Exhibit 7.3
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND CONSENT
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THIS AGREEMENT made the 16th day of
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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
16th , 1998 (the "Combination Agreement");
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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 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.
13. 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/ L. Xxxxx Xxxxxxx
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IVI CHECKMATE CORP.
Per: /s/ L. Xxxxx Xxxxxxx
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INGENICO S.A.
Per: /s/ Xxxxxx Xxxxxxx
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SCHEDULE A
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ASSIGNED AGREEMENTS
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1. Master Alliance Agreement dated December 5,1996 between
International Verifact Inc. ("IVI") and Ingenico S.A.
("Ingenico");
2. Investment Agreement between IVI and Ingenico dated December
5, 1996, as amended by agreement dated December 17, 1996;
3. Marketing and Distribution Agreement between IVI, Ingenico
and IVI-Ingenico Inc. dated December 17, 1996;
4. Joint Development and Procurement Agreement between IVI and
Ingenico dated December 17, 1996;
5. Technology Licence Agreement between IVI and Ingenico dated
December 17, 1996;
6. Latin America Unanimous Shareholders Agreement between IVI,
Ingenico and IVI-Ingenico Inc. dated December 17, 1996;
