EXHIBIT 5
SHAREHOLDER'S AGREEMENT
SHAREHOLDER'S AGREEMENT, dated as of September 8, 2004 (this "AGREEMENT"),
between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation ("PARENT") and
Xxxxxxx X. Xxxxxxxx (the "SHAREHOLDER"), a shareholder of INTERCEPT, INC., a
Georgia corporation (the "COMPANY").
W I T N E S S E T H
WHEREAS, Parent, FUSCIA MERGER SUB, INC., a Delaware corporation and a
wholly owned indirect subsidiary of Parent ("MERGER SUB"), FIDELITY NATIONAL
INFORMATION SERVICES, INC., a Delaware corporation and a wholly owned subsidiary
of Parent, and the Company propose to enter into, simultaneously herewith, an
Agreement and Plan of Merger (the "MERGER AGREEMENT") pursuant to which Merger
Sub will merge with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, subject to (i) the liens and interests in
existence on the date hereof, if any, which have been described in a letter
dated the date hereof from the Shareholder to Parent (the "Existing Share
Liens") in favor of the party identified in such letter (the "Existing Lien
Holder") (it being understood that if no such letter has been delivered then
there are no Existing Share Liens) and (ii) any additional lien or interest
securing a broker margin loan entered into in the future consistent with the
provisions of this Agreement (a "Future Lien" and, together with the Existing
Share Liens, the "Share Liens") in favor of a broker-dealer (a "Future Lien
Holder" and, together with the Existing Lien Holder, the "Lien Holders") (any
indebtedness secured by any Share Lien is herein referred to as "SHARE
INDEBTEDNESS"), the Shareholder owns beneficially or of record or has the power
to vote, or direct the vote of, the number of shares of common stock, no par
value, of the Company (the "COMPANY COMMON STOCK"), as set forth on the
signature page hereto (all such Company Common Stock and any shares of Company
Common Stock of which ownership of record or beneficially or the power to vote
is hereafter acquired by the Shareholder prior to the termination of this
Agreement being referred to herein as the "SHARES") (capitalized terms not
otherwise defined in this Agreement shall have the same meaning as in the Merger
Agreement); and
WHEREAS, as a condition of and inducement to Parent's execution of the
Merger Agreement, the Shareholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and in the Merger Agreement, and for other good and valid
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:
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ARTICLE I.
TRANSFER AND VOTING OF SHARES
Section 1.1. Transfer of Shares. The Shareholder agrees that it shall not,
directly or indirectly, (a) sell, pledge, encumber, transfer or otherwise
voluntarily dispose of (including by gift) any or all of the Shareholder's
Shares or any interest in such Shares, except pursuant to the Merger Agreement,
(b) deposit any Shares or any interest in such Shares into a voting trust or
enter into a voting agreement or arrangement with respect to any Shares or grant
any proxy with respect thereto (other than as contemplated hereunder), or (c)
enter into any contract, commitment, option or other arrangement or undertaking
(other than the Merger Agreement) with respect to the direct or indirect
acquisition or sale, assignment, pledge, encumbrance, transfer or other
disposition of any Shares (each of the above, a "TRANSFER"); provided, the
foregoing shall not be deemed to prohibit any Share Liens otherwise permitted
hereunder. Notwithstanding anything contained herein to the contrary, during the
term of this Agreement the Shareholder shall be permitted to exercise options,
warrants or other rights to acquire shares of Company Common Stock (any shares
so acquired, the "Option Common Stock"). In addition, notwithstanding anything
herein to the contrary, neither the Transfer of Shares in connection with the
terms of any Share Indebtedness nor the Transfer of Option Common Stock shall be
subject to the restrictions on Transfer set forth in this Section 1.1 (such
Transfers referred to herein as the "PERMITTED TRANSFERS").
Section 1.2. Vote in Favor of Merger. During the period commencing on the date
hereof and terminating on the Termination Date (as defined in Section 4.12), and
subject to the Proxy (hereinafter defined) granted to Parent as contemplated by
Section 1.3 hereof and the right of Parent to vote the Shares pursuant thereto,
the Shareholder (solely in the Shareholder's capacity as a shareholder of the
Company and without limiting any action that the Shareholder might take as an
officer of the Company (including at the direction of the Board of Directors of
the Company) or a director of the Company or as a member of any committee of the
Board of Directors of the Company (including voting on any matter), other than
any such limits as are imposed by the Merger Agreement) agrees to vote (or cause
to be voted) all of the Shares that Shareholder has the power to vote at any
meeting of the shareholders of the Company or any adjournment thereof, and in
any action by written consent of the shareholders of the Company, in each case
to the extent that such matter is presented for shareholder approval: (a) in
favor of the adoption of the Merger Agreement by the Company and in favor of the
other transactions contemplated by the Merger Agreement, and (b) against any
merger, consolidation, sale of assets, recapitalization or other business
combination involving the Company (other than the Merger) or any other action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or which would result in any of the conditions to the Company's or
Parent's obligations under the Merger Agreement not being fulfilled, and (c) in
favor of any other matter relating to and necessary for the consummation of the
transactions contemplated by the Merger Agreement.
Section 1.3. Grant of Irrevocable Proxy. Concurrently with the execution of this
Agreement, the Shareholder agrees to deliver to Parent a proxy with respect to
the Shares in the form attached hereto as Exhibit A (the "PROXY"), which shall
be irrevocable to the fullest extent permissible by law.
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
The Shareholder hereby represents and warrants to Parent as follows:
Section 2.1. Authorization; Binding Agreement. The Shareholder has all legal
right, power, authority and capacity to execute and deliver this Agreement and
the Proxy and to consummate the transactions contemplated hereby and thereby.
This Agreement and the Proxy have been duly and validly authorized, executed and
delivered by or on behalf of the Shareholder, and, assuming due authorization,
execution and delivery by Parent, each constitutes a legal, valid and binding
obligation of the Shareholder, enforceable against the Shareholder in accordance
with its terms, subject to (i) the effect of any applicable bankruptcy,
insolvency, moratorium or similar law affecting creditors' rights generally and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
Section 2.2. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the Shareholder
and the grant of the Proxy to Parent by the Shareholder does not, and the
performance of this Agreement by the Shareholder and the grant of the Proxy to
Parent by the Shareholder will not, (i) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Shareholder or by which
the Shareholder or any of the Shareholder's material properties is bound or
affected, (ii) in case the Shareholder is a corporation or other entity, violate
or conflict with the certificate of incorporation, bylaws, articles of
organization, limited liability company operating agreement, trust agreement or
other equivalent organizational documents of the Shareholder (if any), or (iii)
result in or constitute (with or without notice or lapse of time or both) any
breach of or default under, or give to another party any right of termination,
amendment, acceleration or cancellation of, or result in the creation of any
lien or encumbrance or restriction on any of the material property or assets of
the Shareholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Shareholder is a party or by which the Shareholder or any of the
Shareholder's material properties is bound or affected. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
the Shareholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by the Shareholder of the
transactions contemplated by this Agreement.
(b) The execution, delivery and performance of this Agreement by the
Shareholder and the grant of the Proxy to Parent by the Shareholder do not and
will not require any consent, approval, authorization or permit of, or filing
with or notification by the Shareholder to, any third party or any governmental
or regulatory authority, domestic or foreign, except (i) for applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, could not
prevent or delay the performance by the Shareholder of its obligations under
this Agreement. Other than this Agreement, the Shareholder does not have any
understanding in effect with respect to the voting or transfer of any Shares.
The Shareholder is not required to make any filing with or notify any
governmental or regulatory authority in connection with this Agreement, the
Merger Agreement
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or the transactions contemplated hereby or thereby pursuant to the requirements
of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, as amended, and the
rules and regulations promulgated thereunder (the "HSR ACT").
Section 2.3. Title to Shares. The Shareholder is the record or beneficial owner
of the Shares free and clear of all encumbrances, proxies or voting restrictions
other than pursuant to this Agreement and the Proxy and other than any Share
Liens otherwise permitted under the terms hereof (none of which Share Liens
impose any limit on the right of the Shareholder to vote or grant a proxy with
respect to the Shares). The shares of Company Common Stock, including options,
warrants or other rights to acquire such stock, set forth on the signature page
hereto, are all the securities of the Company owned, directly or indirectly, of
record or beneficially by the Shareholder on the date of this Agreement.
Section 2.4. Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times until termination of
this Agreement and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
ARTICLE III.
COVENANTS OF SHAREHOLDER
Section 3.1. Further Assurances. From time to time and without additional
consideration, the Shareholder shall (at the Shareholder's sole expense) execute
and deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents, waivers and other instruments, and
shall (at the Shareholder's sole expense) take such further actions, as Parent
may reasonably request for the purpose of giving effect to this Agreement. The
Shareholder shall use its reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, and to assist and cooperate with
the other parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
Section 3.2. Legending of Shares. If requested by Parent, the Shareholder agrees
that the Shares shall bear a legend stating that they are subject to this
Agreement and to the Proxy in accordance with Section 7.14 of the Merger
Agreement. The Shareholder agrees that the Shareholder will not request the
Company to register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares, unless such transfer is
made in compliance with this Agreement.
Section 3.3. No Solicitation of Transactions. The Shareholder, subject to the
last sentence of this Section 3.3, agrees that from the date of this Agreement
until the Termination Date, the Shareholder shall not, directly or indirectly,
nor, in case the Shareholder is a corporation or other entity, shall it
authorize or permit any of its directors, officers or employees or any
investment banker, financial advisor, attorney, accountant or other
representative retained by it or any of its Subsidiaries (collectively, the
"REPRESENTATIVES") to, directly or indirectly, solicit, initiate or encourage
(including by means of furnishing nonpublic information), or take any other
action to facilitate, any inquiries or the making of any proposal or offer with
respect to, or that reasonably may be expected to lead to a proposal or offer
for, any Competing Transaction (as defined in the
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Merger Agreement), or enter into or maintain or continue discussions or
negotiate with any person or entity in furtherance of such inquiries or to
obtain a Competing Transaction, or agree to or endorse any Competing
Transaction, other than with Parent or an affiliate of Parent. The Shareholder
shall promptly (but in any event within 24 hours) notify Parent if any proposal
or offer, or any inquiry or contact, constituting or regarding a Competing
Transaction is made, and the Shareholder shall promptly inform Parent as to the
material details of any such proposal, offer, inquiry or contact, including the
identity of the party making any such proposal, offer, inquiry or contact, and,
if in writing, promptly deliver or cause to be delivered to Parent a copy of
such proposal, offer, inquiry or contact and any other written material
reasonably relating thereto. The Shareholder immediately shall cease and cause
to be terminated all existing discussions or negotiations with any parties
conducted heretofore with respect to a Competing Transaction. Notwithstanding
the provisions of this Section 3.3, a Shareholder who is also a director or
officer of the Company may take any action in his capacity as such (including
complying with or exercising his fiduciary duties as a member of the Board of
Directors of the Company) as is not limited by the terms of the Merger
Agreement.
Section 3.4. Disclosure. The Shareholder and Parent each agrees to permit the
other party hereto to publish and disclose in the Registration Statement and the
Proxy Statement (including all documents and schedules filed with the SEC), and
in any press release or other disclosure document in which it reasonably
determines in its good faith judgment that such disclosure is required by law,
including the rules and regulations of the SEC, or appropriate, in connection
with the Merger and any transactions related thereto, the identity of the
Shareholder and Parent and the Shareholder's ownership of the Shares and the
nature of the Shareholder's or Parent's, as the case may be, commitments,
arrangements and understandings under this Agreement. The Shareholder and Parent
each agrees to provide a reasonable opportunity to review such disclosure
proposed by the other.
Section 3.5. Public Announcement. The Shareholder, solely in the Shareholder's
capacity as a shareholder of the Company, agrees to not make any public
announcement in opposition to, or in competition with, the Merger Agreement or
the consummation of the Merger, except as required by applicable law.
Section 3.6. Additional Shares. In the event that the Shareholder acquires
record or beneficial ownership of, or the power to vote or direct the voting of,
any additional Shares, such Shares shall, without further action of the parties,
be subject to the provisions of this Agreement and the Proxy, and the number of
Shares set forth on the signature page hereto and thereto will be deemed amended
accordingly. The Shareholder shall promptly notify Parent of any such event.
Section 3.7. Grant of Option.
(a) The Shareholder hereby grants to Parent an irrevocable option
(the "OPTION") to purchase all, but not less than all, of the Shares with
respect to which the Shareholder has the power of disposition (the "OPTION
SHARES") at a purchase price per share equal to $18.90 (the "EXERCISE PRICE"),
in the manner set forth in this Section 3.7, with such price proportionately
adjusted to give effect to future splits, consolidations, reorganizations,
recapitalizations (whether by merger or otherwise, other than the Merger itself)
or similar transactions occurring with respect to the Company Common Stock after
the date of this Agreement. In addition to the Exercise Price, in the event of
any exercise of the Option, Parent
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will pay the Shareholder an amount equal to 50% of the profit of Parent realized
on the Option Shares from the consummation of any Competing Transaction that is
consummated or with respect to which a definitive agreement is entered into
within 12 months after the applicable Qualifying Termination (as defined below).
Such payment shall be made within 2 business days of the receipt by Parent of
the consideration paid to Parent pursuant to the terms of such Competing
Transaction. Such profit shall be calculated in the manner described for
calculation of the profit of the Shareholder set forth in Section 3.7(f), with
all references in Section 3.7(f)(ii) to the Shareholder to be deemed references
to Parent. For purposes of such calculation, in the event that (i) Parent has
also acquired shares of Company Common Stock from any other stockholder of the
Company under an agreement comparable to this Agreement ("Other Shares") and
(ii) Parent sells the Option Shares and Other Shares in more than one
transaction, then in each such sale Parent shall be deemed to have sold a pro
rata portion of the total Option Shares and Other Shares owned by Parent.
(b) Parent or its designee may exercise the Option in whole and not
in part, at any time after the Merger Agreement is terminated under
circumstances in which the Termination Fee is or may become payable to Parent (a
"QUALIFYING TERMINATION") and prior to the date that is 10 business days after
such termination (the "OPTION EXERCISE PERIOD").
(c) In the event that Parent wishes to exercise the Option, Parent
must give written notice (the "OPTION NOTICE," with the date of the Option
Notice being hereinafter called the "NOTICE DATE") to the Shareholder during the
Option Exercise Period that it will purchase the Option Shares pursuant to the
Option. The Option Notice shall specify a place (which, if the Shareholder is
then an officer or director of the Company, shall be the principal executive
offices of the Company) and a date (the "OPTION CLOSING DATE") (not later than
10 business days from the Notice Date subject to extension as set forth below)
for closing such purchase (a "CLOSING"). Parent's obligation to purchase the
Option Shares upon any exercise of the Option, and the Shareholder's obligation
to sell the Option Shares upon any exercise of the Option, is subject (at the
election of each of Parent or Shareholder) to the conditions that (i) no
preliminary or permanent injunction or other order against the purchase of the
Option Shares issued by any federal, state or foreign court of competent
jurisdiction shall be in effect (and no action or proceeding by any Governmental
Entity (as defined in the Merger Agreement) shall have been commenced or
threatened for purposes of obtaining such injunction or order) and (ii) any
applicable waiting period under the HSR Act shall have expired or been
terminated. If there shall be in effect any such injunction or order or all HSR
Act waiting periods shall not have expired or been terminated, in each case on
the Option Closing Date specified in the Option Notice, then at Parent's
election, the Option Closing Date may be extended until the later of (i) 10
business days after the Option Closing Date so specified or (ii) the earlier of
(A) three business days after expiration or termination of all HSR Act waiting
periods or (B) 60 calendar days after the Notice Date. Parent's obligation to
purchase the Option Shares upon any exercise of the Option is further subject
(at Parent's election) to the condition that there shall have been no material
breach of the representations, warranties, covenants or agreements of the
Shareholder contained in this Agreement or of the Company contained in the
Merger Agreement which is not known by Parent at or prior to its exercise of the
Option.
(d) At any Closing, (i) the Shareholder will deliver to Parent the
certificate or certificates representing the Option Shares in proper form for
transfer upon exercise of the Option and (ii) Parent shall pay the aggregate
purchase price for the Option Shares by wire
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transfer of immediately available funds to an account or accounts, which account
or accounts shall be designated in writing to Parent within five days after
receipt of the Option Notice, in the amount of the Exercise Price times the
number of Option Shares.
(e) The Shareholder has granted the Option to Parent in order to
induce Parent to enter into and consummate the transactions contemplated by the
Merger Agreement.
(f) (i) As an alternative to Parent's exercise of the Option, in the
event of a Qualifying Termination, at Parent's election, the Shareholder shall
pay to Parent on demand an amount equal to 50% of the profit of the Shareholder
from the consummation of any Competing Transaction that is consummated or with
respect to which a definitive agreement is entered into within 12 months of such
termination. Such payment shall be made within 2 business days of the receipt by
the Shareholder of the consideration paid to the Shareholder pursuant to the
terms of such Competing Transaction. To exercise its rights under this Section
3.7(f), Parent's demand must be made within 10 business days following the
consummation of such Competing Transaction.
(ii) For purposes of this Section 3.7(f), the profit of the
Shareholder from any Competing Transaction shall equal (a) the aggregate
consideration received by the Shareholder (either directly or with respect
to repayment of Share Indebtedness) in consideration of the Shares
pursuant to such Competing Transaction, valuing any non-cash consideration
(including any residual interest in the Company) at its Fair Market Value
(defined below in Section 3.7(f)(iii)) on the date of consummation of such
Competing Transaction plus (b) the aggregate consideration received by the
Shareholder (either directly or with respect to repayment of Share
Indebtedness) in respect of all Shares the Shareholder disposed of after
the termination of the Merger Agreement and prior to the date of
consummation of such Competing Transaction less (c) the Exercise Price
times the aggregate number of Shares of Company Common Stock disposed of
by the Shareholder as referred to in clauses (a) and (b) of this Section
3.7(f)(ii).
(iii) For purposes of this Section 3.7(f), the Fair Market
Value of any non-cash consideration consisting of: (a) securities listed
on a national securities exchange or traded on the NASDAQ/NMS shall be
equal to the average closing price per share of such security as reported
on such exchange or NASDAQ/NMS for the five trading days after the date of
determination; and (b) consideration which is other than cash or
securities in clause (a) above shall be determined by a nationally
recognized independent investment banking firm mutually agreed upon by the
parties within 10 business days of the event requiring selection of such
banking firm; provided, however, that if the parties are unable to agree
within two business days after the date of such event as to the investment
banking firm, then the parties shall each select one firm, and those firms
shall select a third investment banking firm, which third firm shall make
such determination.
(iv) Any payment of profit under this Section 3.7(f) shall be
paid by wire transfer of same day funds to an account designated by
Parent.
(g) Notwithstanding any provision of this Section 3.7 to the
contrary, in the event that Parent or the Shareholder receives consideration
pursuant to a Competing Transaction
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in respect of the Option Shares other than in cash, then any payment of profit
required to be made under this Section 3.7 by Parent or the Shareholder may be
made, at the option of the payor, using the form of consideration so received;
provided that if more than one form of consideration is received by the payor
pursuant to a Competing Transaction, any payment of profit (other than a payment
entirely in cash) shall be made in the respective proportions in which such
forms of consideration were received by the payor pursuant to the Competing
Transaction.
Section 3.8. No Dissenters' Rights. The Shareholder, acting solely in such
Shareholder's capacity as a shareholder of the Company, hereby consents to and
approves the actions taken by the Company's board of directors in approving the
Merger Agreement, the Merger and the other transactions contemplated thereby.
The Shareholder hereby waives, and agrees not to exercise or assert, any
dissenter's rights under Section 1302 of the GBCC in connection with the Merger.
Section 3.9. Share Indebtedness. The Shareholder agrees that at no time during
the term of this Agreement shall the amount of Share Indebtedness in respect of
any Shares exceed 40% of the then current fair market value of the Shares
subject to such Share Indebtedness. The Shareholder further agrees that such
Shareholder shall take all actions necessary to remain in compliance with the
terms of any Share Indebtedness and avoid the foreclosure of any Share Lien.
ARTICLE IV.
GENERAL PROVISIONS
Section 4.1. Payment of Merger Consideration. Parent and Merger Sub hereby agree
that the aggregate Per Share Merger Consideration (as defined in the Merger
Agreement) that is due and owing to the Shareholder as a result of the Merger
will be paid and delivered to the Shareholder at the Effective Time (as defined
in the Merger Agreement). Parent and Merger Sub understand and acknowledge that
the Shareholder is entering into this Agreement in reliance upon the foregoing
agreement.
Section 4.2. Entire Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes all prior agreements and undertakings, both
written and oral, between the parties, or any of them, with respect to the
subject matter hereof. This Agreement may not be amended or modified except in
an instrument in writing signed by, or on behalf of, the parties hereto.
Section 4.3. Survival of Representations and Warranties. All representations and
warranties made by the Shareholder in this Agreement shall survive until the
Termination Date.
Section 4.4. Assignment. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns; provided that any assignment, delegation or attempted
transfer of any rights, interests or obligations under this Agreement by the
Shareholder without the prior written consent of Parent shall be void.
Section 4.5. Fees and Expenses. All costs and expenses (including, without
limitation, all fees and disbursements of counsel, accountants, investment
bankers, experts and consultants to a party) incurred in connection with this
Agreement and the transactions contemplated hereby shall
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be paid by the party incurring such costs and expenses; provided, however, that
the Company may pay or reimburse the Shareholder for such costs and expenses of
the Shareholder.
Section 4.6. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed effectively given: (a)
upon personal delivery to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient; if not, then on the next business day, (c) five days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the respective parties at the following
addresses (or at such other addresses as shall be specified by notice given in
accordance with this Section 4.6):
(a) if to Parent:
Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxx
Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to the Shareholder to:
Xxxxxxx X. Xxxxxxxx
InterCept, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Hardin
000 Xxxxxxxxx Xx. XX
0000 International Tower
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Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
Section 4.7. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 4.8. Specific Performance. The parties agree that irreparable damage
would occur if any of the provisions of this Agreement is not performed in
accordance with its specific terms or is otherwise breached. The Shareholder
agrees that, following any breach or threatened breach by the Shareholder of any
covenant or obligation contained in this Agreement, Parent shall be entitled (in
addition to any other remedy that may be available to it, including monetary
damages) to seek and obtain (a) a decree or order of specific performance to
enforce the observance and performance of such covenant or obligation and (b) an
injunction restraining such breach or threatened breach.
Section 4.9. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, except that the law of
the State of Georgia shall be applicable to any matters that involve the
internal affairs of the Company, in each case without giving effect to the
principles of conflicts of law of the State of New York or the State of Georgia.
Section 4.10. No Waiver. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The parties
hereto shall not be deemed to have waived any claim available to them arising
out of this Agreement, or any right, power or privilege hereunder, unless the
waiver is expressly set forth in writing duly executed and delivered on behalf
of such party. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
Section 4.11. Counterparts; Facsimile Signature. This Agreement may be executed
by facsimile signature and in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
Section 4.12. Termination. The rights and obligations of the parties under this
Agreement shall terminate on the earlier of (i) January 31, 2005, (ii) the date
upon which the Merger Agreement is terminated in accordance with its terms or
(iii) the Effective Time (as defined in the Merger Agreement) (the "TERMINATION
DATE"); provided, that if the Merger Agreement is terminated pursuant to a
Qualifying Termination, then Sections 1.1, 3.1, 3.6, 3.7 and 3.9 and Article 4
hereof shall survive the Termination Date and shall terminate upon the later of
(x) the termination of the Option Exercise Period or, if the Option is exercised
prior to such time, then upon the occurrence of the related Closing (subject to
the Shareholder's right to receive any profit to which such Shareholder is
entitled under Section 3.7(a)) or (y) if Parent shall instead elect to receive
profits of the Shareholder under Section 3.7(f), upon the payment thereof;
provided, however, that Section 1.1 shall not survive beyond the time specified
by clause (x) of this Section 4.12.
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Section 4.13. Change in Company Shares. In the event of a stock dividend or
distribution, or any change in the Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like other than pursuant to the Merger, the term "SHARES" will be deemed to
refer to and include the shares of the Company Common Stock as well as all such
stock dividends and distributions and any shares or other securities into which
or for which any or all of the Shares may be changed or exchanged and
appropriate adjustments shall be made to the terms and provisions of this
Agreement and the Proxy.
Section 4.14. Effectiveness of Option. The effectiveness of the grant of the
Option hereunder shall be conditioned upon either (i) the written consent
thereto of the Existing Lien Holder (which Shareholder agrees to use reasonable
best efforts to obtain as promptly as practicable after the date hereof) or (ii)
after the Merger Agreement is terminated under circumstances such that the
Option may become exercisable hereunder, the repayment by Parent of all amounts
owing to the Existing Lien Holder in connection with the Share Indebtedness,
provided that in such case Parent's sole recourse against the Shareholder on
account of such repayment shall be an offset to the aggregate Exercise Price of
the Option in an equivalent amount. The Shareholder shall not grant any Future
Lien unless the prior written consent of the proposed Future Lien Holder to the
grant of the Option hereunder shall have first been obtained.
Section 4.15. Capacity of Directors and Officers. The Shareholder is entering
into this Agreement solely in the Shareholder's capacity as a shareholder of the
Company, and nothing herein shall be construed to limit or otherwise restrict
the Shareholder (or its affiliates, representatives or agents who may be
directors or officers of the Company or any of its Subsidiaries) in taking or
not taking any action in the Shareholder's (or any such affiliate's,
representative's or agent's) capacity as a director or officer of the Company or
any of its Subsidiaries.
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IN WITNESS WHEREOF, each of Parent and the Shareholder has executed or has
caused this Agreement to be executed by its duly authorized officer as of the
date first written above.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxx, XX
---------------------------
Name: Xxxxxxx X. Xxxxx, XX
Title: Chairman and CEO
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
12
EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder ("SHAREHOLDER") of InterCept, Inc., a Georgia
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by law) appoints Xxxxx X. Xxxxxxx, Executive Vice President of Fidelity National
Financial, Inc., a Delaware corporation ("PARENT"), and any other officer of
Parent as Xxxxx X. Xxxxxxx may designate, and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and consent
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "SHARES") in accordance with the terms
of this Proxy until the Termination Date (as defined in that certain
Shareholder's Agreement of even date herewith by and among Parent and
Shareholder (the "SHAREHOLDER'S AGREEMENT")). The Shares beneficially owned by
the undersigned Shareholder of the Company as of the date of this Proxy are
listed on the final page of this Proxy. Upon the undersigned's execution of this
Proxy, any and all prior proxies given by the undersigned with respect to any
Shares are hereby revoked and the undersigned agrees not to grant any subsequent
proxies with respect to the Shares until after the Termination Date.
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to the Shareholder's Agreement,
and is granted in consideration of Parent entering into that certain Agreement
and Plan of Merger (the "MERGER AGREEMENT"), among Parent, Fuscia Merger Sub,
Inc., a Delaware corporation and a wholly owned indirect subsidiary of Parent
("MERGER SUB"), Fidelity National Information Services, Inc., a Delaware
corporation and wholly owned subsidiary of Parent, and the Company. The Merger
Agreement provides for the merger of Merger Sub with and into the Company (the
"MERGER").
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Termination Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting, consent and similar rights of the
undersigned with respect to the Shares (including, without limitation, the power
to execute and deliver written consents) at every annual, special or adjourned
meeting of Shareholders of the Company and in every written consent in lieu of
such meeting (a) in favor of the adoption of the Merger Agreement by the Company
and in favor of the other transactions contemplated by the Merger Agreement and
(b) against any merger, consolidation, sale of assets, recapitalization or other
business combination involving the Company (other than the Merger) or any other
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which would result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled, and (c) in
favor of any other matter relating to and necessary for the consummation of the
transactions contemplated by the Merger Agreement. Notwithstanding the
provisions of this paragraph, if the Shareholder is also a director or officer
of the Company or any Subsidiaries (as defined in the Merger Agreement) of the
Company, he may take any action in his capacity as such (including complying
with or exercising his fiduciary duties as an officer
13
or a member of the Board of Directors of the Company or of a Subsidiary of the
Company) as is not limited by the terms of the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. Shareholder may vote the Shares on all
other matters. Any obligation of Shareholder hereunder shall be binding upon the
successors and assigns of Shareholder.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Termination Date.
Dated: September 8, 2004
By: /s/ Xxxxxxx X. Xxxxxxxx.
-----------------------
Signature of Shareholder:
Print Name of Shareholder:
Shares beneficially owned:
71,920 shares of Company Common Stock
32,000 shares of Company Common Stock issuable
upon exercise of outstanding options or warrants
Signature Page to Irrevocable Proxy
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