Exhibit
10.1


 


ASSET PURCHASE AGREEMENT


 


By and Among


 


WEST SUBURBAN BANK


 


and


 


PREPAID SOLUTIONS, INC.


 


December 4, 2009


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1      DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE
  2      SALE AND TRANSFER OF ASSETS

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Sale
  and Transfer of Assets

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  Excluded
  Assets

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.3

  	
  Purchase
  Price

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.4

  	
  Assumed
  Liabilities; Excluded Liabilities

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 2.5

  	
  Allocation

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3      REPRESENTATIONS AND WARRANTIES OF SELLER

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Organization
  and Standing

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  Authority

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Capitalization

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Financial
  Statements

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Taxes

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 3.6

  	
  Ownership
  of Assets and Leases; Accounts Receivable

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 3.7

  	
  Compliance
  with other Instruments

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 3.8

  	
  Absence
  of Change

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 3.9

  	
  Litigation

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  Compliance
  With Law

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  Assigned
  Contracts

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 3.12

  	
  Disclosure

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.13

  	
  Material
  Contracts

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 3.14

  	
  Computer
  Programs and Software

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 3.15

  	
  Intellectual
  Property Matters

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.16

  	
  Labor
  Matters

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.17

  	
  Employees

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.18

  	
  Employee
  Benefit Plans and Arrangements

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.19

  	
  Customers
  and Suppliers

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 3.20

  	
  Insurance

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 3.21

  	
  Consents
  and Approvals

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 3.22

  	
  Environmental
  Matters

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 3.23

  	
  Real Property

  	
  18

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 3.24

  	
  Solvency

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 3.25

  	
  Absence
  of Unlawful Payments

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 3.26

  	
  Sufficiency
  of Assets

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4      REPRESENTATIONS AND WARRANTIES OF
  PURCHASER

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Organization
  and Standing

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
  Corporate
  Power and Authority

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 4.3

  	
  Compliance
  with Other Instruments

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 4.4

  	
  Litigation

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 4.5

  	
  Consents
  and Approvals

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 4.6

  	
  Knowledge

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 4.7

  	
  Financial
  Capability

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5      COVENANTS OF SELLER

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Seller’s
  Employees

  	
  20

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Use
  and Title to Name

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 5.3

  	
  Access
  to Documents, Files and Records

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6      COVENANTS OF PURCHASER

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Required
  Approvals

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Efforts

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 6.3

  	
  Non-Solicitation

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 6.4

  	
  Access
  to Documents, Files and Records

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7      CONDITIONS PRECEDENT TO THE OBLIGATIONS
  OF PURCHASER

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Representations
  True at Closing

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 7.2

  	
  Covenants
  of Seller

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 7.3

  	
  No
  Proceedings

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 7.4

  	
  Consents
  and Approvals

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 7.5

  	
  Absence
  of Adverse Changes

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 7.6

  	
  Satisfactory
  Investigation

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 7.7

  	
  Approvals

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 7.8

  	
  Grotto
  Employment Agreement

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 7.9

  	
  Deliveries

  	
  24

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8      CONDITIONS PRECEDENT TO THE OBLIGATIONS
  OF SELLER

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Representations
  True at Closing

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 8.2

  	
  Covenants
  of Purchaser

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 8.3

  	
  Deliveries

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9      CLOSING

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Time
  and Place of Closing

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 9.2

  	
  Transactions
  at Closing

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10      SURVIVAL OF REPRESENTATIONS AND
  WARRANTIES AND INDEMNIFICATION

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Survival
  of Representations and Warranties

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 10.2

  	
  Indemnification
  of Purchaser

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 10.3

  	
  Indemnification
  of Seller

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 10.4

  	
  Mechanism

  	
  28

  
	
   

  	
   

  	
   

  
	
  Section 10.5

  	
  Limits
  on Indemnification

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 10.6

  	
  Determination
  of Adverse Consequences

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 10.7

  	
  Exclusive
  Remedy

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11      GENERAL PROVISIONS

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Notices

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 11.2

  	
  Brokers

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 11.3

  	
  Mail
  and Other Communications Received After the Closing Date

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 11.4

  	
  Further
  Assurances

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 11.5

  	
  Waiver

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 11.6

  	
  Expenses

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 11.7

  	
  Binding
  Effect; No Third Party Beneficiaries

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 11.8

  	
  Headings

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 11.9

  	
  Entire
  Agreement

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 11.10

  	
  Governing
  Law; Venue

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 11.11

  	
  Counterparts

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 11.12

  	
  General
  Interpretive Principles

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 11.13

  	
  Schedules
  Incorporated

  	
  32

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 11.14

  	
  Confidentiality;
  Public Announcements

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 11.15

  	
  Access
  to Records After Closing

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 11.16

  	
  Assignment

  	
  33

  



 


iv

















 


ASSET
PURCHASE AGREEMENT


 


THIS ASSET PURCHASE
AGREEMENT (as the same shall be amended, modified or supplemented, this “Agreement”)
dated December 4, 2009, by and between Prepaid Solutions, Inc., a
Delaware corporation (together with its permitted successors and assigns, “Purchaser”),
and West Suburban Bank, an Illinois-state bank with its main office located in
Lombard, Illinois (together with its permitted successors and assigns, “Seller”).


 


W I T N E S S E T H:


 


WHEREAS, the parties hereto
desire to enter into this Agreement pursuant to which Purchaser will acquire
from Seller, and Seller shall sell to Purchaser, certain of Seller’s assets and
business operations related to the PPS Business (as defined below), and Seller
and Purchaser shall provide certain representations, warranties and
indemnities, upon the terms and subject to the conditions hereinafter set
forth;


 


WHEREAS, the parties
anticipate that in connection with the transactions contemplated by this
Agreement, Seller will transfer its Issuing Bank Business to a third party;


 


NOW, THEREFORE, in
consideration of the premises and the mutual promises, representations,
warranties and 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
1



DEFINITIONS


 


As used herein, the
following terms shall have the following meanings unless the context otherwise
requires:


 


“Accounts Receivable” shall
mean accounts receivable of Seller attributable to the PPS Business and all
rights to invoice customers of the PPS Business for work performed or
transactions occurring through, but not invoiced as of the Closing Date;


 


“Agreement” shall have the
meaning set forth in the first paragraph hereof.


 


“Agency” means any state
agency or other entity with authority to regulate the PPS Business.


 


“Assets” shall have the
meaning set forth in Section 2.1 hereof.


 


“Assigned Contracts” shall
mean the Client Agreements, the Vender Agreements and such other contracts as
listed as Assigned Contracts on Schedule 2.1.


 


“Assignment and Assumption
Agreement” shall have the meaning set forth in Section 9.2(a)(iii) hereof.


 

















 


“Assignment of Lease” shall
have the meaning set forth in Section 9.2(a)(vi) hereof.


 


“Assumed Liabilities” shall
have the meaning set forth in Section 2.4 hereof.


 


“Balance Sheet” shall have
the meaning set forth in Section 3.4 hereof.


 


“Basket” shall have the
meaning set forth in Section 10.5(a) hereof.


 


“Bill of Sale” shall have
the meaning set forth in Section 9.2(a)(ii) hereof.


 


“BIN” means a specific Bank Identification Number
sponsored by a member of Visa and is also used to describe an Interbank Card
Association number or similar number with MasterCard or Discover, as the case
may be.


 


“Cap” shall have the meaning set forth in Section 10.5(a) hereof.


 


“Cardholder” shall mean any person who has been issued
a Prepaid Card under the terms and conditions of a cardholder agreement.


 


“Card Association” shall mean Visa® U.S.A., Inc.
(together with any affiliate thereof, “Visa”), MasterCard® International, Inc.
(together with any affiliate thereof, “MasterCard”), or Discover®
Financial Services, Inc. (together with any affiliate thereof, “Discover”).


 


“Card Transactions” shall mean transactions by
Cardholders using Prepaid Cards.


 


“Carve Out Items” shall have
the meaning set forth in Section 10.5(a) hereof.


 


“Cash Consideration” shall
have the meaning set forth in Section 2.3(a) hereof.


 


“Client” shall mean each
sponsoring company for a Seller Prepaid Card program.


 


“Client Agreements” shall
mean collectively the agreements in existence between Seller and each Client as
of the Closing Date and related to the PPS Business as shown on
Schedule 2.1.


 


“Closing” shall have the
meaning set forth in Section 9.1 hereof.


 


“Closing Date” shall mean
the date on which the Closing occurs pursuant to Section 9.1 hereof.


 


“Code” shall mean the
Internal Revenue Code of 1986, as amended.


 


“Credit Agreement” shall
have the meaning set forth in Section 9.2(a)(xiv) hereof.


 


“Data Warehouse” shall have
the meaning set forth in Section 3.14(b) hereof.


 


“Effective Time” shall mean
the time at which Closing is consummated.


 


2

















 


“Encumbrance” shall mean any
lien, charge, claim, option, forfeiture, right of seizure, community or other
marital property interest, condition, equitable interest, pledge, security
interest, mortgage, right of way, easement, covenant, encroachment, servitude,
right of first option, or right of first refusal or any other encumbrance.


 


“Environmental Laws” shall
have the meaning set forth in Section 3.22 hereof.


 


“ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as amended.


 


“Escrow Agent shall mean The
Bank of New York Mellon Trust Company, N.A.


 


“Escrow Agreement” shall
have the meaning set forth in Section 2.3(c) hereof.


 


“Escrowed Amount” shall have
the meaning set forth in Section 2.3(b) hereof.


 


“Estimated Balance Sheet”
shall have the meaning set forth in Section 9.2(a)(xv) hereof.


 


“Excluded Assets” shall have
the meaning set forth in Section 2.2 hereof.


 


“Excluded Liabilities” shall
have the meaning set forth in Section 2.4(b) herein.


 


“FCPA” shall mean the
Foreign Corrupt Practices of 1977.


 


“Financial Statements” shall
have the meaning set forth in Section 3.4 hereof.


 


“Fundamental Representations”
shall have the meaning set forth in Section 10.1(b) hereof.


 


“GAAP” shall mean generally
accepted accounting principles in the United States consistently applied.


 


“Hazardous Materials” shall
have the meaning set forth in Section 3.22 hereof.


 


“Hired Employees” shall have
the meaning set forth in Section 5.1 hereof.


 


“Income Statement” shall
have the meaning set forth in Section 3.4.


 


“Indemnified Party” shall
have the meaning set forth in Section 10.4 hereof.


 


“Indemnifying Party” shall
have the meaning set forth in Section 10.4 hereof.


 


“Intellectual Property”
shall have the meaning set forth in Section 3.14 hereof.


 


“Interim Card Program
Agreement” shall mean the agreement between Seller and Purchaser, substantially
in the form attached as Exhibit 9.2(a)(ix) hereof, pursuant to which
Seller will continue to act as the Issuing Bank and conduct the Issuing Bank
Business for an interim period pending transfer of the Issuing Bank Business to
another bank.


 


3

















 


“IP Assignment” shall have
the meaning set forth in Section 9.2(a)(v) hereof.


 


“Issuing Bank Business”
shall mean those functions of the prepaid card business that are required to be
or are customarily in the industry carried out by federally-insured depository
institutions and/or members of one or more Card Associations, including BIN
sponsorship, acting as depository for funds underlying Prepaid Cards,
responsibility for the Cardholder relationship, Settlement of Card
Transactions, ODP, compliance with Issuing Bank Laws, online banking and other
aspects of the business retained by Seller under the Interim Card Program
Agreement of even date herewith or the Travelex Program Agreement.


 


“Issuing Bank Laws” shall
mean those state and federal laws, statutes, rules, regulations, court
decisions, regulatory agency interpretations and guidelines that may be
applicable to the Issuing Bank Business, including, but not limited to, the
Electronic Funds Transfer Act, the Federal Deposit Insurance Act, the
Gramm-Leach-Bliley Act of 1999, the U.S.A. Patriot Act, the Bank Secrecy Act,
as well as the implementing regulations under such laws, and state unclaimed
property laws.


 


“Knowledge” shall mean, (i) when
applied to a natural Person, the actual knowledge of such Person, (ii) when
applied to Seller, the actual knowledge, after reasonable inquiry, of any of
the individuals listed on Schedule 1.1 under the heading “Seller’s
Knowledge”, and (iii) when applied to Purchaser, the actual knowledge of
any of the individuals listed on Schedule 1.1 under the heading “Purchaser’s
Knowledge”.


 


“Laws” shall have the
meaning set forth in Section 3.9(b) hereof.


 


“Lease” shall have the
meaning set forth in Section 9.2(a)(vii) hereof.


 


“Liability” shall mean, with
respect to any Person, any indebtedness, obligations or liabilities of such
Person of any kind, character, description, type or nature whatsoever, whether
known or unknown, absolute or contingent, accrued or unaccrued, disputed or
undisputed, liquidated or unliquidated, secured or unsecured, joint or several,
due or to become due, vested or unvested, executory, determined, determinable
or otherwise, and whether or not the same is required to be accrued on the
financial statements of such Person.


 


“License” shall have the
meaning set forth in Section 3.14(f).


 


“Losses” shall have the
meaning set forth in Section 10.2 hereof.


 


“Material Adverse Effect”
shall mean an effect that is or could reasonably be expected to be material and
adverse to the assets, properties, business, or results of operations of the
PPS Business or the Assets, or that would reasonably be expected to materially
and adversely affect the ability of Seller or Purchaser to consummate the
transactions contemplated in this Agreement; provided, however, that in no
event shall any of the following constitute a Material Adverse Effect:  (a) any change resulting from conditions
affecting the industry in which Seller operates, including changes in
applicable laws, or from changes in general business or economic conditions; (b) any
change resulting from the announcement or pendency of any of the transactions
contemplated by this Agreement; (c) any change resulting from compliance
by 


 


4

















 


Seller
with the terms of, or the taking of any action contemplated or permitted by,
this Agreement.


 


“Material Clients” shall
have the meaning set forth in Section 3.15(a) hereof.


 


“Material Contracts” shall
have the meaning set forth in Section 3.13 hereof.


 


“Material Vendors” shall
have the meaning set forth in Section 3.19(b) hereof.


 


“Noncompetition Agreement”
shall mean a Noncompetition Agreement entered into by Shareholder and Seller,
as applicable, as contemplated by Section 9.2(a)(iv) hereof, as may
be amended, modified or supplemented from time to time.


 


“ODP” shall mean overdraft
protection functionality available on some Prepaid Cards.


 


“Operating Rules” means a
Card Association’s or Payment Network’s rules and regulations relating to the
issuance of Prepaid Cards and the processing and other servicing of
transactions thereunder, as amended, modified, supplemented or restated from
time to time.


 


“Payment Networks” shall
mean the commercially established and recognized payment systems that accept
Prepaid Cards for cash access or as a payment device, and include Star Systems,
Cirrus, PLUS, NYCE and Interlink, among others.


 


“Officer’s Certificate”
shall have the meaning set forth in Section 9.2(a)(xii).


 


“Permitted Encumbrance”
shall have the meaning set forth in Section 3.6 hereof.


 


“Person” shall mean an
individual, partnership, corporation, business trust, limited liability
company, limited liability partnership, joint stock company, trust,
unincorporated association, joint venture or other entity or governmental body.


 


“Plan” shall have the
meaning set forth in Section 3.18 hereof.


 


“PPS Business” shall mean,
the business of Seller related to the provision of Prepaid Cards programs and
services to third parties, which business is operated through its Prepaid
Solutions USA division, but excluding the Issuing Bank Business.


 


“Prepaid Cards” shall mean a
prepaid plastic debit card or card number that may be unbranded or may display
the logos of the Card Associations and the Payment Networks that accept the
Card for cash access or as a payment device, including payroll cards, general
purpose reloadable cards, gift, incentive, promotional and reward cards,
foreign currency travel cards and other similar products.  For purposes of this Agreement, a Prepaid
Card does not include any credit card or product that accesses credit (as that
term is defined under Regulation Z of the Federal Reserve Board).


 


“Proprietary Applications”
shall have the meaning set forth in Section 3.14(b) hereof.


 


“Purchase Price” shall have
the meaning set forth in Section 2.3(a) hereof.


 


5
















 


“Purchaser” shall have the
meaning set forth in the first paragraph of this Agreement.


 


“Purchaser Certificate”
shall have the meaning set forth in Section 9.2(b)(xii) hereof.


 


“Purchaser Indemnitee” shall
have the meaning set forth in Section 10.2 hereof.


 


“Purchaser Officer’s
Certificate” shall have the meaning set forth in Section 9.2(b)(xiii).


 


“Seller” shall have the
meaning set forth in the first paragraph of this Agreement.


 


“Seller Certificate” shall
have the meaning set forth in Section 9.2(a)(xi) hereof.


 


“Seller Indemnitee” shall
have the meaning set forth in Section 10.3 hereof.


 


“Shareholder” shall mean
West Suburban Bancorp, Inc., an Illinois corporation..


 


“Software” shall have the
meaning set forth in Section 3.14(a) hereof.


 


“System” shall have the
meaning set forth in Section 3.14(b) hereof.


 


“Transaction Documents”
shall mean this Agreement, the Assignment and Assumption Agreement, the
Noncompetition Agreements, the Lease, the Purchaser Certificate, the Officer’s
Certificate, the Purchaser Officer’s Certificate, the Seller Certificate, the
Escrow Agreement, the Transition Services Agreement, the Interim Card Program
Agreement and the other documents, instruments and agreements to be entered
into pursuant hereto and thereto.


 


“Transition Services
Agreement” shall have the meaning set forth in Section 9.2(a)(ix) herein.


 


“Travelex Program Agreement”
shall mean the Prepaid Card Marketing and Promotion Agreement between Seller
d/b/a Prepaid Solutions USA and Travelex Card Services Limited dated March 1,
2008 as amended by the Variation Agreement between Seller and Travelex Card
Services Limited dated March 30, 2009, as further amended, modified or
supplemented.


 


“Unassigned Contract” shall
have the meaning given in Section 2.6 hereof.


 


“Vendor” shall mean a
provider of services to the PPS Business who has executed a Vendor Agreement
with Seller.


 


“Vendor Agreements” shall
mean collectively those agreements in existence between Seller and its Vendors
as of the Closing Date and related to the PPS Business as shown on Schedule
2.1.


 


ARTICLE
2


 


SALE
AND TRANSFER OF ASSETS


 


Section 2.1                                    Sale and Transfer of Assets. 
Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver



 


6

















 


to Purchaser, and
Purchaser shall purchase and acquire, free and clear of all Encumbrances other
than Permitted Encumbrances, from Seller for the Purchase Price, all of Seller’s
right, title and interest in and to the assets listed on Schedule 2.1
(the “Assets”).  Notwithstanding
the foregoing, the transfer of Assets pursuant to this Agreement shall not
include the assumption of any Liability related to the Assets unless Purchaser
expressly assumes that Liability pursuant to Section 2.4.


 


Section 2.2                                    Excluded Assets. 
Notwithstanding anything to the contrary contained in Section 2.1
or elsewhere in this Agreement, the Assets purchased hereunder shall not
include the following, none of which are part of the sale and purchase
contemplated hereunder, and which are excluded from the Assets and shall remain
the property of Seller after the Closing Date (collectively, the “Excluded
Assets”):


 


(a)                                  any and all assets of Seller not used in
the PPS Business;


 


(b)                                 any and all assets used solely in the
Issuing Bank Business; and


 


(c)                                  the assets of Seller set forth in
Schedule 2.2.


 


Section 2.3                                    Purchase Price.


 


(a)                                  In consideration of the sale, assignment,
transfer, conveyance, and delivery of the Assets, Purchaser shall, in full
payment for the foregoing, (i) pay to Seller in accordance with Section 2.3(b) an
amount equal to Six Million Five Hundred Thousand Dollars ($6,500,000) (the “Cash
Consideration”) (as the Cash Consideration may be adjusted as hereinafter
provided, the “Purchase Price”) and (ii) assume the Assumed
Liabilities.


 


(b)                                 At closing, Purchaser shall pay Seller an
amount equal to the Cash Consideration minus the Escrowed Amount, which Cash
Consideration shall be made at Closing by wire transfer of immediately
available funds to an account identified by Seller prior to Closing.


 


(c)                                  Escrow. 
At the Closing, Seller, Purchaser and the Escrow Agent shall enter into
a six (6) month Escrow Agreement as set forth in Exhibit 2.3(c)(the
“Escrow Agreement”) and concurrently therewith Purchaser shall deliver
to the Escrow Agent the aggregate amount of Five Hundred Thousand Dollars
($500,000) of the Cash Consideration (the “Escrowed Amount”) to be
applied and disbursed in accordance with the Escrow Agreement.


 


Section 2.4                                    Assumed Liabilities; Excluded Liabilities.


 


(a)                                  At the Closing, Purchaser shall assume
and discharge (i) any and all Liabilities relating to the Assets, and the
ownership and operation thereof, arising from and after the Effective Time, (ii) any
and all Liabilities under the Assigned Contracts arising from and after the
Effective Time (other than to the extent such Liability arose out of a breach
that occurred prior to the Effective Time), (iii) any account payable
reflected on the Balance Sheet (other than an account payable to the
Shareholder) that remains unpaid at and is not delinquent as of the Effective
Time, (iv) any account payable (other than a account payable to any
Shareholder) incurred by the PPS Business in the ordinary course of business
between the date of 


 


7

















 


the Balance Sheet and the
Effective Time that remains unpaid at and is not delinquent as of the Effective
Time, and (v) any Liability to Seller’s customers incurred by Seller in
the ordinary course of business for nondelinquent orders outstanding as of the
Effective Time reflected on Seller’s books (other than to the extent such
Liability arose out of a breach that occurred prior to the Effective Time) (the
“Assumed Liabilities”).


 


(b)                                 Purchaser shall not assume any
Liabilities nor shall Purchaser become liable for any Liabilities relating to
the operation of the PPS Business prior to the Effective Time other than the
Assumed Liabilities (“Excluded Liabilities”).  Without limiting the generality of the
foregoing, except as expressly provided herein, Excluded Liabilities shall
include (i) any Liability for any litigation matter or other third party
claim to the extent arising from the conduct of the PPS Business prior to the
Effective Time; regardless of whether such matter is disclosed on Schedule
3.9 hereto; (ii) any Liability for any claims by employees or former
employees of Seller concerning acts or omissions of Seller, to the extent such
acts or omissions occurred prior to the Effective Time; (iii) any
Liability for any insurance premium adjustments (including retroactive
adjustments) that may arise from insurance policies in force any time before
the Effective Time; or (iv) any Liabilities of Seller for any income or
other tax obligations or for any compensation or employee benefit obligations
for Seller’s employees or former employees or both arising prior to the
Effective Time; (v) any Liability under any employment severance retention
or termination agreement with any employee of Seller; (vi) any Liability
arising out of or relating to products or services of Seller to the extent such
products or services were provided prior to the Effective Time, including
without limitation the Issuing Bank Business; (vii) any Liability to ICE
LLC related to revenue sharing on point of sale transactions occurring prior to
the Effective Time.


 


(c)                                  Seller shall pay all stamp, sales, use,
employment, property, ad valorem, income, realty transfer, franchise, net
worth, intangible, excise, license or other taxes, additions to tax, penalties
and interest, whether federal, state, local, foreign or other, in respect of
the transfer of the Assets contemplated by this Agreement.  All property and ad valorem taxes, leasehold
rentals and other customarily proratable items relating to the Assets, payable
on or after the Effective Time and relating to a period of time both prior to
and on or after the Effective Time will be prorated as of the Effective Time
between Purchaser, on the one hand, and Seller, on the other hand.  If the actual amount of any such item is not
known as of the Closing Date, the aforesaid proration shall be based on the
previous year’s assessment of such item and the parties agree to adjust said
proration and pay any underpayment or reimburse any overpayment within thirty
(30) days after the actual amount becomes known.


 


Section 2.5                                    Allocation.  After the
Closing, each of the parties agrees to cooperate in the preparation of a joint
schedule reflecting the allocation of the Purchase Price for the Assets and the
Noncompetition Agreement, as required by Section 1060 of the Code.  Seller and Purchaser shall file Form 8594,
Asset Acquisition Statement under Section 1060 of the Code, with their
respective income tax returns for the taxable year that includes the Closing
Date.  Purchaser and Seller agree to
satisfy any and all reporting requirements of Section 1060 of the Code and
the Treasury regulations thereunder. 
Purchaser and Seller shall file Form 8594 in a manner consistent
with the allocation of the Purchase Price reflected on the joint schedule.  If, in subsequent taxable years, Purchaser or
Seller makes an allocation of any increase or decrease in 


 


8

















 


the purchase price for
any asset, the party making such increase or decrease agrees to file a
supplemental Form 8594 as required.


 


Section 2.6                                    Consents.  If, as of the
Effective Time, any consent to the assignment of any contract listed on
Schedule 3.21 has not been obtained (each, an “Unassigned Contract”),
the parties agree and acknowledge that the failure to obtain such consent prior
to the Effective Time shall not constitute a breach of this Agreement and that (a) neither
this Agreement nor the Assignment and Assumption Agreement shall constitute an
assignment or attempted assignment of such Unassigned Contract, and (b) following
the Closing, the parties shall use their commercially reasonable efforts, and
cooperate to obtain the requisite consent relating to such Assigned Contract as
quickly as practicable following the Closing. 
Pending the obtaining of such any such consent relating to any
Unassigned Contract, the parties shall cooperate with one another in any
reasonable and lawful arrangements designed to provide the benefits and obligations
of such Unassigned Contract to Purchaser as if it had been assigned to and
assumed by Purchaser at the Effective Time (including, the provision by
Purchaser of any services that may be required to be provided by Seller under
such Unassigned Contract to any client of Seller thereunder).  If consent to the assignment and assumption
of a any Unassigned Contract is obtained, Seller shall promptly assign such
Unassigned Contract to Purchaser, and Purchaser shall assume the obligations
under such Unassigned Contract assigned to Purchaser from and after the date of
assignment to Purchaser pursuant to an assignment and assumption agreement
substantially similar in terms to those of the Assignment and Assumption
Agreement.  Purchaser agrees to indemnify
and hold harmless Seller and its affiliates from and against any and all Losses
(as defined below) that any of them may suffer as a result of Purchaser’s
performance, or failure to perform, or Seller’s inability to perform, under any
such Unassigned Contract occurring after the Effective Time and prior to the
date such Unassigned Contact is assigned and assumed by Purchaser, terminated
or expires by its terms.


 


ARTICLE
3


 


REPRESENTATIONS
AND WARRANTIES OF SELLER


 


Seller represents and
warrants to Purchaser as of the date hereof and as of the Closing Date as
follows:


 


Section 3.1                                    Organization and Standing. 
Seller is a state bank, validly existing and in good standing under the
laws of the State of Illinois.  Seller
has all requisite power and authority (corporate and otherwise) to carry on the
PPS Business.


 


Section 3.2                                    Authority.  Seller has
the power and authority to execute and deliver this Agreement and the other
Transaction Documents to which it is to be a party and to perform hereunder and
thereunder, and to consummate the transactions contemplated hereby and
thereby.  The execution, delivery and
performance by Seller of this Agreement and the other Transaction Documents
have been duly authorized and approved by the board of directors of
Seller.  This Agreement and the other
Transaction Documents to which Seller is a party will, when executed and
delivered by all parties thereto, constitute the valid, legal and binding
obligation of Seller, enforceable against it in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws from time to time in 


 


9

















 


effect affecting the
enforcement of creditors’ rights generally, and except as enforcement of
remedies may be limited by general equitable principles.  Seller has delivered to Purchaser copies of
its charter, as amended, and bylaws, as amended, certified to be true, correct
and complete by an executive officer of Seller and there have been no changes
in such charter or Bylaws since the date of such certificate.


 


Section 3.3                                    Capitalization. 
All of Seller’s issued capital stock have been duly authorized and
validly issued, are fully paid and non-assessable, and on the Closing Date will
be owned of record and beneficially by the Shareholder.


 


Section 3.4                                    Financial Statements. 
Attached hereto as Schedule 3.4(i) are true, correct
and complete copies of the PPS Business’s unaudited (i) schedule of assets
and liabilities as of October 31, 2009 (the “Balance Sheet”) and (ii) profit
and loss statements for the twelve (12) months ended October 31, 2009 (the
“Income Statement,” and collectively with the Balance Sheet and any
accompanying notes, the “Financial Statements”), both of which were previously
provided to Purchaser.  Except as set
forth on Schedule 3.4(ii), the Financial Statements (i) are
complete and fairly present the financial condition and results of operations
of the PPS Business as of and for the period then ended, (ii) accurately reflect
all costs of any type or nature incurred by Seller or Shareholder in the
operation of the PPS Business and (iii) reflect the consistent application
of accounting principles throughout the periods involved.  Except as set forth on Schedule 3.4(ii),
as of the Closing the Estimated Balance Sheet (i) will be complete and
fairly present the financial condition of the PPS Business as of the Closing
Date, (ii) reflect the consistent application of accounting
principles.  The Financial Statements and
Estimated Balance Sheet have been prepared from and in accordance with the
accounting records of Seller.


 


Section 3.5                                    Taxes.  Seller has
paid or, in the case of taxes not yet due and payable, will timely pay all
taxes, additions to tax, penalties and interest, if any, required to be paid by
Seller with respect to the operation of the PPS Business.  There is not and there will not be, any
Liability for federal, state, foreign, local or other income, sales, stamp,
use, excise, employment, property, franchise, ad valorem, license or other
taxes, assessments, fees, charges, additions to tax, penalties or interest
arising out of (including any Liability for failure to withhold any such
amount), or attributable to, or affecting the Assets or the conduct of the PPS
Business through the Closing Date, or attributable to the conduct of the PPS
Business by Seller prior to the Effective Time, for which Purchaser will have
any liability for payment or otherwise or which will become an Encumbrance or
will attach to the Assets. Except as set forth in Schedule 3.5
hereto, there does not exist and will not exist by virtue of the consummation
of the transactions contemplated by this Agreement any liability for taxes,
assessments, fees, charges or other amounts which may be asserted by any taxing
authority against the Purchaser, the Assets or the operations of the PPS
Business, and no Encumbrance for taxes, assessments, fees, charges or other
amounts has or will attach to the Assets or the operations of the PPS Business.  Seller shall, promptly upon receipt of the
Cash Consideration, pay or cause to be paid the taxes, assessments, fees,
charges, and the amounts listed in Schedule 3.5.


 


Section 3.6                                    Ownership of Assets and Leases; Accounts
Receivable.


 


(a)                                  Seller has, and at Closing will have,
good, marketable and exclusive title to all of the Assets, in each case free
and clear of all Encumbrances, except as specifically 


 


10

















 


disclosed on Schedule 3.6(a) (to
the extent and in the amounts so disclosed) and for encumbrances arising from
current taxes not yet past due (collectively, “Permitted Encumbrances”).


 


(b)                                 Each of the Assigned Contracts are in
full force and effect and constitutes a legal, valid and binding obligation of
Seller and, to Seller’s Knowledge, each of the other parties thereto,
enforceable in accordance with its terms, and there is no default by Seller or,
to Seller’s Knowledge, any of the other parties thereto, or any event or
condition which, with notice or lapse of time, or both, would constitute a
default under any Assigned Contract.


 


(c)                                  All of the Assets are in good operating
condition and state of repair, subject only to ordinary wear and tear which is
not such as to affect adversely the operation of the PPS Business or the Assets
in the ordinary course, and are reasonably suitable for the purposes for which
they are used by Seller in connection with the PPS Business.


 


(d)                                 Schedule 3.6(d) contains a complete and accurate
list of all Accounts Receivable as of the date of the Balance Sheet, which list
sets forth the aging of each such Accounts Receivable.  All of the Accounts Receivable of Seller
shown on Schedule 3.6(d) below arose from sales actually made or
services actually performed by Seller in the ordinary course of business, and
are not subject to offset or deduction. 
Except as set forth on Schedule 3.6(d), and subject to any
reserves set forth on the Financial Statements, Seller has no Knowledge that
any such Accounts Receivable will not be collectible in full.  Except as set forth in Schedule 3.6(d),
there is no contest, claim, defense or right of offset with any account debtor
of an Accounts Receivable relating to the amount or validity of such Accounts
Receivable.


 


(e)                                  Except pursuant to this Agreement, Seller
is not a party to any contract or obligation whereby an absolute or contingent
right to purchase, obtain or acquire any rights in any of the Assets or any of
the PPS Business has been granted to anyone.


 


Section 3.7                                    Compliance with other Instruments. 
The execution and delivery of this Agreement and the other Transaction
Documents to which Seller is a party do not, and the consummation of the
transactions contemplated hereby and thereby will not, (a) violate any
provision of the charter, as amended, or bylaws, as amended, of Seller, (b) violate
or constitute an occurrence of default under any provision of, or conflict
with, or result in acceleration of any obligation under, or give rise to a
right by any party to terminate its obligations under:  (i) any Material Contract; or (ii) any
order, judgment, decree or other arrangement, to which Seller is a party or by
which it is bound or the Assets or the PPS Business are affected, (c) result
in the creation of any Encumbrance upon any of the Assets, or (d) require Seller
to make a filing with or obtain the authorization, approval, consent or order
of, or other action by any court, regulatory agency or other governmental body.


 


Section 3.8                                    Absence of Change. 
Except as otherwise set forth on Schedule 3.8 hereto, since
the date of the Balance Sheet, Seller has not taken any action, or permitted
any action to be taken, or agreed, to take any action with respect to the
Assets or the PPS Business, (a) outside the ordinary course of business
and consistent with past practice, or (b) whether or not outside the
ordinary course of business and consistent with past practice, any action that
would have a 


 


11

















 


Material Adverse Effect
on the Assets, the PPS Business or the ability of Seller to consummate the
transactions contemplated hereby.


 


Section 3.9                                    Litigation.  Except as
otherwise set forth on Schedule 3.9 hereto, there is no suit,
action, proceeding (legal, administrative or otherwise), claim or
investigation, or complaint pending or, to Seller’s Knowledge, threatened
against, or affecting Seller, Shareholder or any subsidiary of Seller or
Shareholder, that affects the Assets, the PPS Business or Seller’s ability to
consummate the transactions contemplated by this Agreement (including, without
limitation, any suits, actions, proceedings, claims or investigations under
Title VII of the Civil Rights Act of 1964, as amended, the Americans with
Disabilities Act of 1990, as amended, or any state laws analogous to any of the
foregoing).  Except as otherwise set
forth on Schedule 3.9 hereto, to Seller’s Knowledge there exists no
basis or grounds for any other such suit, action, proceeding, claim or
investigation.


 


Section 3.10                              Compliance With Law.


 


(a)                                  Seller holds all licenses, certificates,
permits, franchises and rights from all appropriate federal, state, county,
municipal or other public authorities (“Permits”) necessary for the
conduct of the PPS Business as currently conducted.  All such Permits are listed on Schedule
3.10(a).


 


(b)                                 Except as noted on Schedule 3.10(b),
Seller is presently conducting the PPS Business in compliance with all
applicable, federal, state, local, foreign and international laws, statutes,
ordinances, rules, regulations, orders, judgments or decrees of any agency
(collectively, “Laws”) and Operating Rules applicable to the PPS
Business.


 


(c)                                  Since January 1, 2007, Seller has
not received any written notice of violation nor has Knowledge of any
applicable Law relating to the Assets, Seller’s operations or properties, in
each case, used in the PPS Business.


 


(d)                                 Except as noted on Schedule 3.10(d) hereto,
neither the execution nor delivery of this Agreement and the other Transaction
Documents, instruments and agreements to be entered into pursuant hereto, nor
the consummation of the transactions contemplated hereby and thereby will
result in the termination of any Permit held by Seller which is to be assigned
pursuant to this Agreement, and all such assigned Permits will remain vested in
and inure to the benefit of Purchaser after the consummation of the
transactions contemplated by this Agreement.


 


Section 3.11                              Assigned Contracts. 
Seller has made available to Purchaser a true and complete copy of each
Material Contract, including all amendments or other modifications
thereto.  Except as set forth on Schedule
3.11, each Assigned Contract is a valid and binding obligation of Seller
and, to Seller’s Knowledge, of each other party thereto, enforceable in
accordance with its terms, in full force and effect and not subject to any
claims, charges, setoffs or defenses. 
Each Assigned Contract was affected on market terms in arm’s length
negotiations.  Except as set forth on Schedule
3.11, Seller has performed in all material respects all obligations
required to be performed by it prior to the date hereof under the Assigned
Contracts and is not in 


 


12

















 


breach or default
thereunder nor has any event occurred which, with the giving of notice or the
passage of time or both, would constitute a breach or default.


 


Section 3.12                              Disclosure.  To Seller’s
Knowledge, no representation or warranty of Seller nor any Transaction
Document, exhibit, document, statement, certificate, or schedule furnished to
Purchaser pursuant hereto or in connection with the transactions contemplated
hereby, contains any untrue statement of a material fact or omits to state a
material fact necessary to make statements or facts contained herein or therein
not misleading in light of the circumstances under which they were made.


 


Section 3.13                              Material Contracts. 
Except as listed or described on Schedule 3.13, as of the
date hereof, Seller is not a party to or bound by any written or oral leases,
agreements, instruments, or other contracts or legally binding contractual
commitments (“Contracts”) that relate to or involve, directly or
indirectly, and are material to, the PPS Business (collectively, the “Material
Contracts”).  For purposes of
clarification, the term “Material Contracts” shall include, without limitation:


 


(a)                                  any contract for the purchase or sale of
inventory, materials, supplies, primarily relating to, or involving, directly
or indirectly, the PPS Business and (i) requiring aggregate future
payments in excess of $20,000 or (ii) which is not cancelable without
penalty within ninety (90) days;


 


(b)                                 any contract limiting, restricting or
prohibiting Seller from conducting the PPS Business anywhere in the United
States or elsewhere in the world;


 


(c)                                  any joint venture or partnership contract
primarily relating to or involving the PPS Business;


 


(d)                                 any employment contract with any employee
working primarily in or with the PPS Business with annual total compensation in
excess of $20,000;


 


(e)                                  any management service, consulting,
maintenance or any other similar contracts (including any employee lease or
outsourcing arrangement) relating to or involving, directly or indirectly, the
PPS Business and providing for annual aggregate payments of more than $20,000;


 


(f)                                    any license (including inbound and
outbound licenses) or other agreements (including, without limitation, royalty
agreements and maintenance agreements) relating in whole or in part to any
Intellectual Property used in the PPS Business (excluding, however, licenses of
off-the-shelf desktop computer application software having a license fee per
user of less than $1,000); or


 


(g)                                 any contract that provides any customer
of the PPS Business with pricing, discounts or benefits that change based on
the pricing, discounts or benefits offered to other customers of the PPS
Business, including, without limitation, contracts containing what are
generally referred to as “most favored nation” provisions;


 


13

















 


Section 3.14                              Computer Programs and Software.


 


(a)                                  For purposes of this Agreement, “Software”
means (i) any and all computer programs owned or licensed by Seller and
used in the operation of the PPS Business, consisting of sets of statements or
instructions to be used directly or indirectly in computer software and firmware,
including, without limitation all versions thereof, all screen displays and
designs therefor, and all component modules of source code or object code or
natural language code therefor, and whether recorded on paper, magnetic media
or other electronic or non-electronic device, (ii) all descriptions,
flow-charts and other work product used to design, plan, organize and develop
any of the foregoing, and (iii) all documentation, including without
limitation user manuals and training materials, relating to any of the
foregoing.


 


(b)                                 For purposes of this Agreement, (i) “System”
means the Data Warehouse, Proprietary Applications and other related Software,
used by Seller in the operation of the PPS Business, (ii) “Proprietary
Applications” means the Software owned by the Seller and used in the
operation of the PPS Business, which Proprietary Applications are identified as
such on Schedule 3.14(b) hereto and (iii) “Data
Warehouse” means the database(s) and other information and data
compilations owned and maintained by Seller on its servers and used in the PPS
Business.


 


(c)                                  Schedule 3.14(c) lists all of the Software
incorporated into the System.  Except as
set forth on Schedule 3.14(c), the Software is all of the computer
software used, licensed or sublicensed by Seller in the conduct of PPS
Business.  The System performs in all
material respects in accordance with the applicable specifications therefor and
is free of defects in programming and operation, that, individually or in the
aggregate, could have a material adverse effect on the utility or functionality
of the System (or any component thereof). 
The System does not contain any viruses, “trojan horses,” “time bombs”
or back door accesses designed to permit unauthorized access by third parties
or otherwise to interfere with or adversely affect the use and operation of the
System.


 


(d)                                 To Seller’s Knowledge, no employee of the
Seller is in default under any term of any employment contract, agreement or
arrangement relating to the Proprietary Applications or any noncompetition
arrangement, or any other contract or any restrictive covenant relating to the
Proprietary Applications or its development or exploitation.  The Proprietary Applications were developed
entirely by the employees and independent contractors of Seller during the time
they were employees or independent contractors of Seller, and the Proprietary
Applications do not include any (x) inventions of the employees or
independent contractors made prior to the time such employees or independent contractors
became employees or independent contractors of Seller or (y) intellectual
property of any previous employer of such Person, except for commonly used
types of commercial software.  Seller has
validly and effectively obtained the right and license to use, copy, modify and
distribute the third-party Software and other third party materials contained
in and material to the System.


 


(e)                                  Except as disclosed on Schedule 3.14(e),
all right, title and interest in and to the Proprietary Applications is owned
by Seller, free and clear of Encumbrances. 
All Software shown on Schedule 3.14(e) as licensed to
Seller has been licensed pursuant to valid license agreements and, except as
set forth on Schedule 3.14(e), all royalties, license or other fees
due and payable thereunder have been paid or adequate provision therefore has
been made and accrued on the books of Seller. 
Seller has all necessary and required rights to license, use, 


 


14

















 


sublicense and distribute
the Proprietary Applications and the data contained in the Data Warehouse and,
in addition, to use the System in the normal and ordinary course of its
business as currently conducted.  The
Data Warehouse has been compiled, used and maintained in compliance in all
material respects with all applicable Laws (including, but not limited to,
privacy laws) and any applicable contract provisions.  No royalties, license or other fees shall
become due and payable with respect to any Software licensed to Seller solely
as a result of the consummation of the transactions contemplated hereby.


 


(f)                                    Seller’s development, use, licensing,
sublicensing or exploitation of the Proprietary Applications does not violate
any rights of any other Person and Seller has not received any written notice,
or to its Knowledge oral notice, alleging such a violation.  Seller does not have any obligation to
compensate any Person for the development, use, sale or exploitation of the
Proprietary Applications or any other Software developed by or for Seller.  Seller has not granted, transferred or
assigned any right (including, but not limited to, any licenses) or interest in
the Proprietary Applications or Intellectual Property, in each case that are
Assets, to any Person, except pursuant to the license agreements identified as
such on Schedule 3.14(f) hereto (each such agreement is
hereinafter referred to as a “License”). 
Schedule 3.14(f) sets forth, with respect to each
License, the Proprietary Applications licensed thereunder.  Except as set forth on Schedule 3.14(f),
each License constitutes only an end-user agreement, each of which grants the
end-user thereunder solely the nonexclusive right and license to use the
identified Proprietary Applications and related user documentation for internal
purposes only with no right to sublicense.


 


(g)                                 Software developed by Seller on a
work-for-hire basis for its customers does not violate any rights of any other
Person when used by the customer or Seller as delivered and Seller has not
received any written notice, or to its Knowledge oral notice, alleging such a
violation.  Except as set forth in Schedule 3.15,
there have been no patents applied for and no copyrights registered for any
part of the Proprietary Applications.


 


(h)                                 Seller has taken measures customary to
protect the confidential and proprietary nature of the System, including the
use of confidentiality agreements with all of its employees and independent
contractors having access to the source and object code of the Proprietary
Applications.


 


(i)                                     Schedule 3.14(i) lists all of third-party Software
installed or used by the Hired Employees on each personal computer used
primarily by such Hired Employee.


 


Section 3.15                              Intellectual Property Matters.  Schedule 3.15
contains a true, correct and complete list of all domestic and foreign (a) registered
trademarks and service marks, applications for trademark and service mark
registrations, and all unregistered trademarks and service marks, in each case,
used in the PPS Business, (b) registered copyrights, applications for
copyright registration, and unregistered copyrights (including, but not limited
to, any in the System, excluding any documentation therefor), in each case,
used in the PPS Business, and (c) patents and patent applications, in each
case, owned by Seller and used in the PPS Business.  Unless otherwise indicated on Schedule 3.14
or 3.15, the Seller owns or has the right to use, in the normal and
ordinary course of its business as currently conducted, all Intellectual
Property used in or necessary for the operations of the PPS Business as
currently conducted, free and clear


 


15
















 


of any Encumbrances other
than obligations under licenses and other arrangements identified on Schedule 3.14
and 3.15.  All royalties, license
and other fees due and payable by Seller under such licenses and agreements
have been paid or adequate provision therefore has been made and accrued on the
books of Seller.  No additional
royalties, license or other fees shall become due and payable with respect to
any Intellectual Property used by Seller in the operation of its business
solely as a result of the consummation of the transactions contemplated
hereby.  With respect to Intellectual
Property owned by Seller, such Intellectual Property and Seller’s use thereof
do not infringe upon any patent, trademark, trade name, service mark, copyright
or trade secret owned or claimed by another. 
To Seller’s Knowledge, the Intellectual Property licensed to Seller, or
which it has rights to sublicense or distribute, does not infringe upon or
unlawfully or wrongfully use any patent, trademark, trade name, service mark, copyright
or trade secret owned or claimed by another. 
Seller has not received any written notice, or to its Knowledge oral
notice, of any claim of infringement or any other claim or proceeding relating
to any patent, trademark, trade name, service mark, copyright or trade
secret.  Except as disclosed in Schedule 3.14
or 3.15, and the rights under the licenses and other agreements
identified thereon, no present or former employee of Seller and, to Seller’s
Knowledge, no other Person owns or has any proprietary, financial or other
interest, direct or indirect, in whole or in part, in any patent, trade secret,
trademark, trade name, service mark or copyright that constitutes part of the
Assets, in any application therefore. 
For purposes of this Agreement, “Intellectual Property” means and
includes all patents, designs, art work, designs-in-progress, formulations,
know-how, prototypes, inventions, trademarks, trade names, trade styles,
service marks, and copyrights; all registrations and applications therefore,
both registered and unregistered, foreign and domestic; trade secrets or
processes; Software in each case that is used in the PPS Business that is
either (i) owned by Seller or (ii) as to which Seller has rights as a
licensee, distributor or sublicensor.


 


Section 3.16                              Labor Matters. 
With respect to the employees working in the PPS Business, (a) Seller
is not a party to any agreement with any union, labor organization or
collective bargaining unit, (b) none of such employees are represented by
any union, labor organization or collective bargaining unit and (c) to
Seller’s Knowledge, such employees have no intention to and have not threatened
to organize or join a union, labor organization or collective bargaining unit.


 


Section 3.17                              Employees.  Schedule 3.17
discloses all cash compensation (including wages, salaries, severance,
commissions, advances, loans and actual or anticipated bonuses) paid to each
Hired Employee in 2008 and 2009.  No
unpaid compensation, other than recurring salary or compensation pursuant to
Seller’s existing employment agreements or bonus arrangements, commissions,
incentive compensation, or severance compensation, is payable to any Hired
Employees.  Except as set forth on Schedule 3.17,
no vacation or sick leave is accrued or payable for any Hired Employee, and all
such amounts will be paid by the Seller to such Hired Employee prior to the
Effective Time to the extent required under Seller’s policies and
practices.  Except as set forth on Schedule 3.17,
no Hired Employee is subject to any non-competition or non-solicitation
agreement which would prevent Purchaser from hiring such employee.


 


Section 3.18                              Employee Benefit Plans and Arrangements.  Schedule
3.18 contains a list of each pension, profit-sharing, bonus, incentive,
deferred compensation, severance pay, retirement or other employee benefit
plan, agreement or arrangement within the meaning of § 3(3) of ERISA
and any stock option, stock bonus, or other stock-based compensation, deferred 


 


16

















 


compensation, bonus,
severance pay, welfare, or other plan, agreement or arrangement, currently
maintained or contributed to by the Seller or any subsidiary or any other
entity which is under common control with the Seller within the meaning of
§ 414(b), (c), (m) or (o) of the Code for the benefit (in whole
or in part) of the Hired Employees (collectively, the “Plans”).  No Liability relating to any Plan will become
a Liability of Purchaser or any Affiliate of Purchaser.


 


Section 3.19                              Customers and Suppliers.


 


(a)                                  Schedule 3.19(a) is a complete and correct list of
the twenty (20) largest (as measured by revenue) Clients for the twelve
(12) month period ending October 31, 2009 (each a “Material Client”).  Except as set forth in Schedule 3.19(a),
in the last twelve (12) months, no Client has cancelled or otherwise
terminated, or threatened in writing, or, to Seller’s Knowledge, orally to
cancel or terminate, its relationship with Seller.  Except as set forth in Schedule 3.19(a),
there are no claims, disputes or re-negotiations between Seller and any of its
Material Clients, and, to Seller’s Knowledge, there is no basis for any such
claim, dispute or re-negotiation.


 


(b)                                 Schedule 3.19(b) is a complete and correct list of
the twenty (20) largest Vendors, suppliers, service providers and other
similar business relations of Seller related to the PPS Business (the “Material
Vendors”) for the twelve (12) month period ending October 31,
2009.  Except as set forth in Schedule 3.19(b),
in the last twelve (12) months, no Material Vendor has cancelled or
otherwise terminated, or threatened in writing, or, to Seller’s Knowledge,
orally to cancel or terminate, its relationship with Seller.


 


Section 3.20                              Insurance.


 


(a)                                  Schedule 3.20 sets forth the following information
with respect to each insurance policy (including policies providing property,
casualty, liability, and workers’ compensation coverage and bond and surety
arrangements) maintained by Seller and relating (in whole or in part) to the
PPS Business or the Assets:


 


(i)                                     the name of the insurer, the name of the
policyholder, and the name of each covered insured;


 


(ii)                                  the policy number and the period of
coverage; and


 


(iii)                               amount of coverage.


 


(b)                                 Such policies are in full force and
effect and all premiums due therefore have been paid.


 


Section 3.21                              Consents and Approvals. 
Except to the extent set forth on Schedule 3.21, no filing
or registration with, and no consent, approval, authorization, license, permit,
certificate or order of any governmental authority or Person is required to be
made or obtained by Seller under any applicable Law, to permit Seller to
execute, deliver or perform this Agreement or any of the other Transaction
Documents required hereby or thereby to be executed by such party at the Closing.


 


17

















 


Section 3.22                              Environmental Matters. 
Except as set forth on Schedule 3.22 hereto or as would not
have a Material Adverse Effect:  (a) 
Seller is and has been in compliance with all applicable Environmental Laws (as
defined below) in its operation of the PPS Business, and all permits, licenses
and authorizations required thereunder for (i) the occupation of any
properties currently leased by Seller and used in the PPS Business, and (ii) the
conduct of the PPS Business, (b) to Seller’s Knowledge, no spill, release,
disposal, burial or placement of any material regulated under Environmental
Laws (hereinafter “Hazardous Materials”) has occurred on, in, at, under
or about any of Seller’s facilities used in the PPS Business, and (c) no
other event has occurred or is pending which would result in a material
Liability under Environmental Laws for Seller. 
A complete list of all material permits, licenses or other
authorizations held by Seller pursuant to Environmental Laws for the operation
of the PPS Business is set forth on Schedule 3.22 hereto.  Seller has made available to Purchaser or its
advisors or consultants copies of all environmental reports, analyses, tests or
monitoring in the possession of or available to Seller pertaining to any
properties currently owned or leased by Seller and used in the PPS
Business.  As used in this Agreement, “Environmental
Laws” shall mean all federal, state and local laws, rules, regulations and
ordinances relating to protection of the environment and worker health and
safety.


 


Section 3.23                              Real Property.


 


(a)                                  Seller does not own any real property
used exclusively in the PPS Business.


 


(b)                                 Schedule 3.23(b) lists and describes briefly all
real property leased or subleased to Seller and which is used in the PPS
Business.  With respect to each lease and
sublease listed in Schedule 3.23(b):


 


(i)                                     the lease or sublease is legal, valid,
binding, enforceable against Seller, and to Seller’s Knowledge, the other
parties thereto, and in full force and effect;


 


(ii)                                  the lease or sublease will continue to be
legal, valid, binding, enforceable, and in full force and effect on identical
terms following the consummation of the transactions contemplated hereby;


 


(iii)                               Seller is not, and to the Knowledge of
Seller, no other party, is in breach or default, and no event has occurred
which, with notice or lapse of time, would constitute a breach or default or
permit termination, modification, or acceleration thereunder;


 


(iv)                              no party to the lease or sublease has
repudiated any provision thereof;


 


(v)                                 there are no disputes, oral agreements,
or forbearance programs in effect as to the lease or sublease;


 


(vi)                              Seller has not assigned, transferred,
conveyed, mortgaged, deeded in trust, or encumbered any interest in the
leasehold or subleasehold; and


 


18

















 


(vii)                           all facilities leased or subleased
thereunder are supplied with utilities and other services necessary for the
operation of said facilities.


 


Section 3.24                              Solvency.  Seller is not
now insolvent, and will not be rendered insolvent by any of the transactions
contemplated herein.


 


Section 3.25                              Absence of Unlawful Payments. 
None of (a) the Seller or Shareholder (b) any Subsidiary of
the Seller or Shareholder, or (c)  any director, officer, employee, agent
or other Person authorized to act and acting on behalf of the Seller, the
Shareholder or any Subsidiary thereof: (i) has used any corporate or other
funds for unlawful contributions, payments, gifts or entertainment; (ii) made
any unlawful expenditures relating to political activity to government
officials or others; (iii) made any unlawful payment to any foreign or
domestic government official or employee from corporate funds; or violated any
provision of the FCPA; or (iv) has accepted or received any unlawful
contributions, payments, gifts or expenditures, in each case that relate to or
could affect the Assets, the PPS Business or the Purchaser.


 


Section 3.26                              Sufficiency of Assets. 
Except as disclosed on Schedule 3.26, the Assets together with
the rights of Purchaser under the Transaction Documents constitute all of the
assets, properties, contract rights and licenses that (a) are reasonably
necessary for Purchaser to operate the PPS Business in substantially the same
manner as such operations are presently conducted, (b) are reasonably
sufficient to operate the PPS Business as a going concern, and (c) are
used by Seller to operate the PPS Business.


 


ARTICLE
4


 


REPRESENTATIONS
AND WARRANTIES OF PURCHASER


 


Purchaser represents and
warrants to Seller as follows:


 


Section 4.1                                    Organization and Standing. 
Purchaser is a duly organized and validly existing corporation in good
standing under the laws of the State of Delaware and is qualified to do
business and in good standing in all jurisdictions in which such qualification
is required.


 


Section 4.2                                    Corporate Power and Authority. 
Purchaser has the full power and authority (corporate or otherwise) to
execute and deliver this Agreement and the other Transaction Documents to which
they are a party, to perform hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. 
This Agreement and the other Transaction Documents to which it is a
party have been approved by all requisite corporate action of Purchaser and
constitute or will, when executed and delivered, constitute the valid, legal
and binding obligation of Purchaser enforceable against it in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, and other similar laws from time to time in effect
affecting the enforcement of creditors’ rights generally, and except as
enforcement of remedies may be limited by general equitable principles.  Purchaser has delivered to Seller copies of
its organizational documents, certified to be true, correct and complete by an
executive officer of Purchaser or Navigation, as applicable and there have been
no changes in such organizational documents since the date of such certificate.


 


19

















 


Section 4.3                                    Compliance with Other Instruments. 
The execution and delivery of this Agreement and the other Transaction
Documents to be entered into pursuant hereto by Purchaser do not, and the
consummation of the transactions contemplated hereby and thereby will not, (a) violate
any provision of the Certificate of Incorporation, as amended, or Bylaws, as
amended, of Purchaser, or (b) violate or constitute an occurrence of
default under any provision of, or conflict with, or result in acceleration of
any obligation under, or give rise to a right by any party to terminate its
obligations under:  (i) any
mortgage, deed of trust, conveyance to secure debt, note, bond, debenture,
loan, or lien to which it is a party; (ii) any lease, license, agreement
or instrument to which it is a party; or (iii) any order, judgment, decree
or other arrangement, or by which its assets are bound or affected.


 


Section 4.4                                    Litigation.  There is no
suit, action, proceeding, claim or investigation pending or threatened against
or affecting Purchaser that would materially impair the ability of Purchaser to
consummate the transactions contemplated by this Agreement or any of the other
Transaction Documents.


 


Section 4.5                                    Consents and Approvals. 
Except to the extent set forth on Schedule 4.5, no filing or
registration with, and no consent, approval, authorization, license, permit,
certificate or order of any governmental authority or Person is required,
including without limitation by any applicable Law, to permit Purchaser to
execute, deliver or perform this Agreement or any of the other Transaction
Documents required hereby or thereby to be executed by such party at the
Closing.


 


Section 4.6                                    Knowledge.  Purchaser (a) has
no Knowledge of any facts or circumstances that would serve as the basis for a
claim by Purchaser against Seller based upon a breach of any of the
representations and warranties of Seller contained in this Agreement and (b) shall
be deemed to have waived any breach of any of Seller’s representations and
warranties to the extent of Purchaser’s Knowledge at the Closing.


 


Section 4.7                                    Financial Capability. 
Purchaser has sufficient funds available to it to consummate the
transactions contemplated hereby.


 


ARTICLE
5


 


COVENANTS
OF SELLER


 


Section 5.1                                    Seller’s Employees.


 


(a)                                  Attached as Schedule 5.1(a) is
a list of those employees of Seller operating within the PPS Business to whom
Purchaser intends to extend offers of employment (“Hired Employees”).  Purchaser intends to extend offers of
employment to the Hired Employees on substantially the same terms, including
compensation and benefits, as such employees had with Seller immediately prior
to the Effective Time as disclosed to Purchaser on Schedule 3.16.  Purchaser will not assume and will have no
obligation with respect to any employee bonus, retirement, pension, profit
sharing, incentive, deferred compensation, medical, retiree medical, retiree
life, other insurance plan, employee severance, vacation or sick leave plan or policy
or other employee benefit plan of Seller of any kind.  However, Purchaser agrees to use 


 


20

















 


commercially
reasonable efforts to give to each employee of Seller who is hired by Purchaser
on the Closing Date credit for past service with Seller for purposes of
participation in any employee, retirement, pension, profit sharing, bonus,
incentive, deferred compensation, medical, vacation, sick leave or other
employee benefit plan of Purchaser in which such employee may be eligible to
participate. Purchaser will not be required to establish or adopt any employee
benefit plan or policy to accommodate the Hired Employees.  Purchaser shall take commercially reasonable
steps to waive any applicable waiting period and pre-existing condition
exclusions related to any newly established 401(k) plan and health
insurance benefits and shall use commercially reasonable efforts to cause the
Hired Employees and their dependents to be eligible to participate in one of
Purchaser’s group health plans effective as of the Closing Date.


 


(b)                                 Seller shall pay for (and otherwise be
responsible for) all costs and expenses relating to its employees (including,
but not limited to, the Hired Employees) arising or accruing on or before the
Closing Date, including but not limited to salaries, commissions and other
compensation, severance payments, accrued vacation pay, unused sick leave,
bonuses that are payable for or relate to the period to and including the
Closing Date, fringe benefits, pension, health and other amounts.  With respect to the Hired Employees, Seller
and its affiliates shall (i) fully vest all such Hired Employees that are
participants in Seller’s 401(k) Plan and make whatever distributions to
such participants in those plans as are permitted by law and (ii) provide
notices concerning eligibility for continuation health coverage under all
applicable health plans pursuant to Internal Revenue Code 4980B to eligible
employees and family members and provide such individuals with the opportunity
to elect to continue their health coverages under the applicable Seller or
affiliate health and cafeteria plans, but only as to those employees requiring
such protections.


 


Section 5.2                                    Use and Title to Name. 
Seller agrees to take all actions necessary (a) to cease all use of
the name “Prepaid Solutions,” on or after the Closing and (b) to grant
Purchaser physical possession of all unused printed materials bearing such
name.  Purchaser agrees not to use the
names “West Suburban” or “West Suburban Bank” without the prior written consent
of Seller.


 


Section 5.3                                    Access to Documents, Files and Records. 
Commencing as of the date hereof and continuing for a period of seven (7) years
after the Closing Date, Seller will afford and cause to be afforded to
Purchaser (a) such access during normal business hours, upon prior notice,
to such books and records of Seller as Purchaser may reasonably request in
connection with matters relating to the Excluded Liabilities, the Assumed
Liabilities, the Assets and the PPS Business; and (b) such assistance in
locating and copying such books and records as Purchaser may reasonably
request.  For the avoidance of doubt, it
shall be reasonable for Purchaser to request access to Seller’s records to the
extent necessary for Purchaser to comply with any applicable laws or
regulations.  If Seller shall desire to
destroy any such books and records prior to the expiration of such seven-year
period, Seller shall, prior to such destruction, give Purchaser a reasonable
opportunity, at its expense, to segregate, remove and store the books and
records to be destroyed, or any of them, as determined by Purchaser.


 


21

















 


ARTICLE
6


 


COVENANTS
OF PURCHASER


 


Section 6.1                                    Required Approvals.  Purchaser shall make, or cause to be made, all
filings required to be made by Purchaser to consummate the contemplated
transactions.  Purchaser shall cooperate
with Seller (a) with respect to all filings Seller shall be required to
make and (b) in obtaining all consents identified in Section 4.5; provided,
however, that Purchaser shall not be required to dispose of or make any
change to its business, expend any material funds or incur any other burden in
order to comply with this Section 6.1.


 


Section 6.2                                    Efforts.  Purchaser
shall use its commercially reasonable efforts to take, or cause to be taken,
all actions, including but not limited to, causing the conditions in ARTICLE 8
hereof to be satisfied, and to do, or cause to be done, all things necessary,
proper or advisable under applicable Laws to consummate and make effective the
transactions contemplated by this Agreement.


 


Section 6.3                                    Non-Solicitation. 
For a period of one (1) year after the Closing Date, Purchaser
covenants and agrees that it will not, and shall cause its affiliates not to,
directly or indirectly, (a) hire any employee of Seller or Shareholder,
other than the Hired Employees or (b) solicit or induce, or attempt to
solicit or induce, any employee of Seller or Shareholder to terminate its employment
with Seller or Shareholder.  Each of
Purchaser and Navigation hereby acknowledges that the scope of prohibited
activities and the time duration of the provisions of this Section 6.3 are
reasonable and are no broader than are necessary to protect the legitimate
business interests of Seller.  Each of
Purchaser and Navigation acknowledges that breach of any of the provisions of
this Section 6.3 will give rise to irreparable injury to Seller,
inadequately compensable in damages. 
Accordingly, Seller shall be entitled to injunctive relief to prevent or
cure breaches or threatened breaches of the provisions of this Agreement and to
enforce specific performance of the terms and provisions hereof in any court of
competent jurisdiction, in addition to any other legal or equitable remedies
which may be available.  Nothing herein
shall prohibit the solicitation or employment of any relevant person resulting
from general advertisements for employment conducted by the Purchaser
(including any recruitment efforts conducted by any recruiting agency) provided
that the Purchaser has not directed such recruitment efforts at such person or
the employees of Seller generally.


 


Section 6.4                                    Access to Documents, Files and Records. 
Commencing as of the date hereof and continuing for a period of seven (7) years
after the Closing Date, Purchaser will afford and cause to be afforded to
Seller (a) such access during normal business hours, upon prior notice, to
such books and records of Purchaser as Seller may reasonably request in
connection with matters relating to the Excluded Liabilities, the Assumed
Liabilities, the Assets and the PPS Business; and (b) such assistance in
locating and copying such books and records as Seller may reasonably
request.  For the avoidance of doubt, it
shall be reasonable for Seller to request access to Purchaser’s records to the
extent necessary for Seller to comply with any applicable laws or
regulations.  If Purchaser shall desire
to destroy any such books and records prior to the expiration of such
seven-year period, Purchaser shall, prior to such destruction, give Seller a
reasonable opportunity, at its expense, to segregate, remove and store the
books and records to be destroyed, or any of them, as determined by Seller.


 


22

















 


ARTICLE
7


 


CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF PURCHASER


 


The obligations of Purchaser
to consummate the transactions contemplated by this Agreement shall be subject
to the satisfaction, on or before the Closing Date, of each and every one of
the following conditions, all or any of which may be waived to the extent
permitted by Law, in whole or in part, by Purchaser for purposes of
consummating such transactions, but without prejudice to any other right or
remedy which Purchaser may have hereunder as a result of any misrepresentation
by, or breach of any covenant or warranty of Seller contained in this
Agreement, the other Transaction Documents or any other certificate or
instrument furnished by Seller hereunder:


 


Section 7.1                                    Representations True at Closing. 
All of the representations and warranties made by Seller in this
Agreement, the disclosure schedules hereto or any other Transaction Document
shall be true and correct in all material respects (except for representations
and warranties that are expressly qualified by materiality, which shall be true
and correct in all respects) on the Closing Date hereunder with the same force
and effect as though such representations and warranties had been made on and
as of such time.


 


Section 7.2                                    Covenants of Seller. 
Seller shall have duly performed and complied in all material respects
with all of the covenants, acts, agreements and undertakings required to be
performed by under this Agreement on or prior to the Closing.


 


Section 7.3                                    No Proceedings. 
No suit, action, proceeding, investigation, regulation or legislation
shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain, prohibit, or obtain
damages in respect of, or which is related to, or arises out of, this Agreement
or the consummation of the transactions contemplated hereby, or which is
related to or arises out of the PPS Business, or the Assets, if such suit,
action, proceeding, investigation, regulation or legislation, in the reasonable
judgment of Purchaser, would affect adversely in any material respect the right
of Purchaser to operate the PPS Business and would make it inadvisable to
consummate such transactions.


 


Section 7.4                                    Consents and Approvals.  All governmental and third-party
authorizations, including, without limitation, those set forth on Schedule 3.21
hereof, consents, permits and approvals necessary to consummate the
transactions contemplated herein shall have been obtained by Purchaser and
shall be in full force and effect.


 


Section 7.5                                    Absence of Adverse Changes. 
Since the Balance Sheet date, the PPS Business shall not have suffered a
Material Adverse Effect.


 


Section 7.6                                    Satisfactory Investigation. 
Purchaser shall have completed its due diligence investigation of the
Assets and the PPS Business, including but not limited to the condition, value
and ownership thereof and the possible liabilities arising therefrom, and, in
Purchaser’s sole and absolute discretion, shall have been satisfied as to the
results of such investigation.


 


Section 7.7                                    Approvals.  Purchaser
shall have received all approvals and consents necessary to purchase and pay
for the Assets, including (without limitation) approval of the investment
committee of Navigation Capital Partners (“NCP”).


 


23

















 


Section 7.8                                    Grotto Employment Agreement. 
Purchaser and Dan Grotto shall have entered into an employment agreement
on such terms as are reasonably acceptable to Purchaser and Dan Grotto.


 


Section 7.9                                    Deliveries.  Seller shall
have made all of the deliveries to the Purchaser set forth in Section 9.2(a) hereof
and all agreements required to be delivered pursuant to Section 9.2(a) shall
be in full force and effect as of the Closing.


 


ARTICLE
8


 


CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF SELLER


 


The obligations of Seller to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction, on or before the Closing Date, of each and every one of the
following conditions, all or any of which may be waived to the extent permitted
by Law, in whole or in part, by Seller but without prejudice to any other right
or remedy which Seller may have hereunder as a result of any misrepresentation
by, or breach of any covenant or warranty of Purchaser contained in this
Agreement, or any certificate or instrument furnished by it hereunder:


 


Section 8.1                                    Representations True at Closing. 
All of the representations and warranties made by Purchaser in this
Agreement, the disclosure schedules hereto or any other Transaction Document
shall be true and correct in all material respects (except for representations
and warranties that are qualified by materiality, which shall be true and
correct in all respects) on the Closing Date hereunder with the same force and
effect as though such representations and warranties had been made on and as of
such time.


 


Section 8.2                                    Covenants of Purchaser. 
Purchaser shall have duly performed and complied in all material
respects with all of the covenants, acts, agreements and undertakings required
to be performed by it under this Agreement on or prior to the Closing.


 


Section 8.3                                    Deliveries.  Purchaser
shall have made all of the deliveries to Seller set forth in Section 9.2(b) hereof
and all agreements required to be delivered pursuant to Section 9.2(b) shall
be in full force and effect as of the Closing.


 


ARTICLE
9


 


CLOSING


 


Section 9.1                                    Time and Place of Closing. 
The consummation of the transaction provided for in this Agreement (the “Closing”)
shall be held at the offices of Barack Ferrazzano Kirschbaum &
Nagelberg LLP at 200 West Madison Street, Suite 3900, Chicago, Illinois,
within three (3) days after all conditions under the Agreement are met,
unless another place or date is agreed to in writing by Seller and Purchaser
(the “Closing Date”).  The Closing
shall be effective as of 11:59 p.m. on the Closing Date.


 


Section 9.2                                    Transactions at Closing. 
At the Closing, each of the following transactions shall occur:


 


24

















 


(a)                                  Seller shall deliver to Purchaser the
following:


 


(i)                                     this Asset Purchase Agreement executed by
Seller;


 


(ii)                                  a bill of sale substantially in the form
set forth as Exhibit 9.2(a)(ii) (the “Bill of Sale”)
for all of the Assets that are tangible personal property, duly executed by
Seller, and such other good and sufficient instruments of conveyance, transfer
and assignment (in form and substance reasonably acceptable to Purchaser) as
shall be necessary to vest Purchaser good and valid title to the Assets free
and clear of all Encumbrances;


 


(iii)                               an assignment of all of the Assets that
are intangible personal property substantially in the form set forth as Exhibit 9.2(a)(iii),
which assignment shall also contain Purchaser’s undertaking and assumption of
the Assumed Liabilities, duly executed by Seller (the “Assignment and
Assumption Agreement”);


 


(iv)                              a noncompetition agreement between
Purchaser and each of Seller and Shareholder, substantially, in the form set
forth as Exhibit 9.2(a)(iv), executed by Seller and Shareholder
(the “Noncompetition Agreement”);


 


(v)                                 assignment agreements substantially in
the forms set forth as Exhibit 9.2(a)(v) assigning all of the
Assets that are Intellectual Property to Purchaser (the “IP Assignment
Agreements”);


 


(vi)                              an assignment of lease agreement
substantially in the form of Exhibit 9.2(a)(vi) related to the
Hartland, Wisconsin office space of the PPS Business (the “Assignment of
Lease”);


 


(vii)                           a lease agreement substantially in the
form of Exhibit 9.2(a)(vii) related to the Darien, Illinois
office space of the PPS Business (the “Lease”);


 


(viii)                        a transition services agreement
substantially in the form of Exhibit 9.2(a)(viii) (the “Transition
Services Agreement”) executed by Seller;


 


(ix)                                a card program agreement substantially in
the form of Exhibit 9.2(a)(ix) (the “Interim Card Program
Agreement”) executed by Seller;


 


(x)                                   the Escrow Agreement executed by Seller;


 


(xi)                                a certificate executed by Seller as to
the accuracy of their representations and warranties as of the date of this
Agreement and as of the Closing in accordance with Section 7.1 and as to
their compliance with and performance of their covenants and obligations to be
performed or complied with at or before the Closing in accordance with Section 7.2
(the “Seller Certificate”);


 


(xii)                             a certificate of the Secretary of Seller (a) certifying,
as complete and accurate as of the Closing, attached copies of the governing
documents of Seller, (b) certifying and attaching all requisite
resolutions or actions of Seller’s board of directors and approving the
execution and delivery of this Agreement, the consummation of the transactions


 


25
















 


contemplated herein, and (c) certifying
to the incumbency and signatures of the officers of Seller executing this
Agreement and the other Transaction Documents (the “Officer’s Certificate”);


 


(xiii)                          physical possession of the Assets where
located;


 


(xiv)                         a credit agreement related to the
advancing of funds in connection with the Sony Client relationship of the PPS
Business, substantially in the form of Exhibit 9.2(a)(xiv) (the “Credit
Agreement”), executed by Seller;


 


(xv)                            an estimated balance sheet (the “Estimated
Balance Sheet”) of the PPS Business as of the close of business on the
Closing Date but delivered One (1) business day prior to the Closing; and


 


(xvi)                         such other evidence of the performance of
all covenants and satisfaction of all conditions required of Seller by this
Agreement, at or prior to the Closing, as Purchaser or its counsel may
reasonably require.


 


(b)                                 Performance by Purchaser. 
At the Closing, Purchaser shall deliver to Seller the following:


 


(i)                                     this Asset Purchase Agreement executed by
Purchaser;


 


(ii)                                  cash, by wire transfer, payable to Seller
for an amount equal to the Cash Consideration less the Escrowed Amount;


 


(iii)                               the Assignment and Assumption Agreement
executed by Purchaser;


 


(iv)                              the Noncompetition Agreements executed by
Purchaser;


 


(v)                                 the IP Assignment Agreement executed by
Purchaser;


 


(vi)                              the Assignment of Lease executed by
Purchaser;


 


(vii)                           the Lease executed by Purchaser;


 


(viii)                        the Transition Services Agreement
executed by Purchaser;


 


(ix)                                the Escrow Agreement executed by
Purchaser, together with delivery of the Escrowed Amount to the Escrow Agent
thereunder, by wire transfer to an account specified by the Escrow Agent;


 


(x)                                   the Interim Card Program Agreement,
executed by Purchaser;


 


(xi)                                the Credit Agreement, executed by
Purchaser;


 


(xii)                             a certificate executed by Purchaser as to
the accuracy of their representations and warranties as of the date of this
Agreement and as of the Closing in accordance with Section 8.1 and as to
their compliance with and performance of their covenants 


 


26

















 


and obligations to be
performed or complied with at or before the Closing in accordance with Section 8.2
(the “Purchaser Certificate”);


 


(xiii)                          a certificate of the Secretary of Purchaser
(A) certifying, as complete and accurate as of the Closing, attached
copies of the governing documents of Purchaser, (B) certifying and
attaching all requisite resolutions or actions of Purchaser’s board of
directors approving the execution and delivery of this Agreement, the
consummation of the transactions contemplated herein, and (C) certifying
to the incumbency and signatures of the officers of Purchaser executing this
Agreement and the other Transaction Documents (the “Purchaser Officer’s
Certificate”);


 


(xiv)                         such other evidence of the performance
all covenants and satisfaction of all conditions required of Purchaser by this
Agreement, at or prior to the Closing, as Seller or its counsel may reasonably
require.


 


ARTICLE
10


 


SURVIVAL
OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION


 


Section 10.1                              Survival of Representations and
Warranties.


 


(a)                                  All representations, warranties,
covenants and obligations made or undertaken by the parties hereto in this
Agreement shall survive the Closing, and as to representations and warranties
other than the Fundamental Representations (as defined below), shall terminate
or expire on the first (1st) anniversary of the Closing Date and shall not
merge in the performance of any obligation by any party hereto.  Any examination, inspection or audit of the
Assets, financial condition or other matters of Seller or the PPS Business
conducted by Purchaser or on its behalf on or prior to Closing shall not limit,
affect or impair the ability of Purchaser to rely upon the representations,
warranties, covenants and obligations of Seller set forth herein except to the
extent of Purchaser’s Knowledge, on or prior to the Closing Date, of any facts
or circumstances that would serve as the basis for such claim by Purchaser
against Seller based upon a breach of any of the representations and warranties
of Seller contained in this Agreement. 
The waiver of any condition based on the accuracy of any representation
or warranty, or on the performance of or compliance with any covenant or obligation,
will not affect the right to indemnification, payment of damages, or other
remedy based on such representations, warranties, covenants and obligations.


 


(b)                                 Notwithstanding the above, all
representations and warranties made by the parties hereto that are set forth in
Section 3.1 (Organization and Standing), Section 3.2 (Authority), Section 3.3
(Capitalization), Section 3.5 (Taxes), Section 3.6(a) and 3.6(e) (Ownership
of Assets and Leases; Accounts Receivable), Section 3.25 (Unlawful
Payments), Section 4.1 (Organization and Standing) and Section 4.2
(Corporate Power and Authority) of this Agreement (the “Fundamental
Representations”), shall terminate or expire only upon the termination or
expiration of the applicable statutes of limitation related to such
representation or warranty.


 


27

















 


Section 10.2                              Indemnification of Purchaser. 
Subject to Section 10.5 below, Seller agrees to defend, indemnify
and hold Purchaser, its affiliates, and their respective officers, directors,
employees, agents and representatives (each a “Purchaser Indemnitee”)
harmless from and against any and all claims, demands, suits, losses,
liabilities, damages, assessments, judgments, costs and expenses, including
reasonable attorneys’ fees (both those incurred in connection with the defense
or prosecution of the indemnifiable claim and those incurred in connection with
the enforcement of this provision) (collectively, “Losses”), caused by,
resulting from or arising out of:


 


(a)                                  any breach of any representations and
warranties made by Seller in or pursuant to this Agreement or in any
certificate delivered to Purchaser pursuant to this Agreement, or the failure
of such representations and warranties to be true and correct;


 


(b)                                 any breach or failure by Seller to carry
out, perform, satisfy, discharge or otherwise fulfill any of its covenants,
agreements, undertakings, liabilities or obligations under this Agreement
(which covenants, agreements, undertakings, liabilities or obligations are to
be performed prior to Closing); or


 


(c)                                  any Excluded Liability.


 


Section 10.3                              Indemnification of Seller. 
Purchaser agrees to defend, indemnify and hold Seller, its affiliates,
and their respective officers, directors, employees, agents and representatives
(each a “Seller Indemnitee”) harmless from and against all Losses caused
by, resulting from or arising out of:


 


(a)                                  any breach of any representation or
warranty made by Purchaser in or pursuant to this Agreement or any certificate
delivered to Seller pursuant to this Agreement, or the failure of such
representations and warranties to be true and correct;


 


(b)                                 any breach or failure by Purchaser to
carry out, perform, satisfy, discharge or otherwise fulfill any of its
covenants, agreements, undertakings, liabilities or obligations under this
Agreement (which covenants, agreements, undertakings, liabilities or
obligations are to be performed prior to Closing); or


 


(c)                                  any Assumed Liabilities.


 


Section 10.4                              Mechanism.  The party
seeking indemnification hereunder (“Indemnified Party”) shall give
written notice to the indemnifying party (“Indemnifying Party”) of its
indemnification claims hereunder, specifying the amount and nature of the
claim, promptly after the Indemnified Party has notice thereof.  The Indemnifying Party shall have the right
to contest any such third-party claim represented by counsel of its
choice.  If any such claim is made
hereunder by the Indemnified Party and such claim arises from the claims of a
third party against the Indemnified Party and the Indemnifying Party does not
elect to undertake the defense thereof by written notice within thirty
(30) days after receipt of the original notice from the Indemnified Party,
the Indemnified Party shall be entitled to defend such third party claim; provided,
however, that the Indemnifying Party shall be entitled to participate in
the defense of such claim and to retain its own counsel for such purpose,
provided that the fees and expenses of such separate counsel shall be at the
expense of such Indemnifying Party.  To
the extent that the 


 


28

















 


Indemnifying Party
undertakes the defense of such claim in good faith, the Indemnified Party shall
be entitled to indemnity hereunder, if at all, only if, and to the extent that,
such defense is unsuccessful, as determined by a final judgment of a court of
competent jurisdiction or is settled with the consent of the Indemnifying
Party.  The party defending a third-party
claim shall have the right to choose its own counsel.


 


Section 10.5                              Limits on Indemnification. 
Notwithstanding any provision of this ARTICLE 10 to the contrary:


 


(a)                                  No Indemnifying Party shall be required
to indemnify any Indemnified Party under Section 10.2(a) or Section 10.3(a) unless
the aggregate amount of all permitted claims with respect to such Indemnified
Party under this ARTICLE 10 exceeds sixty five thousand dollars ($65,000)  (the “Basket”), in which event such Indemnifying
Party shall be responsible for all Losses thereafter.  The aggregate liability of Seller and
Purchaser under Section 10.2(a) and Section 10.3(a),
respectively, shall be limited to one million dollars ($1,000,000) (the “Cap”).  Notwithstanding the above, the Basket and Cap
shall not apply to claims for indemnification made by an Indemnified Party
related to (i) the Fundamental Representations; (ii) any fraud by or
intentional misrepresentation of the Indemnifying Party in connection with the
transactions evidenced by this Agreement; or (iii) any breach of or
failure to perform any covenant or agreement of the Indemnifying Party in this
Agreement (the “Carve-Out Items”).


 


(b)                                 No party hereto shall have any obligation
to indemnify any other party with respect to any Losses that would otherwise be
indemnifiable under this ARTICLE 10 if the party seeking indemnification fails
to assert a good faith claim for indemnification with respect to such Losses
under this ARTICLE 10 by providing written notice to the potential Indemnifying
Party of such claim prior to the first (1st) anniversary of the Closing
Date.  Notwithstanding the above, the
provisions of this Section 10.5(b) shall not apply to claims for
indemnification made by the Purchaser related to the Carve-Out Items.


 


(c)                                  Except, in the case of the Purchaser, to
the extent set forth on Schedule 4.6, no party seeking
indemnification will be entitled to indemnification in respect of any fact or
matter constituting a breach of any representation or warranty to the extent
that such party had Knowledge of such fact or matter on or prior to the Closing
Date.


 


Section 10.6                              Determination of Adverse Consequences. 
All indemnification payments under this ARTICLE 10 shall be paid by the
Indemnifying Party net of any tax benefits and insurance coverage that may be
available to the Indemnified Party.  All
indemnification payments under this ARTICLE 10 shall be deemed adjustments to
the Purchase Price.


 


Section 10.7                              Exclusive Remedy. 
Purchaser and Seller acknowledge and agree that the foregoing
indemnification provisions in this ARTICLE 10 shall be the exclusive remedy of
the parties with respect to the transactions contemplated by this Agreement.


 


29

















 


ARTICLE
11


 


GENERAL
PROVISIONS


 


Section 11.1                              Notices.


 


(a)                                  All notices, consents, waivers and other
communications required or permitted by this Agreement shall be in writing and
shall be deemed given to a party when (i) delivered to the appropriate
address by hand or nationally recognized overnight courier service (costs
prepaid); (ii) sent by facsimile with confirmation of transmission by the
transmitting equipment; or (iii) received or rejected by the addressee, if
sent by certified mail, return receipt requested, in each case to the following
addresses, facsimile numbers, addresses and marked to the attention of the
person (by name or title) designated below:


 


	
  If
  to Seller:

  	
  West
  Suburban Bank

  	
   

  
	
   

  	
  711
  South Meyers Road

  	
   

  
	
   

  	
  Lombard,
  Illinois 60148

  	
   

  
	
   

  	
  Attn:  President

  
	
   

  	
  Facsimile
  Number:  (630) 629-0278

  
	
   

  	
   

  	
   

  
	
  with
  a copy to

  	
  Barack
  Ferrazzano Kirschbaum & Nagelberg LLP

  	
   

  
	
  (which
  shall not constitute notice):

  	
  200
  West Madison Street, Suite 3900

  	
   

  
	
   

  	
  Chicago,
  Illinois 60606

  	
   

  
	
   

  	
  Attention:  Andrew R. Grossmann

  
	
   

  	
  Facsimile:  (312) 984-3150

  
	
   

  	
   

  	
   

  
	
  If
  to Purchaser:

  	
  Navigation
  Capital Partners

  	
   

  
	
   

  	
  One
  Buckhead Plaza

  	
   

  
	
   

  	
  3060
  Peachtree Road NW, Suite 780

  	
   

  
	
   

  	
  Atlanta,
  Georgia 30305

  	
   

  
	
   

  	
  Attention:  David K. Panton

  
	
   

  	
  Fax:  (404) 264-9305

  
	
   

  	
   

  	
   

  
	
  with
  a copy to

  	
  DLA
  Piper LLP (US)

  	
   

  
	
  (which
  shall not constitute notice):

  	
  One
  Atlantic Center

  	
   

  
	
   

  	
  1201
  West Peachtree Street, Suite 2800

  	
   

  
	
   

  	
  Atlanta,
  Georgia 30309-3450

  	
   

  
	
   

  	
  Attention:  Joseph B. Alexander, Jr.

  
	
   

  	
  Facsimile:  (404) 682-7990

  



 


(b)                                 Any party hereto may change its address
specified for notices herein by designating a new address by notice in
accordance with this Section 11.1.


 


Section 11.2                              Brokers.  Purchaser and
Seller represent and warrant to each other that no broker or finder has acted
for them or any entity controlling, controlled by or under common control with
them in connection with this Agreement, and agree to indemnify and hold
harmless the other against any fee, commission, loss or expense arising out of
any claim by any broker or finder employed or alleged to have been employed by
them or such entity.


 


Section 11.3                              Mail and Other Communications Received
After the Closing Date.  If Seller receives mail or
other communications which relate to the Assets or PPS Business on or after the
Closing Date, Seller will deliver or cause to be delivered promptly to
Purchaser such 


 


30

















 


mail or other
communications.  If Purchaser receives
mail or other communications which do not relate to the Assets or PPS Business
on or after the Closing Date, Purchaser will deliver or cause to be delivered
promptly to Seller such mail or other communications.  Each party agrees to keep and cause to be
kept confidential the contents of any mail or other communications that are
misdirected to it.


 


Section 11.4                              Further Assurances. 
At any time, and from time to time, after the Closing Date, each party
will execute such additional instruments and take such actions as may be
reasonably requested by the other parties to confirm or perfect or otherwise to
carry out the intent and purposes of this Agreement.


 


Section 11.5                              Waiver.  Any failure
on the part of any party hereto to comply with any of its obligations,
agreements or conditions hereunder may be waived by any other party to whom
such compliance is owed.  No waiver of
any provision 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.


 


Section 11.6                              Expenses.  All expenses
incurred by the parties hereto in connection with or related to the
authorization, preparation and execution of this Agreement and the Closing of
the transactions contemplated hereby, including, without limitation of the
generality of the foregoing, all fees and expenses of agents, representatives,
counsel and accountants employed by any such party, shall be borne solely and entirely
by the party which has incurred the same.


 


Section 11.7                              Binding Effect; No Third Party
Beneficiaries.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, executors, administrators, successors and assigns.


 


Section 11.8                                Headings.  The section
and other headings in this Agreement are inserted solely as a matter of
convenience and for reference, and are not a part of this Agreement.


 


Section 11.9                              Entire Agreement. 
This Agreement constitutes the entire agreement among the parties hereto
and supersedes and cancels any prior agreements, representations, warranties,
or communications, whether oral or written, among the parties hereto relating
to the transactions contemplated hereby or the subject matter herein.  Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally, but only by an
agreement in writing signed by the party against whom or which the enforcement
of such change, waiver, discharge or termination is sought.


 


Section 11.10                        Governing Law; Venue. 
This Agreement (and any and all disputes, controversies, and other
Losses, whether in tort, contract or otherwise, among the parties arising out
of, or in connection with, the transactions contemplated hereby) shall be
governed by and construed in accordance with the laws of the State of Illinois
without giving effect to any choice or conflict of law provision or rule (whether
of the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Illinois.  Each of Purchaser and Seller
irrevocably submits to the exclusive jurisdiction of the federal courts in the
Northern District of Illinois for the purpose of any suit, action or other
proceeding arising out of or based on this Agreement or any other agreement
contemplated hereby or any subject matter 


 


31

















 


hereof, whether in tort,
contract or otherwise, and agrees that process may be served upon it if it
cannot otherwise be served in such state by registered or certified mail
addressed as provided in Section 11.1.


 


Section 11.11                        Counterparts. 
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.


 


Section 11.12                        General Interpretive Principles. 
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires: 
(a) the use of the singular form includes the plural, and the use
of the plural form includes the singular; (b) the use of any gender herein
shall be deemed to include the other gender; (c) the captions used in this
Agreement are inserted for convenience only and are in no way intended to
describe, interpret, define or limit the scope or content of this Agreement or
any provision hereof; (d) the words “herein”, “hereof”, “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any
particular provision; (e) the term “include” or “including” shall mean
without limitation by reason of enumeration; (f) each reference to an “Article”
of this Agreement shall include all Sections of such Article, and similarly,
each reference to a Section shall include all subsections of such Section;
(g) any reference to any federal, state, local or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder; (h) references to a statute shall refer to the statute and any
successor statute, and to all regulations promulgated under or implementing the
statute or successor, as in effect at the relevant time; (i) any reference
to a document or set of documents in this Agreement, and the rights and obligations
of the parties under any such documents, shall mean such document or documents
as amended from time to time, and any and all modifications, extensions,
renewals, substitutions or replacements thereof; and (j) all references to
dollars ($) shall mean United States currency.


 


Section 11.13                        Schedules Incorporated. 
All disclosure schedules attached hereto are incorporated herein by
reference, and all blanks in such disclosure schedules, if any, will be filled
in as required in order to consummate the transactions contemplated herein and
in accordance with this Agreement.  Any
item, matter, document, or material disclosed in one schedule, provision,
section, or sub-section of any schedules shall be deemed disclosed in each such
schedule, provision, section, and sub-section for which such disclosure is
reasonably apparent.  Disclosure of any
matter in the disclosure schedules shall not constitute an expression of a view
that such matter is material or is required to be disclosed pursuant to this
Agreement.


 


Section 11.14                        Confidentiality; Public Announcements.


 


(a)                                  Subject to disclosure obligations under
applicable securities laws, Seller and Purchaser agree that each will use their
commercially reasonable best efforts to maintain the confidentiality of and
shall not use for its own benefit or the benefit of any third party the terms
and provisions of this Agreement, including the Purchase Price, and the
information and materials marked as “confidential” and delivered to them or
made available for their inspection pursuant to this Agreement; provided,
however, the parties may reveal the confidential information of the other party
to its accountants, counsel or lenders (i) who need to know such
confidential information, (ii) who are informed by such party of the
confidential nature of such 


 


32

















 


confidential information,
and (iii) who agree with the other parties to be bound by the terms of
this Agreement with respect to such confidential information.


 


(b)                                 In the event the Closing does not occur,
Seller and Purchaser will as soon as practicable return all material of or
concerning the other party obtained from such other party then in their
possession and hereby covenant to keep confidential any confidential information
concerning the other party and ascertained from their review for a period of
five (5) years commencing upon the termination of this Agreement.  Notwithstanding the foregoing, the
prohibitions and restrictions set forth in this Section 11.14 shall not
apply to any information that (i) at the time of disclosure or thereafter
is generally known to and available for use by the public (other than as a
result of a disclosure directly or indirectly by either party), (ii) at
the time of disclosure was available on a nonconfidential basis from a source
other than the parties, provided that such source is not and was not bound by a
confidentiality agreement with either party, (iii) was known by the
receiving party prior to receiving the information from the providing party or
has been independently acquired or developed by either party without violating
any of its respective obligations under this Agreement, or (iv) is
required to be disclosed by any Law.


 


(c)                                  Except as otherwise provided in this
Agreement or in any other agreement entered into by the parties pursuant to
this Agreement, no party hereto shall, without the approval of the other
parties hereto, make any press release or other public announcement concerning
the transactions contemplated by this Agreement, except as and to the extent
that any such party shall be so obligated by Law, in which case the other
parties shall be so advised and the parties shall use their best efforts to
cause a mutually agreeable release or announcement to be issued; provided,
however, that the foregoing shall not preclude communications or
disclosures necessary to implement the provisions of this Agreement or to
comply with disclosure obligations under applicable securities laws.


 


Section 11.15                        Access to Records After Closing. 
For a period of three (3) years after the Closing Date, Seller
shall provide reasonable access to Purchaser and its representatives, at
Purchaser’s sole cost and expense, to all of the books and records of Seller
with regard to the PPS Business and the Assets which Seller may retain after
the Closing Date.  If Seller desires to
dispose of any such books or records prior to the expiration of such three (3) year
period, Seller shall, prior to such disposition, give Purchaser a reasonable
opportunity to segregate and remove such books and records as Purchaser may
select at Purchaser’s sole cost and expense.


 


Section 11.16                        Assignment.  Neither the
rights nor the obligations of any party to this Agreement may be transferred or
assigned.


 


[Signatures on following page]


 


33

















 


IN WITNESS WHEREOF, each
party hereto has executed or caused this Agreement to be executed on its
behalf, all on the day and year first above written.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  Prepaid
  Solutions, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kenneth M. Goins, Jr.

  
	
   

  	
   

  	
  Name:
  Kenneth M. Goins, Jr.

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  West
  Suburban Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Duane G. Debs

  
	
   

  	
   

  	
  Name:
  Duane G. Debs

  
	
   

  	
   

  	
  Title:
  SVP/Comptroller