Asset Purchase Agreement - iPayment Inc. and First Data Merchant Services Corp. and Unified Merchant Services
ASSET PURCHASE AGREEMENT
Dated as of December 27, 2004
Among
iPAYMENT, INC.,
iPAYMENT ACQUISITION SUB LLC,
FIRST DATA MERCHANT SERVICES CORPORATION
and
UNIFIED MERCHANT SERVICES
<PAGE>
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................1
1.1. Definitions..................................................1
ARTICLE II PURCHASE AND SALE..................................................6
2.1. Purchased Assets.............................................6
2.2. Excluded Assets..............................................7
2.3. Assumed Liabilities..........................................8
2.4. Excluded Liabilities.........................................8
ARTICLE III PURCHASE PRICE....................................................9
3.1. Purchase Price...............................................9
3.2. Allocation of Purchase Price.................................9
ARTICLE IV CLOSING............................................................9
4.1. Closing Date.................................................9
4.2. Payment at Closing...........................................9
4.3. Buyer and Parent's Additional Deliveries.....................9
4.4. Sellers' Closing Date Deliveries............................10
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS..........................10
5.1. Organization of Sellers.....................................10
5.2. Authority of Sellers........................................11
5.3. Absence of Encumbrances.....................................12
5.4. Status of Seller Contracts..................................12
5.5. No Violation, Litigation or Regulatory Action...............12
5.6. Net Revenues................................................12
5.7. Operations Since October 31, 2004...........................12
5.8. Customers...................................................13
5.9. Compliance with Laws........................................13
5.10. Chargeback..................................................13
5.11. Merchant Reserve Accounts...................................13
5.12. Taxes.......................................................13
5.13. No Finder...................................................13
5.14. No Untrue Statements........................................14
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER...........................14
6.1. Organization................................................14
6.2. Authority...................................................14
<PAGE>
6.3. Buyer Determination.........................................15
6.4. No Violation, Litigation or Regulatory Action...............15
6.5. No Finder...................................................15
6.6. Financial Ability...........................................15
ARTICLE VII ADDITIONAL AGREEMENTS............................................15
7.1. Use of Names................................................15
7.2. Tax Matters.................................................16
7.3. Non-Solicitation and Related Obligations....................17
7.4. Merchant Reserve Accounts; Guarantees.......................17
7.5. [Intentionally Omitted].....................................18
7.6. Performance by Buyer........................................18
7.7. Post-Closing Merchant Contracts.............................18
7.8. Operation of the Purchased Assets...........................18
ARTICLE VIII [Intentionally Omitted.]........................................18
ARTICLE IX INDEMNIFICATION...................................................18
9.1. Indemnification by Sellers..................................19
9.2. Indemnification by Buyer and Parent.........................20
9.3. Notice of Claims............................................20
9.4. Third Person Claims.........................................21
9.5. Limitations.................................................23
ARTICLE X GENERAL PROVISIONS.................................................23
10.1. Survival of Obligations.....................................23
10.2. Confidential Nature of Information..........................23
10.3. No Public Announcement......................................23
10.4. Notices.....................................................24
10.5. Successors and Assigns......................................25
10.6. Access to Records after Effective Time......................25
10.7. Entire Agreement; Amendments................................26
10.8. Interpretation..............................................26
10.9. Waivers.....................................................26
10.10. Expenses....................................................26
10.11. Partial Invalidity..........................................26
10.12. Execution in Counterparts...................................26
10.13. Further Assurances..........................................27
10.14. Cooperation.................................................27
10.15. Governing Law...............................................27
10.16. Disclaimer of Warranties....................................27
ii
<PAGE>
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of December 27, 2004 among
iPayment, Inc., a Delaware corporation ("Parent"), iPayment Acquisition Sub LLC,
a Delaware limited liability company ("Buyer"), First Data Merchant Services
Corporation, a Florida corporation ("FDMS"), and Unified Merchant Services, a
Georgia general partnership and a subsidiary of FDMS ("UMS" and, together with
FDMS, "Sellers").
RECITALS
WHEREAS, Sellers are, among other things, engaged in Merchant
acquiring activities and in the provision of Merchant Processing Services; and
WHEREAS, Sellers desire to sell to Buyer, and Buyer desires to
purchase from Sellers, a specific portfolio of Agent Bank and Merchant contracts
and related assets, all on the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, it is hereby agreed between Sellers and Buyer
as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. In this Agreement, the following terms have the
meanings specified or referred to in this Section 1.1 and shall be equally
applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement.
"ACQUIRER'S PROCESSING DATE" has the meaning specified in
Section 2.1(a)(i).
"AFFILIATE" means, with respect to any Person, any other
Person which directly or indirectly controls, is controlled by or is under
common control with such Person; provided, that in no event shall any Alliance
be deemed to be an Affiliate of Sellers. As used herein, "control" means the
power to direct the management or affairs of a Person and "ownership" means the
beneficial ownership of more than 50% of the equity securities of the Person.
"AGENT BANK" means a financial institution (as such term is
defined in the Rules) sponsored by a Card Association member for which services
related to Cards and payment system processing are provided by Sellers prior to
the Effective Time.
"ALLIANCE" means any venture (in any form, including in
corporate, partnership or limited liability company form) or contractual
alliance now or hereafter entered into between Sellers or their Affiliates and
one or more third parties for the provision of any Merchant Processing Services
pursuant to an arrangement whereby Sellers or their Affiliates share the
economic benefits of ownership of Merchant contracts through profit sharing,
revenue sharing, a
<PAGE>
royalty interest or otherwise. Employees, agents and independent contractors of
Sellers or their Affiliates, insofar as such persons act on behalf of any
Alliance, shall not be deemed to be employees, agents or independent contractors
of Sellers or their Affiliates for purposes of this Agreement.
"ALLOCATION SCHEDULE" has the meaning specified in Section
3.2.
"ASSUMED LIABILITIES" has the meaning specified in Section
2.3.
"ASSUMPTION AGREEMENT" means the Assumption Agreement in the
form of Exhibit A.
"BANK CARD" means a credit or debit card issued by a licensee
of Visa or MasterCard.
"BUYER" has the meaning specified in the first paragraph of
this Agreement.
"BUYER ANCILLARY AGREEMENTS" means all agreements, instruments
and documents being or to be executed and delivered by Buyer or Parent under
this Agreement or in connection herewith.
"BUYER GROUP MEMBER" means (i) Buyer and its Affiliates, (ii)
directors, officers, employees, agents, attorneys and consultants of Buyer and
its Affiliates and (iii) the successors and assigns of the foregoing.
"CARD" means any credit or debit card, including Visa,
MasterCard, American Express, Discover, Maestro, Interlink, JCB and Diners Club
(but excluding, for the avoidance of doubt, private label cards, "smart cards"
and stored value cards).
"CARD ASSOCIATIONS" means Visa, MasterCard and any other
association or card issuer having proprietary rights to, and clearing and
oversight responsibilities with respect to, any credit or debit card used to
effect Transactions and shall include any debit card network utilized to
authorize and settle any debit card used to effect Transactions.
"CARD ASSOCIATION FINES" means all Card Association fines,
penalties and fees related to or arising from Transactions.
"CARDHOLDER" means the Person in whose name a Card has been
issued.
"CHARGEBACK" means a disputed charge by a Cardholder or
rejected charge form or other evidence of a purchase by a Cardholder of goods
and/or services from a Merchant by use of a Card that is returned unpaid by the
issuing financial institution, in accordance with the Rules.
"CLAIM NOTICE" has the meaning specified in Section 9.3(a).
"CLOSING" means the closing of the transfer of the Closing
Purchased Assets from Sellers to Buyer.
2
<PAGE>
"CLOSING DATE" has the meaning specified in Section 4.1.
"CLOSING PURCHASED ASSETS" has the meaning specified in
Section 2.1(a).
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONFIDENTIALITY AGREEMENT" means that certain Mutual
Confidentiality Agreement dated November 24, 2004 between Parent and FDMS.
"COURT ORDER" means any judgment, order, award or decree of
any foreign, federal, state, local or other court or tribunal and any award in
any arbitration proceeding.
"EFFECTIVE TIME" means 11:59 p.m. Eastern Time on December 31,
2004.
"ENCUMBRANCE" means any lien, charge, security interest,
mortgage, pledge, easement, conditional sale or other title retention agreement,
defect in title or other similar restrictions of any kind.
"EXCLUDED ASSETS" has the meaning specified in Section 2.2.
"EXCLUDED LIABILITIES" has the meaning specified in Section
2.4.
"EXPENSES" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting any claim, action, suit or
proceeding incident to any matter indemnified against hereunder (including court
filing fees, court costs, arbitration fees or costs, witness fees, and
reasonable fees and disbursements of legal counsel, investigators, expert
witnesses, accountants and other professionals).
"FDC" means First Data Corporation, a Delaware corporation.
"GOVERNMENTAL BODY" means any foreign, federal, state, local
or other governmental authority or regulatory body.
"INDEMNIFIED PARTY" has the meaning specified in Section
9.3(a).
"INDEMNITOR" has the meaning specified in Section 9.3(a).
"INSTRUMENT OF ASSIGNMENT" means the Instrument of Assignment
in the form of Exhibit B.
"IRS" means the Internal Revenue Service.
"KNOWLEDGE OF SELLERS" means the actual knowledge of Kathryn
Andersen, Deanna Kosse and Anthony Lucatuorto.
"LOSSES" means any and all out-of-pocket losses, costs,
obligations, liabilities, settlement payments, awards, judgments, fines,
penalties, damages, expenses, deficiencies or other charges.
3
<PAGE>
"MASTERCARD" means MasterCard International, Inc. and its
successor and assigns.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
the results of operations or financial condition of the Purchased Assets.
"MERCHANT" means any provider of goods and/or services that
accepts Cards as a payment vehicle.
"MERCHANT PROCESSING SERVICES" means any of the following
services offered to Merchants in respect of Cards: the authorization and capture
of Transactions, the submission of such Transactions for interchange settlement,
the clearing and settlement of such Transactions, the preparation of statements
or reports based on such Transactions, processing Chargebacks and other
exception items, the provision of customer service in respect of any of such
Transactions or the rental of POS Hardware relating to any of the foregoing.
"Merchant Processing Services" shall not include services relating to (i) any
card issuing or related activities or services, (ii) private label cards, "smart
cards" or stored value cards, (iii) check authorization and guarantee services
or (iv) the leasing of POS Hardware.
"NET REVENUES" means an amount equal to the merchant discount
generated by the Seller Contracts, less (i) interchange, (ii) assessments and
(iii) payments required by the Seller Contracts with Agent Banks, the Referral
Agreements and agreements with Agent Banks sold to Buyer by FDMS pursuant to the
Asset Purchase Agreement, dated as of December 19, 2003, plus other recurring
revenues generated from Bank Card acquiring services generated by the Purchased
Assets.
"PERMITTED ENCUMBRANCES" means (i) liens or imperfections on
property which are not material in amount or do not materially detract from the
value of or materially impair the existing use of the property affected by such
lien or imperfection and (ii) any payments required by the Seller Contracts with
Agent Banks, the Referral Agreements and agreements with Agent Banks sold to
Buyer by FDMS pursuant to the Asset Purchase Agreement, dated as of December 19,
2003.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or Governmental Body.
"POS HARDWARE" means point of sale Transaction processing
devices, including terminals, printers, pinpads and imprinter hardware.
"POST-CLOSING MERCHANT CONTRACTS" has the meaning specified in
Section 7.7.
"PRE-EFFECTIVE PERIOD" means any taxable year or period ending
on or before the Effective Time, and with respect to any Straddle Period, the
portion of such Straddle Period ending on and including the Effective Time.
"PROCESSING AGREEMENT" means the Service Agreement in the form
of Exhibit C.
4
<PAGE>
"PURCHASE PRICE" has the meaning specified in Section 3.1.
"PURCHASED ASSETS" means the assets and properties being
transferred from Sellers to Buyer pursuant to Section 2.1.
"REFERRAL AGREEMENTS" means the referral agreements identified
in Schedule 1.1.
"REQUIREMENTS OF LAW" means any foreign, federal, state and
local laws, statutes, regulations, rules, codes or ordinances enacted, adopted,
issued or promulgated by any Governmental Body.
"RESERVE ACCOUNTS" has the meaning specified in Section
2.1(a)(ii).
"RULES" means the applicable bylaws, rules, regulations,
documentation and manuals promulgated or adopted by MasterCard, Visa or other
Card Associations, as such rules, manuals and other items may be amended or
supplemented from time to time.
"SELLERS" has the meaning specified in the first paragraph of
this Agreement.
"SELLER ANCILLARY AGREEMENTS" means all agreements,
instruments and documents being or to be executed and delivered by Sellers under
this Agreement or in connection herewith.
"SELLER CONTRACTS" has the meaning specified in Section
2.1(a)(i).
"SELLER GROUP MEMBER" means (i) Sellers and their Affiliates,
(ii) directors, officers, employees, agents, attorneys and consultants of
Sellers and their Affiliates and (iii) the successors and assigns of the
foregoing.
"SELLER MERCHANT" means a Merchant that is a party to a Seller
Contract.
"SELLER'S GROUP" means any "affiliated group" (as defined in
Section 1504(a) of the Code without regard to the limitations contained in
Section 1504(b) of the Code) that includes Sellers.
"SIGNIFICANT MERCHANTS" has the meaning specified in Section
5.8.
"SPONSORSHIP TRANSFER DATE" means any date on which Sellers
cease to provide all or a portion of the services described in Section 2.1(c) of
the Processing Agreement.
"STRADDLE PERIOD" means any taxable year or period beginning
before and ending after the Effective Time.
"TAX" (and, with correlative meaning, "TAXES") means (i) any
federal, state, local or foreign income, gross receipts, property, sales, use,
license, excise, franchise, employment, estimated, payroll, withholding,
alternative or add-on minimum, ad valorem, value added, transfer or excise tax,
or any other tax, custom, duty, governmental fee or other like
5
<PAGE>
assessment or charge of any kind whatsoever, together with any interest or
penalty, imposed by any Governmental Body and (ii) any liability for the payment
of such amounts with respect to payments of a type described in clause (i) as a
result of being a member of a consolidated, combined, unitary or affiliated
group or as a result of a contractual obligation to indemnify any Person or
other entity.
"TAX RETURN" means any return, report or similar statement
required to be filed with respect to any Taxes (including any attached
schedules), including, without limitation, any information return, claim for
refund, amended return and declaration of estimated Tax.
"TRANSACTION" means the purchase by a Cardholder of goods
and/or services from a Merchant by use of a Card.
"2003 AGREEMENTS" has the meaning specified in Section
2.1(a)(i).
"2003 AMENDED AND RESTATED PROCESSING AGREEMENT" means the
amended and restated Service Agreement originally dated December 19, 2003
between Parent and FDMS in the form of Exhibit D.
"2004 MERCHANT AGREEMENTS" has the meaning specified in
Section 2.1(a)(i).
"VISA" means, individually or collectively, as appropriate,
VISA U.S.A., Inc. and/or VISA International, Inc. and either of their successors
or assigns.
ARTICLE II
PURCHASE AND SALE
2.1. Purchased Assets. (a) Upon the terms and subject to the conditions
of this Agreement, on the Closing Date, Sellers shall sell, transfer, assign,
convey and deliver to Buyer, and Buyer shall purchase from Sellers, free and
clear of all Encumbrances (except for Permitted Encumbrances), all right, title
and interest of Sellers in, to and under the following assets and properties
(subject to Section 2.2) (herein collectively called the "Closing Purchased
Assets"):
(i) all right, title and interest of Sellers in, to and under
(A) the agent bank agreements and merchant agreements identified in
Schedule 2.1(a)(i)(A) hereto (the "2003 Agreements") and (B) the
merchant agreements identified in Schedule 2.1(a)(i)(B) hereto (the
"2004 Merchant Agreements" and, collectively with the 2003 Agreements,
the "Seller Contracts"), in each case with respect to the period after
the Effective Time, including all revenues attributable to Transactions
having an acquirer's processing date as specified in the Visa rules, or
a comparable date with respect to other Card Associations (each, an
"Acquirer's Processing Date"), after the Effective Time;
(ii) subject to Section 7.4, all rights to the Seller
Merchants' funds in reserve, escrow or similar accounts (collectively,
the "Reserve Accounts") and all guarantees from other Persons to
satisfy obligations of the Seller Merchants to Sellers arising in
connection with Merchant Processing Services;
6
<PAGE>
(iii) all POS Hardware which Sellers have furnished to Seller
Merchants, including rented POS Hardware but excluding POS Hardware
leased or sold to Seller Merchants;
(iv) all revenues relating to the period after the Effective
Time generated by agreements or arrangements between Sellers and Seller
Merchants pursuant to which Sellers rent POS Hardware;
(v) all right, title and interest of Sellers in, to and under
the Referral Agreements; and
(vi) all books and records of Sellers to the extent relating
exclusively to the Purchased Assets or as otherwise reasonably
necessary for Buyer to be able to continue to operate the Purchased
Assets.
(b) On any Sponsorship Transfer Date and in accordance with the
Processing Agreement, Buyer shall direct Sellers to transfer the sponsorship,
clearing and settlement of the applicable Seller Contracts (and to take any
required action incidental thereto) to Buyer (or the clearing bank designated by
Buyer).
2.2. Excluded Assets. Notwithstanding the provisions of Section 2.1,
the Purchased Assets shall not include the following (herein referred to as the
"Excluded Assets"):
(a) any portion of any agreement or arrangement described in
Section 2.1(a) pursuant to which a Seller Merchant obtains services performed by
TeleCheck Services, Inc. or pursuant to which a Merchant leases POS Hardware
from Sellers or their Affiliates or assignee of Sellers;
(b) all rights of Sellers or their Affiliates as a lessor under
all leases of POS Hardware to the Seller Merchants (including all agreements or
arrangements relating thereto);
(c) all rights of Sellers or their Affiliates to receive payments
from third-party lessors with respect to leases of POS Hardware sold to Seller
Merchants (including all agreements or arrangements relating thereto);
(d) all revenues attributable to Transactions under the Seller
Contracts having an Acquirer's Processing Date at or prior to the Effective
Time;
(e) all revenues relating to the period at or prior to the
Effective Time generated by agreements or arrangements between Sellers and
Seller Merchants pursuant to which Sellers rent POS Hardware;
(f) Sellers' rights, claims or causes of action against third
parties relating to the Purchased Assets at or prior to the Effective Time with
respect to the period prior to the Effective Time;
(g) the names "First Data Corporation," "FDC," "First Data
Merchant Services Corporation," "FDMS," "Unified Merchant Services," "UMS,"
"Innovative Payment
7
<PAGE>
Technologies" or any related or similar trade names, trademarks, service marks
or logos to the extent the same incorporate the name "First Data Corporation,"
"FDC," "First Data Merchant Services Corporation," "FDMS," "Unified Merchant
Services," "UMS," "Innovative Payment Technologies" or any variation thereof;
and
(h) all refunds (or credits) of any Tax for which Sellers are
liable pursuant to Section 7.2.
2.3. Assumed Liabilities. On the Closing Date, Buyer shall deliver to
Sellers the Assumption Agreement, pursuant to which Buyer shall assume and be
obligated to pay, perform or otherwise discharge, in accordance with their
respective terms and subject to the respective conditions thereof, all of the
following:
(a) all liabilities and obligations of Sellers to be paid or
performed after the Effective Time under the Seller Contracts, including
liability for Chargebacks, Card Association Fines and other credit-related
losses relating to Transactions having an Acquirer's Processing Date after the
Effective Time, and any expenses relating to Transactions having an Acquirer's
Processing Date after the Effective Time;
(b) all liabilities and obligations to be paid or performed after
the Effective Time under (i) the Referral Agreements and (ii) the other referral
agreements identified in Schedule 2.3(b) to the extent such agreements contain
ongoing residual payment obligations with respect to the 2004 Merchant
Agreements;
(c) all liabilities and obligations under the Post-Closing
Merchant Contracts; and
(d) all liabilities in respect of Taxes for which Buyer is liable
pursuant to Section 7.2.
All of the foregoing liabilities and obligations to be assumed by Buyer
hereunder (excluding any Excluded Liabilities) are referred to herein as the
"Assumed Liabilities."
2.4. Excluded Liabilities. Buyer shall not assume or be obligated to
pay, perform or otherwise discharge the following liabilities (all such
liabilities and obligations not being assumed being herein called the "Excluded
Liabilities") and, notwithstanding anything to the contrary in Section 2.3, none
of the following shall be "Assumed Liabilities" for purposes of this Agreement:
(a) any liabilities or obligations with respect to Chargebacks,
Card Association Fines and other credit-related losses for Transactions having
an Acquirer's Processing Date at or prior to the Effective Time, and any
expenses relating to Transactions having an Acquirer's Processing Date at or
prior to the Effective Time;
(b) any liabilities in respect of Taxes for which Sellers are
liable pursuant to Section 7.2;
(c) any liabilities or obligations in respect of any Excluded
Assets; or
8
<PAGE>
(d) any liability to pay residuals due for Transactions having an
Acquirer's Processing Date at or prior to the Effective Time.
ARTICLE III
PURCHASE PRICE
3.1. Purchase Price. The purchase price for the Purchased Assets (the
"Purchase Price") shall be equal to $130,000,000 in cash. Such amount shall be
paid by Buyer pursuant to Section 4.2 hereof.
3.2. Allocation of Purchase Price. Within 60 days following the Closing
Date, Buyer and Sellers shall agree upon a schedule (the "Allocation Schedule")
allocating the Purchase Price (including, for the purpose of this Section 3.2,
any other consideration paid to Sellers, including the Assumed Liabilities),
between the Purchase Assets transferred by each Seller and, in the case of each
Seller, among the Purchased Assets transferred by each Seller. The Allocation
Schedule shall be reasonable and shall be prepared in accordance with Section
1060 of the Code, the regulations thereunder and the preceding sentence.
Promptly after agreeing to the Allocation Schedule, Sellers shall sign the
Allocation Schedule and return an executed copy thereof to Buyer. Buyer and
Sellers each agrees to file IRS Form 8594, and all federal, state, local and
foreign Tax Returns, in accordance with the Allocation Schedule, and neither
Buyer nor Sellers shall take any other position inconsistent therewith. Buyer
and Sellers each agrees to provide the other promptly with any other information
required to complete IRS Form 8594.
ARTICLE IV
CLOSING
4.1. Closing Date. The Closing is being held on the date hereof at the
offices of Sidley Austin Brown & Wood LLP, Bank One Plaza, Chicago, Illinois or
at such other place as shall be agreed upon by Buyer and Sellers. The Closing
shall be deemed to occur for all purposes hereunder at 10:00 a.m. Eastern Time
on the date hereof. The time and date of the Closing is referred to herein as
the "Closing Date."
4.2. Payment at Closing. At Closing Parent shall cause Buyer to pay
Sellers an amount equal to the Purchase Price by wire transfer of immediately
available funds to the account specified in Schedule 4.2.
4.3. Buyer and Parent's Additional Deliveries. On the Closing Date,
Buyer or Parent, as applicable, will deliver to Sellers all the following:
(a) Certificate of the secretary or an assistant secretary of
Buyer, dated the Closing Date, in form and substance reasonably satisfactory to
Sellers, as to (i) the resolutions of the Board of Directors of Buyer
authorizing the execution and performance of this Agreement and the contemplated
transactions and (ii) incumbency and signatures of the officers of Buyer
executing this Agreement and any Buyer Ancillary Agreement to which Buyer is a
party;
9
<PAGE>
(b) Certificate of the secretary or an assistant secretary of
Parent, dated the Closing Date, in form and substance reasonably satisfactory to
Sellers, as to (i) the resolutions of the Board of Directors of Parent
authorizing the execution and performance of this Agreement and the contemplated
transactions and (ii) incumbency and signatures of the officers of Parent
executing this Agreement and any Buyer Ancillary Agreement to which Parent is a
party;
(c) The Processing Agreement duly executed by Parent;
(d) The 2003 Amended and Restated Processing Agreement duly
executed by Parent; and
(e) The Assumption Agreement duly executed by Buyer.
4.4. Sellers' Closing Date Deliveries. On the Closing Date, Sellers
will deliver to Buyer all the following:
(a) Certificate of the secretary or an assistant secretary of each
Seller, dated the Closing Date, in form and substance reasonably satisfactory to
Buyer, as to incumbency and signatures of the officers of each Seller executing
this Agreement and any Seller Ancillary Agreement;
(b) The Instrument of Assignment duly executed by Sellers;
(c) The Processing Agreement duly executed by FDMS;
(d) The 2003 Amended and Restated Processing Agreement duly
executed by FDMS; and
(e) Such other bills of sale, assignments and other instruments of
transfer or conveyance as Buyer may reasonably request or as may be otherwise
necessary to evidence and effect the sale, assignment, transfer, conveyance and
delivery of the Closing Purchased Assets to Buyer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLERS
As an inducement to Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, as of the date hereof, Sellers
represent and warrant to Buyer as follows:
5.1. Organization of Sellers. FDMS is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida.
UMS is duly organized and validly existing under the laws of the State of
Georgia. Each Seller is duly qualified to transact business as a foreign entity
and is in good standing in each of the jurisdictions in which such Seller is
required to be so licensed or qualified with respect to the operation of the
Purchased Assets, except where the failure to be so licensed or qualified would
not have a Material Adverse Effect. Each Seller has the corporate or other power
and authority to own or lease and to operate and use
10
<PAGE>
the Purchased Assets and to carry on the Merchant acquiring and processing
business as now conducted.
5.2. Authority of Sellers. (a) Sellers have the corporate power and
authority to execute, deliver and perform this Agreement and all of the Seller
Ancillary Agreements to which it is a party. The execution, delivery and
performance of this Agreement and the Seller Ancillary Agreements by Sellers
have been duly authorized and approved and do not require any further
authorization or consent of Sellers or their stockholders or partners. This
Agreement has been duly authorized, executed and delivered by Sellers and
(assuming the valid authorization, execution and delivery of this Agreement by
Buyer and Parent) is the legal, valid and binding obligation of Sellers
enforceable in accordance with its terms, and each of the Seller Ancillary
Agreements has been duly authorized by each Seller, as applicable, and (assuming
the valid authorization, execution and delivery thereof by Buyer and Parent)
upon execution and delivery by each Seller, as applicable, will be a legal,
valid and binding obligation of such Seller enforceable in accordance with its
terms, in each case subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general application relating to or affecting
creditors' rights and to general equity principles.
(b) Except as set forth in Schedule 5.2, neither the execution
and delivery of this Agreement or any of the Seller Ancillary Agreements by
Sellers or the consummation of any of the transactions contemplated hereby or
thereby by Sellers nor compliance with or fulfillment of the terms, conditions
and provisions hereof or thereof by Sellers will:
(i) result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation or a loss of rights
under, or result in the creation or imposition of any Encumbrance upon
any of the Purchased Assets, under (1) the charter, by-laws or similar
organizational documents of Sellers, (2) any Seller Contract, (3) any
other material note, instrument, agreement, mortgage, lease, license,
franchise, permit or other authorization, right, restriction or
obligation to which either Seller is a party or any of the Purchased
Assets is subject or by which either Seller is bound, (4) any Court
Order to which either Seller is a party or any of the Purchased Assets
is subject or by which either Seller is bound or (5) any Requirements
of Laws affecting Sellers or the Purchased Assets, other than, in the
case of clauses (2) and (3), any such breaches, defaults, rights, loss
of rights or Encumbrances that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect or would
not prevent the consummation of the transactions contemplated hereby;
or
(ii) require the approval, consent, authorization or act of,
or the making by Sellers of any declaration, filing or registration
with, any Governmental Body, except for such approvals, consents,
authorizations, declarations, filings or registrations the failure of
which to be obtained or made would not reasonably be expected to have a
Material Adverse Effect or would not prevent the consummation of the
transactions contemplated hereby.
11
<PAGE>
5.3. Absence of Encumbrances. Except as set forth in Schedule 5.3, each
Seller's right, title and interest in the Purchased Assets (other than the POS
Hardware) are free and clear of all Encumbrances, except for Permitted
Encumbrances.
5.4. Status of Seller Contracts. Except as set forth in Schedule 5.4 or
as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, each of the Seller Contracts (i) constitutes a valid
and binding obligation of the parties thereto and is in full force and effect
and (ii) may be assigned as contemplated by this Agreement and will continue in
full force and effect thereafter, in each case without breaching any material
term thereof or resulting in the forfeiture or impairment of any material right
thereunder and without the consent, approval or act of, or the making of any
filing with, any other Person. Sellers have fulfilled and performed their
obligations under each of the Seller Contracts except for any failures to
perform which would not, individually or in the aggregate, reasonably be
expected to have Material Adverse Effect and neither Seller is in, or alleged to
be in, any breach or default under, nor is there or is there alleged to be any
reasonable basis for termination for cause of, any of the Seller Contracts and
no other party to any of the Seller Contracts has breached or defaulted
thereunder which has remained uncured except for any breaches or defaults which
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Except as set forth in Schedule 5.4, Sellers have
complete and correct copies of substantially all of the Seller Contracts and has
afforded Buyer, to the extent requested by Buyer, reasonable access to the
agreements for Buyer to review and inspect.
5.5. No Violation, Litigation or Regulatory Action. Except as set forth
in Schedule 5.5, there are no material claims, suits, proceedings or
investigations pending or, to the knowledge of Sellers, threatened in respect of
the Purchased Assets.
5.6. Net Revenues. Schedule 5.6 contains information relating to the
pro forma Net Revenues with respect to the Purchased Assets for the twelve
months ended December 31, 2003 and the ten months ended October 31, 2004. Such
information has been prepared in accordance with the assumptions stated therein
and in a manner consistent with Sellers' past practice of determining Net
Revenues associated with the Purchased Assets. Such information presents fairly
(and has been prepared in good faith and on a reasonable basis with respect to)
the Net Revenues associated with the Purchased Assets for the periods covered
thereby. The Referral Agreements that have not been made available to Buyer and
the other referral agreements identified in Schedule 2.3(b) do not contain any
terms which would result in a material increase in the payment obligations to
any party thereto from the historical payment obligations reflected in the
calculation of Net Revenues as set forth in Schedule 5.6.
5.7. Operations Since October 31, 2004.
(i) Since October 31, 2004, there has been no Material Adverse
Effect and there has been no change in Sellers' operations of the
Purchased Assets that would reasonably be expected to result in a
Material Adverse Effect.
(ii) Since October 31, 2004, Sellers have conducted their
affairs with respect to Agent Banks and Merchants which are parties to
the Seller Contracts and the Referral Agreements only in the ordinary
course and in conformity with past practice. Without
12
<PAGE>
limiting the generality of the foregoing, since October 31, 2004,
Sellers have not in respect of the Seller Contracts:
(A) materially delayed or accelerated payment of any
account payable or other liability of any party under any of the Seller
Contracts beyond or in advance of its due date or the date when such
liability would have been paid in the ordinary course of business
consistent with past practice; or
(B) created, modified or continued any arrangements
with any Merchant (either directly or through its Affiliates or Agent
Banks) pursuant to which selected Merchants received either subsidized
fees or discount support (except for Merchants who received such
subsidized fees or discount support that are listed in Schedule 5.7).
5.8. Customers. Schedule 5.8 sets forth a complete and accurate list of
the top 25 Merchants that are party to Seller Contracts based on net Bank Card
sales volume for the ten months ended October 31, 2004 (the "Significant
Merchants"). Except as set forth in Schedule 5.8, since November 1, 2004, to the
knowledge of Sellers, Sellers have not lost or been notified in writing that
they will lose any Significant Merchant or any referral relationship
contemplated by the Referral Agreements.
5.9. Compliance with Laws. Sellers are in compliance with all
Requirements of Law and all Rules which, in each case, are applicable to the
Purchased Assets, except for such instances of non-compliance as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.10. Chargeback. To the knowledge of Sellers, there are no factors
(other than any factors which are generally known, or with respect to which
information is generally available, in the Merchant Processing Services
industry) relating to an increase in the Chargeback rates with respect to the
Purchased Assets which, individually or in the aggregate, Sellers reasonably
expect will cause a Material Adverse Effect.
5.11. Merchant Reserve Accounts. Schedule 5.11 sets forth a complete
listing of Reserve Accounts with respect to the Seller Merchants as of October
31, 2004.
5.12. Taxes. Except as set forth on Schedule 5.12, Sellers have, in
respect of the Purchased Assets, filed all material Tax Returns which are
required to be filed and has paid all Taxes shown to be due on such Tax Returns;
provided, however, that nothing in this Section 5.12 shall cause Sellers to be
liable for any Taxes for which Sellers are not expressly liable pursuant to
Section 7.2 (relating to liability for Taxes).
5.13. No Finder. Neither Sellers nor any Person acting on their behalf
has paid or become obligated to pay any fee or commission to any broker, finder
or intermediary for or on account of the transactions contemplated by this
Agreement.
13
<PAGE>
5.14. No Untrue Statements. To the knowledge of Sellers, none of this
Agreement, any Schedule to this Agreement or any Exhibit to this Agreement
contains any untrue statement of a material fact.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Sellers to enter into this Agreement and to
consummate the transactions contemplated hereby, as of the date hereof, Buyer
and Parent hereby jointly and severally represent and warrant to Sellers as
follows:
6.1. Organization. Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
full corporate power and authority to own or lease and to operate and use its
properties and assets and to carry on its business as now conducted. Buyer is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware and has full limited liability company
power and authority to own or lease and to operate and use its properties and
assets and to carry on its business as now conducted.
6.2. Authority. (a) Each of Buyer and Parent has the corporate or other
power and authority to execute, deliver and perform this Agreement and all of
the Buyer Ancillary Agreements to which it is party. The execution, delivery and
performance of this Agreement and the Buyer Ancillary Agreements to which it is
party by Buyer have been duly authorized and approved by Buyer's board of
directors and stockholders. The execution delivery and performance of this
Agreement and the Buyer Ancillary Agreements to which it is party by Parent have
been duly authorized and approved by Parent's board of directors and do not
require any further authorization or consent of Parent or its stockholders. This
Agreement has been duly authorized, executed and delivered by Buyer and Parent
and (assuming the valid authorization, execution and delivery of this Agreement
by Sellers) is the legal, valid and binding agreement of each of Buyer and
Parent enforceable in accordance with its terms, and each of the Buyer Ancillary
Agreements has been duly authorized by Buyer or Parent, as applicable, and
(assuming the valid authorization, execution and delivery thereof by Sellers)
upon execution and delivery by Buyer or Parent, as applicable, will be a legal,
valid and binding obligation of Buyer or Parent, as applicable, enforceable in
accordance with its terms, in each case subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application relating to
or affecting creditors' rights and to general equity principles.
(b) Neither the execution and delivery of this Agreement or any
of the Buyer Ancillary Agreements to which it is a party by Buyer or Parent or
the consummation of any of the transactions contemplated hereby or thereby by
Buyer or Parent nor compliance with or fulfillment of the terms, conditions and
provisions hereof or thereof by Buyer or Parent will:
(i) result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation or a loss of rights
under (1) the Certificate of Incorporation or by-laws of Buyer or
Parent, (2) any material note, instrument, agreement, mortgage, lease,
license,
14
<PAGE>
franchise, permit or other authorization, right, restriction or
obligation to which Buyer or Parent is a party or any of its properties
is subject or by which Buyer or Parent is bound, (3) any Court Order to
which Buyer or Parent is a party or by which it is bound or (4) any
Requirements of Laws affecting Buyer or Parent, other than, in the case
of clause (2), any such breaches, defaults, rights or loss of rights
that, individually or in the aggregate, would not materially impair the
ability of Buyer or Parent to perform its obligations hereunder or
prevent the consummation of the transactions contemplated hereby; or
(ii) require the approval, consent, authorization or act of,
or the making by Buyer or Parent of any declaration, filing or
registration with, any Governmental Body, except for such approvals,
consents, authorizations, declarations, filings or registrations the
failure of which to be obtained or made would not materially impair the
ability of Buyer or Parent to perform its obligations hereunder or
prevent the consummation of the transactions contemplated hereby.
6.3. Buyer Determination. Buyer has independently determined that the
consummation of the transactions set forth in this Agreement is not subject to
the reporting requirements of the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
6.4. No Violation, Litigation or Regulatory Action. As of the date
hereof, there are no claims, suits, proceedings or investigations pending or, to
the knowledge of Buyer or Parent, threatened against Buyer or Parent or and of
their respective subsidiaries which are reasonably expected to materially impair
the ability of Buyer or Parent to perform its obligations hereunder or prevent
the consummation of the transactions contemplated hereby. As of the date hereof,
there is no action, suit or proceeding pending or, to the knowledge of Buyer or
Parent, threatened that questions the legality or propriety of the transactions
contemplated by this Agreement or any of the Buyer Ancillary Agreements.
6.5. No Finder. Neither Buyer or Parent nor any Person acting on either
such party's behalf has paid or become obligated to pay any fee or commission to
any broker, finder or intermediary for or on account of the transactions
contemplated by this Agreement.
6.6. Financial Ability. Parent has the financial ability to consummate
the transactions contemplated by this Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1. Use of Names.
(a) Sellers are not conveying ownership rights or granting Buyer a
license to use any of the tradenames or trademarks of FDC or any Affiliate of
FDC and, after the Closing, Buyer shall not use in any manner the names or marks
of FDC or any Affiliate of FDC or any word that is similar in sound or
appearance to such names or marks.
15
<PAGE>
(b) If Buyer or any Affiliate of Buyer violates any of its
obligations under this Section 7.1, Sellers and their Affiliates may proceed
against it in law or in equity for such damages or other relief as a court may
deem appropriate. Buyer acknowledges that a violation of this Section 7.1 would
cause Sellers and their Affiliates irreparable harm that would not be adequately
compensated for by money damages. Buyer therefore agrees that in the event of
any actual or threatened violation of this Section 7.1, Sellers and their
Affiliates shall be entitled, in addition to other remedies that they may have,
to a temporary restraining order and to preliminary and final injunctive relief
against Buyer or such Affiliate of Buyer to prevent any breaches or violations
of this Section 7.1 and to enforce specifically the terms and provisions hereof,
without the necessity of posting a bond.
7.2. Tax Matters.
7.2.1. Liability for Taxes. (a) Sellers shall be liable for and
pay, and pursuant to Article IX (and subject to the limitations thereof), shall
indemnify and hold harmless each Buyer Group Member against all Taxes (whether
assessed or unassessed) applicable to the Purchased Assets or the Assumed
Liabilities, in each case attributable to Pre-Effective Periods. Sellers shall
be entitled to any refund of (or credit for) Taxes described in the preceding
sentence allocable to any Pre-Effective Periods.
Buyer shall be liable for and pay, and pursuant to Article IX
(and subject to the limitations thereof), shall indemnify and hold harmless each
Seller Group Member against all Taxes (whether assessed or unassessed)
applicable to the Purchased Assets or the Assumed Liabilities, in each case
attributable to taxable years or periods beginning after the Effective Time and
with respect to any Straddle Period, the portion of such Straddle Period
beginning after the Effective Time.
(b) Notwithstanding paragraphs (a) of this Section 7.2.1, any
sales Tax, use Tax, real property transfer or gains Tax, documentary stamp Tax
or similar Tax attributable to the sale or transfer of the Purchased Assets
shall be paid by Buyer.
7.2.2. Assistance and Cooperation. After the Closing Date, each of
Sellers and Buyer shall (and cause their respective Affiliates to):
(i) assist the other party in preparing any Tax Returns
relating to the Purchased Assets for Pre-Effective Periods;
(ii) cooperate fully in preparing for any audits of, or
disputes with taxing authorities regarding, any Tax Returns relating to
the Purchased Assets for Pre-Effective Periods;
(iii) make available to the other and to any taxing authority
as reasonably requested all information, records, and documents
relating to Taxes for Pre-Effective Periods;
(iv) provide timely notice to the other in writing of any
pending or threatened Tax audits or assessments relating to the
Business, Purchased Assets or Assumed
16
<PAGE>
Liabilities for taxable periods for which the other may have a
liability under Section 7.2.1;
(v) furnish the other with copies of all correspondence
received from any taxing authority in connection with any Tax audit or
information request with respect to any Pre-Effective Period;
(vi) timely sign and deliver such certificates or forms as may
be necessary or appropriate to establish an exemption from (or
otherwise reduce), or file Tax Returns or other reports with respect
to, Taxes described in paragraph (b) of Section 7.2.1 (relating to
sales, transfer and similar Taxes); and
(vii) timely provide to the other powers of attorney or
similar authorizations necessary to carry out the purposes of this
Section 7.2.
7.2.3. Non-Foreign Person Affidavit. Sellers shall furnish to
Buyer on or before the Closing Date a non-foreign person affidavit as required
by Section 1445 of the Code.
7.3. Non-Solicitation and Related Obligations.
(a) For a four (4)-year period after the Effective Time, Sellers
shall refrain from, and shall use their reasonable best efforts so that their
Affiliates shall not, directly or indirectly, target for solicitation for the
purpose of providing Merchant Processing Services thereto in the United States,
any Merchant which is a party to a 2004 Merchant Agreement or any party to a
Referral Agreement as of the Effective Time, it being understood that the
provision of services by Sellers or their Affiliates to Merchants who initiate
contacts with Sellers or their Affiliates without being solicited by Sellers or
their Affiliates shall not violate Sellers' obligations hereunder.
Notwithstanding the foregoing, the provisions of this Section 7.3(a) are not
intended and shall not be interpreted to create any remedy or breach as a result
of incidental solicitations of customers in the ordinary course of FDMS' or its
Affiliates' business, including any general advertisements not targeted at the
customers included in the Purchased Assets.
(b) For a three (3)-year period after the Effective Time, Sellers
shall refrain from, and shall use their reasonable best efforts so that their
Affiliates shall not, directly or indirectly, target for solicitation for the
purpose of providing Merchant Processing Services thereto in the United States,
any Agent Bank or Merchant which is a party to a 2003 Agreement as of the
Effective Time, it being understood that the provision of services by Sellers or
their Affiliates to Merchants who initiate contacts with Sellers or their
Affiliates without being solicited by Sellers or their Affiliates shall not
violate Sellers' obligations hereunder. Notwithstanding the foregoing, the
provisions of this Section 7.3(b) are not intended and shall not be interpreted
to create any remedy or breach as a result of incidental solicitations of
customers in the ordinary course of FDMS' or its Affiliates' business, including
any general advertisements not targeted at the customers included in the
Purchased Assets.
7.4. Merchant Reserve Accounts; Guarantees.
(a) Merchant Reserve Accounts. Sellers shall continue to maintain
and control any Reserve Accounts established to secure payment of amounts due to
Sellers pursuant
17
<PAGE>
to Seller Contracts, and may continue to debit such accounts for amounts which
Sellers are responsible for pursuant to Section 2.4(a). Within 180 days after
the Effective Time, Sellers shall transfer any amounts remaining in each Reserve
Account to Buyer, and Buyer shall credit a similar account established for the
same Merchant by Buyer in an amount equal to the amount transferred by Sellers
or return the balance to the applicable Merchant.
(b) Guarantees. Upon Sellers no longer having any potential
liability pursuant to Section 2.4(a) as a result of the expiration of all
applicable Card Association periods, Sellers shall cease to have any right to
have any guarantees provided by Merchants enforced on its behalf.
(c) Collections. In addition to the foregoing, Sellers may collect
amounts due to Sellers resulting from Transactions with an Acquirer's Processing
Date prior to the Effective Time from Merchants through offsets against
Merchant's settlement monies or through any other means. Buyer shall provide any
reasonable assistance requested by Sellers in connection with Sellers' efforts
to collect any amounts pursuant to the preceding sentence.
7.5. [Intentionally Omitted]
7.6. Performance by Buyer. Immediately after the Effective Time, Buyer
shall have full responsibility for the proper performance of the Merchant
Processing Services under each Seller Contract (other than the services which
are subject to the terms contained in the Processing Agreement). Buyer shall
also determine all pricing charged to Seller Merchants that are party to Seller
Contracts for Merchant Processing Services after the Effective Time.
7.7. Post-Closing Merchant Contracts. Subject to Buyer's compliance
with Section 2.7 of the Processing Agreement, from the Effective Time until 180
days after the Effective Time, Buyer may request that Sellers enter into
agreements, utilizing the form applications and agreement currently in use by
Sellers with respect to the Purchased Assets, with new Merchants sourced through
the Referral Agreements (each, a "Post-Closing Merchant Contract"). Upon
execution thereof, Sellers shall provide Buyer with an assignment of the rights
under such Post-Closing Merchant Contract consistent in form and scope with the
assignments provided in this Agreement with respect to Seller Contracts with
Merchants.
7.8. Operation of the Purchased Assets. From the date hereof through
the Effective Time, Sellers shall continue to conduct its affairs with respect
to Agent Banks and Merchants which are parties to the Seller Contracts only in
the ordinary course and in conformity with past practice.
ARTICLE VIII
[INTENTIONALLY OMITTED.]
ARTICLE IX
INDEMNIFICATION
18
<PAGE>
9.1. Indemnification by Sellers. (a) Sellers agree to indemnify and
hold harmless each Buyer Group Member from and against any and all Losses and
Expense incurred by such Buyer Group Member in connection with or arising from:
(i) any breach by Sellers of any of their covenants in this
Agreement;
(ii) any breach of any warranty or the inaccuracy of any
representation of Sellers contained or referred to in this Agreement or
any certificate delivered by or on behalf of Sellers pursuant hereto;
or
(iii) any Excluded Liability.
(b) Notwithstanding anything contained in Section 9.1(a) to
the contrary, Sellers shall be required to indemnify and hold harmless under
clauses (i) and (ii) of Section 9.1(a) with respect to Loss and Expense incurred
by Buyer Group Members only to the extent that the aggregate amount of such Loss
and Expense exceeds $950,000 (it being intended that such amount shall
constitute a "deductible" for which Sellers bears no indemnification
responsibility); provided, however, that the limitation on indemnification
contained in this Section 9.1(a) shall not apply to Losses or Expenses which
arise from a breach of representations and warranties contained in Sections 5.1,
5.2(a) and 5.13. In addition, in no event shall the aggregate amount required to
be paid by Sellers pursuant to Section 9.1(a) (other than with respect to clause
(iii) thereof) exceed 25% of the Purchase Price.
(c) The indemnification provided for in this Section 9.1 shall
terminate 18 months after the Effective Time (and no claims shall be made by any
Buyer Group Member under this Section 9.1 thereafter), except that the
indemnification by Sellers shall continue as to:
(i) the obligations and representations of Sellers under the
Instrument of Assignment, as to which no time limitation shall apply;
(ii) the covenants of Sellers set forth in Section 7.2, which
shall survive for the applicable statute of limitations;
(iii) the representations and warranties of Sellers set forth
in Section 5.12, which shall survive for a period of sixty (60) days
following the expiration of the applicable statute of limitations;
(iv) the covenants of Sellers set forth in Sections 7.1 and
7.3, which shall survive for a period of six (6) months following the
expiration of the time periods set forth in such covenants;
(v) the representations and warranties of Sellers set forth in
Sections 5.1, 5.2(a) and 5.13, the covenants of Sellers set forth in
Sections 7.7, 10.2, 10.6 and 10.13 and the matter set forth in Section
9.1(a)(iii), as to all of which no time limitation shall apply; and
(vi) any Loss or Expense of which any Buyer Group Member has
notified Sellers in accordance with the requirements of Section 9.3 on
or prior to the date such
19
<PAGE>
indemnification would otherwise terminate in accordance with this
Section 9.1, as to which the obligation of Sellers shall continue until
the liability of Sellers shall have been determined pursuant to this
Article IX, and Sellers shall have reimbursed all Buyer Group Members
for the full amount of such Loss and Expense in accordance with this
Article IX.
9.2. Indemnification by Buyer and Parent. (a) Buyer and Parent jointly
and severally agree to indemnify and hold harmless each Seller Group Member from
and against any and all Loss and Expense incurred by such Seller Group Member in
connection with or arising from:
(i) any breach by Buyer or Parent of any of its respective
covenants in this Agreement;
(ii) any breach of any warranty or the inaccuracy of any
representation of Buyer or Parent contained or referred to in this
Agreement or in any certificate delivered by or on behalf of Buyer or
Parent pursuant hereto; or
(iii) (A) any Assumed Liability, (B) any other liability or
obligation relating to the operation of the Purchased Assets by Buyer
after the Effective Time, or (C) any act or omission by Buyer with
respect to the Post-Closing Merchant Contracts.
(b) The indemnification provided for in this Section 9.2 shall
terminate 18 months after the Effective Time (and no claims shall be made by any
Seller Group Member under this Section 9.2 thereafter), except that the
indemnification by Buyer and Parent shall continue as to:
(i) the obligations and representations of Buyer under the
Assumption Agreement, as to which no time limitation shall apply;
(ii) the covenants of Buyer set forth in Section 7.2, which
shall survive for the applicable statute of limitations;
(iii) the representations and warranties of Buyer set forth in
Sections 6.1, 6.2(a), 6.3 and 6.5, the covenants of Buyer set forth in
Sections 7.1, 7.9, 10.2, 10.6 and 10.13 and the matters set forth in
Section 9.2(a)(iii), as to all of which no time limitation shall apply;
and
(iv) any Loss or Expense of which any Seller Group Member has
notified Buyer in accordance with the requirements of Section 9.3 on or
prior to the date such indemnification would otherwise terminate in
accordance with this Section 9.2, as to which the obligation of Buyer
and Parent shall continue until the liability of Buyer and Parent shall
have been determined pursuant to this Article IX, and Buyer and Parent
shall have reimbursed all Seller Group Members for the full amount of
such Loss and Expense in accordance with this Article IX.
9.3. Notice of Claims. (a) Any Buyer Group Member or Seller Group
Member (the "Indemnified Party") seeking indemnification hereunder shall give to
the party obligated to provide indemnification to such Indemnified Party (the
"Indemnitor") a notice (a "Claim
20
<PAGE>
Notice") describing in reasonable detail the facts giving rise to any claim for
indemnification hereunder and shall include in such Claim Notice (if then known)
the amount or the method of computation of the amount of such claim, and a
reference to the provision of this Agreement or any other agreement, document or
instrument executed hereunder or in connection herewith upon which such claim is
based; provided, that a Claim Notice in respect of any action at law or suit in
equity by or against a third Person as to which indemnification will be sought
shall be given promptly after the action or suit is commenced.
(b) In calculating any Loss or Expense there shall be deducted
any insurance recovery in respect thereof (and no right of subrogation shall
accrue hereunder to any insurer).
(c) After the giving of any Claim Notice pursuant hereto, the
amount of indemnification to which an Indemnified Party shall be entitled under
this Article IX shall be determined: (i) by the written agreement between the
Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any
court of competent jurisdiction; or (iii) by any other means to which the
Indemnified Party and the Indemnitor shall agree. The judgment or decree of a
court shall be deemed final when the time for appeal, if any, shall have expired
and no appeal shall have been taken or when all appeals taken shall have been
finally determined. The Indemnified Party shall have the burden of proof in
establishing the amount of Loss and Expense suffered by it.
(d) If Sellers are required to indemnify Buyer pursuant to the
provisions of Article IX, and the Loss or Expense for which the indemnification
is sought under Article IX has provided, or will provide, any Buyer Group Member
with a Tax refund or credit, Buyer shall use its reasonable efforts to obtain
(or cause such Buyer Group Member to obtain) such Tax refund or credit
(including, if necessary, the filing of amended Tax Returns) and the amount of
such Tax refund or credit actually received by Buyer shall reduce Sellers'
liability to indemnify Buyer under Article IX.
(e) Buyer and Sellers agree that, for purposes of computing
the amount of any indemnification payment under this Section 9.3, any such
indemnification payment shall be treated as an adjustment to the Purchase Price
for all Tax purposes.
9.4. Third Person Claims. (a) In order for a party to be entitled to
any indemnification provided for under this Agreement in respect of, arising out
of or involving a claim or demand made by any third Person against the
Indemnified Party, such Indemnified Party must notify the Indemnitor in writing,
and in reasonable detail, of the third Person claim within 15 days after receipt
by such Indemnified Party of written notice of the third Person claim.
Thereafter, the Indemnified Party shall deliver to the Indemnitor, within 10
business days after the Indemnified Party's receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnitor
relating to the third Person claim. Notwithstanding the foregoing, should a
party be physically served with a complaint with regard to a third Person claim,
the Indemnified Party must notify the Indemnitor with a copy of the complaint
within ten business days after receipt thereof and shall deliver to the
Indemnitor within 10 business days after the receipt of such complaint copies of
notices and documents (including court papers) received by the Indemnified Party
relating to the third Person claim. Notwithstanding anything
21
<PAGE>
contained herein to the contrary, the failure to give such notice shall not
relieve the Indemnitor of its obligations hereunder except to the extent it
shall have been prejudiced by such failure.
(b) Any notice given pursuant to Section 9.4(a) of a claim
based upon or relating to any of the representations, warranties or covenants
contained in this Agreement shall contain a reference to the provision of this
Agreement or any other agreement, document or instrument executed hereunder or
in connection herewith upon which such claim is based, the facts giving rise to
an alleged basis for the claim and the amount of the liability asserted against
the Indemnitor by reason of the claim. In the event of the initiation of any
legal proceeding against the Indemnified Party by a third Person, the Indemnitor
shall have the sole and absolute right, within 45 days after the receipt of
notice, at its option and at its own expense, to be represented by counsel of
its choice and to control, defend against, negotiate, settle or otherwise deal
with any proceeding, claim, or demand which relates to any loss, liability or
damage indemnified against hereunder; provided, however, that the Indemnitor
shall not be entitled to assume control of such defense (but shall be entitled
to participate therein with counsel of its choice) if (i) Indemnitor and
Indemnified Party agree, reasonably and in good faith, that such third party
claim would give rise to Losses which are more than twice the amount
indemnifiable by such Indemnitor pursuant to this Article IX or (ii) the claim
seeks only an injunction or equitable relief against the Indemnified Party and
provided, further that Indemnified Party may participate in any such proceeding
with counsel of its choice and at its expense. The parties hereto agree to
cooperate fully with each other in connection with the defense, negotiation or
settlement of any such legal proceeding, claim or demand. To the extent the
Indemnitor elects not to defend such proceeding, claim or demand, and the
Indemnified Party defends against or otherwise deals with any such proceeding,
claim or demand, the Indemnified Party may retain counsel, at the expense of the
Indemnitor, and control the defense of such proceeding. Neither the Indemnitor
nor the Indemnified Party may settle any such proceeding which settlement
obligates the other party to pay money, to perform obligations or to admit
liability without the consent of the other party, such consent not to be
unreasonably withheld. In the event the Indemnified Party shall refuse to
consent to the settlement of any legal proceeding, claim or demand, the
Indemnified Party may elect to take over the defense of such legal proceeding,
claim or demand, and in any such case the liability of the Indemnitor for
indemnification in respect of such legal proceeding, claim or demand shall not
exceed the amount for which the legal proceeding, claim or demand could have
been settled plus the amount of Expense incurred by the Indemnified Party prior
to the time of the proposed settlement to which it is entitled to
indemnification. After any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent jurisdiction and
the time in which to appeal therefrom has expired, or a settlement shall have
been consummated, or the Indemnified Party and the Indemnitor shall arrive at a
mutually binding agreement with respect to each separate matter alleged to be
indemnified by the Indemnitor hereunder, the Indemnified Party shall forward to
the Indemnitor notice of any sums due and owing by it with respect to such
matter and the Indemnitor shall pay all of the sums so owning to the Indemnified
Party by wire transfer, certified or bank cashier's check within 30 days after
the date of such notice.
(c) If there shall be any conflict between the provisions of this
Section 9.4 relating to contests of third-party claims, and Section 7.2.2
relating to Tax contests, the provisions of Section 7.2.2 shall control with
respect to Tax contests.
22
<PAGE>
9.5. Limitations. (a) In any case where an Indemnified Party recovers
from third Persons any amount in respect of a matter with respect to which an
Indemnitor has indemnified it pursuant to this Agreement, such Indemnified Party
shall promptly pay over to the Indemnitor the amount so recovered (after
deducting therefrom the full amount of the expenses incurred by it in procuring
such recovery), but not in excess of the sum of (i) any amount previously so
paid by the Indemnitor to or on behalf of the Indemnified Party in respect of
such matter and (ii) any amount expended by the Indemnitor in pursuing or
defending any claim arising out of such matter.
(b) IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES OR
PROFITS), EXEMPLARY OR PUNITIVE DAMAGES, ARISING UNDER ANY LEGAL OR EQUITABLE
THEORY, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, ALL OF WHICH ARE
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT ANY
PARTY TO THIS AGREEMENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Each of the parties agrees to take all reasonable steps to
mitigate their respective Losses and Expenses upon and after becoming aware of
any event or condition which could reasonably be expected to give rise to any
Losses and Expenses that are indemnifiable hereunder.
(d) Except for fraud, for remedies that cannot be waived as a
matter of law and for injunctive and provisional relief, this Article IX shall
be the exclusive remedy for breaches of this Agreement (including any covenant,
obligation, representation or warranty contained in this Agreement or in any
certificate delivered pursuant to this Agreement) or otherwise in respect of the
sale of the Purchased Assets contemplated hereby.
ARTICLE X
GENERAL PROVISIONS
10.1. Survival of Obligations. Each representation and warranty
contained in this Agreement shall survive the consummation of the transactions
contemplated by this Agreement through the period during which claims for
indemnification may be made pursuant to Article IX (at which time such
representation and warranty shall terminate).
10.2. Confidential Nature of Information. Each party hereto agrees that
all documents, materials and other information which it shall have obtained
regarding the other party during the course of the negotiations leading to the
consummation of the transactions contemplated hereby (whether obtained before or
after the date of this Agreement), the investigation provided for herein and the
preparation of this Agreement and other related documents shall be held in
confidence pursuant to the Confidentiality Agreement. The obligations of the
parties set forth in the Confidentiality Agreement shall survive the termination
of this Agreement.
10.3. No Public Announcement. Neither Buyer or Parent, on the one hand,
nor Sellers on the other hand shall, without the prior approval of the other,
make any press release or other
23
<PAGE>
public announcement concerning the transactions contemplated by this Agreement,
except as and to the extent that any such party shall be so obligated by law, in
which case the other party shall be advised and the parties shall use their
reasonable efforts to cause a mutually agreeable release or announcement to be
issued; provided, however, that the foregoing shall not preclude communications
or disclosures necessary to implement the provisions of this Agreement or to
comply with the accounting and Securities and Exchange Commission disclosure
obligations.
10.4. Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
when delivered personally or when sent by registered or certified mail or by
private courier addressed as follows:
If to Buyer or Parent, to:
iPayment, Inc.
40 Burton Hills
Suite 415
Nashville, TN 37215
Attention: Chief Executive Officer
Facsimile: (615) 665-8434
with a copy to:
iPayment, Inc.
40 Burton Hills
Suite 415
Nashville, TN 37215
Attention: General Counsel
Facsimile: (615) 665-8434
and:
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036
Attention: Mark L. Mandel
Facsimile: (212) 354-8113
If to Sellers, to:
First Data Merchant Services Corporation and Unified
Merchant Services
1307 Walt Whitman Road, P.O. Box 9075
Melville, New York 11747
Attention: General Manager
Facsimile: (631) 683-7015
24
<PAGE>
with a copy to:
First Data Merchant Services Corporation
12500 E. Mt. Belford Avenue, Suite M1-2-A
Englewood, Colorado 80112
Attention: General Counsel
Facsimile: (720) 332-0051
or to such other address as such party may indicate by a notice delivered to the
other party hereto.
10.5. Successors and Assigns. (a) The rights of any party under this
Agreement shall not be assignable by such party hereto prior to the Closing
without the written consent of each other party.
(b) Following the Closing, neither Buyer or Parent, on the one
hand, nor Sellers on the other hand, may assign any of its rights hereunder to
any third Person without the written consent of the other party, except that any
party may assign its rights hereunder to an Affiliate or to a third party in
connection with a merger, or the sale of all or substantially all of the capital
stock or assets of such party. Any assignment hereunder (whether before or after
the Closing) shall not relieve the assigning party of its obligations hereunder.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their successors and permitted assigns. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer upon any
Person other than the parties and successors and assigns permitted by this
Section 10.5 any right, remedy or claim under or by reason of this Agreement.
10.6. Access to Records after Effective Time. For a period of three
years after the Effective Time, Sellers and their representatives shall have
reasonable access to all of the books and records transferred to Buyer hereunder
to the extent that such access may reasonably be required by Sellers in
connection with matters relating to or affected by the operation of the
Purchased Assets prior to the Effective Time. Such access shall be afforded by
Buyer upon receipt of reasonable advance notice and during normal business
hours. Sellers shall be solely responsible for any costs or expenses incurred by
it pursuant to this Section 10.6. If Buyer shall desire to dispose of any of
such books and records prior to the expiration of such three-year period, Buyer
shall, prior to such disposition, give Sellers a reasonable opportunity, at
Sellers' expense, to segregate and remove such books and records as Sellers may
select.
For a period of three years after the Effective Time, Buyer and
its representatives shall have reasonable access to all of the books and records
relating to the Purchased Assets which Sellers may retain after the Effective
Time (but only to the extent relating to the Purchased Assets). Such access
shall be afforded by Sellers upon receipt of reasonable advance notice and
during normal business hours. Buyer shall be solely responsible for any costs
and expenses incurred by it pursuant to this Section 10.6. If Sellers shall
desire to dispose of any of such books and records prior to the expiration of
such three-year period, Sellers shall, prior to such disposition, give Buyer a
reasonable opportunity, at Buyer's expense, to segregate and remove such books
and records as Buyer may select.
25
<PAGE>
10.7. Entire Agreement; Amendments. This Agreement and the Exhibits and
Schedules referred to herein and the documents delivered pursuant hereto and the
Confidentiality Agreement contain the entire understanding of the parties hereto
with regard to the subject matter contained herein or therein, and supersede all
prior agreements, understandings or letters of intent between or among any of
the parties hereto. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
10.8. Interpretation. Article titles and headings to sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. The Schedules
and Exhibits referred to herein shall be construed with and as an integral part
of this Agreement to the same extent as if they were set forth verbatim herein.
Disclosure of any fact or item in any Schedule hereto referenced by a particular
section in this Agreement shall be deemed to have been disclosed with respect to
every other section in this Agreement. The specification of any dollar amount in
the representations or warranties contained in this Agreement or the inclusion
of any specific item in any Schedules hereto is not intended to imply that such
amounts, or higher or lower amounts, or the items so included or other items,
are or are not material, and neither party shall use the fact of the setting of
such amounts or the inclusion of any such item in any dispute or controversy
between the parties as to whether any obligation, item or matter not described
herein or included in a Schedule is or is not material for purposes of this
Agreement.
10.9. Waivers. Any term or provision of this Agreement may be waived,
or the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Agreement if, as to any party,
it is authorized in writing by an authorized representative of such party. The
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in any
way to affect the validity of this Agreement or any part hereof or the right of
any party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.
10.10. Expenses. Each party hereto will pay all costs and expenses
incident to its negotiation and preparation of this Agreement and to its
performance and compliance with all agreements and conditions contained herein
on its part to be performed or complied with, including the fees, expenses and
disbursements of its counsel and accountants.
10.11. Partial Invalidity. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
10.12. Execution in Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be considered an original instrument,
but all of which shall be
26
<PAGE>
considered one and the same agreement, and shall become binding when one or more
counterparts have been signed by each of the parties hereto and delivered to
Sellers and Buyer.
10.13. Further Assurances. From time to time after the Effective Time,
Sellers shall execute and deliver, or cause to be executed and delivered, to
Buyer such other instruments of conveyance and transfer as Buyer may reasonably
request or as may be otherwise necessary to more effectively convey and transfer
to, and vest in, Buyer and put Buyer in possession of, any part of the Purchased
Assets, and, in the case of Seller Contracts included in the Purchased Assets
which cannot be transferred or assigned effectively without the consent of third
parties which consent has not been obtained prior to the Effective Time, to
cooperate with Buyer at its request in endeavoring to obtain such consent
promptly. From time to time after the Effective Time, Buyer shall execute and
deliver, or cause to be executed and delivered, to Sellers such other
instruments of assumption as Sellers may reasonably request or as may be
otherwise necessary to more effectively evidence or effect the assumption by
Buyer of the Assumed Liabilities. Notwithstanding anything in this Agreement to
the contrary, this Agreement shall not constitute an agreement to assign any
Seller Contract included in the Purchased Assets if an attempted assignment
thereof without the consent of a third party thereto would constitute a breach
thereof; provided, that Sellers shall hold any such Seller Contract for the use
and benefit of Buyer (and at the sole expense of Buyer) and shall retain any
Assumed Liability related to such Seller Contract for the account and at the
sole expense of Buyer and shall take such other action as may be reasonably
requested by Buyer in order to place Buyer, insofar as reasonably permitted by
such Seller Contract and applicable law, in the same position as would have
existed had such Seller Contract been transferred and such related Assumed
Liability been assumed hereunder. As and when such Seller Contracts become
transferable, such transfer, including the assumption of the related Assumed
Liability, shall be deemed to occur immediately without any other action being
taken by Sellers, Buyer or any other Person.
10.14. Cooperation. Sellers shall cooperate with Buyer and its outside
accountants in Buyer's audit of the Purchased Assets after the Effective Time
(which audit will be with respect to the three years ended on December 31,
2004), including without limitation, by affording Buyer and its outside
accountants (at Buyer's sole expense) access to such records (including
financial and operating data) and personnel of Sellers and their outside
accountants as may be necessary for the conduct of Buyer's audit by its outside
accountants (including trial balances and similar materials, in each case to the
extent, and only to the extent, they relate solely to the Purchased Assets), it
being understood that Buyer shall provide Sellers reasonable advance notice of
any request for access or information and Sellers shall provide such access or
make available such information during normal business hours.
10.15. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of New York.
10.16. Disclaimer of Warranties. Sellers make no representations or
warranties with respect to any projections, forecasts or forward-looking
information provided to Buyer. There is no assurance that any projected or
forecasted results will be achieved. EXCEPT AS TO THOSE MATTERS EXPRESSLY
COVERED BY THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, SELLERS ARE
SELLING THE PURCHASED ASSETS ON AN "AS
27
<PAGE>
IS, WHERE IS" BASIS AND SELLERS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS
AND GUARANTIES WHETHER EXPRESS OR IMPLIED. SELLERS MAKE NO REPRESENTATION OR
WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NO
IMPLIED WARRANTIES WHATSOEVER. Buyer acknowledges that neither Sellers nor any
of their representatives nor any other Person has made any representation or
warranty, express or implied, as to the accuracy or completeness of any
memoranda, charts, summaries or schedules heretofore made available by Sellers
or their representatives to Buyer or any other information which is not included
in this Agreement or the Schedules hereto, and neither Sellers nor any of their
representatives nor any other Person will have or be subject to any liability to
Buyer, any Affiliate of Buyer or any other Person resulting from the
distribution of any such information to, or use of any such information by,
Buyer, any Affiliate of Buyer or any of their agents, consultants, accountants,
counsel or other representatives.
28
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
iPAYMENT, INC.
By: /s/ Gregory S. Daily
-----------------------------------
Name: Gregory S. Daily
Title: CEO
iPAYMENT ACQUISITION SUB LLC
By: /s/ Gregory S. Daily
-----------------------------------
Name: Gregory S. Daily
Title: CEO
FIRST DATA MERCHANT SERVICES CORPORATION
By: /s/ Brian J. McCutcheon
-----------------------------------
Name: Brian J. McCutcheon
Title: Senior Vice President
UNIFIED MERCHANT SERVICES
By: /s/ Brian J. McCutcheon
-----------------------------------
Name: Brian J. McCutcheon
Title: Senior Vice President
29