Exhibit 2.1.1
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
This First Amendment to the Asset Purchase Agreement (the "Amendment"), is
made and entered into as of the this 8th day of April, 2002, by and among
InterCept, Inc., a Georgia corporation (the "Parent"); InterCept Billing
Company, LLC, a Georgia limited liability company (the "Purchaser"; the Parent
and the Purchaser are sometimes together referred to as the "InterCept
Parties"); Internet Billing Company, Ltd., a Florida limited partnership
("iBill"); iBill California, LLC, a California limited liability company ("iBill
CA"); Liberty Merchant Services, LLC, a Florida limited liability company
("Liberty"); iBill Technologies LLC, a Florida limited liability company ("iBill
Technologies"); Internet Billing Corp., a Florida corporation ("iBill Corp.");
and iBill Corp., a Delaware corporation ("iBill Corp. (Delaware)"); iBill GAP,
LLC, a Florida limited liability company ("iBill GAP"); and CSR Xxxxxxx.xxx,
LLC, a Florida limited liability company ("CSR"). iBill, iBill CA, Liberty,
iBill Technologies, iBill Corp., iBill Corp. (Delaware), iBill GAP, and CSR are
collectively referred to in this Amendment as the "Sellers." Capitalized terms
used in this Amendment but not otherwise defined herein shall have the meanings
ascribed to them in the Asset Purchase Agreement.
Recitals:
The Parties entered into that certain Asset Purchase Agreement dated March
19, 2002 (the "Asset Purchase Agreement").
The Parties desire to and have agreed to amend the Asset Purchase Agreement
as stated herein.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants, and agreements of the parties provided below, the parties to this
Amendment, intending to be legally bound, do hereby agree as follows:
1. Replacement Section 3.2. The text of Section 3.2 of the Asset Purchase
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Agreement is hereby deleted in its entirety and replaced by the following:
"3.2 Purchase Price. The aggregate purchase price (the "Purchase Price")
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consideration for all of the Assets shall be (a) $112,000,000 in cash or other
immediately available funds (the "Cash Payment"), and (b) the Earnout Payments,
if any, payable under Section 3.3 below. On the Closing Date, the Parent shall
pay the Cash Payment on behalf of the Purchaser as follows:
(a) $92,400,000 to, or as directed by, iBill, subject to a credit equal to
1/2 of the Xxxx-Xxxxx-Xxxxxx Act application fees paid by the Intercept Parties
as provided in Section 8.15;
(b) $14,600,000 (which amount may be subject to a credit as provided in the
following paragraph) to the Escrow Agent, which shall hold such cash (the
"General Escrow Cash") in escrow (the "General Escrow") pursuant to the terms of
an escrow agreement in the form of Exhibit 3.2(b) attached hereto (the "Escrow
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Agreement"), which shall be executed concurrently with this Amendment; and
(c) $5,000,000 to the Escrow Agent which shall hold such cash (the "Special
Escrow Cash") in escrow (the "Special Escrow") pursuant to the terms of the
Escrow Agreement.
The General Escrow Cash and the Special Escrow Cash shall collectively be
referred to as the "Escrow Cash," and the General Escrow and the Special Escrow
(and the Setoff Escrow as defined in Section 8.9) shall collectively be referred
to as the "Escrow." On the Signing Date the InterCept Parties, iBill, iBill
Corp., and the Escrow Agent have entered into that certain Break-up Fee Escrow
Agreement in the form of Exhibit 3.2(c) attached hereto (the "Break-up Fee
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Escrow Agreement"), pursuant to which the Parent has placed the Break-up Fee of
$5,000,000 into escrow with the Escrow Agent. On the Closing Date, the Escrow
Agent shall transfer into the General Escrow the Break-up Fee (less expenses of
the Escrow Agent) and interest accrued thereon, which aggregate amount shall be
credited towards the General Escrow Cash so that the General Escrow Cash equals
$14,600,000 at Closing."
2. Contents of Amendment; Parties in Interest; etc. This Amendment sets
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forth the entire understanding and agreement of the parties hereto with respect
to the amendment contemplated hereby. It shall not be assigned, amended, or
modified except by written instrument duly executed by each of the parties
hereto. Any and all prior or contemporaneous negotiations, agreements,
representations, warranties, and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are superseded in
their entirety by this Amendment, except as otherwise expressly set forth in
this Amendment.
3. Georgia Law to Govern. THIS AMENDMENT SHALL BE GOVERNED BY AND
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INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA,
WITHOUT REGARD TO ITS CONFLICT OF LAW PRINCIPLES.
4. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which counterparts taken together shall constitute but one
and the same instrument.
5. Assistance of Counsel. The InterCept Parties on the one hand, and the
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Sellers on the other hand, acknowledge that they have had the assistance of
counsel in negotiating and preparing the terms of this Amendment; therefore,
this Amendment shall be construed without regard to any presumption or other
rule requiring construction against the party causing the Amendment to be
drafted.
6. Execution by Facsimile. Any party may deliver an executed copy of this
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Amendment and any documents contemplated hereby by facsimile transmission to
another party, and such delivery shall have the same force and effect as any
other delivery of a manually signed copy of this Amendment or of such other
documents.
7. Remaining Provisions of Asset Purchase Agreement. Except for the
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amendment stated above, all of the remaining provisions of the Asset Purchase
Agreement shall be and remain in full force and effect.
[Signatures begin on next page]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment on
the date first written above.
"INTERCEPT PARTIES"
"Parent"
InterCept, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer,
Senior Vice President, and
Secretary
"Purchaser"
InterCept Billing Company, LLC
By: InterCept, Inc., its sole member and
manager
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer,
Senior Vice President, and
Secretary
"SELLERS"
"iBill"
Internet Billing Company, Ltd., by Internet
Billing Corp., its sole general partner
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
"iBill CA"
iBill California, LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
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"Liberty"
Liberty Merchant Services, LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
"iBill Technologies"
iBill Technologies LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
"iBill Corp."
Internet Billing Corp.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
"iBill Corp. (Delaware)"
iBill Corp.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
"iBill GAP"
iBill GAP, LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
"CSR"
CSR Xxxxxxx.xxx, LLC
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
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