EXHIBIT 10.12
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT BETWEEN INTERNATIONAL VERIFACT INC,
IVI CHECKMATE CORP. AND INGENICO S.A. DATED AS OF JANUARY 16, 1998
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND CONSENT
THIS AGREEMENT made the 16th day of January, 1998.
B E T W E E N:
INTERNATIONAL VERIFACT INC.
a corporation continued under the laws of Canada,
(hereinafter called the "Assignor"),
OF THE FIRST PART,
- and -
IVI CHECKMATE CORP.
a corporation incorporated under the laws of the State of Delaware,
(hereinafter called the "Assignee"),
OF THE SECOND PART
- and -
INGENICO S.A.
a corporation incorporated under the laws of France,
(hereinafter called "Ingenico"),
OF THE THIRD PART.
WHEREAS the Assignor and Ingenico entered into certain agreements and
contracts described in Schedule "A" annexed hereto (the "Assigned Agreements");
WHEREAS the Assignor, the Assignee and certain other parties have entered
into a combination agreement dated January , 1998 (the "Combination
Agreement");
AND WHEREAS it is a term of the Combination Agreement that the Assignor
shall assign to the Assignee, and the Assignee shall assume, the Assigned
Agreements;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in pursuance of the Combination
Agreement, the payment of the sum of $2.00 in lawful money of the United States
of America by the Assignee to the Assignor and for other good and valuable
consideration (the receipt and sufficiency whereof is hereby acknowledged by the
parties hereto) the parties hereto agree as follows:
1. Unless otherwise defined herein or unless the context otherwise requires,
all words and phrases defined in the Combination Agreement and used herein shall
have the same meanings herein as in the Combination Agreement.
2. Effective as of the Effective Date, the Assignor does hereby grant, assign,
transfer and set over unto the Assignee all the right, title, benefit and
interest of the Assignor in, to and under each and every one of the Assigned
Agreements together with the benefit of each and every of the rights, covenants
and other provisions therein contained.
3. Ingenico hereby consents to the Transactions, the assignment of the Assigned
Agreements and all the Assignor's rights and obligations thereunder, including
the disclosure of all relevant information, to the Assignee.
4. The Assignor and the Assignee hereby covenant and agree that as and from the
Effective Date, the Assignee hereby assumes and shall completely and punctually
perform and observe all of the terms,
covenants, conditions and agreements of the Assignor made or contained in the
Assigned Agreements and on the part of the Assignor to be performed.
5. Ingenico hereby accepts the Assignee as a party to the Assigned Agreements
from and after the Effective Date and covenants and agrees that, upon such
assignment becoming effective, the Assignee shall be entitled to hold and
enforce directly against Ingenico all the rights and privileges of the Assignor
in and under the Assigned Agreements, and the Assigned Agreements shall continue
in full force and effect with the Assignee substituted as a party thereto in the
place and stead of the Assignor.
6. The Assignee hereby covenants and agrees that, upon the assignment
contemplated herein becoming effective, Ingenico shall be entitled to hold and
enforce directly against the Assignee all the rights and privileges of Ingenico
in and under the Assigned Agreements, and the Assigned Agreements shall continue
in full force and effect with the Assignee substituted as a party thereto in the
place and stead of the Assignor.
7.
(a) The parties covenant and agree that, with respect to the Investment
Agreement dated December 5, 1996, as amended (the "Investment Agreement") the
effect of the assignment and assumption set forth above shall be, as provided in
the Investment Agreement, that:
(i) on the Effective Date Newco shall be obliged to advise Ingenico that
its shareholdings have fallen below 15% of the issued and outstanding
participating equity (which for such purposes shall include the
Exchangeable Shares) of Newco (the "15% Threshold");
(ii) Ingenico shall have 10 days from the date it receives such notice to
advise Newco in writing whether or not it intends to exercise its
Participation Right to acquire from the treasury of Newco such
additional shares of Newco Common Stock so as to bring its holdings
to the 15% Threshold;
(iii) if Ingenico gives notice of its intention to increase its holdings
to the 15% Threshold it shall acquire sufficient shares of Newco
Common Stock (the "Additional Shares") to achieve such from of Newco
within 90 days of the date of receipt of the notice of Newco pursuant
to clause (i) above;
(iv) the Additional Shares shall be purchased by Ingenico for a price per
share equal to the weighted average trading price of the IVI Common
Shares on The Toronto Stock Exchange (the "TSE" during the 30 days
preceding the notice of Newco to Ingenico pursuant to clause (i)
above).
(b) For greater certainty, the parties acknowledge that the Board of
Directors of IVI is composed of 9 members, rather than 8 as contemplated in the
Investment Agreement and that this practice shall be continued with Newco. All
other provisions to apply MUTATIS MUTANDIS.
8. All terms of the Assigned Agreements, including any prohibition against
assignment, shall remain in full force and effect.
9. Ingenico and the Assignor hereby represent each to the other that the
Assigned Agreements are in full force and effect and will remain operative in
all respects prior to the Effective Date.
10. Ingenico hereby expressly agrees that the Transactions, as contemplated in
the Combination Agreement, do not and shall not constitute an Event of Default
as defined in Section 13.01 of the Master Alliance Agreement dated December 5,
1996 between the Assignor and Ingenico nor a default under any of the other
Assigned Agreements.
11. The Assignee hereby represents and warrants that, to the best of the
knowledge of the Assignee, the assignment of the Investment Agreement, as
amended, and any subsequent exercise by Ingenico of the
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Participation Right contained therein would not preclude the Transactions from
being accounted for under the pooling of interests method of accounting as set
out in the requirements of Accounting Principles Board Opinion No. 16, Business
Combinations and the published rules and regulations of the Securities and
Exchange Commission.
12. On the Effective Date, Newco shall cause its counsel to deliver to Ingenico
a standard enforceability opinion with respect to this Agreement, subject to the
usual qualifications.
Each party hereto agrees that it will from time to time and at all times
hereafter, upon every reasonable request of the other party hereto and its
successors and assigns, take such action or cause to be taken such action and
execute and deliver or cause to be executed and delivered such documents as may
reasonably be required for allowing the Assignee to assume the right, title,
interest and liabilities of the Assignor in, to and under the Assigned
Agreements.
14. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible, failing which Ingenico
may elect to terminate this Agreement.
15. This agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the parties hereto attorn to such
jurisdiction.
16. This agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
17. In the event the Combination Agreement is terminated for any reason this
agreement shall be null and void.
IN WITNESS WHEREOF this Agreement has been executed by the Assignor, the
Assignee and Ingenico.
INTERNATIONAL VERIFACT INC.
PER: /S/______________________________
IVI CHECKMATE CORP.
PER: /S/______________________________
INGENICO S.A.
PER: /S/______________________________
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SCHEDULE A
ASSIGNED AGREEMENTS
Master Alliance Agreement dated December 5, 1996 between International Verifact
Inc. ("IVI") and Ingenico S.A. ("Ingenico");
Investment Agreement between IVI and Ingenico dated December 5, 1996, as amended
by agreement dated December 17, 1996;
Marketing and Distribution Agreement between IVI, Ingenico and IVI-Ingenico Inc.
dated December 17, 1996;
Joint Development and Procurement Agreement between IVI and Ingenico dated
December 17, 1996;
Technology Licence Agreement between IVI and Ingenico dated December 17, 1996;
Latin America Unanimous Shareholders' Agreement between IVI, Ingenico and
IVI-Ingenico Inc. dated December 17, 1996;
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