EXHIBIT 99.5
SHAREHOLDER AGREEMENT
AGREEMENT dated as of June 17, 1998, between PMT Services, Inc., a
Tennessee corporation ("PMT"), and WorldCom, Inc., a Georgia corporation (the
"Shareholder").
W I T N E S S E T H:
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WHEREAS, immediately prior to the execution of this Agreement, PMT, NOVA
Corporation, a Georgia corporation (the "Company"), and Church Merger Corp., a
Tennessee corporation ("Merger Subsidiary"), have entered into an Agreement and
Plan of Merger (as such agreement may hereafter be amended from time to time,
the "Merger Agreement"), pursuant to which Merger Subsidiary will be merged with
and into PMT (the "Merger"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, PMT has requested that the Shareholder agree, and the Shareholder has
agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
SECTION 1. CERTAIN DEFINITIONS. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement.
For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")), including pursuant to any
agreement, arrangement or understanding, whether or not in writing, but
shall in no event include securities held in a fiduciary or custodial
capacity. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d) of the Exchange
Act with respect to securities of the same issuer.
(b) "Company Common Stock" shall mean at any time the common stock, $.01
par value, of the Company.
(c) "Existing Shares" shall mean the shares of Company Common Stock
Beneficially Owned by the Shareholder on the date hereof.
(d) "Shares" shall mean the Existing Shares and any shares of Company
Common Stock and/or other equity securities of the Company acquired by the
Shareholder in any capacity after the date hereof and prior to the
termination of this Agreement, whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution,
split-up, recapitalization, combination, exchange of shares or the like,
gift, bequest, inheritance or as a successor in interest in any capacity or
otherwise Beneficially Owned by the Shareholder.
SECTION 2. VOTING OF COMPANY COMMON STOCK. In the event that the Board of
Directors of the Company has approved the Merger Agreement and the transactions
contemplated thereby and has recommended (and has not made an Adverse Change in
Recommendation) that the shareholders of the Company approve the Merger
Agreement, the Shareholder hereby agrees that at any meeting (whether
annual or special and whether or not an adjourned or postponed meeting) of the
holders of Company Common Stock, however called, or in connection with any
written consent of the holders of Company Common Stock, the Shareholder will
appear at the meeting or otherwise cause the Shares then held of record or
Beneficially Owned by the Shareholder to be counted as present thereat for
purposes of establishing a quorum and the Shareholder shall vote or consent (or
cause to be voted or consented) the Shares then held of record or Beneficially
Owned by the Shareholder in favor of the Merger, the Share Issuance, the
execution and delivery by the Company of the Merger Agreement and the approval
and adoption of the terms thereof, and each of the other actions contemplated by
the Merger Agreement (including but not limited to an amendment to the Company's
Articles of Incorporation and the Company's Stock Option Plan) and any actions
required in furtherance thereof, unless, following the date hereof (any of the
following constituting a "Specified Transaction Exception"): (i) the Shareholder
has voted for the approval of another transaction that will result or has
resulted in a "Specified Transaction" (as defined below), (ii) any person (as
such term is used in Section 13(d) and 14(d) of the Securities Exchange Act)
shall have made a bona fide unsolicited proposal to the Company or the
Shareholder by public announcement or written communication, that is or becomes
the subject of public disclosure, of a transaction that would result in a
Specified Transaction (the "Proposal"), and such Proposal has not been publicly
withdrawn prior to the vote of shareholders of the Company relating to the
Merger, (iii) the Conversion Number is increased in any respect, or (iv) the
Merger Agreement is otherwise amended in a manner which, in Shareholder's
reasonable judgment exercised in good faith, is materially adverse to
Shareholder's interests; provided, however, that in the case of either clause
"(i)" or "(ii)" that the Company shall not be in breach or violation of (aa)
Section 4.2 of the Merger Agreement, or (bb) Section 2.7(A) of the Merger
Agreement (but only to the extent that such breach or violation of Section
2.7(A) results from or arises out of an agreement existing at the date of
signing of the Merger Agreement and relating to or in contemplation of the
transaction triggering the Specified Transaction Exception hereunder).
For the purposes of this Agreement, a "Specified Transaction" means (i) a
merger, reorganization, consolidation, share exchange, business combination,
recapitalization, liquidation, dissolution or similar transaction involving the
Company as a result of which either (A) the Company's stockholders prior to such
transaction (by virtue of their ownership of the Company's shares) in the
aggregate cease to own at least 50% of the voting securities of the entity
surviving or resulting from such transaction (or the ultimate parent entity
thereof), or (B) the individuals comprising the board of directors of the
Company prior to such transaction do not constitute a majority of the board of
directors of such ultimate parent entity, (ii) a sale, lease, exchange, transfer
or other disposition of at least 50% of the assets of the Company and its
Subsidiaries, taken as a whole, in a single transaction or a series of related
transactions, or (iii) the acquisition, directly or indirectly, by a person of
beneficial ownership of 50% or more of the common stock of the Company whether
by merger, consolidation, share exchange, business combination, tender or
exchange offer or otherwise; provided that the Merger shall not be deemed a
Specified Transaction.
SECTION 3. TERMINATION. The provisions of this Agreement shall terminate
upon the earlier to occur of (i) the Effective Time, and (ii) the termination of
the Merger Agreement in accordance with its terms.
SECTION 4. CONFIDENTIALITY. The Shareholder recognizes that successful
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, the Shareholder hereby agrees,
not to disclose or discuss such matters with anyone not a party to this
Agreement (other than to the Company and its and the Company's counsel and
advisors) without the prior written consent of PMT and the Company, except for
filings required pursuant to the Exchange Act and the rules and regulations
thereunder or disclosures its counsel advises are necessary in order to fulfill
its obligations imposed by law, in which event the Shareholder shall give prior
notice of such disclosure to PMT and the Company as
promptly as practicable so as to enable PMT and the Company to seek a protective
order from a court of competent jurisdiction with respect thereto.
SECTION 5. DISCLOSURE. The Shareholder hereby agrees to permit the
Company to publish and disclose in the Company's Form S-4 Registration Statement
and the Joint Proxy Statement included therein relating to the Merger (including
all documents, exhibits and schedules filed with the SEC), and any press release
or other disclosure document which PMT's and the Company's counsel advises are
necessary or desirable in connection with the Merger and any transactions
related thereto, the Shareholder's identity and ownership of Company Common
Stock, and the nature of its commitments, arrangements and understandings under
this Agreement.
SECTION 6. MISCELLANEOUS.
(a) Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(b) Binding Agreement. The Shareholder agrees that this Agreement and
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the obligations hereunder shall be binding on Shareholder and upon any
affiliate of Shareholder to which legal or Beneficial Ownership of any
Shares shall pass, whether by operation of law, for value or otherwise.
Notwithstanding any such transfer of Shares to an affiliate of Shareholder,
the transferor shall remain liable for the performance of all obligations
under this Agreement of the transferor.
(c) Assignment. No party may assign any of its rights or obligations
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hereunder, by operation of law or otherwise, without the prior written
consent of the other party.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
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changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if given) by hand delivery or telecopy
(with a confirmation copy sent for next day delivery via courier services,
such as Federal Express), or by any courier service, such as Federal
Express, providing proof of delivery. All communications hereunder shall
be delivered to the respective parties at the following addresses:
If to Shareholder: WorldCom, Inc.
000 Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to PMT: PMT Services, Inc.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxxx & Xxxxx,
A Professional Limited Liability Company
(which shall not 000 Xxxxx Xxxxxx
constitute notice) Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: X. Xxxxx Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of any
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provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had not been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
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acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and
therefore, each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided under
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this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by
any party shall not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
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power or remedy provided under this Agreement or otherwise available in
respect thereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(j) No Third Party Beneficiaries. Except for Sections 4 and 5 hereof
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with respect to the Company, this Agreement is not intended to be for the
benefit of, and shall not be enforceable by,
any Person who or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Georgia, without giving effect to
the principles of conflicts of law thereof.
(l) Further Assurances. From time to time, at the other party's
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reasonable request, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be
necessary to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement
(m) Descriptive Headings. The descriptive headings used herein are
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inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
(Signatures begin on following page)
IN WITNESS WHEREOF, PMT and the Shareholder have caused this Agreement to
be duly executed as of the day and year first above written.
"PMT:"
PMT SERVICES, INC.
By:
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Name:
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Title:
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"SHAREHOLDER:"
WORLDCOM, INC.
By:
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Name:
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Title:
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