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EXHIBIT 10.40
CONTRACT PURCHASE AGREEMENT
Parties:
Phoenix International Ltd., Inc. ERAS JV
000 Xxxxxxxxxxxxx Xxxxxxx 00000 XX 000xx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Fax (000) 000-0000 Fax (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx Attention: Xxxxx X. Xxxxxx
ERAS, Inc. TIB Software & Services, Inc.
00000 XX 000xx Xxxxxx 00000 Xxxxxxxx Xxxxxxx
Xxxxx, XX 00000 Xxx Xxxxx, XX 00000-0000
(000) 000-0000 (000) 000-0000
Fax (000) 000-0000 Fax (000) 000-0000
Attention: Xxxxx X. Xxxxxx Attention: Xxxxxx X. Xxxx
This Contract Purchase Agreement (the "Agreement") is entered into as
of October 21, 1999, by and between Phoenix International Ltd., Inc., a Florida
corporation ("Phoenix"), and ERAS JV ("ERAS JV"), a Florida general partnership
between ERAS, Inc., a Florida corporation ("ERAS Inc."), and TIB Software &
Services, Inc., a Florida corporation ("TIB"). Phoenix and ERAS JV are parties
to a Software License and Cooperative Marketing Agreement pursuant to which
ERAS JV has been using Phoenix's Banking System to operate an account
processing service bureau for financial institutions. Phoenix would like to
purchase ERAS JV's account processing business and related assets and ERAS JV
would like to transfer such business and assets to Phoenix. Additionally, the
parties intend to enter into a new cooperative marketing agreement whereby each
party would market the products and services of the other. Therefore, in
consideration of the mutual representations, warranties, covenants and
agreements of each party set forth below, and upon and subject to the terms and
the conditions hereinafter set forth in this Agreement, the parties do hereby
agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following terms shall have the following
meanings:
1.1 "Account Processing Business" means ERAS JV's business related to
account processing for financial institutions.
1.2 "Affiliates" of a particular Person means other Persons controlled by,
controlling, or under common control with, such Person.
1.3 "Assignment and Assumption Agreement" means the instrument in a form to
be negotiated and agreed by the parties and executed and delivered at the
Closing pursuant to which ERAS JV will assign the Transferred Contracts to
Phoenix or one of its Affiliates and Phoenix or one of its Affiliates will
assume the Assumed Liabilities. The Assignment and Assumption Agreement will
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provide that if Phoenix or its Affiliate materially breaches its obligations to
(i) account processing customers under the Transferred Contracts or (ii)
account processing customers which ERAS JV helps procure pursuant to the
Cooperative Marketing Agreement, and such breach is not cured within the
timeframes set forth in the applicable service contract, then such customers
and ERAS JV shall have the right to transfer account processing for such
customer or customers to ERAS JV in Miami and Phoenix or its Affiliate would
grant ERAS JV a license to the Phoenix Banking System to do such processing.
Any royalty payments remaining from Phoenix to ERAS JV for such customers would
cease. ERAS JV would also pay Phoenix a refund of the pro-rata share of the
purchase price paid for such client, if applicable. ERAS JV would also pay
Phoenix a 15% quarterly royalty on the base processing fees derived from these
clients for remainder of the initial term and subsequent renewal terms.
1.4 "Assumed Liabilities" means the liabilities of ERAS JV listed in
Exhibit A.
1.5 "Bristol" means Bristol Bank.
1.6 "Bristol Contract" means the account processing agreement between
Bristol and ERAS JV dated June 3, 1999.
1.7 "Charter Documents" means the partnership agreement for ERAS JV.
1.8 "Closing" means the consummation of the purchase and sale of the
Transferred Assets and Transferred Contracts and other transactions to be
completed under the terms of this Agreement.
1.9 "Closing Date" means the date on which the Closing occurs.
1.10 "Disclosure Memorandum" means the memorandum in a form acceptable to
Phoenix to be executed and delivered by ERAS JV and the Partners
contemporaneously with the execution and delivery of this Agreement containing
information required to be disclosed under this Agreement.
1.11 "Encumbrance" means any mortgage, charge (whether fixed or floating),
security interest, pledge, claim, right of first refusal, lien (including,
without limitation any unpaid vendor's lien), option, hypothecation, title
retention or conditional sale agreement, lease, option, restriction as to
transfer, use or possession, easement, subordination to any right of any other
person, and any other encumbrance on the absolute and unfettered use and
ownership of any asset or property.
1.12 "Financial Statements" means the financial statements relating to ERAS
JV and the Account Processing Business set forth in the Disclosure Memorandum.
1.13 "GAAP" means generally accepted accounting principles consistently
applied.
1.14 "Item Processing Business" means ERAS JV's business related to item
processing for financial institutions.
1.15 "Knowledge of ERAS JV" (or words of similar import) refers, with
respect to ERAS JV, to all those things known after due inquiry by the
Partners, and officers of ERAS JV, and after due inquiry by the supervisors and
employees of ERAS JV who reasonably should be assumed to know about the thing
or things in question.
1.16 "Partners" means ERAS Inc. and TIB.
1.17 "Relocated Assets" means those assets identified on Exhibit A which are
owned by TIB Bank and Bristol and used by ERAS JV to provide account processing
services to those entities.
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1.18 "Rule" means any law, statute, rule, regulation, order, court decision,
judgment or decree of any federal, state, territorial, provincial or municipal
authority or body or trade association or organization, and, when it is
commonly proper to follow them, non-compulsory recommendations of any such
public authorities and bodies.
1.19 "Tax" or "Taxes" means all forms of levies, taxes, customs and other
duties normally deemed to be of a fiscal or customs nature, including but not
limited to (a) all taxes levied, imposed or assessed under the Internal Revenue
Code of 1986, as amended, or any rule, in the U.S. or elsewhere; (b) taxes in
the nature of sales tax, consumption tax, value added tax, payroll tax, group
tax, undistributed profits tax, fringe benefits tax, recoupment tax,
withholding tax, land tax, water rates, municipal rates, stamp duties, gift
duties or other state, territorial, provincial or municipal charges or
impositions levied, imposed or collected by any governmental body; and (c) any
additional tax, interest, penalty, charge, fee or other amount of any kind
assessed, charged or imposed in relation to the non-, late, short or incorrect
payment of the same or the failure to file any return.
1.20 "TIB Bank" means TIB Bank of the Keys.
1.21 "TIB Contract" means the account processing agreement between TIB Bank
and ERAS JV dated February 23, 1998.
1.22 "Transferred Assets" means all right, title and interest of ERAS JV in,
to and under the assets listed in Exhibit A.
1.23 "Transferred Contracts" means the contracts to be transferred to
Phoenix as listed in Exhibit A.
1.24 "Transferring Employee" means each Employee of ERAS JV listed in
Exhibit A to whom Phoenix may make an offer of employment and who accepts such
offer.
1.25 "Warranty" means any representation and warranty of ERAS JV and the
Partners in this Agreement and in each certificate or other document delivered
by them or on their behalf in connection with this Agreement.
ARTICLE 2
TERMS OF TRANSACTION
2.1 Purchase and Sale of Transferred Assets. Upon the terms and subject to
the conditions of this Agreement, at the Closing Phoenix shall purchase the
Transferred Assets and Transferred Contracts from ERAS JV and ERAS JV shall
sell, transfer, and assign the Transferred Assets and Transferred Contracts to
Phoenix or an Affiliate designated by Phoenix.
2.2 Consideration. In consideration of the sale, transfer and assignment to
Phoenix of the Transferred Assets at the Closing, Phoenix shall:
(a) pay ERAS JV the sum of $305,000, plus amounts as set forth
in Section 2.4 below (the "Purchase Price") and;
(b) shall execute and deliver the Assignment and Assumption
Agreement.
2.3 Payment. The Purchase Price shall be paid at the Closing by wire
transfer or by cashier's check.
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2.4 Additional Consideration. If within 180 days after Closing, the term of
the TIB Contract or any successor contract to or substitute contract for the
TIB Contract is extended to run at least five years following the Closing, then
Phoenix shall pay ERAS JV an additional sum of $122,000. If within 180 days
after Closing, the guaranteed term of the account processing portion of the
Bristol Contract or any successor contract to or substitute contract for the
Bristol Contract is extended to run at least five years following the Closing,
then Phoenix shall pay ERAS JV an additional sum of $6,000. If the extension of
any contract is delayed due to an act or omission of Phoenix or a failure of
Phoenix to diligently pursue execution of a new or extended agreement, the time
period for such payment shall be extended.
2.5 Cooperative Marketing Agreement. At the Closing, Phoenix and ERAS JV
shall cancel their current Cooperative Marketing Agreement and enter into a new
five year cooperative marketing agreement (the "Cooperative Marketing
Agreement") reasonably acceptable to each party which shall provide at a
minimum for the following:
(a) ERAS JV will refer all current and future prospects for
account processing services to Phoenix.
(b) Phoenix will grant ERAS JV the exclusive right to market
Phoenix's account processing and service bureau services in the 5 South Florida
counties of Palm Beach, Broward, Dade, Monroe, and Xxxxxxx. Such right shall
not preclude Phoenix from marketing in such territory directly provided that
the parties will work together on prospects registered to ERAS JV. The
Cooperative Marketing Agreement shall set forth an initial list of financial
institutions in the five named counties to be registered to ERAS JV. Phoenix
shall register additional prospects at the request of ERAS JV, provided Phoenix
is not already in discussions with such prospect and ERAS JV intends in good
faith to begin actively marketing to such prospect within a reasonable time
period. ERAS JV will be entitled to a quarterly royalty for the initial
processing term of registered prospects who sign with Phoenix (not including
the clients which are transferred to Phoenix under Section 1 above) equal to
10% of the base processing revenues generated from such clients, excluding
revenue from optional or ancillary revenues and any pass-through expenses.
(c) ERAS JV will receive a 10% royalty on all license fees
received for ancillary products sold to TIB or any subsidiary or Bristol Bank.
(d) ERAS JV will grant Phoenix a non-exclusive right to market
ERAS JV's item processing services nationwide. ERAS JV will pay Phoenix a
quarterly royalty for the initial processing term for each Phoenix Banking
System client or Phoenix Account Processing client or any client signing with
ERAS JV due in whole or in part to the marketing efforts of Phoenix equal to 7%
of the base processing revenues generated from such clients, excluding revenue
from optional or ancillary revenues and any pass-through expenses.
(e) Phoenix and ERAS JV will jointly market Phoenix's account
processing services and ERAS JV's item processing services as an integrated
solution in certain parts of the United States. As necessary to support future
business, the parties may open additional jointly operated service centers
around the U.S. Phoenix will set pricing and terms, and bear all costs
associated with the account processing business and ERAS JV will set pricing
and terms and bear all costs associated with the item processing business.
Cross-selling commissions to incent the sales force will be mutually agreed
upon, with such sales commission costs being borne by the business owner.
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(f) Phoenix will include ERAS JV as a preferred sub-contractor for
certain software and networking services to be offered to Phoenix clients.
(g) During the term of the Marketing Agreement and for a period of
two years thereafter, ERAS JV shall agree not to set up, fund, market, sell,
participate in, or assist a third party with any account processing service
bureau for financial institutions, except that ERAS JV shall not be prevented
from selling its software products and item processing services to any party.
In addition, ERAS JV can provide item processing services to any financial
institution that obtains account processing service bureau other than Phoenix.
2.6 Transfer of Customers. Following the Closing, ERAS JV shall assist
Phoenix in transferring the customers under the Transferred Contracts to
Phoenix. Phoenix will contract with ERAS to assist with the initial set-up of
Phoenix's Orlando data center and the relocation of the account processing
business from Miami to Orlando. Phoenix will provide all transition equipment
and software necessary to transfer customers and to facilitate testing and
readiness for such transfer. The customer transfers will occur on a mutually
agreed upon 3-day weekend, anticipated to occur in the first quarter of 2000,
subject to Phoenix's data processing center being ready. Phoenix shall pay ERAS
JV for all work done on a time and materials basis at 75% of ERAS JV's
professional service rates, but in any case not to exceed $900 per day. The
Relocated Assets are owned or licensed by TIB and Bristol and will be relocated
to Orlando. Prior to the Closing, ERAS JV shall get a consent from each of
these entities to move the Relocated Assets in conjunction with the assignment
of the Transferred Contracts.
2.7 Post Closing Space Sharing and Customer Service. Following the Closing,
Phoenix may run the Account Processing Business from ERAS JV's premises until
the customers are transferred as specified in Section 2.6. During such period,
Phoenix shall reimburse ERAS JV for reasonable allocation of the cost of ERAS
JV's space, utilities, administrative expenses, and other resources used by
Phoenix. Until Phoenix hires enough employees (including the Transferring
Employees) to operate the Account Processing Business, ERAS JV shall provide
all services under the Transferred Contracts and for other account processing
customers signed by Phoenix. All such services shall be provided pursuant to
the terms of processing agreements with such customers under the supervision
and direction of Phoenix. ERAS JV shall invoice Phoenix and Phoenix shall pay
ERAS JV for such services at ERAS JV's cost for resources provided. Phoenix
shall pay ERAS JV a rate of $500 per day for time actually spent by Xxxxx
Xxxxxx providing management services in support of such customers.
2.8 Employees. Phoenix may interview and make offers of employment to the
Transferring Employees. Those employees who accept a position with Phoenix will
be subject to relocation to Orlando under Phoenix's relocation program.
2.9 Right of First Refusal. From the time of the Closing, and only so long
as the Cooperative Marketing Agreement has not terminated ERAS JV and the
Partners agree that Phoenix shall have a right of first refusal to purchase the
partnership interests in ERAS JV and the Item Processing Business on the
following terms:
(a) Transfer of the Item Processing Business. Other than the
ordinary course of business, ERAS JV agrees not to transfer or dispose of any
or all of the Item Processing Business or any or all of the assets used by ERAS
JV to operate the Item Processing Business (for purposes of this section,
collectively the "Item Processing Business") except in accordance with the
following procedure:
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(i) If ERAS JV receives a bona-fide arm's-length cash
offer to purchase some or all of the Item Processing
Business, and ERAS JV desires to accept such offer ERAS JV
shall submit a written offer to sell such Item Processing
Business to Phoenix. Any such written offer shall (1)
identify the person to which ERAS JV proposes to sell the
item processing business, (2) specify the terms and
conditions, including price, of the proposed sale, and (3)
offer Phoenix the opportunity to purchase such Item
Processing Business on terms and conditions, including price,
not less favorable to Phoenix than the terms and conditions
on which ERAS JV proposes to sell such Item Processing
Business to any other purchaser.
(ii) Phoenix may elect to purchase the Item Processing
Business subject to such offer by delivering written notice
thereof to ERAS JV which, when taken in connection with the
written offer to Phoenix, shall constitute a valid, legally
binding and enforceable agreement for the sale and purchase
of the Item Processing Business covered thereby.
(iii) If Phoenix does not notify ERAS JV of its intent to
purchase the Item Processing Business subject to the offer
within 20 business days after receipt of the offer or does
not elect to purchase the Item Processing Business subject to
the offer, the offer shall be deemed to have been rejected in
its entirety and ERAS JV may sell the Item Processing
Business subject to the offer pursuant to the terms set forth
in the offer at any time within 30 days after expiration of
such notice periods. Any such sale shall be to the person
originally named in the offer as the proposed purchaser and
shall not be at a price and upon other terms and conditions,
if any, more favorable to such purchaser than those specified
in the offer. After such 30-day period, or if ERAS JV
proposes to sell its Item Processing Business to a different
purchaser, or at a lower price, or on terms and conditions
more favorable to the purchaser than those specified in the
offer, ERAS JV must first comply again with the requirements
of this Section.
(b) Transfer of the Partnership Interests. "Interest" as used in
this paragraph shall refer to any partnership interest in ERAS JV and any
voting shares of ERAS, Inc. Party refers to ERAS JV, ERAS, Inc. TIB, and Xxxxx
Xxxxxx. ERAS, Inc., TIB, and Xxxxx Xxxxxx agree not to dispose of or transfer
any Interest to anyone not a party to this Agreement, and ERAS JV and ERAS Inc.
agree not to issue to any new Interest to anyone who is not a party to this
Agreement, except as set forth below:
(i) If a Party receives a bona-fide arm's-length cash
offer to purchase an Interest and such party desires to
accept the offer; such Party shall submit a written offer to
sell such Interest to Phoenix. Any such written offer shall
(1) identify the person to which the Partner proposes to sell
or issue the partnership interest, (2) specify the terms and
conditions, including price, of the proposed sale, and (3)
offer Phoenix the opportunity to purchase such Interest on
terms and conditions, including price, not less favorable to
Phoenix than the terms and conditions on which the Party
proposes to sell or issue such Interest to any other
purchaser.
(ii) Phoenix may elect to purchase all of such Interest
subject to such offer by delivering written notice thereof to
the Party proposing to issue or sell such Interest, which,
when taken in connection with the written offer to Phoenix,
shall
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constitute a valid, legally binding and enforceable agreement
for the sale and purchase of the Interest covered thereby.
(iii) If Phoenix does not notify the Party of its intent to
purchase the Interest subject to the offer within 20 business
days after receipt of the offer or does not elect to purchase
all of the Interest subject to the offer, the offer shall be
deemed to have been rejected in its entirety and such Party
may sell all such Interest subject to the offer pursuant to
the terms set forth in the offer at any time within 30 days
after expiration of such notice periods. Any such sale shall
be to the person originally named in the offer as the proposed
purchaser and shall not be at a price and upon other terms
and conditions, if any, more favorable to such purchaser than
those specified in the offer. After such 30-day period, or if
a Party proposes to sell or issue an Interest to a different
purchaser, or at a lower price, or on terms and conditions
more favorable to the purchaser than those specified in the
offer, such Party must first comply again with the
requirements of this Section.
(c) Issuance of Shares to Union Bank. Notwithstanding the
foregoing, ERAS JV may issue a partnership interest to Union
Bank or to its employees without complying with the foregoing
provisions, provided that Union Bank or such employees agree
to be bound by the provision of this section.
(d) ERAS, Inc. Stock Option Plan. Noth withstanding the foregoing,
ERAS, Inc. may issue stock to its employees pursuant to any written stock option
incentive plan adopted by ERAS, Inc. for its employees.
(e) ERAS, JV Partnership Agreement. The rights of first refusal
held by TIB and ERAS, Inc. pursuant to the ERAS, JV Partnership Agreement are
superior to and take precedence over Phoenix's refusal rights set forth in
section 2.9 (b) above.
2.10 TIB Contract. Prior to the Closing, TIB Bank shall consent to the
assignment of the TIB Contract to Phoenix or one of its Affiliates. TIB Bank
and Phoenix shall use their best efforts to enter into a new processing
agreement by Closing, or as soon thereafter as possible. The new agreement will
have at a minimum the following terms:
(a) a term of five years,
(b) pricing for account processing no less favorable than under
the current TIB Contract, including a reduction in fees for each of the first
three banks implemented for live account processing by Phoenix in addition to
TIB Bank (including Bristol Bank) in the following five Florida counties: Dade,
Broward, Collier, Monroe, Palm Beach, but notwithstanding the foregoing, the
agreement shall include a minimum processing fee payable to Phoenix of $24,650
per month.
(c) pricing for monthly account processing and implementation fees
for the Internet Banking System, the Voice Response System and Safe Deposit Box
System, if requested by TIB Bank, will be no less favorable than under the
current TIB Contract,
(d) pricing for ATM Processing with the Phoenix/Mosaic Postillion
Issuer Configuration Software will equal the lesser of (i) fifty percent of the
cost savings that might be realized from renegotiating agreements with MPS that
result in shifting functionality from MPS to Phoenix, or
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(ii) Phoenix's monthly ATM processing fees, equal to $1,500 per month plus
$0.25 for each ATM card outstanding at the month-end in excess of 6,000 cards,
(e) there will be no additional software or hardware purchase cost
to support the Phoenix/Mosaic software,
(f) the agreement will incorporate performance standards no less
favorable than those set forth in Exhibit B,
(g) the agreement will provide that TIB Bank is responsible for
the purchase of any additional equipment or equipment upgrades which become
necessary or advisable due to an increase in TIB's Bank processing requirements
or to support additional products or services requested by TIB Bank.
2.11 Resolution of TIB Issues. Phoenix shall work with TIB Bank to address
issues relating to the TIB Contract as follows:
(a) Release 2.5. Phoenix will provide assistance as necessary for
TIB Bank and ERAS JV to implement Release 2.5 of the Phoenix System for TIB on
October 23 and 24, 1999 for live use on October 25, 1999.
(b) Offline Teller System. Phoenix will install the Offline Teller
System for TIB Bank by November 15, 1999. Prior to such installation, Phoenix
shall provide TIB Bank with SQLBase 7.0 along with the proper number of seat
licenses, at the following agreed cost, payable following acceptance:
11 units of SQLbase server, 5 concurrent users $13,145
Annual Support Fee $3,988/year
TIB Bank shall promptly test such upgrade and install it as soon as possible
following successful completion of testing and acceptance, which will not be
unreasonably delayed or withheld. Following the installation of Release 2.5 of
the Phoenix System for TIB Bank, Phoenix shall rebuild the database for each
TIB Bank branch location that will test or run Off Line Teller.
(c) On Line ATM. Phoenix will install the Phoenix/Mosaic
Postillion Issuer Configuration Software for TIB Bank. This component is under
development and will be implemented for TIB Bank as soon as it is commercially
available, with a target installation date of March 31, 2000. This software
will provide an on-line interface to a single switch operated by MPS, at no
additional hardware or software cost to TIB.
(d) Loan Application. Phoenix agrees to focus the efforts of its
Client Services Division and Development staff to address issues that have been
identified by TIB Bank as not working with the Phoenix loan application. These
issues have been reported to Phoenix and Client Care Services Manager, Katy Xxx
Xxxxx, who is scheduled to visit TIB Bank and work on these issues with the
appropriate bank personnel on October 27, 1999 through October 29, 1999, in
order to fully review and identify an accepted work around or fix to these
issues, and an action plan will be reasonably agreed by November 30, 1999.
2.12 The Closing.
(a) The Closing shall take place, subject to the satisfaction or
waiver of the conditions set forth herein, at 10 a.m., October 25, 1999, in the
offices of Xxxxxx Xxxxxxx Xxxxx & Scarborough,
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LLP in Atlanta, GA or on such other date and at such other time and place as
the parties shall agree in writing.
(b) At the Closing, ERAS JV shall deliver to Phoenix the following
in a form reasonably acceptable to Phoenix:
(i) a legal opinion of counsel to ERAS JV concerning,
among other things, the due authorization, execution,
delivery, and enforceability of this Agreement and all other
agreements contemplated herein, the effectiveness of the
transfer of the Transferred Assets and Transferred Contracts,
and other reasonable and customary matters;
(ii) the Assignment and Assumption Agreement;
(iii) the Cooperative Marketing Agreement; and
(iv) all business and financial files and records of ERAS
JV relating to the Transferred Assets, the Transferred
Contracts, and the Transferring Employees, including payment
records, financial statements and all other information,
files and records which Phoenix may require to run the
Account Processing Business after the Closing to the same
extent as run by ERAS JV prior to the Closing. ERAS JV shall
be entitled to retain a copy of such books and records solely
for archival purposes.
(c) At the Closing, Phoenix shall deliver to ERAS JV the following
in a form reasonably acceptable to ERAS JV:
(i) the Assignment and Assumption Agreement;
(ii) the Cooperative Marketing Agreement; and
(iii) a legal opinion of counsel to Phoenix concerning, among
other things, the due authorization, execution, delivery, and
enforceability of this Agreement and all other agreements
contemplated herein, and other reasonable and customary
matters;
` (iv) the Purchase Price as set forth in Section 2.2 above
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF ERAS JV AND PARTNERS
To induce Phoenix to execute, deliver and perform this Agreement, and in
acknowledgment of Phoenix's reliance on the following Warranties, each of ERAS
JV and ERAS Inc. hereby jointly and severally represent and warrant to Phoenix
as follows as of the date hereof and as of the Closing:
3.1 Organization, Power and Authority of ERAS JV.
(a) ERAS JV is a general partnership duly formed and validly
existing under the laws of the state of Florida and has all requisite power and
authority, corporate or otherwise, to carry on and conduct its business as it
is now being conducted and to own or lease its properties and assets.
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(b) ERAS JV is not, nor is on the point of being (i) subject to
any bankruptcy or insolvency related procedure in respect of part or all of its
assets, or (ii) involuntarily liquidated.
(c) ERAS JV is owned 30% by TIB and 70% by ERAS, Inc. ERAS Inc.
is owned by the following shareholders in the following percentages:
Shareholder Percentage
----------- ----------
Xxxxx and Xxxxxxxxxx Xxxxxx 70%
Xxxxxx Xxxxxxxxx, Xx. 10%
Xxxxxx Xxxxxxxxx, Xx. 10%
Xxxxxxx Xxxxxx 10%
(d) The Disclosure Memorandum sets forth the name, address and
jurisdiction of organization, and percentage ownership of ERAS JV of each
Partner.
(e) The Disclosure Memorandum contains a true, complete and
correct copy of the Partnership Agreement for ERAS JV in effect on the date
hereof.
(f) The current officers and directors of ERAS JV are listed in
the Disclosure Memorandum.
(g) Except as set forth in the Disclosure Memorandum, ERAS JV has
obtained all necessary consents, approvals, authorizations, or estoppels of any
other Person or governmental or regulatory authority required to be obtained to
execute and perform under this Agreement and to authorize and permit ERAS JV to
transfer, or cause to be transferred, to Phoenix all of the Transferred Assets
and Transferred Contracts. The execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby, have
been duly and validly authorized by all necessary action, corporate or
otherwise, on the part of ERAS JV required to take such action and will not,
without the giving of notice or the lapse of time, or both (i) violate or
conflict with any of the provisions of the any Charter Document; (ii) violate,
conflict with or result in a breach or default under or cause termination of
any term or condition of any mortgage, indenture, contract, license, permit,
instrument, trust document, or other agreement, document or instrument to which
any ERAS JV is a party or by which any ERAS JV or any of its properties may be
bound; (iii) violate any Rule; or (iv) result in the creation or imposition of
any Encumbrance upon any of the Transferred Assets, the Transferred Contracts,
or the Account Processing Business.
3.2 Compliance with Law. ERAS JV has not violated any order of any court,
governmental authority, arbitration board, or tribunal to which it is or was
subject, nor is ERAS JV in violation of any Rule, the violation of which would
have an adverse effect on any of the Transferred Assets, Transferred Contracts,
or the Account Processing Business.
3.3 Financial Matters. The Financial Statements, including the footnotes
thereto, are true, complete and correct, have been prepared in accordance with
the Accounting Standards, consistently applied, and fairly present the
financial position of ERAS JV and the Account Processing Business as of the
dates thereof and the results of their operations for the respective periods
thereof.
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3.4 Indebtedness. The Disclosure Memorandum sets forth a complete and
accurate list and description of all instruments or other documents relating to
any direct or indirect indebtedness for borrowed money of ERAS JV which relate
in any way to the Transferred Assets, Transferred Contracts, or the Account
Processing Business, including any indebtedness by way of lease-purchase
arrangements, guarantees, undertakings on which others rely in extending
credit, and all conditional sales contracts, pledges and other security
arrangements with respect to any of the Transferred Assets, Transferred
Contracts, or the Account Processing Business. Except as set forth in the
Disclosure Memorandum, ERAS JV is not in default with respect to any such
indebtedness.
3.5 No Undisclosed Liabilities. Except as and to the extent shown in the
Disclosure Memorandum, as of the date hereof, ERAS JV did not have any
liabilities or obligations whatsoever, whether accrued, absolute, contingent or
otherwise, relating to the Transferred Assets, Transferred Contracts, or the
Account Processing Business.
3.6 Tax Matters.
(a) Tax and Employee Benefit Returns. ERAS JV has correctly and
timely (i) filed all Tax and Employee Benefit returns required to be filed in
the manner required by Tax and Employee Benefit authorities, (ii) responded to
information requested by said authorities and (iii) made all Tax and Employee
Benefit payments at due dates.
(b) Other Matters. Except as set forth in the Disclosure
Memorandum: (i) ERAS JV has not entered into any transaction which could be
disregarded or recharacterized for Tax or Employee Benefit purposes on the
grounds that it aimed at the avoidance of Tax or Employee Benefit obligations;
and (ii) ERAS JV is not the subject matter of any inquiry, investigation or
audit relating to Tax or Employee Benefit matters and have not been informed of
any proposed audit.
3.7 Litigation. Except as set forth in the Disclosure Memorandum, there is
no action, suit, investigation or proceeding pending or, threatened against or
affecting ERAS JV, the Account Processing Business, the Transferred Assets, or
the Transferred Contracts before any court or by or before any governmental
body or arbitration board or tribunal, nor is there a basis for any such
action, suit, investigation or proceeding.
3.8 Assets.
(a) Description. The Disclosure Memorandum sets forth a general
description and the location of all personal property and leasehold
improvements included in the Transferred Assets.
(b) Title. ERAS JV has good, valid and marketable title to all of
the Transferred Assets, free and clear of any and all Encumbrances. After the
Closing, no Encumbrance will interfere with the use of the Transferred Assets
or the Transferred Contracts or the conduct of the Account Processing Business
as presently conducted by ERAS JV or proposed to be conducted by Phoenix. After
the Closing, Phoenix shall have good, valid and marketable title to all of the
Transferred Assets free and clear of any and all Encumbrances.
(c) Possession. All tangible Transferred Assets are on ERAS JV
premises, in their possession and control. No one else has any right, title or
interest in any of the Transferred Assets.
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(d) All Necessary Assets. The Transferred Assets are all the
assets necessary for the conduct of the Account Processing Business by Phoenix
after the Closing in the same manner as it has been conducted by ERAS JV.
(e) Condition. The tangible Transferred Assets are in good
condition and repair, in satisfactory working order, and are suitable for their
respective intended and future uses.
3.9 Suppliers and Customers. The Disclosure Memorandum contains a list of
each supplier of goods or services to ERAS JV to whom ERAS JV paid in the
aggregate more than $5,000 during the 12-month period ended September 30, 1999
in relation to the Accounts Processing Business, together with the amount paid
during such period.
3.10 Trade Secret and Employment Claims. No third party has claimed that
ERAS JV, any Partner, or any director, officer, manager, employee or agent of
ERAS JV, in respect of activities on behalf of ERAS JV or in respect of the
operation of the Account Processing Business to date, has (i) violated any of
the terms or conditions of any employment contract with a third party, (ii)
infringed any patent, trademark or copyright of a third party, (iii) disclosed
or used any trade secrets or proprietary information or documentation of such
third party, or (iv) interfered in the employment relationship between a third
party and any of his or its employees; nor has any such violation, disclosure,
use or interference occurred.
3.11 Contracts. Except as set forth in the Disclosure Memorandum:
(a) Each Transferred Contract is in full force and effect and constitutes a
binding obligation of all parties thereto, enforceable in accordance with its
terms; no Transferred Contract has been canceled or otherwise terminated, and
there is no threat to do so.
(b) There are no existing defaults or events of default, real or
claimed, or events which with notice or lapse of time or both would constitute
defaults under any Transferred Contract.
3.12 Labor Matters.
(a) ERAS JV is in compliance with all Rules respecting employment
and employment practices, terms and conditions of employment, wages and hours.
(b) ERAS JV is not nor has been engaged in any unfair labor
practice, and no unfair labor practice complaints against ERAS JV are pending
before the National Labor Relations Board or similar authority. There are no
labor strikes or other labor trouble actually pending, being threatened
against, or affecting ERAS JV; relations between management and labor are
amicable; and there have not been, nor are there presently, any attempts or
plans to organize ERAS JV's employees.
(c) There is no agreement, arrangement or understanding between
ERAS JV and any trade union, any representative of any trade union or any
bargaining unit in respect of any of the Transferring Employees.
3.13 Employees.
(a) The Disclosure Memorandum sets forth as to each Transferring
Employee his or her name, the date on which he or she was hired, the basic rate
of pay (separately listing any bonus), a true and correct estimate of each of
the Transferring Employee's accrued sick leave entitlement up to the Closing
Date, a true and correct estimate of each of the Transferring
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Employee's accrued vacation up to the Closing Date, and a true and correct
estimate of all other benefits actually or continently accruing to any
Transferring Employee as of the Closing Date. Except as set forth in the
Disclosure Memorandum, ERAS JV does not have any obligation to pay severance to
any Transferring Employee under any circumstances, contingent or otherwise.
(b) Except as set forth in the Disclosure Memorandum, ERAS JV has
not entered into any agreement with any Transferring Employee, for a fixed term
or otherwise.
(c) Since their hire, each Transferring Employees has received
normal raises (subject to normal performance criteria), and all remuneration
for shift, weekend and/or casual work has been negotiated and agreed upon with
the applicable employees on a case-by-case basis.
(d) During the last five years no significant accident or injury
to a Transferring Employee has occurred at ERAS JV.
(e) ERAS JV have made available to Phoenix all employment records
for each Transferring Employee.
(f) To ERAS JV's knowledge, no Transferring Employee is under any
obligation which would prevent or limit such employee from performing any duty
in furtherance of the Account Processing Business, including without limitation
any no-compete, no-hire, or non-solicitation obligation pursuant to any
employment or other agreement with any party.
(g) No Transferring Employee has made any claim or instituted any
action of any kind against ERAS JV or either Partner.
3.14 Employee Benefit Plans and Arrangements.
(a) Plans and Obligations. ERAS JV has maintained, funded and
administered in compliance, in all respects, with all Rules, including but not
limited to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") and the Internal Revenue Code of 1986, as amended and all regulations
and rulings related thereto, all plans, arrangements, agreements, commitments,
promises and other obligations of ERAS JV, including but not limited to
pension, retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, sick leave without
compensation, bonus and other incentive plans, every medical, vision, dental
and other health plan, every life insurance plan and every other written or
unwritten employee program, arrangement, agreement or understanding, commitment
or method of contribution or compensation, whether formal or informal, whether
funded or unfunded and other obligations under which ERAS JV have been, are or
will be obligated to provide benefits to any of the Transferring Employees.
There are no penalties, interest or Taxes related to the Plans due to any
federal or state authority which would effect the Transferring Employees.
(b) No Payments. The consummation of the transactions contemplated
by this Agreement will not (i) entitle any Transferring Employee to any
severance pay or any other payment contingent upon a change in control or
ownership of ERAS JV or its assets or (ii) accelerate the time of payment or
vesting or increase the amount of any compensation or benefit due to any
Transferring Employee.
3.15 Adverse Information. Neither ERAS JV nor any Partner has withheld
information about any conditions, facts or circumstances that have had or
reasonably could be expected to have an adverse effect on the value of the
Transferred Assets, Transferred Contracts, or the Account Processing Business.
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3.16 Other Information. No representation, warranty or statement made by any
ERAS JV or Partners in this Agreement, the Disclosure Memorandum or any other
document or instrument furnished to Phoenix in connection with the transactions
contemplated herein, contains or will contain any untrue statement or omit to
state a material fact necessary to make the statements contained herein or
therein not misleading.
ARTICLE 4
CONDUCT OF BUSINESS PRIOR TO CLOSING
Pending the Closing, ERAS JV will operate and conduct the Account Processing
Business diligently and only in accordance with reasonable prior practices and
will not make or institute any material changes in methods of purchase, sale,
management, distribution, marketing, accounting or operation except with the
prior written consent of Phoenix. Pursuant thereto and not in limitation of the
foregoing:
4.1 Maintenance of Assets, Permits, Business. ERAS JV shall maintain the
Transferred Assets in their present state of repair (ordinary wear and tear
excepted), shall use its best efforts to keep available the services of the
Transferring Employees, continue in all contractual obligations under the
Transferred Contracts in accordance with their respective terms and preserve
the goodwill, if any, of the Account Processing Business and relationships with
the customers, licensors, suppliers, distributors and brokers with whom it has
business relations. ERAS JV shall maintain all ERAS JV Permits and shall obtain
any permit or license required to conduct the Account Processing Business.
4.2 Notice of Disputes. ERAS JV shall promptly advise Phoenix of the
details of any disputes, claims, actions, suits or proceedings pertaining to or
otherwise adversely affecting the Transferred Assets, Transferred Contracts, or
the Account Processing Business.
4.3 No Action without Consent. ERAS JV shall not take any of the following
actions after the date of this Agreement without the prior written consent of
Phoenix:
(a) sell, assign, transfer or otherwise dispose of any of the
Transferred Assets;
(b) subject any Transferred Asset to an Encumbrance;
(c) increase or announce any increase of any salaries, wages or
benefits for Transferring Employees, (except as required in the ordinary course
of business; such as anniversary date salary or wage increases consistent with
reasonable past practice), or hire, commit to hire or terminate any employee;
(d) amend or terminate any Transferred Contract;
(e) solicit or entertain any offer for, or sell or agree to sell,
or participate in any business combination with respect to, any of the
Accounting Processing Business;
(f) do any act, omit to do any act or permit any act within its
control which will cause a material breach or untruth of any Warranty or
obligation contained in this Agreement or any obligations contained in any
contract;
(g) take any action which would have an adverse effect on any ERAS
JV Permit.
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Neither Phoenix, nor any of its Affiliates, shall incur any liability to ERAS
JV arising out of, related to or in connection with the Phoenix's directing and
supervising the Account Processing Business under the authority of this
Section.
ARTICLE 5
COVENANTS OF THE PARTIES
5.1 Cooperation. ERAS JV and the Partners, on the one hand, and Phoenix, on
the other hand, shall cooperate fully with each other and their respective
employees, legal counsel, accountants and other representatives and advisers in
connection with the steps required to be taken as part of their respective
obligations under this Agreement; and shall, at any time and from time to time
after the Closing, upon the request of the other, do, execute, acknowledge and
deliver, or will cause to be done, executed, acknowledged and delivered, all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney, receipts, acknowledgments, acceptances and assurances as may be
reasonably required to satisfy and perform the obligations of such party
hereunder, and to allow Phoenix to operate the Account Processing Business
after Closing in the manner in which it was operated before the Closing.
5.2 Access. Prior to the Closing, ERAS JV shall (i) provide Phoenix and its
designees (officers, counsel, accountants, actuaries, and other authorized
representatives) with such information as Phoenix may from time to time
reasonably request with respect to ERAS JV and the transactions contemplated by
this Agreement; (ii) provide Phoenix and its designees complete access to the
books, records, offices, personnel, counsel, accountants, and actuaries of ERAS
JV as Phoenix or its designees may from time to time request; and (iii) permit
Phoenix and its designees to make such inspections of ERAS JV premises as
Phoenix may reasonably request. No such investigation shall limit or modify in
any way ERAS JV's or any Partner's obligations with respect to any breach,
inaccuracy or untruth of its representations, warranties, covenants or
agreements contained herein. Any information so furnished by ERAS JV or
Partners shall be true, current and complete in all respects and shall not
contain any untrue statement of a fact or omit to state a fact required to be
stated therein or necessary to make the statements therein not misleading.
5.3 Records. ERAS JV shall provide to Phoenix, as soon as is reasonably
practicable after the Closing, copies of any and all files, records or other
data in their possession or under their control in respect of or relating to
the Transferred Assets, Transferred Contracts, or the operation of the Account
Processing Business.
5.4 Expenses. Whether or not the expenses are incurred before or after the
Closing, each of the expenses incurred by Phoenix, ERAS JV, and Partners in
connection with the authorization, preparation, execution and performance of
this Agreement, including without limitation all fees, commissions, and
expenses of agents, representatives, counsel, accountants, brokers and finders,
shall be paid by the party that incurred such expenses.
5.5 Tax Matters.
(a) ERAS JV shall pay all Taxes arising from or relating to the
sale of the Transferred Assets or Transferred Contracts to Phoenix and the
other transactions contemplated by this Agreement.
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(b) ERAS JV shall file and control any returns required to be
filed by ERAS JV after the Closing Date.
(c) ERAS JV and Phoenix will cooperate and coordinate with regard
to allocation of the purchase price for tax and account purposes.
5.6 Survival of Warranties. The Warranties will not merge, but will survive
the Closing.
5.7 Indemnification.
(a) By ERAS JV and Partners. Partners and ERAS JV (the "Indemnifying
Parties") jointly and severally shall indemnify, reimburse, and hold harmless
Phoenix, its Affiliates and any successor or assigns (the "Indemnified
Persons") for any and all direct or indirect claims, losses, liabilities
(actual or contingent), damages (including special and consequential damages),
costs (including court costs) and expenses (including all attorneys' and
accountants' fees and expenses) (hereinafter "a Loss" or "Losses"), as a result
of or in connection with (i) any breach, inaccuracy or untruth of any Warranty,
whether such breach, inaccuracy or untruth exists or is made on the date of
this Agreement or as of the Closing; or (ii) any breach of or noncompliance by
ERAS JV, or any Partner of any covenant or agreement of ERAS JV or Partners
contained in this Agreement or in any other agreement or instrument delivered
in connection with this Agreement; (iii) any misstatement or omission in any
Financial Statements. Notwithstanding the foregoing, no claim for
indemnification may be made by an Indemnified Person unless and until the
cumulative total of all Losses exceeds $5,000.00. Once Losses exceed such
amount, the Indemnified Persons may recover all Losses. The foregoing
limitation shall not apply to any Loss either intentionally caused by any ERAS
JV or the Partners or of which any ERAS JV or the Partners had prior knowledge.
(b) By Phoenix. Phoenix (an "Indemnifying Party") shall indemnify,
reimburse, and hold harmless ERAS JV and the Partners, their Affiliates and any
successor or assigns (the "Indemnified Persons") for any and all direct or
indirect claims, losses, liabilities (actual or contingent), damages (including
special and consequential damages), costs (including court costs) and expenses
(including all attorneys' and accountants' fees and expenses) (hereinafter "a
Loss" or "Losses"), as a result of or in connection with any breach of or
noncompliance by Phoenix of any covenant or agreement of Phoenix contained in
this Agreement or in any other agreement or instrument delivered in connection
with this Agreement. Notwithstanding the foregoing, no claim for
indemnification may be made by the Indemnified Persons unless and until the
cumulative total of all Losses exceeds $5,000.00. Once Losses exceed such
amount, the Indemnified Persons may recover all Losses. The foregoing
limitation shall not apply to any Loss either intentionally caused by any
Phoenix or of which Phoenix had prior knowledge.
(c) Notification. The Indemnifying Parties hereby undertakes to
notify the Indemnified Persons without delay of the occurrence of any event
which constitutes or may with the passage of time constitute an event entitling
any Indemnified Person to indemnification under this Section.
(d) Notice of Claim. To seek indemnification hereunder, an
Indemnified Person shall notify the Indemnifying Parties of any claim for
indemnification, specifying in reasonable detail the nature of the Loss and the
amount or an estimate of the amount thereof.
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(e) No Prejudice. Nothing herein shall prevent an Indemnified
Person from making a claim for a Loss hereunder notwithstanding its knowledge
of the Loss or possibility of the Loss on, prior to, or after the Closing Date.
(f) Other Rights. The indemnities granted hereunder are in
addition to and not in substitution for any other right or remedy an
Indemnified Person may now have or may subsequently take or hold, and may be
enforced without first recourse to such other right or remedy and without
taking any steps or proceedings in connection therewith, and notwithstanding
any rule of law or equity or statutory provision to the contrary.
5.8 Casualty. ERAS JV shall bear the risk of any loss or damage or
destruction to any of the Transferred Assets from fire or other casualty or
cause at all times prior to the Closing. Upon the occurrence of any loss or
damage to any significant portion of such assets as a result of fire, casualty,
or other causes prior to the Closing, ERAS JV shall immediately notify Phoenix
of the same in writing, stating with particularity the extent of loss or damage
incurred, the cause thereof, if known, and the extent to which restoration,
replacement, and repair of such assets lost or destroyed will be reimbursed
under any insurance policy with respect thereto. Phoenix shall have the option,
but not the obligation, exercisable within 15 days after receipt of such notice
from ERAS JV to:
(a) Postpone the Closing until such time as such assets have been
completely repaired, replaced, or restored; or
(b) Elect to consummate the Closing and accept such assets in
their "then" condition, in which event ERAS JV shall assign to Phoenix all
rights under any insurance claim covering the loss and pay over to Phoenix any
proceeds under any such insurance policy theretofore received by ERAS JV with
respect thereto.
5.9 Funds Received After Closing. Any and all funds to which Phoenix is
entitled pursuant to this Agreement received by ERAS JV (or any party to this
Agreement other than Phoenix) after Closing in respect of the Transferred
Contracts shall be remitted to Phoenix immediately upon receipt.
5.10 No Public Announcements. Prior to Closing, without the prior written
consent of the other parties, neither Phoenix, Partners, nor ERAS JV shall make
any press release or other public disclosure, or make any statement to any
customer, supplier or other person with regard to the transactions contemplated
by this Agreement, except as required by law. After Closing, without the prior
written consent of Phoenix, neither ERAS JV nor Partners shall make any press
release or other public disclosure, or make any statement to any customer,
supplier or other person with regard to the transactions contemplated by this
Agreement, except as required by law and after consultation with Phoenix.
Notwithstanding the foregoing, ERAS JV acknowledges that Phoenix announced the
acquisition of ERAS JV at its user conference in early October, and ERA JV and
the Partners waive any and all claims any of them may have against Phoenix
arising out of such announcement, including but not limited to any claim for
any breach of this or any other agreement between the parties.
5.11 Acquisition Proposals. Prior to the Closing or termination of this
Agreement, neither ERAS JV nor the Partners shall, and shall not permit any
officer, director, employee or agent of any ERAS JV or any Affiliate thereof
(a) to solicit, initiate or encourage submission of proposals or offers, or
accept any offers, from any person relating to any acquisition or purchase of
any or all
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of the Transferred Assets, the Transferred Contracts, or the Account
Processing Business (an "Acquisition Proposal"), or (b) to participate in any
discussions or negotiations regarding, or furnish to any other person any
information with respect to, or otherwise cooperate in any way with or assist,
facilitate or encourage any Acquisition Proposal by any other Person.
5.12 Closing. Each of the parties shall use reasonable commercial efforts to
close the transactions contemplated herein on or before October 25, 1999, or
such other date as the parties may mutually agree upon.
5.13 Break Up Fee. In the event that the Closing does not occur by the end
of November 1999 due a breach of the terms of this Agreement or of any
obligation of Phoenix or ERAS JV to close hereunder, the breaching party shall
pay the other party a break up fee equal to $30,500.
ARTICLE 6
CONDITIONS TO OBLIGATIONS OF ERAS JV AND PARTNERS
The obligations of ERAS JV to consummate the sale of the Transferred Assets and
Transferred Contracts hereunder shall be subject to the satisfaction (or waiver
by ERAS JV) at or prior to the Closing Date of each of the following
conditions:
6.1 Litigation. No suit, investigation, action or other proceeding shall be
pending or overtly threatened before any court or governmental agency, which
has resulted in the restraint or prohibition of ERAS JV, or in the reasonable
opinion of counsel for ERAS JV could result in the obtaining of material
damages or other relief from ERAS JV, in connection with this Agreement or the
consummation of the transactions contemplated hereby.
6.2 Representations, Warranties and Covenants. Each of the
representations and warranties of Phoenix contained in this Agreement shall be
true in all respects as of the time of the Closing with the same force and
effect as though made at that time; Phoenix shall have performed and complied
in all respects with the respective covenants and agreements set forth herein
to be performed or complied with by it at or before the Closing; and Phoenix
shall have delivered to ERAS JV a certificate, signed on behalf of Phoenix by
its President or CEO to all such effects.
6.3 Execution and Delivery of Documents. Phoenix shall have delivered the
Purchase Price and executed and delivered all the documents required herein and
all other agreements, certificates and other documents delivered by Phoenix
hereunder shall be in form and substance satisfactory to counsel for ERAS JV.
ARTICLE 7
CONDITIONS TO OBLIGATIONS OF PHOENIX
The obligations of Phoenix to be performed hereunder shall be subject to the
satisfaction (or waiver by Phoenix) at or before the Closing of each of the
following conditions:
7.1 Representations, Warranties and Covenants. Each of the representations
and warranties of ERAS JV and Partners contained in this Agreement shall be
true in all respects as of the time of the Closing with the same force and
effect as though made at that time; ERAS JV and Partner shall have performed
and complied in all respects with the respective covenants and agreements set
forth herein to be performed or complied with by it at or before the Closing;
and ERAS JV and
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each Partner shall have delivered to Phoenix a certificate, signed on behalf of
ERAS JV by its President, and by each Partner to all such effects.
7.2 Litigation. No suit, investigation, action or other proceeding shall be
pending or overtly threatened before any court or governmental agency, which
has resulted in the restraint or prohibition of Phoenix, or in the reasonable
opinion of counsel for Phoenix could result in the obtaining of material
damages or other relief from Phoenix, in connection with this Agreement or the
consummation of the transactions contemplated hereby.
7.3 Execution and Delivery of Documents. ERAS JV and Partners shall have
executed and delivered all the documents required herein; and all other
agreements, certificates and other documents delivered by ERAS JV to Phoenix
hereunder shall be in form and substance satisfactory to counsel for Phoenix.
7.4 No Adverse Change. ERAS JV shall not have suffered any adverse change
in its business, prospects, financial condition, working capital, assets,
liabilities (absolute, accrued, contingent or otherwise), reserves or
operations.
7.5 Required Governmental Approvals. All governmental authorizations,
consents and approvals necessary for the valid consummation of the transactions
contemplated hereby shall have been obtained and shall be in full force and
effect. All applicable governmental pre-acquisition filing, information
furnishing and waiting period requirements shall have been met or such
compliance shall have been waived by the governmental authority having
authority to grant such waivers.
7.6 Due Diligence. Phoenix shall have completed its due diligence
concerning the Transferred Contracts, the Transferred Assets, and the Account
Processing Business to its reasonable satisfaction, and shall not have
identified any fact, circumstance, or contingency which would in Phoenix's
opinion have or likely have a material adverse effect on the value of the
Transferred Contracts, the Transferred Assets, or the Account Processing
Business.
7.7 Other Necessary Consents. ERAS JV shall have obtained the consent of
each of TIB Bank and Bristol Bank to assign the Transferred Contracts, and to
move the hardware and software used to process their accounts to Orlando.
Further, ERAS JV shall have obtained all consents listed in the Disclosure
Memorandum, and all other consents, the failure of which to obtain would have a
material adverse effect on the Account Processing Business or the Transferred
Assets. With respect to each such consent, approval and estoppel, Phoenix shall
have received written evidence, satisfactory to them, that such consent,
approval or estoppel has been duly and lawfully filed, given, obtained or taken
and is effective, valid and subsisting.
7.8 Encumbrances. All of the Transferred Assets shall be free and clear of
all Encumbrances.
ARTICLE 8
MISCELLANEOUS
8.1 Notices. All notices, requests, demands, consents and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered by overnight courier or express
mail service or by postage pre-paid certified or registered mail, return
receipt requested (the return receipt constituting prima facie evidence of the
giving of such notice, request, demand or other communication), by personal
delivery, or by fax
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with confirmation of receipt to the address set forth on the first page of this
Agreement or such other address of which a party subsequently may give notice
to all the other parties.
8.2 Parties Bound by Agreement; Successors and Assigns. The terms,
conditions and obligations of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and the respective successors and assigns
thereof. Without the prior written consent of Phoenix, neither Partners nor
ERAS JV may assign their rights, duties or obligations hereunder or any part
thereof to any other Person. Phoenix may assign its rights and duties hereunder
in whole or in part (before or after the Closing) to one or more Affiliates.
8.3 Entire Agreement. This Agreement, the Disclosure Memorandum and all
other certificates, schedules and other documents delivered pursuant thereto
constitute the entire agreement between the parties with respect to the
transactions contemplated hereby, and supersede and are in full substitution of
any and all prior agreements and understandings written or oral between the
parties relating to such transactions.
8.4 Descriptive Headings. The descriptive headings of the Sections of this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
8.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
8.6 Amendments and Waivers. No modification, termination, extension,
renewal or waiver of any provision of this Agreement shall be binding upon a
party unless made in writing and signed by such party. A waiver on one occasion
shall not be construed as a waiver of any right on any future occasion. No
delay or omission by a party in exercising any of its rights hereunder shall
operate as a waiver of such rights.
8.7 Governing Law, Jurisdiction and Venue. This Agreement is executed by
the parties and shall be construed in accordance with and governed by the laws
of the State of Florida.
8.8 No Third-Party Beneficiaries. With the exception of the parties to this
Agreement, their respective successors and assigns, and the Indemnified
Parties, there shall exist no right of any person to claim a beneficial
interest in this Agreement or any rights accruing by virtue of this Agreement.
8.9 Gender and Number. Where the context requires, the use of a pronoun of
one gender or the neuter is to be deemed to include a pronoun of the
appropriate gender, singular words are to be deemed to include the plural, and
vice versa.
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Each of the parties hereto has caused this Agreement to be duly executed on its
behalf as of the date indicated on the first page hereof.
PHOENIX: ERAS JV:
PHOENIX INTERNATIONAL LTD, INC. ERAS JV
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- ----------------------------
Xxxxxxxx X. Xxxxx Xxxxx X. Xxxxxx
CFO President and CEO
PARTNERS:
ERAS, INC. TIB SOFTWARE & SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx By: Xxxxxx X. Xxxx
---------------------------- ----------------------------
Xxxxx X. Xxxxxx Xxxxxx X. Xxxx
President and CEO President and CEO
/s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
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