EXHIBIT 99.9
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SHARE DELIVERY AGREEMENT
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THIS SHARE DELIVERY AGREEMENT is entered into this 23rd day of January,
2007 by and among Xxxxx Industries Limited, Inc. ("Xxxxx"), and A.S.T., Inc.,
("AST"), each of 0000 Xxxxxx Xxxx Xxxx, Xxxxx Xxxxxxxx 00000 and National
Datacomputer, Inc. ("NDI") of 000 Xxxxxxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000, as Purchaser Agent.
1. Recitals. The parties have previously entered into a letter
agreement dated November 28, 2006 (the "Interim Agreement") regarding (i) the
delivery to NDI of shares for which Xxxxx acted as bidder from Capital Bank AG
as described below (the "NDI Shares") and (ii) the sale of the Audit Business
(as defined in the Interim Agreement) from NDI to AST.
2. Definition of NDI Shares. NDI Shares shall mean (a) 4,150 shares of
NDI Preferred Stock (the "NDI Preferred Stock"), 22,301,900 shares of NDI Common
Stock (the "NDI Common Stock"), and all other rights of CapitalBank AG to any
unpaid dividends from NDI.
3. Delivery of NDI Shares. Xxxxx hereby delivers to NDI as Purchaser
Agent, and NDI agrees to accept as Purchaser Agent, all of the Common Shares,
together with all other rights of CapitalBank AG to any unpaid dividends in the
form of NDI Common Stock, in exchange for payment of the purchase price of
$250,000, and to accept the delivery of the Preferred Stock previously held by
Xxxxx in exchange for the sale of the Audit Business to AST.
4. Representations of NDI, Xxxxx and AST. Each of NDI, Xxxxx and AST
severally represent for each such corporation as follows: Each of NDI, Xxxxx and
AST is a corporation validly existing and in good standing under the laws of its
state of incorporation and has full corporate power, authority and legal right
to own its properties and to conduct the businesses in which it is now engaged.
Each of NDI, Xxxxx and AST has full corporate power and authority to execute and
deliver this Agreement, and any other agreements or instruments to be executed
in connection with the transactions contemplated hereby and thereby the
"Transaction Documents") and to perform all of its covenants and agreements
hereunder. The execution and delivery of the Transaction Documents by each of
NDI, Xxxxx and AST, the performance by each of NDI, Xxxxx and AST of their
covenants and agreements thereunder (including the delivery of the NDI Common
Stock and NDI Preferred Stock) and the consummation by each of NDI, Xxxxx and
AST of the transactions contemplated hereby have been duly authorized by all
necessary corporate action. The Transaction Documents constitute the valid and
legally binding obligations of each of NDI, Xxxxx and AST, enforceable against
them in
accordance with their terms. Neither the execution and delivery of the
Transaction Documents by each of NDI, Xxxxx and AST, nor the consummation of the
transactions contemplated hereby or thereby, nor the performance by each of NDI,
Xxxxx and AST of their covenants and agreements hereunder or thereunder, (i)
violates any provision of each such corporation's Certificate of Incorporation
or by-laws, (ii) violates any law, statute, ordinance, regulation, order,
judgment or decree of any court or other Governmental Authority (as defined
below) applicable to each of NDI Xxxxx and AST or (iii) conflicts with or will
result in any breach of any of the terms of or constitute a default under or
result in the termination of or the creation of any lien pursuant to the terms
of any material indenture, mortgage, real property lease, securities purchase
agreement, credit or loan agreement or other agreement or instrument to which
any of NDI , Xxxxx or AST is a party or by which any of NDI, Xxxxx or AST or any
of their assets is subject to or bound. For purposes of this Agreement,
"Governmental Authority" shall mean the collective reference to any court,
tribunal, government or governmental or administrative agency, authority or
instrumentality, federal, state or local, domestic or foreign.
5. Specific Performance. Except where otherwise expressly specified,
the rights and remedies granted to a party under this Agreement are cumulative
and in addition to, and not in lieu of, any other rights or remedies which the
party may possess at law or in equity. In addition to legal remedies to the
extent allowed under this Agreement or by law, in recognition of the unique
subject matter of this Agreement and of the potential insufficiency of remedies
at law, the parties hereto shall be entitled to equitable remedies with respect
to a breach of or default under this Agreement including without limitation,
specific performance and injunctive relief.
6. Further Assurances. At any time and from time to time after the
Closing Date, at the request of another party without further consideration,
each of NDI, Xxxxx and AST will execute and deliver such other instruments of
sale, transfer, conveyance, assignment and confirmation as may be reasonably
requested in order to more effectively transfer, convey and deliver to NDI and
to confirm NDI's title, as Purchaser Agent, to the NDI Shares and to effectuate
and consummate the transactions contemplated in this Agreement, the Transaction
Documents and all other agreements and documents ancillary hereto.
IN WITNESS WHEROF, the parties have executed this Agreement as of the
date first written above.
NATIONAL DATACOMPUTER, INC. A.S.T., INC.
By: _____________________________ By:___________________________
Xxxxxxx Xxxxxx, President , President
XXXXX INDUSTRIES, INC.
By: _____________________________
, President
