Exhibit 2.5
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STOCK PURCHASE AND EXCHANGE AGREEMENT
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THIS STOCK PURCHASE AND EXCHANGE AGREEMENT (this "Agreement") is made
and entered into as of January 2O, 2002 by and among Category 5 Technologies,
Inc., a Nevada corporation ("Category 5"), Amathus Holdings, Ltd.
("Shareholder"), the sole shareholder of TransAxis S.A., a Swiss corporation,
(the "Company"), and Xxxxx Xxxxx ("Xxxxx"), an individual (Shareholder and
Xxxxx, together, the "Sellers").
RECITALS
WHEREAS, the Company is engaged in the business of selling credit card
transaction processing and other c-commerce services (the "Business"); and
WHEREAS, the Company has entered into a License Agreement with Digital
Courier Technologies, Inc., attached hereto as Exhibit A (the "License
Agreement"), pursuant to which the Company has the right to license and utilize
certain payment processing technology; and
WHEREAS, Shareholder owns all of the issued and outstanding shares of
capital stock of the Company; and
WHEREAS, Shareholder desires to sell to Category 5, and Category 5
desire, to purchase from Shareholder, all of such issued and outstanding shares
of capital stock of the Company on the terms and conditions set forth herein
(the "Acquisition").
NOW, THEREFORE, in consideration of the premises, representations and
mutual covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
1.1 Purchase and Sale of the Shares. Sellers hereby agree to exchange,
sell transfer and deliver to Category 5, and Category 5 hereby agrees to
purchase and acquire from Sellers, on the Closing Date (as hereinafter defined)
all of the outstanding capital stock (the "Shares") of the Company free from any
charge, lien, encumbrance or adverse claim of any kind vhatsoever.
1.2 Consideration for Shares. Category 5 shall deliver at the Closing
(as hereinafter defined), in exchange and as consideration for the Shares, stock
certificates' representing in the aggregate 15,000 shares of Category 5's Common
Stock (the "Category 5 Shares"), par value $.001 per share.
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1.3 Delivery of Shares. At the Closing, Shareholder shall deliver to
Category 5, in addition to those items set forth in Section 8.2, in exchange for
the Category 5 Shares, stock certificates representing all of the Shares, duly
endorsed in favor of Category 5 or accompanied by stock powers duly executed in
favor of and in a form reasonably acceptable to Category 5, free from any
charge, lien, encumbrance or adverse claim of any kind whatsoever, together with
the minute books and stock ledger of the Company.
1.4 Legends. The certificates evidencing the Category 5 Shares shall
bear the following legend and any legends required by any state securities laws:
"THESE SECURlTIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR AN EXEMPTION UNDER THE ACT THE AVAILABILITY OF WHICH
IS TO BE ESTABLISHED TO THE REASONABLE SATISFACTION OF THE COMPANY."
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company and each of the Sellers jointly and severally agree with,
and represent and warrant to Category 5 as follows:
2.1 Corporate Existence, Good Standing and Authority. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. The Company has full corporate power and
corporate authority to carry on its business as now being conducted and is
entitled to own, lease or operate the property and assets now owned, leased or
operated by it. The Company is qualified to do business, is in good standing and
has all required and appropriate licenses in each jurisdiction in which its
failure to obtain or maintain such qualification, good standing or licensing (i)
would, individually or in the aggregate, have or reasonably could be expected to
have a material adverse effect on the assets, business, financial condition, or
prospects of the Company (a "Material Adverse Effect"), or (ii) would result in
a material breach of any of the other representations, warranties or covenants
set forth in this Agreement. The Company has all requisite corporate power and
corporate authority to enter into this Agreement all other agreements and
documents contemplated hereby (the "Ancillary Agreements") and to consummate the
transactions contemplated hereby and thereby. This Agreement has been, and the
Ancillary Agreements, when executed, will be, duly executed and delivered by the
Company and each of the Sellers, has been authorized by all necessary corporate
action of the Company and constitutes a legal, valid and binding obligation of
the Company and each of the Sellers, enforceable against the Company and each of
the Sellers in accordance with its terms, except as enforcement may be limited
by equitable principles or bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to creditors rights generally.
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2.2 Capitalization. The authorized capital stock of the Company
consists of 100 shares of common stock, of which 100 shares are issued and
outstanding (the "Shares"). All of the Shares have been duly authorized and
validly issued and are fully paid and nonassessable. All of the Shares are being
exchanged for the Category 5 Shares. There are no options, warrants, conversion
rights, rights of exchange, or other rights, plans, agreements or other
commitments providing for the purchase, issuance or sale of any shares of the
Company's capital stock or any securities convertible into or exchangeable for
any shares of the Company's capital stock.
2.3 Good and Marketable Title To Shares. All of the Shares are owned,
beneficially and of record, only by the Sellers and are free from any charge,
lien, encumbrance or adverse claim of any kind whatsoever. The Sellers have the
absolute and unrestricted right, power, authority and capacity to transfer the
Shares to Category 5 and upon the Closure, without exception, Category 5 will
acquire from the Sellers legal and beneficial ownership of, good and valid title
to, and all rights to vote, the Shares, free from any charge, lien, encumbrance
or adverse claim of any kind whatsoever.
2.4 Subsidiaries. Except as set forth on Schedule 2.4, the Company does
not presently own, directly or indirectly, any interest in any other corporation
association, joint venture or other business entity.
2.5 Financial Statements. The balance sheet and related statements of
income and cash flows of the Company since inception through September 2, 2001
(the "TransAxis Financial Statements") have been provided to Category 5. The
internal books and records of the Company from which the TransAxis Financial
Statements were prepared do not contain any information which is false or
misleading. The TransAxis Financial Statements (i) were prepared in accordance
with such books and records; (ii) were prepared in accordance with the Company's
accounting policies and principles, and are in accordance with international
accounting standards ("IAS"), applied on a consistent basis; and (iii) present
fairly the Company's financial position and results of operations at the dates
and for the periods reflected therein.
2.6 Properties. The Company does not own or hold title to any real
property, nor does it lease any real property.
2.7 Litigation. No litigation, arbitration or proceeding is pending or,
to the best knowledge of the Company, threatened by or against the Company, its
properties or assets, the Shares or its officers, directors or the Sellers
before any court or any government agency, and, to the knowledge of the Company,
no facts exist which might form the basis for any such litigation, arbitration
or proceeding. To the knowledge of the Company, the Company is not the subject
of any investigation for violation of any laws, regulations or administrative
orders applicable to its businesses by any governmental authority or any other
person. There is no judgment, writ, decree, injunction, rule or order of any
court, governmental department, commission, agency, instrumentality or
arbitrator outstanding against the Company, its properties or assets or the
Shares.
2.8 Non-Contravention. The execution and delivery of this Agreement by
the Company and consummation of the transactions contemplated hereby will not
result in or constitute any of the following: (i) a conflict, violation or
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default gently or an event that, with notice or lapse of tune or both, would be
a default, breach, or violation of the Articles of Incorporation or Bylaws of
the Company, any contract, lease, license, permit, promissory note, conditional
sales contract, commitment, indenture, mortgage, deed of trusts or other
agreement, instrument or arrangement to which the Company is a party or by which
the Company or its assets are bound; (ii) an event that would permit any party
to terminate agreement or instrument or to accelerate the maturity of or permit
the subordination of any indebtedness or other obligation of the Company; (iii)
the creation or imposition of any lien, charge, or encumbrance on any of the
assets of the Company; or (iv) conflict with or result in the violation or
breach of any law, rule or regulation of any governmental authority, or any
judgment, order, injunction or decree applicable to the Company or its assets.
2.9 Absence of Certain Change. Except as set forth in Schedule 2.9,
since September 30, 2001, there has not been:
(a) Any Material Adverse Effect;
(b) Any indebtedness incurred by the Company, except such as may
have been incurred or entered into in the ordinary course of business;
(c) Any loan made or agreed to be made by the Company, nor has the
Company become liable or agreed to become liable as a guarantor with
respect to any loan;
(d) Any waiver or compromise by the Company of any right or rights
in the License Agreement;
(e) Any sale, assignment, or transfer of any intangible assets of
material value, including the License Agreement, other than licenses
granted in the ordinary course of business;
(f) Any purchase or other acquisition of, or any sale, lease,
disposition of, mortgage, pledge or subjection to any lien or
encumbrance on, any material property or asset, tangible or intangible,
of the Company or any agreement to do any of the foregoing;
(g) Any actual or threatened amendment, termination, or loss of
(i) any material contract, license or other agreement to which the
Company is a party, including the License Agreement or (ii) any
certificate or other authorization required for the continued operation
by the Company of any material portion of any of its business;
2.10 Employees. The Company has complied in all material respects with
all applicable laws, rules and regulations relating to employment, including
those relating to wages, hours, collective bargaining and the payment and
withholding of taxes and other sums as required by appropriate governmental
authorities.
2.11 Compliance with Law: Consents. The business and operations of the
Company have been and are being conducted in compliance with all laws, rules
regulations and licensing requirements applicable thereto, except where failure
to be so in compliance would not have a Material Adverse Effect. The Company is
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unaware of any facts which might form the basis for a claim that any material
violation of such laws exists. No consent, approval, order or authorization of,
or registration, qualification, designation, declaration or filing with, any
federal, stare or local governmental authority or any third party on the part of
the Company or the Sellers is required in connection with the execution,
delivery and performance by the Company or the Sellers of this Agreement, the
consummation of the transactions contemplated hereby or Category 5's operation
of the business of the Company following the Closing Date.
2.12 Contracts and Other Agreements. The License Agreement is the only
material contract or agreement to which the Company is a party or by or to which
it or its assets or properties are bound or subject. The License Agreement is
valid, existing, in full force and effect, binding upon the Company, and to the
best knowledge of the Company, binding upon the other party thereto in
accordance with its terms, and the Company is not in default under the License
Agreement, nor, to the best knowledge of the Company, is any other party to any
such contract or other agreement in default thereunder, nor does any condition
exist that with notice or lapse of time or both would constitute a default
thereunder, except such defaults as would not, individually or in the aggregate,
have a material adverse effect on the Business of Company.
2.13 No Termination of Business Relationship. Neither DCTI nor any of
its officers, directors, employees, agents or affiliates has given notice of any
intention to cancel or otherwise terminate the License Agreement or a material
business relationship with the Company and the Company has no knowledge of any
event (including, without limitation, the transactions contemplated hereby)
which would precipitate the cancellation or termination of, or entitle any such
entity or customer to terminate, such a material business relationship.
2.14 Consuls of Non-Governmental Third Parties. No consent, waiver or
approval of any non-governmental third party is necessary for the consummation
by the Sellers and the Company of the transactions contemplated hereby.
2.15 Intellectual Property Rights. To the Company's best knowledge, the
Company possesses all licenses and rights (collectively, the "Intellectual
Property") necessary for its business without any contact with or infringement
of the valid rights of others and the lack of which could have a Material
Adverse Effect, and the Company has not received any notice of infringement upon
or conflict with the asserted rights of others. All intellectual Property which
is licensed to the Company by others are identified in Schedule 2.15, and all
such licenses will continue in full force and effect upon the consummation of
the transactions contemplated hereby. The Company is, not aware that any of its
employees is obligated under any contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere with
the use of his or her best efforts to promote the interests of the Company or
that would conflict with the Company's business.
2.16 No Undisclosed Liabilities. The Company does not have any
liabilities, obligations or commitments of any nature (absolute, accrued,
contingent or other) matured or unmatured ("Liabilities").
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2.17 Representations Complete. None of the representations and
warranties made by the Sellers or the Company herein, nor any statement made in
any Exhibit, Schedule or certificate furnished pursuant to this Agreement,
contains or will contain any untrue statement of a material fact, or omit to
state any material fact required to be stated therein, or necessary in order to
make the statements made, in light of the circumstances under which they were
made, not misleading.
2.18 Broker's and Finders's Fees. Neither the Company nor the Sellers
has incurred, nor will it incur, directly or indirectly, any liability for
brokerage or finder's fees or agents' commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each of the Sellers agree with, and represent and warrant to Category 5
as follows:
3.1 Good and Marketable Title to Shares. Tl2e Sellers have and will
have on the Closing Date, full right, power, and authority to sell, transfer and
deliver the Shares as provided in this Agreement.
3.2 Purchase Entirely for Own Account. Each Seller understands that
Category 5 is entering into this Agreement with each Seller in reliance upon
such Seller's representation to Category 5, which by such Seller's execution of
this Agreement such Seller hereby confirms, that the Category 5 Shares to be
received by such Seller, (for purposes of Article III, the "Securities") will be
acquired for investment for such Seller's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that such Seller has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, each Seller further represents that such Seller does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Securities. Each Seller represents that it has full power
and authority to enter into the Agreement.
3.3 Disclosure of Information. Each Seller believes that it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Securities. Each Seller further represents that it has
had an opportunity to ask questions and receive answers from Category 5
regarding Category 5 and its business and operations and the terms and
conditions of the offering of the Securities.
3.4 Investment Experience. Each Seller acknowledges that it is able to
fend for itself, can bear the economic risk of its investment and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Securities.
3.5 Restricted Securities. Each Seller understands that the Category 5
Shares it is purchasing are characterized as "restricted securities" under the
United States securities laws inasmuch as they are being acquired from Category
5 in a transaction not involving a public offering that under such laws and
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applicable regulations such securities may be resold without registration under
the Securities Act of 1933, as amended (the "Acts), only in certain limited
circumstances. In this connection, each Seller represents that it is familiar
with Rule 144 promulgated under the Act, as now in effect, and understands the
resale limitations imposed thereby and by the Act. Each selling Seller agrees
that it will (i) not sell, assign or transfer any of the Category 5 Shares to
anyone other than Category 5 or to a transferee who has agreed to be bound by
the Exchange Agreement, (ii) not make any disposition of all or any portion of
the Category 5 Shares unless such disposition is in compliance with all
applicable federal and state securities law, and (iii) not, to the extent
requested by an underwriter of common stock, (or other securities) of Category 5
during a two-year period following the Closing, sell or otherwise transfer or
dispose of any such securities during a reasonable and customary period of time,
as agreed to by Category 5 and the underwriters.
3.6 Foreign Investor. If such Seller is not a United States person,
such Seller hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in connection with any invitation to
subscribe for the Securities or any use of this Agreement, including (i) the
legal requirements within its jurisdiction for the purchase of the Securities,
(ii) any foreign exchange restrictions applicable to such purchase, (iii) any
governmental or other consents that may need to be obtained, and (iv) the income
tax and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale or transfer of the Securities. Such Investor's
subscription and payment for, and its continued beneficial ownership of the
Securities, will not violate any applicable securities or other laws of its
jurisdiction.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CATEGORY 5
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Category 5 represents and warrants to the Sellers and the Company that:
4.1 Corporate Existence, Good Standing and Authority. Category 5 has
been duly incorporated and is validly existing and in good standing under the
laws of the State of Delaware. Category 5 has full corporate power and authority
to enter into, deliver, perform its obligations under and carry out this
Agreement and the Ancillary Agreements to which it is a party. This Agreement
constitutes, and all agreements and Ancillary Agreements will constitute, valid
and 1egally binding obligations of Category 5 enforceable in accordance with
their terms, subject as to enforcement to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
4.2 Category 5 Shares Fully Paid and Non-Assessable. The Category 5
Shares deliverable pursuant to Section 1.2 when issued and delivered as herein
provided, will be validly issued and outstanding shares of Category 5 Common
Stock, fully paid and non-assessable, free and clear of all liens, encumbrances,
restrictions and claims of every kind.
4.3 Consents and Approvals. Except as otherwise described herein, no
consent, approval, authorization, order, registration or qualification of or
with any court or any regulatory authority or any other governmental body is
required for the consummation by Category 5 of the transactions contemplated by
this Agreement.
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4.4 Financial Statements. The consolidated audited financial statements of
Category 5 and its subsidiries as filed with the Securities and Exchange
Commission (the "SEC") on Form 10K on October 4, (the "Category 5 Audited
Financial Statements") and the unaudited consolidated financial statements of
Category 5 and its subsidiaries as filed with the SEC on Form 10-Q on October
29, 1999 (the "Category 5 Unaudited Financial Statements") comply as to form in
all material respects with applicable accounting requirements and with
applicable rules and regulations of the Securities and Exchange Commission. The
Category 5 Audited Financial Statements and the Category 5 Unaudited Financial
Statements (i) were prepared in accordance with Category 5's internal books and
records; (ii) were prepared in accordance with Category 5's accounting policies
and principles, and are in accordance with generally accepted accounting
principles ("GAAP"), applied on a consistent basis; and (iii) present fairly
Category 5's financial position and results of operations at the dates for the
periods reflected therein.
4.5 Representations Complete. None of the representations and
warranties made by Category 5 herein, nor any statement made in any Exhibit,
Schedule or certificate furnished pursuant to this Agreement, contains or will
contain any untrue statement of a material fact, or omit to state any material
fact required to be stated therein, or necessary in order to make the statements
made, in light of the circumstances under which they were made, not misleading.
4.6 Broker's and Finder's Fees. Category 5 has not incurred, nor will
it incur, directly or indirectly, any liability for brokerage or finder's fees
or agents' commissions or any similar charges in connection with this Agreement
or any transaction contemplated hereby.
ARTICLE V
COVENANTS
5.1 Best Efforts. Each of Category 5, the Company and the Sellers will
use its best efforts to perform and fulfill all obligations on their respective
parts to be performed and fulfilled under this Agreement, and to cause all the
conditions precedent to the consummation of the transactions to be timely
satisfied, to the end that the transactions contemplated by this Agreement shall
be effected substantially in accordance witch its terms. Each of Category 5, the
Company and the Sellers shall each cooperate with Category 5 in such actions and
in securing requisite approvals asked shall deliver such further documents as
Category 5 may reasonably request as necessary to evidence such transactions.
5.2 Employee Matters. Category 5 shall enter into employment
agreements with such employees as are determined in good faith by the parties
hereto (the "Employment Agreements"), substantially in the form attached hereto
as Exhibit B.
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ARTICLE VI
CONDITIONS PRECEDENT TO
OBLIGATIONS OF CATEGORY 5
The obligation of Category 5 to consummate the transactions
contemplated by this Agreement is subject to the satisfaction, at or before the
Closing, of all the following conditions, unless waived in writing by Category
5:
6.1 Certificates for Shares. Category 5 shall have received
certificates for the Shares, which shall constitute all of the issued and
outstanding capital stock of the Company.
6.2 Representations and Warranties True. All representations and
warranties of the Company and the Sellers in this Agreement or the Schedules and
Exhibits hereto, or in any written statement or certificate that shall be
delivered to Category 5 by the Company or the Sellers under this Agreement,
shall be true and correct on and as of the Closing Date as if made on the date
thereof.
6.3 Covenants Performed. The Company and the Sellers shall have
performed satisfied, and complied with all covenants, agreements, and conditions
required by this Agreement to be performed or complied with by the Company and
the Sellers on or before the Closing Date.
6.4 Certificate. Category 5 shall have received from the Company and
the Sellers a certificate, dated the Closing Date, certifying, in such detail as
Category 5 and its counsel may reasonably request, that the conditions specified
in this Article VII have been satisfied.
6.5 Opinion of Counsel for the Company. Category 5 shall have received
an opinion from counsel for the Company, dated the Closing Date, substantially
in the form attached hereto as Exhibit C (the "Seller's Counsel Opinion").
6.6 No Material Adverse Effect. During the period from September 30,
2001 to the Closing, there shall not have been any Material Adverse Effect.
6.7 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be in form and substance
reasonably satisfactory to Category 5 and its counsel, and Category 5 shall have
received all such counterpart originals or certified or other copies of such
documents as it may reasonably request.
6.8 Schedules. The Company shall have completed and attached hereto
all, Schedules required by this Agreement, and all such Schedules shall have
been acceptable to Category 5, in its sole discretion.
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ARTICLE VII
CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE COMPANY AND THE SELLERS
The obligation of the Company and the Sellers to consummate the
transactions contemplated by this Agreement is subject to the satisfaction, at
or before the Closing, of all the following conditions, unless waived in writing
by the Company and the Sellers:
7.1 Representations and Warranties True. All representations and
warranties by Category 5 in this Agreement or the Schedules and Exhibits hereto,
or in any written statement or certificate that shall be delivered to the
Company by Category 5 under this Agreement shall be true on and as of the
Closing as though such representations and warranties were made on and as of
that date, and a duly authorized Category 5 officer shall have delivered a
certificate, dated the Closing Date, to the Company so certifying.
7.2 Covenants Performed. Category 5 shall have performed satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by Category 5 on or before the
Closing, and a duly authorized Category 5 officer shall have delivered a
certificate, dated the Closing Date, to the Company so certifying.
7.3 Delivery of Documents. The Company shall have received all
documents and other items to be delivered by Category 5 under Section 9.3.
7.4 No Material Adverse Change. During the period from the date hereof
to the Closing, there shall not have been any material adverse change in the
condition (financial or other), liabilities, business or prospects of Category
5. The Company shall have received a certificate from Category 5 dated the
Closing Date to the foregoing effect.
7.5 Required Consents. All consents, approvals and waivers from third
parties and governmental authorities necessary to the transactions as
contemplated hereby shall have been obtained.
ARTICLE VIII
CLOSING
8.1 Time and Place. The purchase and sale of the Shares hereunder (the
"Closing") shall occur at such tune and date to which the parties may agree in
writing (the "Closing Date").
8.2 Deliveries of the Company. At the Closing, the Company
will execute and deliver or cause to be executed and delivered to Category 5:
(a) Stock Certificates. Certificates representing the Shares,
endorsed over to Category 5 or accompanied by duly executed stock
powers;
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(b) Corporate Documents. The Articles of Incorporation of the
Company, certified by the appropriate government agency as of a recent
date and the Bylaws of the Company, certified by the secretary of the
Company as in effect at the Closing;
(c) Certificate of Good Standing. Certificates of Good Standing,
dated as of a recent date, with respect to the Company, issued by the
appropriate authority of each jurisdiction listed in Schedule 8.2(c);
(d) Resolutions. A copy of the resolutions of the Board of
Directors of the Company, certified by the secretary of the Company as
having been duly and validly adopted and being in full force and
effect, authorizing, execution and delivery of this Agreement and
performance of the transactions contemplated hereby by the Company;
(e) Books and Records. All of the minute books, stock ledgers and
similar corporate records of the Company;
(f), Opinion of Counsel. The Seller's Counsel Opinion;
(g) Company's Certificate. A certificate from Company dated the
Closing Date, containing the information required pursuant to Section
7.4;
(h) Other Documents. Such other documents and instruments as
Category 5 or its counsel reasonably shall deem necessary to consummate
the transactions contemplated hereby.
All documents delivered to Category 5 shall be in form and substance
reasonably satisfactory to Category 5 and its counsel.
8.3 Deliveries of Category 5. At the Closing, Category 5 will execute
and deliver or cause to be executed and delivered to the Company simultaneously
with delivery of the items referred to in Section 9.2 above:
(a) Payment of the Consideration. The Category 5 Shares;
(b) Other documents. Such other documents and instruments as
Category 5 or its counsel reasonably shall deem necessary to consummate
the transactions contemplated hereby.
ARTICLE IX
OBLIGATIONS OF SELLERS AND CATEGORY 5 AFTER CLOSING
9.1 Indemnification by the Sellers. The Sellers shall indemnify and
hold harmless Category 5 and its respective officers, directors, employees,
successors and assigns in respect of any and all claims, actions, suits or other
proceedings and any and all losses, costs, expenses, liabilities, fines,
penalties, interest, and damages, whether or not arising out of any claim,
action, suit or other proceeding (and including reasonable counsel and
accountants' fees and expenses and all other reasonable costs and expenses of
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investigation, defense or settlement6 of claims and amounts paid in settlement)
incurred by, imposed on or borne by Category 5 (collectively "Damages")
resulting from:
(a) The breach of any of the representations or warranties made by
the Company or the Sellers in this Agreement;
(b) The breach or the failure of performance by the Company or the
Sellers of any of the covenants that they are to perform hereunder;
(c) The payment of any taxes (including interest and penalties) of
any kind or nature imposed, whether before or after the Closing, by
any government or subdivision thereof upon the business, assets or
employees or independent contractors of the Company or otherwise
resulting from or relating to the respective businesses or operations
of the Company prior to the Closing or any of its properties or assets
as they existed as of or any time prior to the Closing Date and the
transactions contemplated by this Agreement;
(d) All employment-related claims and causes of action, and all
other claims and causes of actions, that have arisen or arise out of in
connection with the operations of the businesses of the Company
conducted prior to the Closing (whether asserted, discovered or
established before or alter the Closing).
Damages shall exclude any amount with respect to which Category 5 or
the Company as the case may be shall have received under any insurance policy
which provides coverage for the liability to which such amount relates.
9.2 Indemnification by Category 5. Category 5 shall indemnify and hold
harmless the Sellers, in respect of any and all claims, losses, costs, expenses,
liabilities, fines, penalties, interest, and damages (including reasonable
counsel and accountants' fees and expenses and all other reasonable costs and
expenses of investigation, defense or settlement of claims and amounts paid in
settlement) incurred by, imposed on or borne by the Sellers resulting from:
(a) The breach of any of the representations or warranties made by
Category 5 in this Agreement; or
(b) The breach or the failure of performance by Category 5 of any
of the covenants that it is to perform hereunder.
9.3 Indemnification Procedure for Claims. Whenever any claim shall
arise for indemnification hereunder, the party entitled to indication (the
"indemnified party') shall promptly notify the other party or parties (the
"indemnifying party") of the claim and, when known, the facts constituting the
basis for such claim; provided, that the indemnified party's failure to give
such notice shall not affect any rights or remedies of an indemnified party
hereunder with respect to indication for damages except to the extent that the
indemnifying party is materially prejudiced thereby. In the event of any claim
for indemnification hereunder resulting from or in connection with any claim or
legal proceedings by a third party, the notice to the indemnifying party shall
specify, if known, the amount or an estimate of the amount of the liability
arising therefrom. The indemnified party shall not settle or compromise any
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claim by a third party for which it is entitled to indemnification hereunder,
without the prior written consent of the indemnifying party (which shall not be
unreasonably withheld) unless suit shall have been instituted against it and the
indemnifying party shall not have taken control of such suit after notification
thereof as provided in Section 13.8 this Agreement.
9.4 Manner of Indemnification. All indemnification hereunder shall be
effected by payment of cash or delivery of a certified or official bank check to
the indemnified party.
ARTICLE X
GENERAL PROVISIONS
10.1 Survival. The representations and warranties of the Company and
the Sellers set forth in this Agreement or in any instrument or document
furnished in connection herewith shall survive the Closing and all
representations and warranties set forth herein or in any instrument or document
furnished in connection herewith will expire on the third anniversary of the
Closing Date. No claim or action for indemnity for breach of any representation
or warranty shall be asserted or maintained by any party hereto after the
expiration of such representation or warranty pursuant to the provisions of this
Section 10.1 except for claims made in writing prior to such expiration and
actions (whether instituted before or after such expiration) based on any claim
made in writing prior to such expiration. Each party hereto may rely on the
representations and warranties made by the other parties hereto notwithstanding,
any investigation of the facts constituting the basis of the representations and
warranties of any party by any other party hereto.
10.2 Further Assurances. At the request of any of the parties hereto,
and without further consideration, the other parties agree to execute such
documents and instruments and to do such further acts as may be necessary or
desirable to effectuate the transactions contemplated hereby.
10.3 Each Party to Bear Own Costs. Each of the parties shall pay all
costs and expenses incurred or to be incurred by it in negotiating and preparing
this Agreement and in closing and carrying out the transactions contemplated by
this Agreement.
10.4 Headings. The subject headings of the Articles and Sections of
this Agreement are included for purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
10.5 Entire Agreement; Waivers. This Agreement and the Exhibits and
Schedules hereto constitute the entire agreement between the parties pertaining
to the contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties. No waiver of any of the
provisions of this Agreement shall be deemed. or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by We
party making the waiver.
13
``
10.6 Third Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third person to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation or action over against any party to this Agreement.
10.7 Successors and Assigns. This Agreement shall not be assigned by
the Company or the Sellers without the written consent of Category 5. This
Agreement shall be binding on, and shall inure to the benefit of, the parties to
it and their respective heirs, legal representatives, successors. and assigns.
10.8 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given when so delivered in person, by overnight courier, by facsimile
transmission (with receipt confirmed by telephone or by automatic transmission
report) or two business days after being sent by registered or certified mail
(postage prepaid, return recent requested) as follows:
To the Company at: TransAxis, S.A.
C/o Pestalozzi Lachenal Xxxxx
0, xxxxx xx Xxxxxx
0000 Xxxxxx
Xxxxxxxxxxx
To the Sellers: Xxxxx Xxxxx
To Category 5 at: Category 5 Technologies, Inc.
0000 X. Xxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: 000-000-0000
Any party may change its address for purposes of this paragraph by giving notice
of the new address to each of the other parties in the manner set forth above.
10.9 Intentionally Left Blank.
10.10 Attorney's Fees. If any party to this Agreement shall bring any
action, suit, counterclaim or appeal for any relief against the other,
declaratory or otherwise, to enforce the terms hereof or to declare rights
hereunder (collectively, an "Action"), the Prevailing Party shall be entitled to
recover as part of any such Action its reasonable attorneys' fees and costs,
including any fees and costs incurred in bringing and prosecuting such Action
and/or enforcing any order, judgment, ruling or award granted as part of such
14
Action. "Prevailing party" within the meaning of this Section 13.10 includes,
without a party who agrees to dismiss an Action upon the other party's payment
of all or a portion of the sums allegedly due or performance of the covenants
allegedly breached, or who obtains substantially the relief sought by it.
10.11 Governing Law. The terms of this Agreement shall be governed by
the laws of the State of Utah applicable to agreements entered into, to be
wholly performed in and among residents exclusively of, Utah.
10.12 Consent to Jurisdiction and Forum Selection. The parties agree
that all actions or proceedings arising in connection with this Agreement shall
be tried and litigated exclusively in the State and Federal courts located in
Utah. The aforementioned choice of venue is intended by the parties to be
mandatory end not permissive in nature, thereby precluding the possibility of
litigation between the parties with respect to or arising out of this Agreement
in any jurisdiction other than that specified in this Section 13.12. Each party
hereby waives any right it may have to assert the doctrine of forum non
conveniens or similar doctrine or to object to venue with respect to any
proceeding brought in accordance with this paragraph, and stipulates that the
State and Federal courts located in Utah shall have in personam jurisdiction and
venue over each of them for the purposes of litigating any dispute, controversy
or proceeding arising out of or related to this Agreement. Each party hereby
authorizes and accepts service of process sufficient for personal jurisdiction
in any action against it as contemplated by this Section 13.11 by registered or
certified mail, return receipt requested, postage prepaid, to its address for
the giving of notices as set forth in this Agreement, or in the manner set forth
in Section 13.8 of this Agreement for the giving of notice. Any final judgment
rendered against a party in any action or proceeding shall be conclusive as to
the subject of such final judgment and may be enforced in other jurisdictions in
any manner provided by law.
10 13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
10.14 Severability. All provisions contained herein are severable and
in the event that any of them shall be held to be to any extent invalid or
otherwise unenforceable by any court of competent jurisdiction, such provision
shall be construed as if it were written so as to effectuate to the greatest
possible extent the parties' expressed intent; and in every case the remainder
of this Agreement shall not be affected thereby and shall remain valid and
enforceable, as if such affected provision were not contained herein.
10.15 Publicity. The parties shall cooperate with each other
in the development and distribution of all news releases and other public
disclosures relating to the transactions contemplated hereby. None of the
parties shall issue or made, or cause to have issued or made, any press release
or announcement concerning the transactions contemplated hereby without the
advance approval in writing of the form and substance thereof by the other
parties, unless otherwise required by applicable law.
15
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase and Exchange Agreement as of the date first above written.
TRANSAXIS S.A.
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
CATEGORY 5 TECHNOLOGIES, INC.
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
SELLERS
--------------------------------
Amathus Holdings
16
LICENSE AGREEMENT
THIS Agreement is entered into as of March 6, 2001 by and between
Digital Courier Technologies, Inc., a Delaware Corporation, have a principal
office at 000 Xxxx 0000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx ("DCTI") and
Newco, a Swiss corporation ("Customer").
WHEREAS, DCTI has developed or acquired comWallet software (the
"Software Product"), and has developed an Internet Payment Gateway.
WHEREAS, Customer desires to obtain the right to use said Software
Product and certain related development, installation, maintenance and/or
support services.
ARTICLE ONE; LICENSE
1.1 DCTI hereby grants to Customer, a non-transferable and
non-exclusive license to use the Software Product subject to the terms and
conditions of this Agreement, and access to its Internet Payment Gateway.
Customer may use the Software Product for itself and any party for whom it
provides data processing services within the European, Middle Eastern and
African markets only. Customer understands that ACI Worldwide currently has the
first option to an exclusive license to distribute the Software Product within
the same territory, and has been given the option to exercise that right by
March 30, 2001. Should ACI not wish to exercise its first option rights,
Customer will be provided with the Software Product.
1.2 Except as otherwise set froth herein, Customer shall not modify,
copy or otherwise reproduce the Software Product without the prior written
authorization of DCTI. Any such reproduction shall be automatically deemed an
integral part of the Software Product licensed hereunder.
ARTICLE TWO; CHARGES
2.1 Software Product and Internet Payment Gateway use fees will be set
at mutually agreed upon competitive market rates.
2.2 All payments shall be remitted to DCTI in U.S. dollars. Customer
shall pay such charges within thirty (30) calendar days after the date of
receipt of DCTI's corresponding invoice. DCTI's invoices to be monthly.
2.3 All amounts payable by Customer to DCTI under this Agreement are
exclusive of any tariffs, duties, taxes or similar governmental charge which may
1
be assessed based on the delivery, possession or use of the Software Product or
the execution or performance of this Agreement, excluding DCTI franchise taxes
or taxes based upon DCTI's income.
ARTICLE THREE; WARRANTY
3.1 DCTI represents and warrants only that it owns or has the right to
license the Software Product and to grant access to its internet Payment
Gateway. DCTI makes no representations about the operability of the Software
Product.
3.2 WARRANTIES, CONDITIONS, REPRESENTATIONS, GUARANTEES, AND
INDEMNITIES AS SET FORTH IN ARTICLES THREE AND FOUR ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS, GUARANTEES, AND INDEMNITIES,
WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN
STATEMENTS OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS
FOR PARTICULAR PURPOSES OR MERCHANTABILITY).
ARTICLE FOUR; INFRINGEMENT
4.1 If a third party brings an action against Customer claiming that
the Software product infringes a copyright or trade secret, DCTI will defend
Customer and will pay the damages and costs finally awarded against Customer,
but only if (i) Customer notified DCTI immediately after the claim is asserted
or threatened, (ii) DCTI has full control over the defense, settlement or other
resolution of the claim (iii) Customer does not take a position that is adverse
to DCTI, and (iv) at DCTI's request, Customer assists DCTI in defending,
settling or otherwise resolving the claim.
4.2 If DCTI receives notice of an infringement claim or otherwise
concludes that the Software Product may infringe the proprietary rights of a
third party, Customer will allow DCTI, at DCTI's option to (i) procure the right
for Customer to continue using the Software Product, (ii) modify or replace the
Software Product without adversely affecting their operating specifications, or
(iii) if DCTI determines that neither (i) nor (ii) is practicable, terminate
Customer's right to use the infringing Software Product.
4.3 DCTI will have no obligation to Customer under Sections 4.1 and 4.2
above if the copyright or trade secret infringement claim is based on (i) a
modification of the Software Product not made by DCTI, (ii) the combination of
the Software Product with an item not supplied by DCTI, or (iii) use of the
Software Product in a manner not intended by this Agreement.
4.4 THE RIGHTS GRANTED TO THE CUSTOMER UNDER THIS ARTICLE FOUR SHALL BE
THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED INFRINGEMENT BY DCTI
2
HEREUNDER OF ANY COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT OF FOR ANY
BREACH OF THE WARRANTY GIVEN IN SECTION 3.4.
ARTICLE FIVE; LIMITATION OF LIABILITY
5.1 EXCEPT AS SPECIFICALLY SET FORTH IN ARTICLE FOUR, DCTI SHALL NOT BE
RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE
DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, (INCLUDING CLAIMS FOR LOSS,
INTERRUPTION IN USE OR UNAVAILABILITY OF DATA, LOSS OF GOODWILL, LOSS OF
PROFITS, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS) ARISING OUT OF
BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY OR
PROPERTY DAMAGE WHERE THE LAW REQUIRES SUCH LIABILITY.
5.2 EXCEPT AS SPECIFICALLY SET FORTH IN ARTICLE FOUR, IN NO EVENT WILL
DCTI'S TOTAL LIABILITY TO CUSTOMER IN ANY ACTION, WHETHER IN CONTRACT OR TORT,
EXCEED THE AMOUNT ACTUALLY PAID TO DCTI FOR THE SOFTWARE PRODUCT OR FOR INTERNET
PAYMENT GATEWAY USE.
ARTICLE SIX; CONFIDENTIALITY
6.1 "Confidential Information" means (i) all DCTI proprietary or
confidential information which is a) designed in writing as such or b) that by
nature of the circumstances surrounding the disclosures in good faith ought to
be treated as proprietary or confidential, and c) all DCTI Software Products,
and (ii) all Customer proprietary or confidential information which is a)
designated in writing as such or b) hat by nature of the circumstances
surrounding the disclosure in good faith ought to be treated as proprietary or
confidential. The presence of a copyright notice on any Confidential Information
will not constitute publication or otherwise impair the confidential nature
thereof.
6.2 Each party shall use the Confidential Information only for the
purposes as set forth in the Agreement and Attachments and shall disclose the
Confidential Information only as specifically authorized in Section 6.3 below.
Neither party shall remove any confidentiality, copyright or similar notices or
legends from the Confidential Information and shall implement such safeguards
and controls as may be necessary or appropriate to protect against unauthorized
uses or disclosure of the Confidential Information.
6.3 Each party may disclose the Confidential Information only to its
affiliates or its affiliates' employees, officers, directors, consultants or
agents to the extent that such disclosures are required to exercise its right
and perform its obligations under the Agreement. Each party shall take such
steps as may be reasonably requested by the other or otherwise required to
ensure that the aforementioned persons acknowledge and comply with the use and
confidentiality restrictions contemplated under this Agreement, including with
respect to consultants or agents signing DCTI's standard non-disclosure
3
agreement. Each party shall be responsible for breach of the obligations set
forth in this Article Six by its or its affiliates' employees, officers,
directors, consultants or agents.
6.4 Except as otherwise specifically provided in this Agreement,
Customer shall not, and shall not authorize any third party to, reproduce,
translate or otherwise copy, enhance, add to or modify the Software Product, or
reverse assemble or de-compile the Software Program or develop any computer
software system, subsystem or module that incorporates or otherwise uses
elements of the Software Program without the specific prior written
authorization of DCTI.
6.5 If any employee, officer, director, consultant or agent of either
party violates the provisions of this Article Six or if any third party obtains
any Confidential Information through one party without the other party's
authorization, then such disclosing party shall take, at its own expense, all
actions that may be required to remedy such violation or recover such
Confidential Information and to prevent such employee, officer, director, agent,
consultant or third party from using or disseminating such Confidential
Information, including, but not limited to, legal actions for seizure and
injunctive relief, if then available under local law. If the disclosing party
fails to take such actions in a timely and adequate manner, the other party or
its designs may take such actions in its own name or disclosing party's name and
at the disclosing party's expense.
6.6 Neither party will have an obligation to maintain the
confidentiality of any data or information which (i) was in such party's lawful
possession prior to the disclosure thereof by the other party, (ii) is later
lawfully made available to such party be third party having no obligation of
secrecy to the other party, (iii) is independently developed by such party or
(iv) is or later becomes available to the public through no fault of such party.
ARTICLE SEVEN; OWNERSHIP
7.1 Each party acknowledges that the Confidential Information of the
other party, as well as all related trade marks, logos, other names or markings
identifying the Confidential Information, and trade secrets, copyrights, patents
or other proprietary rights of the other party, are and shall remain the
exclusive property of the other party, whether or not protected under local
intellectual or industrial property laws. Customer shall not acquire any right,
title or interest in or to the Software Product except as a licensee under this
Agreement. Each party agrees not to take any action that interferes with said
proprietary rights of the other party or attempt to copyright or patent any
portion of said other party's property or register or attempt to register any
trademark, service xxxx, trade name, or company name which is identical or
confusingly similar to said marks, names or markings.
ARTICLE EIGHT; UPDATES
8.1 During the term of this Agreements, DCTI will provide to Customer,
free of charge, any updates which it makes to the Software Product for its own
needs. This shall in now way obligate DCTI to update the Software Product.
4
8.3 Customer shall provide access to its premises to DCTI personnel,
during normal working hours and upon reasonable notice, for the purpose of
updating the Software Product. DCTI shall use all reasonable efforts to minimize
the disruption of Customer's normal business activities.
ARTICLE NINE; ADDITIONAL SERVICES
9.1 Customer may request additional software development services,
subject to the availability of DCTI personnel, which will be billed at a rate of
$200 per person per hour or, if outsourced, at DCTI's rate plus an amount not to
exceed DCTI's actual cost in providing the service. DCTI will provide Customer
with reasonable project estimates prior to beginning any work.
ARTICLE TEN; TERMINATION
10.1 This agreement terminates 24 (Twenty Four) months from date of
signing, but shall be automatically renewable in its entirety on a rolling 24
month basis with the exception of Article 2.1. A revised Article 2.1 schedule of
charges shall be mutually agreed upon; any such price changes not to exceed the
compounded and published RPI (Retail Price Index) of Switzerland, and in any
event to remain competitive in the jurisdiction of the license.
10.2 Upon the termination of this Agreement by either party, Customer
shall, within ten (30) calender days, (i) pay all amounts due and outstanding
hereunder and (ii) deliver to DCTI or its designee all Software products within
Customer's possession or control.
10.3 The following Articles shall survive termination of the Agreement;
Article Three; Article Four, Article Five; Article Six; Article Seven; Article
Ten, and Article Eleven.
ARTICLE ELEVEN: MISCELLANEOUS PROVISIONS
11.1 During the term of this Agreement, Customer shall be DCTI's
exclusive agent for sales of the Software Product in the European, Middle
Eastern and African regions, other than for the following entities and their
affiliates; Cayman National Bank and National Australia Bank. Customer will also
have access to DCTI's Internet Payment Gateway as needed to support Software
Product sales. In sum, customer agrees to the following performance targets.
Gross Revenue to DCTI from all business generated by Customer in the
jurisdiction in
Period 1: Contract initiation to April 30, 2002 US$ 400,000
Period 2: April 30, 2002 to April 30, 2003 US$ 1,000,000
In the event that Customer's performance fails to meet these targets,
DCTI will provide written notice to the Customer, giving customer 30 days to
remedy the situation. If Customer fails to remedy the situation within the 30
days DCTI can by written notice withdraw the 'exclusivity' of the agent
agreement.
5
DCTI to pay Customer commissions on all sales of Software Product
Co--------- on lump sum payments and/or recurring payments whether royalty or
trans ----- Commissions shall be paid to Customer at a rate of 33% of Gross
Profit Generated ------, DCTI, and to be paid within 10 days of DCTI receiving
its payment. For purposes of this -----, Gross Profit shall mean net revenues
less cost of revenue.
11.2 If a court of competent jurisdiction holds any provision of this
Agreement to be illegal or invalid, the provision shall be automatically severed
from this Agreement. Any such holding shall not affect the legality or validity
of the remaining provisions of this Agreement unless either party reasonably
deems such severed provision to be essential to this Agreement, in which case
such party may terminate this Agreement upon written notice to the other party.
11.3 If either party commences a legal action against the other party
in connection with this Agreement, the losing party shall reimburse the
prevailing party for the reasonable attorneys fees and expenses which it may
incur in such action, whether or not such action is prosecuted to a final and
non-appealable judgment.
11.4 If either party fails to give notice or enforce any right under
this Agreement, such failure shall not constitute a waiver of such right, unless
such waiver is reduced to writing and signed by the waiving party. If a party
waives its right in writing, such waiver shall not constitute a waiver of any
other right or of any subsequent violation of the same right that has been
waived.
11.5 The parties to this Agreement shall be excused for failures or
delays in performing an obligation under this Agreement if such failure or delay
is caused by force majeure, including, but not limited to, fortuitous events and
acts of God; wars, riots and insurrections; laws, decrees, ordinances, and
governmental regulations; strikes and lockouts; transportation stoppages or
slowdowns; floods, fires and explosions; or the inability to obtain necessary
export or import licenses or permits.
11.6 This Agreement shall not be construed to constitute any party as
an employee, attorney-in-fact, legal representative or business partner of the
other parties.
11.7 Customer may not assign, pledge or otherwise transfer this
Agreement or any right or obligations hereunder without the prior written
authorization of DCTI. DCTI may assign any of its rights and interests
(including its right to payment), and its obligations, to a third party without
Customer's consent but DCTI must notify Customer in writing of the change. This
Agreement shall bind the authorized assigns or successor of any party. Customer
acknowledges that DCTI may use employees or consultants of Affiliates to perform
some of its obligations hereunder, provided however that DCTI shall remain
ultimately responsible for their performance.
11.8 All notices required or permitted under this Agreement shall be
given in writing and shall be personally delivered or sent by certified mail,
postage prepaid, or by facsimile addressed as follows:
6
If to Customer:
--------------------------------
--------------------------------
--------------------------------
--------------------------------
If to DCTI: Digital Courier Technologies, Inc.
348 East 0000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax 000.000.0000
11.8.1 The parties may change their address from time to time upon
written notice to the other party.
11.8.2 Any notice shall be deemed to have been effective when
delivered.
11.9 Except as otherwise provided above, this Agreement may be amended
only by the consent of both parties expressed in writing and signed by a duly
authorized representative of each party.
11.10 This Agreement will be governed by and interpreted under the laws
of the State of Utah, without regard to any provisions of Utah law which would
require the application of the substantive law of another jurisdiction. DCTI and
Customer also exclude the United Nations Convention on Contracts for the
International Sale of Goods, if applicable.
11.11 Any controversy or claim arising out of or relating to this
Agreement or the existence, validity, breach or termination herein, whether
during or after its term, will be submitted for resolution to the courts in Salt
Lake City, Utah to whose jurisdiction Customer consents. Notwithstanding the
foregoing, either party may seek injunctive relief against the other party from
any other judicial or administrative authority pending the resolution of such
controversy or claim.
11.12 Customer acknowledges that the Software Product and any technical
information relating thereto is subject to United States export controls, and
the a specific license may be required prior to delivery thereof to the country
of installation. Customer will provide reasonable assistance as required by DCTI
in securing any required export license. DCTI shall have no liability to
Customer in the event the United States declines to issue the necessary export
license. Customer will not export, re-export, divert, transfer or disclose,
directly or indirectly, any Software Products or related technical information,
documents or materials or any direct product thereof from the country of
delivery or to any person who is not a national or resident thereof, without the
prior written approval of DCTI and obtaining the required re-exportation license
from the United States Government. The obligations of this Section 11.12 will
survive termination of this Agreement.
7
11.13 This Agreement constitutes the entire agreement among the parties
regarding this matter, and they superceede all prior discussions or agreements
related to the same.
IN WITNESS WHEREOF, the parties cause this Agreement to be signed by
the duly authorized representatives of DCTI and Customer on the dates and at the
places specified below.
Digital Courier Technologies, Inc.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
Date:
-------------------------------
CUSTOMER:
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
Date:
-------------------------------
8
From - Xxxxx Xxxxx
to - DCTI
FAO - Xxxxx Xxxxxx
Date - 07/03/01
Re - ComWallet and IPG Software License agreements.
Dear Xxxxx,
I have signed and faxed the comWallet agreement you, please sign on behalf of
DCTI and return to (00) 0000 000000.
With reference to Article 2.1 I have the following suggestions for charges:
1. DCTI - IPG Salt Lake City fee's.
Successful transactions per month
1,000 - 1,000,000 =US$0.05 per transaction
1,000,001 - 3,000,000 =US$0.025 per transaction
3,000,000 + =US$0.02 per transaction
2. ComWallet fee's
a) "off-net" Transactions - (Transactions interacting with outside networks)
1,000 - 1,000,000 =US$0.05 per transaction
1,000,001 - 3,000,000 =US$0.025 per transaction
3,000,000 + =US$0.02 per transaction
b) "On-net" Transactions - (wallet to wallet) = no charge.
I invite your comments on the proposed fee structures. I have treated the Wallet
as an IPG equivalent however it effectively twice the price as you get fee's in
and out, with the On-net transactions please bear in mind that they are likely
to be micro payments and therefore cannot bear much cost and can be very
difficult to account for.
I would like to confirm that is still my intent and desire to work an agreement
with DCTI for New Co Europe to have it's own IPG license and the EMEA sale
agency agreement as discussed and agreed in previous correspondence.
Kind regards
Xxxxx Xxxxx
9
