11.14.
11.15
PRONOUNS.
ALL PRONOUNS AND ANY VARIATIONS THEREOF SHALL BE DEEMED
TO REFER TO THE MASCULINE, FEMININE OR NEUTER, SINGULAR OR PLURAL, AS THE
IDENTITY OF THE PERSON, PERSONS, ENTITY OR ENTITIES MAY REQUIRE.
11.16
SPECIFIC PERFORMANCE.
EACH OF THE PARTIES HERETO ACKNOWLEDGES AND
AGREES THAT THE OTHER PARTIES WOULD BE DAMAGED IRREPARABLY IN THE EVENT ANY OF
THE PROVISIONS OF THIS AGREEMENT ARE NOT PERFORMED IN ACCORDANCE WITH THEIR
SPECIFIC TERMS OR OTHERWISE ARE BREACHED.
40
ACCORDINGLY, EACH OF THE PARTIES HERETO AGREES THAT THE OTHER PARTIES SHALL BE
ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THE PROVISIONS
OF THIS AGREEMENT AND, SUBJECT TO SECTION 11.2, TO ENFORCE SPECIFICALLY THIS
AGREEMENT AND THE TERMS AND PROVISIONS HEREOF IN ANY COURT OF THE UNITED STATES
OR ANY STATE THEREOF HAVING JURISDICTION OVER THE PARTIES HERETO AND THE MATTER
IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED, AT LAW OR
EQUITY).
(This space intentionally left blank)
41
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
NETBANK PAYMENT SYSTEMS, INC.
By:
/s/ De Lone Wilson
De Lone Wilson
President
NETBANK
By:
/s/ Steven F. Herbert
Steven F. Herbert
President
NETBANK, INC.
By:
/s/ Steven F. Herbert
Steven F. Herbert
Chief Executive Officer
PAYMENT ALLIANCE INTERNATIONAL, INC.
By:
/s/ John J. Leehy, III
John J. Leehy, III
President and Chief Executive Officer
PAI ATM SERVICES, LLC
By:
/s/ John J. Leehy, III
John J. Leehy, III
Manager and Chief Executive Officer
42
EXHIBIT A
CERTAIN DEFINITIONS
"AAA" shall have the meaning set forth in Section 11.1(b).
"Accounts Receivables" shall mean all accounts receivables due and payable to
the Seller, whether or not written off on the books of the Seller.
"Acquired Assets" shall have the meaning set forth in Section 1.2.
"Advisor" shall have the meaning set forth in Section 3.15
"Additional Assets" shall have the meaning set forth in Section 1.2(l).
"Additional Liabilities" shall have the meaning set forth in Section 1.4(d).
"Affiliate" shall mean (A) in the case of an individual, the members of the
immediate family (including parents, siblings and children) of (i) the
individual and (ii) the individual's spouse, and (iii) any Business Entity that
directly or indirectly, through one or more intermediaries controls, or is
controlled by, or is under common control with any of the foregoing individuals,
or (B) in the case of a Business Entity, another Business Entity or a Person
that directly or indirectly, through one or more intermediaries controls, or is
controlled by, or is under common control with the Business Entity.
"Agreement" shall have the meaning set forth in the introductory paragraph.
"Allocation" shall have the meaning set forth in Section 1.9.
"Alternative Transaction" shall have the meaning set forth in Section 5.6.
"Arbitrable Dispute" shall have the meaning set forth in Section 11.1(b).
"Arbitrators" shall have the meaning set forth in Section 11.1(b)(ii).
"Assumed Contracts" shall have the meaning set forth