Exhibit 10.26
APTIMUS, INC.
00 XXXXX XXXXXXX XXXXXX, XXXXX 000
XXXXXXX, XX 00000
NOVEMBER 13, 2001
VIA FACSIMILE AND US MAIL
FINGERHUT COMPANIES, INC.
0000 XXXXX XXXX
XXXXXXXXXX, XX 00000
RE: PROMISSORY NOTE PAYOFF
Gentlemen:
Aptimus, Inc. ("Aptimus") and Fingerhut Companies, Inc. ("Fingerhut") are
parties to that certain Stock Redemption Agreement (the "Agreement"), dated as
of April 6, 2001, pursuant to which Aptimus redeemed 2,720,000 shares of Aptimus
common stock from Fingerhut. In connection with the Agreement, Aptimus delivered
to Fingerhut (i) a Promissory Note (the "Note"), dated April 16, 2001, in the
principal sum of $838,000, (ii) a Warrant to Purchase Common Stock for 150,000
shares at an exercise price per share of $2.50 (the "Warrant") and (iii) a
Letter Agreement, dated April 16, 2001 regarding future purchases of common
stock (the "Buyback Letter Agreement").
As of November 16, 2001, the outstanding principal and interest due and
owing under the Note shall be $576,392.35, with twelve monthly installments
remaining to be paid. Aptimus agrees to immediately pay and satisfy all
remaining sums due under the Note and Fingerhut agrees to accept a discounted
principal amount and release all remaining rights under the Agreement, Note and
Warrant as set forth below; provided, however, that notwithstanding anything to
the contrary in this Letter Agreement, Fingerhut shall maintain all rights (i)
pursuant to the Buyback Letter Agreement, (ii) pursuant to the Stockholders
Agreement, dated December 10, 1998 and (iii) as a stockholder of Aptimus;
provided further, however, that Aptimus and Fingerhut shall each maintain all
rights pursuant to Section 6 and Section 7 of the Agreement respectively.
Aptimus shall pay Fingerhut the sum of $471,140.90 in immediately available
funds (the "Payment") on or before 5 P.M. Central Standard Time, Tuesday,
November 13, 2001 (the "Payment Date"). Payment shall be made in same day wire
funds pursuant to wire instructions to be delivered by Fingerhut to Aptimus not
later than 11 A.M. Central Standard Time on the Payment Date. Upon receipt of
the Payment and without further act, Aptimus and Fingerhut do for themselves,
and their respective shareholders, directors, officers, employees, partners,
attorneys, affiliates, predecessors, successors and assigns, RELEASE AND FOREVER
DISCHARGE each other, and their respective shareholders, directors, officers,
employees, partners, attorneys, affiliates, predecessors,
successors and assigns, from all debts, judgments, claims, demands, causes of
action and rights of action in law or in equity, whether known or unknown,
accrued or unaccrued, contingent or non-contingent, that any of them ever had,
now have, or may in the future have against the other arising from or in any way
related to the parties' respective rights, duties and obligations under the
Agreement (except as set forth in the second paragraph hereof), Note and
Warrant, all of which rights, duties and obligations shall be deemed
conclusively paid, performed and satisfied upon Fingerhut's receipt of the
Payment from Aptimus. Without limiting the generality of the foregoing, upon
receipt of the Payment, all rights of Fingerhut under the Note and the Warrant
shall be deemed satisfied, and each such instrument shall be deemed cancelled,
void and unenforceable.
Aptimus represents and warrants to Fingerhut that (i) the execution,
delivery and performance of this Letter Agreement have been duly authorized by
all necessary action of Aptimus, (ii) this Letter Agreement constitutes a legal,
valid and binding agreement of Aptimus, enforceable against Aptimus in
accordance with its terms, except as otherwise limited by law and (iii) there is
no outstanding contract, commitment or agreement to which Aptimus is a party or
legal impediment of any kind known to Aptimus which conflicts with this Letter
Agreement or might limit, restrict or impair the rights granted to Fingerhut
hereunder.
Fingerhut represents and warrants to Aptimus that (i) the execution,
delivery and performance of this Letter Agreement have been duly authorized by
all necessary action of Fingerhut, (ii) this Letter Agreement constitutes a
legal, valid and binding agreement of Fingerhut, enforceable against Fingerhut
in accordance with its terms, except as otherwise limited by law and (iii) there
is no outstanding contract, commitment or agreement to which Fingerhut is a
party or legal impediment of any kind known to Fingerhut which conflicts with
this Letter Agreement or might limit, restrict or impair the rights granted to
Aptimus hereunder.
All notices and other communications required or permitted under this
Letter Agreement shall be in writing (including fax communication) and mailed,
faxed or delivered to: Aptimus, Inc. at 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000, attn. General Counsel; to Fingerhut Companies, Inc. at 0000
Xxxxx Xxxx, Xxxxxxxxxx, XX 00000, attn: Xxxxxxx Xxxxxxx, with a copy to: Winston
& Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attn: Xxxxx X. Xxxxxxxxx,
Esq.; or, as to either party, at such other address as shall be designated by
such party in a written notice to the other party. All such notices and other
communications shall be effective when delivered, deposited in the mails or
faxed, respectively.
This Letter Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which, when taken together, shall
constitute one and the same instrument. Delivery of a signed counterpart by
telephone facsimile transmission shall be effective as delivery of a manually
signed counterpart of this Letter Agreement. This Letter Agreement shall become
effective when each party hereto shall have received a counterpart hereof signed
by the other party hereto.
This Letter Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that neither party may assign, delegate or otherwise transfer any of its rights
or obligations under this Letter Agreement without the consent of the other
party hereto, except no such consent shall be required when such assignment,
delegation or transfer is pursuant to a transaction or series of transactions
resulting in a change of control of greater than 50% of the voting securities of
a party or the merger of sale of substantially all of the assets of such party.
If any provision of this Letter Agreement shall be held to be invalid, the
remainder of this Letter Agreement shall not be affected thereby.
The failure of any party to seek redress for violation, or to insist on
strict performance, of any covenant of this Letter Agreement shall not prevent a
subsequent act which would have constituted a violation from having the effect
of an original violation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
Please indicate your agreement to the terms of this Letter Agreement by
signing the enclosed copy of this letter in the space provided below and
returning it to us via facsimile at (000) 000-0000.
Sincerely,
APTIMUS, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Its: General Counsel
We hereby agree to the terms of this Letter Agreement.
Dated: November 13, 2001
FINGERHUT COMPANIES, INC.
By: /s/ Xxxx Xxxxxxxxx
Its: Director Corporate Development
[SIGNATURE PAGE TO THE LETTER AGREEMENT]
