Free Statement - District Court of Arizona - Arizona

Merchant Transaction Systems, Inc.
vs.
Nelcela, Inc., an Arizona Corporation;
Len Campagna, an Arizona Resident;
Alec Dollarhide, an Arizona Resident;
Ebocom, Inc., a Delaware Corporation;
POST Integrations, Inc., an Illinois Corporation
* * * =x<
And related cross and third-party claims.
CIV O2-1954-PHX-MHM
CONSOLIDATED STATEMENT OF FACTS CONTROVERTING NELCELA’S
OMNIBUS STATEMENT OF FACTS IN SUPPORT OF ALL MOTIONS FOR
SUMMARY JUDGMENT
AND
POST, LEXCEL, AND MTSI PARTIES’ STATEMENT OF FACTS IN SUPPORT OF
CONSOLIDATED RESPONSE IN OPPOSITION TO NELCELA’S MOTIONS FOR
SUMMARY JUDGMENT
EXHIBIT 36
Declaration of Gene Clothier
1668808.1
Case 2:02-cv-01954-IVIHIVI Document 352-48 Filed O4/O5/2006 Page 1 of 4

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6 UNITED STATES DISTRICT COURT
7 DISTRICT OF ARIZONA
8 MERCHANT TRANSACTION SYSTEMS,
‘ 9 [Ng, N0. 02-CV - 195 4-PHX-MHM
w Plaintiff}
DECLARATION OF GENE
‘ IN SUPPORT OF POST’S, LEXCEL’S
J 12 NELCELA, INC., an Arizona corporation; AND MTSPS CONSOLIDATED
1 » LEN CAMPAGNA, an Arizona resides; RESPONSE T0 NEI-CELA’S
* 13 ALEC DOLLARHIDE, an Arizona resident; MOTION S FOR SUMIWARY
, 1*4 EBOCOM, INC., a Delaware Corporation; JUDGMENT
POST INTEGRATIONS, INC., an Illinois
I5 Corp.,
a 15 ])BfB,1da_m$_ (The Honorable Mary H. Murgia)
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; 18 And Related Countemlairns and Cross—CIaims
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‘ 20 GENE CLOTHIER declares and states as follows:
l · 1. This Declaration is made in support ofPost’s, Lcxcel’s and MTSI’s
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D Consolidated Response To Nelccla’s Motions For Summary Judgment, and the Consolidated
22 Statement of Facts submitted in support of that Response. The statements contained in this
1_—__-*5 I Declaration are true and correct to my personal knowledge, unless indicated otherwise.
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Case 2:O2—cv—O1954-IVIHIVI Document 352-48 Filed O4/O5/2006 Page 2 of 4

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i I · 2. In or around March 2001, I was party to an Agreement 0fPllI`Cl18.SC and Sale of
2 Stock (the “PI11'ChBSC Agreement")` wherein I sold my shares of Credit Card Services, Inc.
` 3 ("CCSI"), along with certain assets of MT SI, to Electronic Payment Exchange, Inc. ("EPX").
1 4 At the time, I was the sole shareholder of CCSI and the President of MT SI. As such, I was
5 the one primarily involved in the deal with EPX.
l 6 , 3. As part ofthe Purchase Agreement, MTSI and I agreed to release EPX and
E 7 CCSI, along with their "past, present and future Representatives, affiliates, stockholders,
controlling persons, Subsidiaries, successors and assigns) from certain existing or potential
E 8 dams.
9 4. However, when I signed this release, it was not my intent to release claims that
I0 MTSI had or would have in the fixture against persons who were not parties to the Purchase
‘ 11 Agreement. Specifically, I had no intention of releasing Alec Dollarhide, Len Campagna or
[3 Nelcela, Inc., &om any claims that MT SI might have against them.
i 13 5. That intent was made clear in paragraph 20(d) ofthe Purchase Agreement,
14 which states:
I 15 Nothing in this agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of
16 this agreement on any persons other than the parties to it and .
their respective successors and assigns. Nothing in this
17 _ agreement is intended to relieye or discharge the obligation or
X 18 liability of any third persons to any party to this agreement. ,..
19 6. It is my understanding that in this litigation Len Campagna and Nelcela, Inc.
20 _ have alleged that they were acting as "agents" or “representatives" ofM'1`SI and CCSI with
respect to the transaction with EPX. That allegation is not true. Neither Mr. Campagna nor
21 Nelcela, Inc. had any authority with respect to the deal with EPX, nor were they retained or
22 paid to participate in the transaction or to act in behalf of MTSI or CCSI in any manner.
_`"_`23` §1T§Eéi§iHS E@s`rLI§{¤}1 _
24 to the EPX transaction. Furthermore, Mr. Campagna and Nelcela, Inc. were not oflicers or
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Case 2:02-cv-01954-IVIHIVI Document 352-48 Filed O4/O5/2006 Page 3 of 4

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Q 1 directors of MTSI or CCSI at the time ofthe transaction with EPX, or, for that matter, at any
2 time.
’ 3 7. Likewise, Alec Dollarltide, who was employed by CCSI and MTSI to develop
= 4 software, was never given authority to act in behalf of CCSI or MTSI with respect to the
, 5 EPX transaction, nor was he ever employed to act as a corporate representative with
! 6 authority to deal with the general business affairs of CCSI or MTSI.
; DATED this g éay of April, 2006. t
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to m0»»»
rn, CL0 _ =•• •» larant
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