Series C Debenture
CLAIM ASSIGNMENT AGREEMENT
To: The holder of a Series C Debenture set forth below
From: D8 Acquisition Corp.
13001 University Avenue
Clive IA 50325
Tel: (515) 273-1300
Fax: (515) 273-1399
We are pleased to confirm the following transaction subject to the terms and conditions attached
as Exhibit A which are incorporated herein by reference:
Assignment Date: Effective as of the date signed by the Assignor, as indicated
Debtors: Domin-8 Enterprise Solutions, Inc., Domin-8 Enterprise
Solutions, LLC, New-Paradigm Insurance Solutions, Inc.,
ACSoftware, Inc., PMAS, LLC, and Spectra Computer Services
Limited, are Debtors and Debtors-in-Possession (“Debtors”) in
the Chapter 11 reorganization case, Case No. 09-35793 (the
“Case”), in the United States Bankruptcy Court for the Southern
District of Ohio, Western Division (the “Bankruptcy Court”).
Assigned Series C The Series C Senior Subordinated Secured Convertible
Debenture: Debenture (“Assigned Series C Debenture”) issued or guaranteed
by Debtors and owned by the Assignor in the principal amount
indicated below (as further defined on Exhibit A, the “Claim”).
Consideration: If Assignee consummates the purchase of Debtors’ assets, a total
of 152 shares of Common Stock of Assignee for each $10,000
principal amount of the Assigned Series C Debenture (pro rated
for amounts greater or lesser than $10,000, and rounded down to
the nearest whole share) (the shares of Common Stock of
Assignee issuable with respect to the Assigned Series C
Debenture are referred to as the “D8AC Common Shares”).
If Assignee does not consummate the purchase of Debtors’
assets, Assignee will assign or pay over to Assignor whatever
stock, payments or other consideration (if any) the Assignee
receives with respect to the Assigned Series C Debenture from
the Debtors or the successful asset purchaser (the “Alternative
Support: Assignor agrees to support Assignee’s proposed purchase of the
assets of Debtors on such terms as Assignee may determine, and
to not raise any objection (or support directly or indirectly any
objection) to such purchase.
Binding Effect: It is the intent of the parties to be fully bound by this Agreement.
This Agreement or the Evidence of Transfer of Claim may be
filed in the bankruptcy court as evidence of transfer of the Claim.
Expiration: Assignee shall have no obligation to Assignor, unless Assignor
executes and returns this Agreement by 5:00 p.m. prevailing
central time on November 4, 2009 (unless the expiration period
is extended or waived by Assignee).
[Continued on next page]
Please sign and return this executed Assignment by fax to (515) 273-1399 or by PDF to domin-
D8 ACQUISITION CORP.
ACCEPTED AND AGREED
Capacity (if applicable):
Address (Include Zip Code):
Telephone Number (Include Area Code):
Assigned Series C Debenture Outstanding Principal Amount:$_________________
Proof of Claim:
[__] YES, the Assignor has filed a Proof Claim with the Bankruptcy Court with
respect to the Series C Debenture.
[__] NO, the Assignor has not filed a Proof Claim with the Bankruptcy Court with
respect to the Series C Debenture.
Terms and Conditions
1. Assignment. By this Agreement, Assignor and Assignor’s successors and
assigns, for good and valuable consideration, the sufficiency of which is hereby acknowledged
by Assignor, absolutely and unconditionally transfers and assigns unto Assignee and Assignee’s
successors and assigns, all rights, title and interest in and to the Assigned Series C Debenture and
the Claim of Assignor against Debtors with respect thereto. Assignor agrees that the original
executed Series C Debenture will be delivered to Assignee within three business days.
2. Claim. The “Claim” is defined as, without limitation, all of Assignor’s right, title
and interest in the Assigned Series C Debenture, and any Proofs of Claim (defined below) if
filed, and the claims listed on any Debtor Schedule filed in the Case if no proofs of claim have
been filed; all agreements, instruments and other documents evidencing, or referred to in, such
Assigned Series C Debenture, claim(s) or the Proofs of Claim; all cure amounts paid by Debtor
in connection with the assumption of contracts related to such claims(s) or the Proofs of Claim;
all rights to receive principal, interest, all rights of as a secured creditor, fees, expenses, damages,
penalties and other amounts in respect of or in connection with any of the foregoing; and all
other claims, causes of action and voting and other rights arising under or relating to any of the
foregoing, including, without limitation, all of Assignor’s rights to receive cash, securities,
instruments and/or other property or distributions issued in connection with any of the foregoing
or the Case arising out of or related to the Series C Debenture.
3. Proof of Claim. If a Proof of Claim has been filed with respect to the Claim,
Assignor represents and warrants that such Proof of Claim has been duly and timely filed in the
Case with respect to the Assigned Series C Debenture in at least the outstanding principal
amount of the Assigned Series C Debenture. A true and complete copy of each such proof of
claim will be promptly provided by Assignor to Assignee within three business days
(collectively, the “Proof of Claim”). Assignor represents that the Proof of Claim has not been
revoked, withdrawn, or otherwise retracted or modified and no right thereunder has been waived,
and all statements in such Proof of Claim are true and correct as of the date hereof. Assignee
shall be deemed to be the owner of the Claim in the amount set forth in such Proof of Claim,
subject to the terms of this Assignment, and shall be entitled to take all steps necessary to
identify itself as the owner of the Proof of Claim in the records of the Bankruptcy Court.
4. Representations, Warranties and Covenants Regarding the Assigned Series C
Debenture. Assignor represents, warrants and covenants that:
(a) Assignor owns and has and is hereby assigning to Assignee good and sole
legal and beneficial title to the Claim free and clear of any and all liens, security interests,
encumbrances or claims of any kind or nature whatsoever.
(b) Assignor has made no prior assignment, sale, participation, grant,
conveyance, or other transfer of, and has not entered into any other agreement to assign, sell,
participate, grant, convey or otherwise transfer, in whole or in part, any portion of its right, title,
or interests in the Assigned Series C Debenture, or its voting rights with respect thereto.
(c) The Claim is a valid, liquidated and undisputed and non-contingent claim
in at least the principal amount of the Assigned Series C Debenture.
(d) The Claim is a valid, enforceable claim against the Debtors.
(e) No consent, approval, filing or corporate, partnership or other action is
required as a condition to, or otherwise in connection with, the execution, delivery and
performance of this Assignment by Assignor.
(f) This Assignment has been duly authorized, executed and delivered by
Assignor and Assignor has the requisite power and authority to execute, deliver and perform this
(g) This Assignment constitutes the valid, legal and binding agreement of
Assignor, enforceable against Assignor in accordance with its terms.
(h) Assignor has not filed a petition seeking protection under the Bankruptcy
Code, or admitted its inability to, or failed to, pay its debts generally as they become due.
(i) No payment or other distribution has been received by Assignor, or by any
third party on behalf of Assignor, in full or partial satisfaction of, or in connection with, the
Claim since the filing of the Case.
(j) No portion of the Claim has been sold, assigned or pledged to any third
party in whole or in part nor does any third party claim a security interest or other lien on the
(k) Assignor has no liability or obligation related to or in connection with the
(l) Assignor has adequate information concerning the financial condition of
the Debtors and the Case to make an informed decision regarding the assignment of the Claim
and that Assignor has independently and without reliance on Assignee, and based on such
information as Assignor has deemed appropriate, made Assignor’s own decision to enter into this
(m) In the event Assignor receives any payments or distributions with respect
to or relating to the Claim (other than the D8 Common Shares or the Alternative Consideration
under this Assignment), Assignor shall accept the same as Assignee’s agent, hold the same in
trust on behalf of and for the sole benefit of Assignee, and in the case of cash, promptly deliver
the same forthwith to Assignee.
(n) Assignor agrees to provide Assignee with copies of all correspondence
with respect to the Claim received or given by Assignor.
(o) Other than the Proof of Claim, no proof of claim has been or will be filed
by or on behalf of Assignor by Assignor in the Case or any related proceeding with respect to the
(p) To Assignor’s knowledge, no objection to the Claim has been filed or
threatened, and the Claim is not subject to any defense, claim or right of setoff, reduction,
impairment, avoidance, disallowance, subordination or preference action, in whole or in part,
whether on contractual, legal or equitable grounds, that have been or may be asserted by or on
behalf of the Debtors or any other party to reduce the amount of the Claim or affect its validity,
priority or enforceability, other than pursuant to the terms of the Series C Debenture.
(q) If Assignor is an entity, (i) Assignor is authorized to execute, deliver and
comply with the terms of this Assignment and each other document required to be executed and
delivered by Assignor in connection herewith, and to perform its obligations hereunder and
thereunder and consummate the transactions contemplated hereby and thereby, and (ii) the
person signing this Assignment on behalf of Assignor has been duly authorized to execute and
deliver this Assignment and each other document required to be executed and delivered by
Assignor in connection with this Assignment. If Assignor is an individual, Assignor has all
requisite legal capacity to acquire and hold the Securities and to execute, deliver and comply
with the terms of this Assignment and each other document required to be executed and
delivered by Assignor in connection herewith. The execution, delivery and performance of this
Assignment and such documents by Assignor does not conflict with, or constitute a default
under, any instruments governing Assignor, any law, regulation or order, or any agreement to
which Assignor is a party or by which Assignor is bound. This Assignment has been duly
executed and delivered by Assignor and, upon acceptance by or on behalf of the Assignee,
constitutes a valid and legally binding agreement of Assignor, enforceable against Assignor in
accordance with its terms.
5. Acquisition by Assignee. Assignor agrees to cooperate with and support
Assignee in connection with Assignee’s acquisition of the assets of Debtors and Assignee’s
acquisition of other claims against Debtors, and agrees to raise no objections thereto in any
capacity (whether as a current or former creditor of Debtors or otherwise), and to not cooperate
with or support any person that is objecting to such acquisition or seeking to acquire the assets or
claims of Debtors (other than Assignee). Assignee may take any and all matters in its sole
discretion to support and consummate its proposed acquisition of the assets of Debtors on such
terms as Assignee may determine, without any duty to Assignee with respect thereto
6. D8AC Common Shares. Assignor represents, warrants and covenants as follows:
(a) Assignor is a U.S. person and is an “accredited investor” as that term is
defined in Rule 501(a) of Regulation D under the U.S. Securities Act of 1933, as amended (the
(b) Assignor is acquiring the D8AC Common Shares (the “Securities”) for its
own account, for investment purposes only, and not with a view to or for the resale,
fractionalization or distribution thereof, in whole or in part.
(c) Assignor’s overall commitment to the Assignee and other investments that
are not readily marketable is not disproportionate to Assignor’s net worth. Assignor has the
financial ability to bear the economic risk of Assignor’s investment in the Assignee (including
the complete loss of its investment), has adequate means of providing for its current needs and
contingencies and has no need for liquidity with respect to its investment in the Assignee.
(d) Assignor: (i) has been furnished the opportunity to review, upon request,
the Assignee’s Confidential Private Placement Memorandum (the “Memorandum”) relating to
the sale of the Units (as defined and described in the Memorandum) and has carefully read such
document and understands and has evaluated the risks of acquiring the Securities; (ii) has been
provided an opportunity to obtain any additional information concerning the Securities, the
Assignee and any other information to the extent the Assignee possesses such information or can
acquire it without unreasonable effort or expense; (iii) has been given the opportunity to ask
questions of, and receive answers from the Assignee concerning the terms of the Securities and
other matters pertaining to this investment in the Assignee; (iv) has determined that the
Securities are a suitable investment for it, and has such knowledge and experience in financial
and business matters as to be capable of evaluating the risks and merits of an investment in the
Assignee; and (v) has consulted, to the extent deemed appropriate by Assignor with its own
advisors as to the financial, tax, legal and related matters concerning an investment in Securities
and the consummation of the transactions contemplated hereby.
(e) Other than as set forth herein or in the Memorandum, Assignor is not
relying upon any other information (including, without limitation, any advertisement, article,
notice or other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, and any seminars or meetings whose attendees have been
invited by any general solicitation or advertising), representation or warranty by the Assignee or
its affiliates or any agent of them in determining whether or not to enter into this Assignment.
(f) Assignor shall not sell or otherwise transfer the Securities without
registration under the Securities Act or other applicable securities laws or an exemption
therefrom, and fully understands and agrees that it must bear the economic risk regarding the
Securities for an indefinite period because, among other reasons, the Securities have not been
and are not expected to be registered under the Securities Act or under state securities laws in the
United States or in any other jurisdiction, and therefore cannot be resold, pledged, assigned or
otherwise disposed of unless they are subsequently registered under such securities laws, such
registration is not required or an exemption from such registration is available. Assignor
understands that the Assignee is under no obligation to register the Securities on its behalf or to
assist it in complying with any exemption from such registration under the Securities Act or
otherwise. Assignor understands that legends stating that the Securities have not been registered
under the Securities Act and any other applicable securities laws and setting out or referring to
the restrictions on the transferability and resale of the Securities shall be placed on all documents
evidencing the Securities.
(g) In connection with acquiring the Securities, Assignor meets all suitability
standards imposed on it by applicable law.
(h) The Assignor is aware of and understands: (i) that no governmental
authority has passed upon the Securities or made any findings or determinations as to the fairness
of an investment in the Assignee; (ii) that there are substantial risks of loss of investment
incidental to the Securities, including those summarized in the Memorandum; (iii) the Assignee
and its affiliates make no representation or warranty, and provide no assurances, regarding the
value of the Securities; and (iv) the limited transferability of the Securities.
7. Alternative Consideration. If the Alternative Consideration becomes payable by
assignee because Assignee does not consummate the acquisition of the assets of the Debtors,
Assignee will assign or pay over to Assignor whatever stock, payments or other consideration (if
any) the Assignee receives with respect to the Assigned Series C Debenture from the Debtors or
the successful asset purchaser promptly after Assignee’s receipt of the same, subject to any
restrictions that may be imposed on Assignee with respect thereto. If Assignee is restricted from
paying or assigning over such Alternative Consideration, Assignee agrees to hold such
Alternative Consideration for the benefit of Assignor for so long as Assignee is so restricted.
Except for such agreement to pay or assign over such Alternative Consideration (or to hold such
Alternative Consideration for Assignor), Assignee not have any duties or obligations, and makes
no representations or warranties whatsoever, with respect to the Alternative Consideration, if
any, that may be received or receivable, if any, by Assignee or Assignor with respect to the
Assigned Series C Debenture, and any Alternative Consideration would be paid, assigned or
held, as applicable, “as is.” Without limiting the generality of the foregoing, Assignee shall have
no duty to support, increase or realize upon actual or potential consideration Alternative
Consideration. If requested by Assignee, Assignor agrees to execute and deliver any
agreements, documents or instruments that Assignee, the Debtor or any payor of the Alternative
Consideration may request or require in connection with the Alternative Consideration.
8. Breach. Assignor agrees to indemnify Assignee from all losses, damages and
liabilities, including attorneys’ fees and expenses, which result from Assignor’s breach of any
representation, warranty or covenant set forth herein. Assignee does not assume and shall not be
responsible for any obligations or liabilities of Assignor related to or in connection with the
Claim or the Case. Without limiting any other rights or remedies, Assignee shall be entitled to
specifically enforce this Assignment and obtain any and all other equitable remedies, and recover
the costs thereof (including, without limitation, reasonable attorneys’ fees).
9. Further Assurances. Assignor shall, upon request of the Assignee, execute,
acknowledge and deliver all such further and other assurances and documents, and will take such
action consistent with the terms of this Assignment, as may be reasonably requested to carry out
the transactions contemplated herein and to permit each party to enjoy its rights and benefits
hereunder. Assignor agrees to cooperate with Assignee in connection with the Assignment
contemplated hereby as requested by Assignee. Assignor hereby irrevocably appoints Assignee
with full power of substitution as its true and lawful attorney and authorizes Assignee to act in
Assignor’s name, place and stead, to demand, sue for, compromise, recover, and transfer to
Assignee all such sums of money and securities which now are, or may hereafter become due
and payable for, or on account of the Claim herein assigned. Assignor grants unto Assignee full
authority to do all things necessary to enforce or compromise the Claim and Assignor’s rights
thereunder or related thereto pursuant to this Assignment. Assignor agrees that the powers
granted by this paragraph are discretionary in nature and exercisable at the sole option of
Assignee. Assignee shall have no obligation to take any action to prove, defend, demand or take
any action with respect to the Claim or otherwise in the Case. Assignor agrees to execute,
acknowledge and deliver all such further certificates, instruments and other documents, and to
take all such further action as may be necessary or appropriate to effect assignment of the Claim
and all interests therein to Assignee, to fully assist Assignee in enforcing the Claim and to
otherwise effectuate the intent of this Assignment. Assignor agrees that Assignee may sell,
transfer or assign the Claim, or any portion thereof, together with all right, title and interest of
Assignee and all obligations of Assignee in and to this Assignment.
10. The Case. The document attached hereto as Exhibit B and incorporated herein by
reference may be filed by Assignee with the Bankruptcy Court as evidence of this transfer.
Assignor grants Assignee the right to: (a) make any corrections to Exhibit B necessary to effect
assignment of the Claim; and (b) execute other evidences of transfer that may be necessary to
transfer other proofs of claim filed by Assignor in the Case. Assignor hereby waives any notice
or hearing requirements imposed by Rule 3001 of the Bankruptcy Rules, and stipulates that an
order may be entered recognizing this Assignment as an unconditional assignment and the
Assignee herein as the valid owner of the Claim. Assignor acknowledges and agrees that
Assignee shall be the holder of record of the Claim and shall identify itself as such on the records
of the Bankruptcy Court.
11. General. All representations, warranties, covenants and agreements contained
herein shall survive the execution and delivery of this Assignment and the assignment of the
Claim and shall inure to the benefit of, be binding upon and enforceable by the parties hereto and
Assignee’s successors and assigns. The Assignee will not have any obligations with respect to
the Assigned Series C Debentures or for any liabilities or obligations of Debtors. The parties
hereto acknowledge that notwithstanding anything to the contrary in this Assignment, the parties
hereby agree that all obligations and liabilities of a party hereunder are enforceable solely against
such party and such party’s assets and not against any officer, director, stockholder, employee or
representative of such party or against any assets of any such person. The Assignor hereby
releases any and all claims that the Assignor has or may have against the Assignee or its
affiliates, including, without limitation, DeWaay Financial Network, L.L.C. and D8 Funding I,
LLLP, and its and their directors, officers, stockholders, employees, representatives and agents,
provided, however, that the foregoing shall not limit the Assignee’s express obligations under
this Assignment. This Assignment may be amended or waived in writing by the Assignee and
the Assignor, or by the assignors of Series C Debentures representing not less than 50% in
principal amount of outstanding Series B Debentures assigned to Assignee pursuant to
assignment agreements of like tenor. This Assignment may be executed in counterparts. Copies
of this with signatures transmitted electronically (e.g., by facsimile or pdf) shall be deemed to be
original signed versions. This Assignment (including the Exhibits attached hereto and other
documents incorporated into this Assignment by express reference) constitutes the entire
understanding between Assignor and Assignor regarding the subject matter hereof and
supersedes any previous agreement, verbal or written, between the parties. This Assignment will
be governed by Delaware law, without regard to choice of law principles.
Notice of Transfer of Claim
NOTICE OF TRANSFER OF CLAIM
TO: United States Bankruptcy Court (“Bankruptcy Court”)
Southern District of Ohio, Middle District
AND TO: Domin-8 Enterprise Solutions, Inc.,
Domin-8 Enterprise Solutions, LLC,
New-Paradigm Insurance Solutions, Inc.,
PMAS, LLC, and
Spectra Computer Services Limited
Case No. 09-35793
The assignor named below, _______________________________, and its his or her
successors and assigns (“Assignor”), for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, does hereby unconditionally and irrevocably
transfer and assign unto:
D8 Acquisition Corp.
13001 University Avenue
Clive IA 50325
Tel: (515) 273-1300
Fax: (515) 273-1399
its successors and assigns (“Assignee”), all rights, title and interest in and to the claim of
Assignor as a holder of Series C Senior Subordinated Secured Convertible Debenture in the
principal amount of $_________ (“Claim”) against the Debtors in the Bankruptcy Court, or any
other court with jurisdiction over the bankruptcy proceedings of the Debtors.
Assignor hereby waives any objection to the transfer of the Claim to Assignee on the
books and records of the Debtors and the Bankruptcy Court, and hereby waives to the fullest
extent permitted by law any notice or right to a hearing as may be imposed by Rule 3001 of the
Federal Rules of Bankruptcy Procedure, the Bankruptcy Code, applicable local bankruptcy rules
or applicable law. Assignor acknowledges, understands and agrees, and hereby stipulates that an
order of the Bankruptcy Court may be entered without further notice to Assignor transferring to
Assignee the Claim and recognizing the Assignee as the sole owner and holder of the Claim.
You are hereby directed to make all future payments and distributions, and to give all
notices and other communications, in respect of the Claim to Assignee.
IN WITNESS WHEREOF, the undersigned has duly executed this Evidence of Transfer
of Claim as of _____________, 2009.
Capacity (if applicable):
D8 ACQUISITION CORP.