[ARTERA LETTERHEAD]
EXHIBIT 10(as)
November 9, 2001
To each of the Investors
identified on Schedule A hereto
Gentlemen:
In connection with the prior issuance and sale by Artera Group, Inc.
("Artera") to the investors identified on Schedule A hereto (the "Investors") of
shares of Series A Convertible Preferred Stock, par value $0.01 per share, of
Artera, identified on Schedule A hereto (the "Preferred Shares"), this letter
will confirm our agreement as follows:
1. In order to permit NCT Group, Inc. ("NCT") to file one or more
registration statements covering the resale by the Investors of the common
stock, par value $0.01 per share, of NCT (the "NCT Common Stock"), issuable by
NCT upon the Investors' exchange of the Preferred Shares, in accordance with the
terms of that certain Exchange Rights Agreement (Preferred), dated as of June
29, 2001, by and among NCT and the Investors, the Investors hereby irrevocably
waive their rights to convert the Preferred Shares into common stock, par value
$0.001 per share, of Artera ("Artera Common Stock").
2. In connection with the waiver by the Investors of their rights to
convert the Preferred Shares into Artera Common Stock, the Investors also waive
those rights granted under the Certificate of Designations, Preferences and
Rights of the Preferred Shares, as filed with the Secretary of State of the
State of Delaware on February 23, 2001 (the "Certificate of Designations"),
relating to: (i) the conversion of the Preferred Shares into Artera Common
Stock; (ii) the Investors' rights to force a redemption of the Preferred Shares
pursuant to Section 6 of the Certificate of Designations; and (iii) Artera's
reservation and delivery of shares of Artera Common Stock.
3. In connection with the foregoing paragraphs 1 and 2, (i) any written
agreement(s) relating to the Preferred Shares shall be deemed amended to the
extent necessary to effectuate the immediately preceding paragraphs and (ii) the
Investors shall not be deemed to have waived any other rights, accrued
penalties, damages, liquidated damages and interest under the Certificate of
Designations or any written agreement(s) relating to the Preferred Shares.
If the above accurately sets forth our understanding, please sign and
execute one copy of this letter agreement.
ARTERA GROUP, INC.
By: /s/
Name:
Title:
ACKNOWLEDGED:
NCT GROUP, INC.
By: /s/
Name:
Its:
AGREED AND ACCEPTED:
AMRO INTERNATIONAL, S.A.
By: /s/
Name:
Title:
AUSTOST ANSTALT ▇▇▇▇▇▇
By: /s/
Name:
Title:
▇▇▇▇▇▇▇, ▇.▇.
By: /s/
Name:
Title:
THE GROSS FOUNDATION, INC.
By: /s/
Name:
Title:
ICT N.V.
By: /s/
Name:
Title:
LEVAL TRADING, INC.
By: /s/
Name:
Title:
LIBRA FINANCE, S.A.
By: /s/
Name:
Title:
NESHER LTD.
By: /s/
Name:
Title:
TALBIYA B. INVESTMENTS LTD.
By: /s/
Name:
Title:
UNITED SECURITIES SERVICES, INC.
By: /s/
Name:
Title:
SCHEDULE A TO LETTER AGREEMENT
INVESTOR NUMBER OF STATED VALUE CERTIFICATE
SERIES A NUMBER
PREFERRED SHARES
AUSTOST ANSTALT SCHAAN 1,077 $1,077,000 P23 and P24
7440 Fuerstentum
Lichtenstein, Landstrasse 163
Fax: ▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇.▇. 1,077 $1,077,000 P21 and P22
P.O. Box 4603
Zurich, Switzerland
Fax: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
AMRO INTERNATIONAL, S.A. 471 $471,000 P25 and P26
C/o Ultra Finanz
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ CH8022
Fax: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
THE GROSS FOUNDATION, INC. 70 $70,000 P31
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
LEVAL TRADING, INC. 260 $260,000 P32 and P33
C/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇-▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇▇-▇▇▇-▇▇▇▇
NESHER LTD. 107 $107,000 P27 and P28
Ragnall House, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇▇▇
TALBIYA B. INVESTMENTS LTD. 116 $116,000 P29 and P30
Ragnall House, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇▇▇
UNITED SECURITIES SERVICES, INC. 21 $21,000 P35
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
ICT N.V. 77 $77,000 P36
Antwerp Tower
De Keyserlei 5 Box 59
2018 Antwerp, Belgium
Fax: ▇▇▇-▇▇-▇-▇▇▇-▇▇▇▇
LIBRA FINANCE, S.A. 1,000 $1,000,000 P3 and P6
P.O. Box 4603
Zurich, Switzerland
Fax: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇