Portfolio Purchase Agreement - iPayment Technologies Inc. and E-Commerce Exchange Inc.
PORTFOLIO PURCHASE AGREEMENT
THIS PORTFOLIO PURCHASE AGREEMENT ("Agreement") is made and entered into as of
the 16th day of February 2001, among iPayment Technologies, Inc. (formerly known
as creditcards.com, formerly known as Electronic Card Systems, Inc.), a
California corporation ("Purchaser") and E-Commerce Exchange, Inc., a Delaware
corporation ("Seller") with reference to the following facts:
WITNESSETH:
A. E-Commerce Exchange, LLC, a limited liability company ("ECX"), Purchaser
and Humboldt Bank, a California state bank ("Humboldt") entered into a
written agreement entitled "Humboldt Bank and Electronic Card Systems,
Inc. ISO/MSP and Representative Agreement" executed by ECX and Purchaser
on July 27, 1998, and by Humboldt on August 7, 1998 ("Humboldt
Agreement"). The Humboldt Agreement was assigned by ECX to Seller on
November 4, 1999. Under the Humboldt Agreement, ECX (Seller as assignee of
ECX) was retained by Purchaser as an independent contractor and
non-exclusive sales representative to Purchaser to solicit prospective
merchants to apply to Humboldt (through Purchaser) for merchant processing
agreements (individually a "Humboldt Merchant Processing Agreement" and
collectively the "Humboldt Merchant Processing Agreements") from the
merchants (the "Merchants").
B. ECX and Purchaser also entered into a written agreement entitled "Merchant
Account and Payment Agreement" made effective November 1, 1998, which was
amended by a written agreement entitled "Amendment To Merchant Account and
Payment Agreement" made effective June 1, 1999, and as amended to date
(collectively the "MAP Agreement"). The Humboldt Agreement is incorporated
as part of the MAP Agreement as Attachment A thereto. The MAP Agreement
was assigned by ECX to Seller on November 4, 1999. As contemplated under
the Humboldt Agreement and pursuant to the terms of the MAP Agreement,
Seller submitted merchant applications and merchant processing agreements
to Purchaser for said merchants to obtain credit card processing with
Humboldt and whereby Seller was to be compensated pursuant to an
allocation of the revenue between Seller and Purchaser from the said
accounts (individually a "Merchant Account" and collectively the "Merchant
Accounts") from the Merchants (the said Merchant Accounts established
under the Humboldt Merchant Processing Agreements are hereinafter
collectively referred to as the "Portfolio" and are listed on SCHEDULE 1.1
hereto, (the "Portfolio"). A true and correct copy of the MAP Agreement
with Attachment A (the "Humboldt Agreement"), as amended to date, is
attached hereto as EXHIBIT A and made a part hereof.
C. Seller and ECX have filed suit against Purchaser, Humboldt and Richard
Gordon ("Gordon") in the action titled E-Commerce Exchange, Inc. et al. v.
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Technologies, Inc. et al., California Superior Court, County of Orange,
Case number 00CC15548 ("Contract Action") alleging, among other things,
breach of the MAP Agreement and Humboldt Agreement. In connection with
said Contract Action, counsel for Seller and ECX have granted each of the
defendants an extension to February 27, 2001, to respond to the Complaint
filed in the Contract Action (the "Current Response Extension Date"). In
connection with said Contract Action, counsel for Seller and ECX have
filed and served Purchaser with a Notice of Application and Hearing for a
Right to Attach Order and Order for Issuance of Writ of Attachment, which
is currently set and scheduled for Hearing on February 27, 2001 (the
"Current Attach Order Hearing Date").
D. ECX and Purchaser signed a letter agreement dated August 17, 1999, (the
"August Letter Agreement") wherein in partial consideration of certain
releases by ECX, Purchaser agreed to repay ECX a Seventy Five Thousand
Dollar ($75,000.00) deposit paid by ECX relating to a certain Virtual
Terminal software license ("License Deposit"). As of the date hereof Fifty
Thousand Dollars ($50,000.00) of the License Deposit has not been repaid.
A true and correct copy of the August Letter Agreement is attached hereto
as EXHIBIT B and made a part hereof.
E. The parties hereto desire on the terms set forth in this Agreement to
consummate the transactions set forth hereinbelow, including without
limitation thereto, the desire of Seller to sell and assign all of its
right, title and interest in the Portfolio to the Purchaser, including,
but not limited to, all rights Seller has under the MAP Agreement and
Humboldt Agreement to Purchaser, and Purchaser's desire to purchase, all
of Seller's right, title and interest in the Portfolio, including, but not
limited to, all rights Seller has under the MAP Agreement and Humboldt
Agreement; and to provide for the settlement of the claims asserted in,
relating to and regarding the Contract Action and to provide for certain
releases by the parties to said Contract Action, including the License
Deposit, MAP Agreement and Humboldt Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
following mutual, covenants, representations, warranties and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Purchase and Sale of Portfolio.
1.1. Portfolio. Seller hereby agrees to sell, convey, transfer
and assign to Purchaser and Purchaser hereby agrees to purchase, acquire and
accept from Seller, upon the terms and conditions of this Agreement, and
effective as of the Closing Date, (as that term is hereinafter defined in
Section 4.1), all rights, title and interest of every type and nature and
wherever situated, real, personal, tangible, intangible or contingent (including
without limitation thereto, the "goodwill" associated exclusively with the
Merchant Accounts), in the Portfolio and owned by Seller or in which Seller has
any
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interest of any type or nature, including, but not limited to, arising from
or under the MAP Agreement and/or the Humboldt Agreement.
2. Purchase and Release Consideration.
2.1 Total Consideration Payment Amount. At the Closing, (as
that term is hereinafter defined in Section 4.1), Purchaser shall pay Seller, in
immediately available funds as directed by Seller, the sum of Two Million Nine
Hundred and Eight Thousand and Five Hundred Dollars ($2,908,500.00) (the
"Initial Total Payment Amount"), provided, however, that if the Closing has not
been completed by the end of business day on February 28, 2001, then in said
event, the Initial Total Payment Amount shall be adjusted (increased) in the
amount equal to Four Thousand Five Hundred Dollars ($4,500.00) per day for every
day after February 28, 2001 until such Closing shall occur. The Initial Total
Payment Amount, as may be adjusted, if any, shall hereinafter be referred to the
"Total Payment Amount". At the Closing and the consummation of the transactions
contemplated hereunder, the Total Payment Amount will be applied first to the
full payment of the any and all amounts due to Seller under the MAP Agreement as
of and at the Closing, then the next $50,000 for the repayment of the amount due
Seller for the License Deposit, and the remaining balance of the Total Payment
Amount will be deemed to be, and will be applied, as the total purchase price
(the "Purchase Price") payable (and paid) by Purchaser to Seller for the
Portfolio (which include, without limitation thereto, the termination of any
amounts that Seller would otherwise be due for future revenue splits under the
MAP Agreement).
2.2. Deposit. Upon the execution of this Agreement, Purchaser
shall pay Seller, the sum of One Hundred Fifty Thousand Dollars ($150,000.00) as
an initial deposit (the "Initial Deposit"). If pursuant to and in accordance
with the terms of Section 4.1 below, Purchaser elects to extend the Initial
Closing Date to the Extended Closing Date (as defined in Section 4.1 and which
shall be no later than 11:00 a.m. on March 27, 2001) then in said event the
Extended Closing Date Deposit in the sum of $25,000 (as that term is defined in
Section 4.1), to be paid by Purchaser under Section 4.1 shall be subject to the
provisions set forth below. If the Closing shall be completed on or before March
1, 2001, then in said event, the Initial Deposit shall be credited against the
Total Payment Amount payable by Purchaser at the Closing. If the Initial Closing
Date is extended to the Extended Closing Date in accordance with the provisions
of Section 4.1 below, and the Closing shall be completed on or before March 27,
2001, then in said event, the Initial Deposit and the Extended Closing Date
Deposit shall be credited against the Total Payment Amount payable by Purchaser
at the Closing. The Initial Deposit and the Extended Closing Date Deposit are
each a "Deposit" and collectively are the "Deposits". If the Closing is not
consummated by the then applicable scheduled Closing Date, due to a failure or
breach by Purchaser, then Seller shall be entitled to keep the Deposits received
(and each of them) and Purchaser shall not be entitled to any credit towards the
Total Payment Amount for each and all of the Deposits paid to Seller.
3. Liabilities.
3.1 Liabilities of Seller. From and after the Closing Date,
Purchaser
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shall perform and discharge as and when due all obligations arising out of or
relating to the ongoing processing of the Portfolio from and after the Closing
Date, including, but not limited to, any liability for chargebacks on the
Portfolio and any other duties of Purchaser and ECX under the MAP Agreement,
except any indemnity obligations of Seller under Section 9 of the Humboldt
Agreement. The liabilities to be assumed by Purchaser, as set forth in this
Section 3.1, shall sometimes be referred to herein as the "Assumed Liabilities."
It is expressly agreed and understood between Seller and Purchaser, that except
for the Assumed Liabilities and Purchaser's obligations and duties under this
Agreement, Purchaser is not, and will not assume or be liable for, any debts,
obligations or liabilities of Seller of any nature whatsoever, whether direct or
indirect, known or unknown, absolute or contingent.
4. Pre and Post Closing Matters.
4.1 Date of Closing.
(a) Subject to the satisfaction or waiver, as
appropriate, of the conditions set forth in Sections 8 and 9 below, the exchange
of documents and the consummation of the transactions contemplated by this
Agreement (the "Closing") shall, except as may be extended by the Purchaser in
accordance with the terms and conditions hereinbelow provided, take place at the
offices of Seller in Irvine, California, on February 28, 2001, at 11:00 a.m.
California time (the "Initial Closing Date"), unless another date, time or place
is agreed to in writing by the parties hereto. Purchaser may, elect to extend
the Initial Closing Date to a later date which shall be no later than 11:00 a.m.
on March 27, 2001, by delivering written notice to Seller, on or before 5:00
p.m. on February 26, 2001, of its election to extend the Initial Closing Date,
and designating in such written notice (the "Closing Date Extension Notice") the
extended designated date for the Closing (the "Extended Closing Date"), which
shall be no later than 11:00 a.m. on March 27, 2001 and concurrent with the
delivery of the Closing Date Extension Notice, delivering to Seller, Purchaser's
check in the amount of Twenty Five Thousand Dollars ($25,000) (the "Extended
Closing Date Deposit") payable to the order of Seller, (which may be post dated
to March 1, 2001. The date and time upon which the Closing shall be held as
determined pursuant to this Section 4.1 is herein called the "Closing Date."
4.2 Delivery of Documents.
On the Closing Date:
(a) Seller shall execute and deliver to Purchaser such
bills of sale, assignments, certificates of title and any and all other
instruments of conveyance and transfer as shall be reasonably requested by
Purchaser in order to effectively convey and transfer to Purchaser the Portfolio
or to evidence such conveyance and transfer, consistent always with the
provisions of this Agreement.
(b) Seller shall deliver to Purchaser copies, certified
by the Secretary or an Assistant Secretary of Seller, of resolutions of the
Board of Directors and
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consent of the shareholders of Seller authorizing the execution, delivery and
performance by Seller of this Agreement and the Settlement and Release Agreement
(in the form of EXHIBIT C hereto) (hereinafter the "Release Agreement"), and the
consummation of the transactions contemplated by Seller hereby and thereby.
(c) Purchaser shall deliver to Seller copies, certified
by the Secretary or an Assistant Secretary of Purchaser, of resolutions of the
Board of Directors of Purchaser authorizing the execution, delivery and
performance of this Agreement and the Release Agreement and the consummation of
the transactions contemplated hereby and thereby.
(d) Purchaser and Seller (as well as, ECX, Humboldt and
Gordon), shall have executed and delivered to each other the Release Agreement
for the Contract Action in the form substantially similar to the EXHIBIT C
attached hereto.
(e) Seller shall have caused the law firm of Ropes &
Gray ("Ropes & Gray") (Seller's counsel of record in the pending action titled
OKOUGBO V. LEASECOMM CORPORATION, ET AL., MASSACHUSETTS SUPERIOR COURT,
MIDDLESEX COUNTY, CASE NUMBER 00-2757 ("Massachusetts Lawsuit"), pursuant to
terms of an engagement letter to be entered into with Seller, Purchaser, ECX and
Humboldt, substantially in the form of EXHIBIT D hereto (the "Engagement
Letter") to agree to also represent Purchaser and Humboldt, and each of them, in
the Massachusetts Lawsuit. The Engagement Letter shall provide that Ropes & Gray
will be substituted in or otherwise associated as "lead counsel" and will agree
(i) to look solely to Seller and/or ECX for payment of all fees and costs
incurred or due to Ropes & Gray in connection with said representation of
Purchaser and Humboldt in the Massachusetts Lawsuit; and (ii) to agree that the
law firm of Hale and Dorr, Purchaser's and Humboldt's current counsel of record
in the Massachusetts Lawsuit, will continue in a "monitoring capacity" as
associated counsel and shall be entitled to participate in (but not control) the
defense of the Massachusetts Lawsuit.
(f) Purchaser and Seller (as well as Humboldt), shall
have executed and delivered to each other the Indemnification Agreement for the
Massachusetts Lawsuit in the form attached hereto as EXHIBIT E.
4.3 Pre Closing Matters.
(a) Seller agrees that after the receipt by Seller of a
fully executed original of this Agreement (with attached Exhibits and Schedules)
and the payment of the One Hundred Fifty Thousand Dollars ($150,000.00) Initial
Deposit pursuant to Section 2.1 above that it will (and it will cause ECX to)
instruct and cause their counsel of record in the Contract Action, to:
(i) By no later than 3:00 p.m. (Pacific Time) on
February 20, 2001, grant Purchaser, Humboldt and Gordon, and each of them, an
additional extension of time, in writing, to respond to the Complaint filed in
the Contract
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Action, which extension shall expire no sooner than close of business on March
21, 2001 and to have forwarded to counsel for Purchaser (and if required, to
counsel for Humboldt and Gordon) a signed written Stipulation to continue the
scheduled Current Attach Order Hearing Date to a date which shall be no sooner
than March 21, 2001 and to cause said Stipulation to be promptly (after
signature by all required parties/counsel) filed with the Court. If said
Stipulation is not approved by the Court, then Seller and ECX shall take the
Application and Request for Hearing "off calendar", without prejudice.
(b) Seller agrees that if the Closing is extended to the
Extended Closing Date in accordance with the terms of Section 4.1 above, that it
will (and it will cause ECX to) instruct and cause their counsel of record in
the Contract Action, to:
(i) By no later than 3:00 p.m. (Pacific Time) on
March 12, 2001, grant Purchaser, Humboldt and Gordon, and each of them, an
additional extension of time, in writing, to respond to the Complaint filed in
the Contract Action, which extension shall expire no sooner than close of
business on April 11, 2001 and to have forwarded to counsel for Purchaser (and
if required, to counsel for Humboldt and Gordon) a signed written Stipulation to
further continue the then scheduled Attach Order Hearing Date to a date which
shall be no sooner than April 11, 2001 and to cause said Stipulation to be
promptly (after signature by all required parties/counsel) filed with the Court.
If said Stipulation is not approved by the Court, then Seller and ECX shall take
the Application and Request for Hearing "off calendar", without prejudice.
5. Representations and Warranties of Seller. Seller represents and
warrants to Purchaser, as of the date hereof and as of the Closing Date, the
following:
5.1 Due Incorporation. The Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has full power and authority to own its properties and to carry
on its business as now owned and operated.
5.2 Authorization. Seller has all the necessary corporate
power, capacity and authority to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated on the part of
Seller hereby. This Agreement and the performance by Seller of its obligations
hereunder have been duly authorized by all necessary action of Seller. This
Agreement and all other agreements and instruments to be executed by Seller in
connection herewith, together with all other documents to be executed in
connection herewith or therewith (the "Transaction Documents") have been (or
upon execution will have been) duly executed and delivered by Seller and upon
execution and delivery by Seller will constitute a legal valid and binding
agreement and obligation of Seller, enforceable against it in accordance with
its terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights, and
(ii) general principles of equity relating to the availability of equitable
remedies (regardless of whether any such agreement is sought to be enforced in a
proceeding at law or in equity) (collectively the
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"Bankruptcy Exception"). No further action is required to be taken by Seller,
nor is it necessary for Seller to obtain any action, approval or consent by or
from any governmental authority, or third party, to enable it to enter into or
perform its obligations under this Agreement, (except that the execution of the
Release Agreement, Engagement Letter, the documents for the consent of the
shareholders required under section 4.2(b) and Indemnification Agreement require
certain third parties to agree to the terms thereof and to execute the
respective documents). The signatories executing this Agreement and the
Transaction Documents on behalf of Seller have all requisite power and authority
to execute and deliver such documents.
5.3 The Portfolio and Assumed Liabilities.
(a) Title to and Adequacy of Portfolio. At the Closing,
Seller will convey and transfer to Purchaser good, complete and marketable title
to all of the Portfolio, free and clear of any and all restrictions and
conditions on transfer or assignment, and free and clear of all mortgages,
liens, security interests, encumbrances, pledges, leases, equities, claims,
charges, conditions, conditional sale contracts and any other adverse interests,
except as owned by Humboldt Bank, Visa, MasterCard or any third parties with an
interest pursuant to contractual relationships solely between such other third
parties and Purchaser. No actions, proceedings or transactions have been
commenced or undertaken by Seller which give or would give rights to any person,
other than Purchaser, in any of the Portfolio or interfere with the consummation
of the transactions contemplated by this Agreement. To the best of Seller's
actual knowledge, no actions, proceedings or transactions have been commenced or
undertaken against Seller which give or would give rights to any person, other
than Purchaser, in any of the Portfolio or interfere with the consummation of
the transactions contemplated by this Agreement. The delivery to Purchaser of a
bill of sale will vest good and marketable title to the Portfolio in Purchaser,
free and clear of any and all restrictions and conditions on transfer or
assignment, and free and clear of all mortgages, liens, security interests,
encumbrances, pledges, leases, equities, claims, charges, conditions,
conditional sale contracts and any other adverse interests, except for those
owned by Humboldt Bank, Visa, MasterCard or any third parties with an interest
pursuant to contractual relationships solely between such other third parties
and Purchaser.
5.4 No Conflict. The execution, delivery and performance by
Seller and the consummation of the transactions contemplated hereby do not and
will not: (i) violate or conflict with any provision of the charter documents of
Seller; (ii) require the approval or consent of any third party (except that the
execution of the Release Agreement, Engagement Letter, the documents for the
consent of the shareholders required under section 4.2(b) and Indemnification
Agreement require certain third parties to agree to the terms thereof and to
execute the respective documents); (iii) result in a breach or constitute a
default or an event that, with notice or lapse of time, or both, would be a
default, breach or violation of any contract; (ii) result in the termination of
any contract, except for the MAP Agreement and the Humboldt Agreement as
contemplated herein and on subject to the survival provisions in the MAP
Agreement and the Humboldt Agreement, or the acceleration of the maturity of any
indebtedness or other obligation of
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Seller; (iii) result in the creation or imposition of any lien, charge or
encumbrance of any kind whatsoever upon any of the properties or assets of
Seller, including without limitation, on any of the Portfolio; or (iv) violate
any provision or requirement of any domestic or foreign, national state or local
law, statute, judgment order, writ, injunction, decree, award, rule, or
regulation of any arbitrator or court, state, local or foreign government
agency, regulatory body, other governmental authority or any department board,
commission, bureau or instrumentation of any of the foregoing (each of the
foregoing hereafter referred to as a "Governmental Entity") applicable to Seller
or its business or by which any of the Portfolio is bound.
5.5 Certain Material Contracts and Material Merchant Accounts.
(a) Attached hereto as SCHEDULE 5.5(A) is a true and
correct list of each Contract, except for the MAP Agreement and Humboldt
Agreement (each a "Material Contract" and collectively, the "Material
Contracts") (i) under which Seller or any Affiliate (as that term is defined
below) of Seller is/are a party to or bound by that relates to the Portfolio,
the Merchants or the Merchant Accounts and which the consequences of a default
by Seller, or a cancellation or termination could reasonably be a "Material
Adverse Change" (as that term is defined below). For purposes of this Agreement,
"Affiliate" shall have the meaning ascribed to such term in Rule 405 under the
Securities Act of 1933, as amended (the "Securities Act"). For purposes of this
Agreement, a "Material Adverse Change" shall mean any event, circumstance,
condition, development, or occurrence causing, resulting, in having, or that
could reasonably be expected to have, a material adverse effect on the Merchant
Accounts or the Portfolio or Purchaser's ability to own, operate or obtain the
financial benefit of the Portfolio.
(b) Seller has fulfilled all material obligations
required pursuant to each Material Contract to have been performed by Seller on
its part prior to the date hereof and no default exists under any Material
Contract.
(c) Attached hereto as SCHEDULE 5.5(C) are fifty (50)
Specifically listed Merchants along with their respective Merchant Accounts that
had transactions in the month of January 2001 and which comprise part of the
Portfolio (each a "Material Merchant" and collectively, the "Material
Merchants"). To the best of Seller's knowledge (after reasonable and due inquiry
of its officers and operational managers), no Material Merchant intends to
cancel or terminate its Merchant Account, whether as a result of the
transactions contemplated by this Agreement or otherwise.
5.7 Brokers' Fees. Seller has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which Purchaser could become
liable or obligated.
5.8 Seller's Representations and Warranties. None of the
representations and warranties of Seller or other information provided and to be
provided by Seller to Purchaser in this Agreement, the Schedules or exhibits
hereto, or in the Transaction Documents contains or will contain any untrue
statement of a material fact or
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omits or will omit to state any material fact necessary to make the information
contained therein, in light of the circumstances in which they are made, not
false or misleading.
6. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller, as of the date hereof and as of the Closing
Date, the following:
6.1 Due Incorporation of Purchaser. Purchaser is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of California and has full power and authority to own its properties and
to carry on its business as now owned and operated.
6.2 Authorization of Purchaser. Purchaser has all the
necessary corporate power, capacity and authority to enter into and perform its
obligations under this Agreement and to consummate the transactions contemplated
on the part of Purchaser hereby. This Agreement and the performance by Purchaser
of its obligations hereunder have been duly authorized by all necessary action
of Purchaser. This Agreement and the Transaction Documents have been (or upon
execution will have been) duly executed and delivered by Purchaser and upon
execution and delivery by Purchaser will constitute a legal valid and binding
agreement and obligation of Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by the Bankruptcy
Exception. No further action is required to be taken by Purchaser, nor is it
necessary for Purchaser to obtain any action, approval or consent by or from any
governmental authority, or third party, to enable it to enter into or perform
its obligations under this Agreement, (except that the execution of the Release
Agreement, Engagement Letter and Indemnification Agreement require certain third
parties to agree to the terms thereof and to execute the respective documents).
The signatories executing this Agreement and the Transaction Documents on behalf
of Purchaser have all requisite power and authority to execute and deliver such
documents.
6.3 No Conflict. The execution and delivery of this Agreement
by Purchaser and the performance of its obligations hereunder:
(a) are not in violation or breach of, and will not
conflict with or constitute a default under, any of the terms of the charter
documents of Purchaser, or any note, debt instrument, security instrument or
other contract, agreement or commitment binding upon Purchaser or its assets or
properties;
(b) will not result in the creation or imposition of any
lien, encumbrance, equity or restriction in favor of any third party upon any of
the assets or properties of Purchaser, except for those that may arise after the
Closing or as contemplated by this Agreement; and
(c) will not conflict with or violate any applicable
law, rule, regulation, judgment, order or decree of any government, governmental
instrumentality or court having jurisdiction over Purchaser or its assets or
properties.
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6.4 Brokers' Fees. Purchaser has no liability or obligation to
pay any fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which Seller could become liable
or obligated.
6.5 Purchaser's Representations and Warranties. None of the
representations and warranties of Purchaser or other information provided and to
be provided by Purchaser to Seller in this Agreement, the Schedules or exhibits
hereto, or in the Transaction Documents contains or will contain any untrue
statement of a material fact or omits or will omit to state any material fact
necessary to make the information contained therein, in light of the
circumstances in which they are made, not false or misleading.
7. Covenants and Other Agreements.
7.1 Best Efforts and Fulfillment of Conditions and Covenants.
No party shall take any course of action inconsistent with satisfaction of the
requirements or conditions applicable to it set forth in this Agreement. Upon
the terms and subject to the conditions of this Agreement, each of the parties
hereto shall use its best efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, proper or advisable consistent
with applicable law to cause the fulfillment of the conditions to Closing set
forth herein to consummate and make effective the transactions contemplated
herein.
7.2 Further Assurances. From and after the date of this
Agreement, each party shall perform all reasonable acts, execute all documents
and do all things reasonably requested by the other parties in order to perfect
the transfer of title to Purchaser of ownership of the Portfolio, consistent
with the provisions of this Agreement, or as may be reasonably necessary or
appropriate to otherwise consummate and carry into effect the transactions
contemplated by this Agreement.
7.3 Press Releases. No party will issue or authorize to be
issued any press release, statement to the public or to its employees generally
(excluding employees on a "need to know basis") or similar announcement
concerning this Agreement or any of the transactions contemplated hereby without
the prior approval of the other party, which approval shall be given in order to
allow compliance with the disclosure requirements of applicable securities laws.
7.4 Expenses. Except as provided in Section 12.8, each party
shall bear its own expenses related to the transactions contemplated by this
Agreement (including legal, accounting or other professional expenses), whether
or not such transactions are consummated.
7.5 Notices of Changes. The parties hereto will promptly
notify the other parties in writing of any event occurring after the date of
this Agreement which would render any of its representations or warranties
contained herein, if made on or as of
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the date of such event or as of the Closing Date, except for representations and
warranties applicable solely to specified date(s), untrue or inaccurate.
7.6 Contract Cancellations. Seller and Purchaser agree that,
except for the indemnity provisions in Section 9 of the Humboldt Agreement which
shall survive termination, the MAP Agreement and the Humboldt Agreement are
cancelled and terminated effective the Closing Date subject to the consummation
of all transactions contemplated under this Agreement.
8. Conditions Precedent to Purchaser's Obligation to Close. The
obligations of Purchaser to enter into and complete the Closing under this
Agreement are subject, at its option, to the fulfillment at or prior to the
Closing Date of each of the following conditions, any one or more of which may
be waived by Purchaser:
8.1 Representations and Warranties. The representations and
warranties of Seller contained in this Agreement, or in any writing delivered
pursuant hereto, shall be true and correct in all material respects on and as of
the Closing Date as if made on and as of the Closing Date, except to the extent
that any of such representations and warranties shall be incorrect as of the
Closing Date because of events or changes occurring or arising after the date
hereof in the ordinary course of business, none of which shall be, individually
or in the aggregate, materially adverse or constitute a Material Adverse Change
and at the Closing, Seller shall have delivered to Purchaser a certificate to
such effect signed by an officer of Seller.
8.2 Performance by Seller. Seller shall have materially
performed and complied with all of the terms, covenants, agreements, conditions,
undertakings and commitments of this Agreement to be performed or complied with
by Seller at or prior to the Closing Date.
8.3 Absence of Litigation. No action, suit or proceeding shall
have been instituted or threatened before any court or governmental body or any
person or governmental agency or body to restrain or prevent Seller or Purchaser
from carrying out the transactions contemplated hereby.
8.4 Consents and Approvals. All consents and approvals
required for the consummation of the transactions contemplated by this Agreement
and to permit Purchaser to acquire all of the Portfolio pursuant hereto, without
thereby violating any laws, government regulations or contracts, shall have been
obtained.
8.5 Settlement Agreement and Release. Purchaser, Seller,
Humboldt, ECX and Gordon shall have fully executed and delivered the Release
Agreement in the form of in the form substantially similar to the attached
EXHIBIT C hereto.
8.6 Ropes Engagement Letter. Purchaser, Seller, Humboldt, and
ECX shall all have received the Engagement Letter provided for in Section 4.2
(e) above and shall executed and delivered the Engagement Letter to Ropes and
Gray.
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8.7 Indemnification Agreement. Purchaser, Seller and Humboldt
shall have executed and delivered to each other the Indemnification Agreement
for the Massachusetts Lawsuit in the form substantially similar to the attached
EXHIBIT E hereto.
9. Conditions Precedent to Seller's Obligations to Close. The
obligations of Seller to enter into and complete the Closing under this
Agreement are subject, at its option, to the fulfillment at or prior to the
Closing Date of each of the following conditions, any one or more of which may
be waived by Seller:
9.1 Representations and Warranties. The representations and
warranties of Purchaser contained in this Agreement, or in any writing delivered
pursuant hereto, shall be true and correct in all material respects on and as of
the Closing Date as if made on and as of the Closing Date, except to the extent
that any of such representations and warranties shall be incorrect as of the
Closing Date because of events or changes occurring or arising after the date
hereof in the ordinary course of business, none of which shall be, individually
or in the aggregate, materially adverse or constitute a Material Adverse Change
and at the Closing, Purchaser shall have delivered to Seller a certificate to
such effect signed by an officer of Purchaser.
9.2 Performance by Purchaser. Purchaser shall have materially
performed and complied with all of the terms, covenants, agreements, conditions,
undertakings and commitments of this Agreement to be performed or complied with
by Purchaser at or prior to the Closing Date.
9.3 Absence of Litigation. No action, suit or proceeding shall
have been instituted or threatened before any court or governmental body by any
person or governmental agency or body to restrain or prevent Purchaser from
carrying out the transactions contemplated hereby.
9.4 Consents and Approvals. All consents and approvals
required for the consummation of the transactions contemplated by this Agreement
and to permit Purchaser to acquire all of the Portfolio pursuant hereto, without
thereby violating any laws, government regulations or agreements, shall have
been obtained.
9.5 Settlement Agreement and Release. Purchaser, Seller,
Humboldt, ECX and Gordon shall all have fully executed and delivered the Release
Agreement in the form of in the form substantially similar to the attached
EXHIBIT C hereto.
9.6 Ropes Engagement Letter. Purchaser, Seller, Humboldt, and
ECX shall all have received the Engagement Letter provided for in Section 4.2
(e) above and shall executed and delivered the Engagement Letter to Ropes and
Gray.
9.7 Indemnification Agreement. Purchaser, Seller and Humboldt
shall have executed and delivered to each other the Indemnification Agreement
for the Massachusetts Lawsuit in the form substantially similar to the attached
EXHIBIT E hereto.
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10. Indemnification.
10.1 Purchaser. Purchaser hereby agrees to indemnify and hold
harmless from and against, and to promptly defend Seller from and reimburse
Seller, any and all losses, damages, costs, expenses, liabilities, obligations
and claims of any kind (including without limitation, reasonable attorneys' fees
and other legal costs and expenses) which Seller may at any time suffer or
incur, or become subject to, as a result or by reason of (a) any breach of this
Agreement or the Transaction Documents by Purchaser, (b) the untruth or
inaccuracy of any representation or warranty of Purchaser set forth herein or
therein, or (c) arising out of, or concerning, whether directly or indirectly,
the obligations arising out of or relating to the ongoing processing of the
Portfolio, including but not limited to, any liability for chargebacks on the
Portfolio for transactions before or after the Closing and any other duties of
Purchaser and ECX under the MAP Agreement and the Humboldt Merchant Processing
Agreements for the Merchants in the Portfolio or any other matter relating to
the Portfolio, however, expressly excepting therefrom, those that are subject to
the indemnity obligations of Seller under Section 9 of the Humboldt Agreement,
which indemnity obligations of Seller under Section 9 of the Humboldt Agreement
shall prevail to the extent of any inconsistency with the Purchaser
indemnification obligations herein. The parties hereto acknowledge and agree
that nothing contained herein or elsewhere in this Agreement is intended to nor
does it effect the indemnification provisions and terms set forth in Section 9
of the Humboldt Agreement, which shall survive the execution and Closing of the
transactions contemplated under this Agreement.
10.2 Seller. Seller hereby agrees to indemnify and hold
Purchaser harmless from and against, and to promptly defend Purchaser from and
reimburse Purchaser for, any and all losses, damages, costs, expenses,
liabilities, obligations and claims of any kind (including without limitation,
reasonable attorneys fees and other legal costs and expenses) which Purchaser
may at any time suffer or incur, or become subject to, as a result or by reason
of (a) any breach of this Agreement or the Transaction Documents by Seller; or
(b) the untruth or inaccuracy of any representation or warranty of Seller set
forth herein or therein. The parties agree that the obligation of Seller to
indemnify Purchaser hereunder will be limited in the aggregate to the Purchase
Price. The parties hereto further acknowledge and agree that nothing contained
herein or elsewhere in this Agreement is intended to nor does it effect the
indemnification provisions and terms set forth in Section 9 of the Humboldt
Agreement, which shall survive the execution and Closing of the transactions
contemplated under this Agreement.
10.3 Claims. If a claim is made against a party (the
"Indemnitor") pursuant to Section 10.1 or 10.2 of this Agreement, notice shall
be promptly given by the party so claiming indemnity (the "Indemnitee") to the
Indemnitor and, if the Indemnitor promptly notifies the Indemnitee that the
claim is to be contested and provides the Indemnitee written assurance of the
full indemnification of Indemnitee, the Indemnitor shall have the right to
control all settlements (unless the Indemnitee agrees to assume the costs of
settlement) and to select legal counsel (reasonably satisfactory to the
Indemnitee)
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to defend any and all such claims at the sole cost and expense of the
Indemnitor. The Indemnitee may select counsel to participate in any defense, in
which event the fees and expenses of Indemnitee's counsel shall be entirely
borne by the Indemnitee. The parties shall cooperate with each other and provide
each other with access to relevant books and records in their possession as may
be reasonably necessary or appropriate with respect to any claim made pursuant
to this Section 10.
10.4 Massachusetts Lawsuit. Subject to and conditioned on the
Closing of the transactions contemplated in this Agreement, and notwithstanding
any provisions to the contrary contained elsewhere in this Agreement, Seller
hereby agrees to and shall indemnify, defend and hold harmless Purchaser and
Humboldt in respect of any and all claims, losses, damages, liabilities,
settlement cost, including, for any legal, accounting and other expenses for
investigating or defending, arising out of or based upon the "agency" claims
asserted against Purchaser and Humboldt in Count IX of the complaint in the
Massachusetts Lawsuit, that arise out of or are based upon the acts, conduct,
actions or matters alleged in the Massachusetts Lawsuit related to or against
Seller and/or ECX, ("Losses") incurred by Purchaser and/or Humboldt.
Notwithstanding any terms above to the contrary, Seller's indemnity obligations
for such legal expenses of Purchaser and/or Humboldt for the Massachusetts
Lawsuit shall not include those incurred by Purchaser and/or Humboldt prior to
the Closing Date, or incurred after the Closing Date, for so long as Purchaser
and Humboldt are represented by Ropes & Gray pursuant to and as contemplated
under the Engagement Letter and as expressly set forth in Section 4.2 (e) above,
or under the Indemnification Agreement or in this Section 10.4 below. Subject to
the foregoing, Seller hereby agrees that pursuant to the indemnification
provisions of Section 9 of the Humboldt Agreement, the provisions of the
Indemnification Agreement, and the provisions of Section 4.2 (e) hereinabove,
that Seller from and after the Closing, shall assume the defense of Purchaser
and Humboldt in the Massachusetts Lawsuit, and through Ropes & Gray as "lead
counsel" will control the conduct of the defense or settlement of the claims and
proceedings in the Massachusetts Lawsuit. The parties agree, that after Ropes &
Gray becomes counsel of record for Purchaser and Humboldt, and for so long as
Purchaser and Humboldt are represented by Ropes & Gray pursuant to and as
contemplated under the Engagement Letter and as expressly set forth in Section
4.2 (e) above, Seller will not be liable to Purchaser and/or Humboldt for any
legal or other expenses subsequently incurred by Purchaser and/or Humboldt in
connection with the defense, conduct or settlement of the Massachusetts Lawsuit,
If Ropes & Gray advises Seller, Purchaser and Humboldt, in writing, that an
actual conflict of interest exists between Seller on the one hand, and Purchaser
and Humboldt on the other hand, that requires that it withdraw as counsel for
Purchaser and Humboldt, then, unless otherwise agreed to. Purchaser and Humboldt
shall thereafter be fully entitled to defend and be represented by its own
counsel, in such manner as it/they may deem appropriate, and shall have the
right to assert any claims it/they may have, against Seller (and/or ECX)
including, without limitation thereto, pursuant to the indemnification
provisions of Section 9 of the Humboldt Agreement, to the fullest extent
permitted at law, which rights are expressly reserved by Purchaser and Humboldt.
Seller and Purchaser shall use their best efforts to obtain the agreement of
Ropes & Gray, ECX and Humboldt to provisions of Section 4.2(e) above, including
their execution of the Engagement Letter, and to use
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their best efforts to obtain the execution of the Indemnification Agreement by
Humboldt consistent with the provisions of this Section 10.4 and to otherwise
take all reasonable and to otherwise take all reasonable acts, execute all
documents and do all things reasonably necessary or appropriate to otherwise
carry into effect the transactions contemplated under Sections 4.2(e) and (f)
above and this Section 10.4 of this Agreement.
11. Non-Solicitation. Seller agrees that from and after the execution
and delivery of this Agreement and from and after the Closing, that without
Purchaser's prior written consent (which consent may be withheld in Purchaser's
sole and absolute discretion), Seller shall not, directly or indirectly,
knowingly cause or knowingly permit any of its employees, agents, principals,
Affiliates, subsidiaries or any other person or entity with whom it has the
right by contract (i) to interfere with, disrupt, or attempt to interfere with
or disrupt, any past, present or prospective business relationship of Purchaser
or Humboldt, contractual or otherwise, related to or arising from the Portfolio,
the Merchant Accounts or the Merchants, including, without limitation, the
ability of Purchaser to own, operate or obtain the financial benefit of the
Portfolio, including without limitation thereto, to maintain the Merchant
Account and goodwill associated therewith and to receive the revenue from the
Portfolio as contemplated herein; or (ii) solicit any Merchant or otherwise
cause any Merchant in the Portfolio to terminate or cancel its existing Merchant
Account and its credit card processing under the existing Merchant Processing
Agreement included as part of the Portfolio by Purchaser. This Section 11 shall
survive the Closing and shall apply for three (3) years following the Closing
Date. Seller shall be afforded a reasonable opportunity to cure an inadvertent
breach of this Section 11 and to implement controls to prevent a future
inadvertent breach of this Section 11 after written notice of such breach from
Purchaser, provided, however, that such right to cure shall not be deemed a
waiver of any rights or remedies for any future breach or for actual damages for
such breach. Notwithstanding the forgoing provisions in this Section 11 above of
this Agreement, commencing from and after six (6) months after the Closing Date,
if, without any action or conduct, direct or indirect, by Seller or any
Affiliate of Seller, or any of their employees, agents, principals, Affiliates,
or subsidiaries, any Merchant(s) initiates, a request that its credit card
processing services be moved from Purchaser and/or Humboldt under the Merchant
Agreement then any such involvement by Seller in moving such a Merchant from
Purchaser and/or Humboldt under the Merchant Agreement shall not be a violation
of this Section 11 or any other part of this Agreement, provided that Seller
gives written notice to Purchaser, within ten (10) calendar days after such
request, that such Merchant(s) has made such an unsolicited request, and stating
the date first requested and the manner so made ( i.e., via written request,
telephonic, email, etc.) Notwithstanding any provision in this Agreement, Seller
shall be entitled to forward cancellations it receives from Merchants to
Purchaser without it being a violation of this Section 11 or any other provision
on this Agreement. Notwithstanding any provision in this Agreement, Seller shall
have the right to contact and market products (other than merchant accounts) to
the Merchants in the Portfolio. Notwithstanding any provision in this Agreement,
Seller has identified 23 Merchants from the State of Vermont that may be
canceling their merchant accounts (as set forth on the attached SCHEDULE 11
hereto) and any cancellation by such Merchants set forth on
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SCHEDULE 11 shall not be a violation any provision of this Agreement.
12. Miscellaneous Provisions.
12.1 Survival. All representations, warranties, covenants,
conditions, commitments, undertakings and agreements of any of the parties
hereto made in this Agreement or in any certificate or document delivered
pursuant hereto shall survive the execution and delivery hereof and the Closing
hereunder and any investigation made by any party.
12.2 Notices. All notices, requests, demands and other
communications hereunder, to the parties, their successors in interest or their
assignees shall be in writing and shall be delivered as follows, with notice
deemed given as indicated: (a) by personal delivery, when delivered personally;
(b) by overnight delivery with a nationally known overnight carrier (such as
Federal Express), upon written verification of receipt; (c) by telecopy or
facsimile transmission, upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, postage prepaid, return
receipt requested, upon verification of receipt. Notice shall be sent to the
addresses set forth below or to or at such other addresses as the parties may
designate by written notice in accordance with this SECTION 12.2:
If to Purchaser: iPayment Technologies, Inc.
9200 Sunset Boulevard
Los Angeles, California 90069
Fax - (310) 786-2714
Attn: Chief Executive Officer
If to Seller: E-Commerce Exchange, Inc.
1 Mauchly, Suite B
Irvine, California 92618
Fax- (949) 450-8868
Attn: Chief Executive Officer
12.3 Entire Agreement. This Agreement, including the schedules
and exhibits hereto, contains the entire agreement among the parties with
respect to the transactions contemplated hereunder and supersedes all prior
negotiations, agreements and undertakings, if any, including the previously
executed letter of intent relating to the transactions contemplated (which shall
be of no force or effect whatsoever).
12.4 Amendment, Waiver. This Agreement may be amended only by
written agreement of all of the parties hereto. The failure of any of the
parties to this Agreement to require the performance of term or obligation under
this Agreement or the waiver by any of the parties to this Agreement of any
breach hereunder shall not prevent subsequent enforcement of such term or
obligation or be deemed a waiver of any subsequent breach hereunder.
12.5 Enforceability. The invalidity or unenforceability of any
portion of
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this Agreement shall not render the remainder hereof invalid or unenforceable.
12.6 Counterparts. This Agreement may be executed in two or
more counterparts, including via fax, each of which shall be deemed an original
and all of which together shall constitute one and the same instrument.
12.7 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
12.8 Attorneys' Fees. In any action, litigation or proceeding
(collectively, "Action") between the parties arising out of or in relation to
this Agreement, the prevailing party in such Action shall be awarded, in
addition to any damages, injunctions or other relief, and without regard to
whether or not such Action will be prosecuted to final judgment, such party's
costs and expenses, including reasonable attorneys' fees.
12.9 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California, including
all matters of construction, validity, performance and enforcement, without
giving effect to principles of conflict of laws. Any dispute, action, litigation
or other proceeding concerning this Agreement shall be instituted, maintained,
heard and decided in Orange County, California.
12.10 Assignment. Neither this Agreement nor any interest
herein shall be assignable (voluntarily, involuntarily, by judicial process or
otherwise) by any party to any person or entity without the prior written
consent of the other party. Any attempt to assign this Agreement without such
consent shall be void and, at the option of the party whose consent is required,
shall be an incurable breach of this Agreement resulting in the termination of
this Agreement.
12.11 Successors. Subject to Section 12.10, this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective heirs, legatees, legal representatives, personal representatives,
successors and permitted assigns.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]
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12.12 Miscellaneous. The recitals and all exhibits, schedules
and other attachments to this Agreement are fully incorporated into this
Agreement by reference. Unless expressly set forth otherwise, all references
herein to a "day", "month" or "year" shall be deemed to be a reference to a
calendar day, month or year, as the case may be. All cross-references herein
shall refer to provisions within this Agreement and shall not be deemed to be
references to the overall transaction or to any other agreement or document.
Time is of the essence in the performance of this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS
AGREEMENT TO BE DULY EXECUTED AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
"PURCHASER" "SELLER"
iPAYMENT TECHNOLOGIES, INC., E-COMMERCE EXCHANGE, INC.,
a California corporation a Delaware corporation
By: /s/ Carl Grimstad By /s/ Paul Rianda
----------------- ---------------
Carl Grimstad Title: COO and General Counsel
Title: President
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