGREEMENTS COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE COMPANY AT THE PRINCIPAL OFFICES OF THE
COMPANY.
10. No Regulatory Approval of Merits. The Investor understands that
neither the Securities and Exchange Commission nor the commissioner or
department of securities or attorney general of any state has passed upon the
merits or qualifications of, nor recommended nor approved, the Securities. Any
representation to the contrary is a criminal offense.
11. Independent Advice. The Investor understands that the Investor is
urged to seek independent advice from the Investor's professional advisors
relating to the suitability for the Investor of an investment in the Company in
view of the Investor's overall financial needs and with respect to the legal and
tax implications of such an investment.
12. Indemnification. Each party hereto understands the meaning and
legal consequences of this Agreement and agrees to indemnify and hold harmless
the other party and
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its directors and officers from and against any and all loss, damage or
liability due to or arising out of a breach of any representation, warranty or
agreement of such party contained in this Agreement.
13. Authority and Noncontravention. The execution and performance
hereof violates no order, judgment, injunction, agreement or controlling
document to which the Investor is a party or by which the Investor is bound. If
an organization, (i) the Investor is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it has been formed;
(ii) the Investor has the right and power under its organizational instruments
to execute, deliver and perform its obligations hereunder; and (iii) this
Agreement has been duly authorized by all necessary action on the part of all
officers, directors, partners, stockholders and trustees and will not violate
any agreement to which the Investor is a party; and (iv) the individual
executing and delivering this Agreement has the requisite right, power, capacity
and authority to do so on behalf of the organization.
14. Duration. The Investor understands that the Investor may not
cancel, terminate or revoke this Agreement or any agreement made by the Investor
hereunder and that this Agreement shall survive the Investor's death or
disability and shall be binding upon the Investor's heirs, executors,
administrators, successors and assigns.
15. Further Assurances. Within ten (10) days after receipt of a written
request from the Company, the Investor agrees to provide such information and to
execute and deliver such documents as reasonably may be necessary to comply with
any and all laws and ordinances to which the Company is subject.
16. Miscellaneous.
(a) Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a
party may designate by notice hereunder, and shall be either (i)
delivered by hand, (ii) made by telex, telecopy or facsimile
transmission, (iii) sent by overnight courier, or (iv) sent by
registered mail, return receipt requested, postage prepaid.
If to Investor:
To the address designated in Section 17 hereof.
If to the Company:
To the address set forth at the top of this Agreement
All notices, requests, consents and other communications hereunder
shall be deemed to have been given either (i) if by hand, at the time
of the delivery thereof to the receiving party at the address of such
party set forth above, (ii) if made by telex, telecopy or facsimile
transmission, at the time that receipt thereof has been acknowledged by
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electronic confirmation or otherwise, (iii) if sent by overnight
courier, on the next business day following the day such notice is
delivered to the courier service, or (iv) if sent by registered mail,
on the 5th business day following the day such mailing is made.
(b) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersedes all prior oral or written
agreements and understandings relating to the subject matter hereof. No
statement, representation, warranty, covenant or agreement of any kind
not expressly set forth in this Agreement shall affect, or be used to
interpret, change or restrict, the express terms and provisions of this
Agreement.
(c) Modifications and Amendments. The terms and provisions of
this Agreement may be modified or amended only by written agreement
executed by the parties hereto.
(d) Waivers and Consents. The terms and provisions of this
Agreement may be waived, or consent for the departure therefrom
granted, only by written document executed by the party entitled to the
benefits of such terms or provisions. No such waiver or consent shall
be deemed to be or shall constitute a waiver or consent with respect to
any other terms or provisions of this Agreement, whether or not
similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall
not constitute a continuing waiver or consent.
(e) Assignment. This Agreement may not be transferred or
assigned without the prior written consent of the Company and any such
transfer or assignment shall be made only in accordance with applicable
laws and any such consent.
(f) Benefit. All statements, representations, warranties,
covenants and agreements in this Agreement shall be binding on the
parties hereto and shall inure to the benefit of the respective
successors and permitted assigns of each party hereto. Nothing in this
Agreement shall be construed to create any rights or obligations except
among the parties hereto, and no person or entity shall be regarded as
a third-party beneficiary of this Agreement.
(g) Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be construed in accordance
with and governed by the law of The Commonwealth of Massachusetts,
without giving effect to the conflict of law principles thereof.
(h) Jurisdiction and Service of Process. Any legal action or
proceeding with respect to this Agreement shall be brought in the
courts of The Commonwealth of Massachusetts or of the United States of
America for the District of Massachusetts. By execution and delivery of
this Agreement, each of the parties hereto accepts for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each of the parties hereto
irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing
of copies
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thereof by certified mail, postage prepaid, to the party at its address
set forth in Section 16(a) hereof.
(i) Severability. In the event that any court of competent
jurisdiction shall determine that any provision, or any portion
thereof, contained in this Agreement shall be unenforceable in any
respect, then such provision shall be deemed limited to the extent that
such court deems it enforceable, and as so limited shall remain in full
force and effect. In the event that such court shall deem any such
provision, or portion thereof, wholly unenforceable, the remaining
provisions of this Agreement shall nevertheless remain in full force
and effect.
(j) Interpretation. The parties hereto acknowledge and agree
that: (i) each party has reviewed the terms and provisions of this
Agreement; (ii) the rule of construction to the effect that any
ambiguities are resolved against the drafting party shall not be
employed in the interpretation of this Agreement; and (iii) the terms
and provisions of this Agreement shall be construed fairly as to the
parties hereto and not in favor of or against any party, regardless of
which party was generally responsible for the preparation of this
Agreement. Whenever used herein, the singular number shall include the
plural, the plural shall include the singular, and the use of any
gender shall include all persons.
(k) Headings and Captions. The headings and captions of the
various subdivisions of this Agreement are for convenience of reference
only and shall in no way modify, or affect the meaning or construction
of any of the terms or provisions hereof.
(l) Enforcement. Each of the parties hereto acknowledges and
agrees that the rights acquired by each party hereunder are unique and
that irreparable damage would occur in the event that any of the
provisions of this Agreement to be performed by the other party were
not performed in accordance with their specific terms or were otherwise
breached. Accordingly, in addition to any other remedy to which the
parties hereto are entitled at law or in equity, each party hereto
shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement by the other party and to enforce specifically the
terms and provisions hereof in any federal or state court to which the
parties have agreed hereunder to submit to jurisdiction.
(m) No Waiver of Rights, Powers and Remedies. No failure or
delay by a party hereto in exercising any right, power or remedy under
this Agreement, and no course of dealing between the parties hereto,
shall operate as a waiver of any such right, power or remedy of the
party. No single or partial exercise of any right, power or remedy
under this Agreement by a party hereto, nor any abandonment or
discontinuance of steps to enforce any such right, power or remedy,
shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The
election of any remedy by a party hereto shall not constitute a waiver
of the right of such party to pursue other available remedies. No
notice to or demand on a party not expressly required under this
Agreement shall entitle the party receiving such notice or demand to
any other or further notice or demand in similar or other circumstances
or
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constitute a waiver of the rights of the party giving such notice or
demand to any other or further action in any circumstances without such
notice or demand.
(n) Expenses. Each of the parties hereto shall pay its own
fees and expenses (including the fees of any attorneys, accountants,
appraisers or others engaged by such party) in connection with this
Agreement and the transactions contemplated hereby whether or not the
transactions contemplated hereby are consummated.
(o) No Broker or Finder. Each party hereto represents and
warrants to the other that no broker, finder, financial consultant or
similar agent("Finder"), has acted on its behalf in connection with
this Agreement or the transactions contemplated hereby so as to create
any liability on the part of the other. Each party hereto agrees to
indemnify and save the other harmless from any claim or demand for
commission or other compensation by any Finder claiming to have been
employed by or on behalf of such party and to bear the cost of legal
expenses incurred in defending against any such claim.
(p) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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PLEASE COMPLETE ALL OF THE REQUESTED INFORMATION BELOW)
17. I am purchasing the Securities as follows (PLEASE CHECK AS
APPROPRIATE):
______ individually ______ in trust
______ joint tenants ______ as a partnership
______ tenants in common ______ other:
Name:
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Telephone:
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Home Address:
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City: State:
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Zip:
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Business:
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Address:
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City: State:
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Zip: Business Telephone:
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Communications should be sent to: business or home address
Federal Income Tax I.D. No. (SSN for Individuals):
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18. UNDER PENALTIES OF PERJURY, I CERTIFY THAT: (a) the number shown
above is my correct Taxpayer Identification Number; and (b )I am not subject to
backup withholding either because I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or the IRS has notified me that I
am no longer subject to backup withholding.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed
instrument as of the 11h day of January, 2007.
(By:) (By:) Investor Signature Investor Signature
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Print Name Print Name
The foregoing subscription for Securities of National Datacomputer,
Inc. is hereby accepted.
NATIONAL DATACOMPUTER, INC.
By:
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