EXHIBIT 9.2
STOCKHOLDERS AGREEMENT BY AND BETWEEN INGENICO, ▇▇. ▇▇▇▇▇▇ AND ▇▇. ▇▇▇▇▇
DATED AS OF JANUARY 16, 1998.
STOCKHOLDERS AGREEMENT
This AGREEMENT is dated January 16, 1998 (this "AGREEMENT") among Ingenico
S.A., an entity incorporated under the laws of France ("INGENICO"), ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇., a resident of the State of Georgia ("▇▇▇▇▇"), and J. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, a resident of the State of Texas ("▇▇▇▇▇▇").
In consideration of the mutual promises and agreements set forth herein, the
parties agree as follows:
1. For a period ending the earlier of December 31, 1999 or 18 months from
the Effective Date of the Combination Agreement, each of the parties hereto
agrees to vote all of its or his shares of the capital stock of IVI Checkmate
(or to cause the Trustee to vote its Exchangeable Shares) then owned (including
any shares acquired after the parties entered into this Agreement)
(collectively, the "SHARES"), at any stockholders meeting or in any written
consent for that purpose, against any business combination transaction involving
IVI Checkmate or its subsidiaries, such as a merger or share exchange, and
further agrees not to tender shares into, make, cause any of its affiliates to
make, or encourage others to make, during the term of this Agreement, a tender
or exchange offer (in which the tendering party is required to make a filing
under Section 14(d)(1) of the Securities Exchange Act of 1934, as amended) (a
"TENDER OFFER") for Shares, in which the consideration to be received by each
stockholder of IVI Checkmate is less than US$15 per Share in cash or other
highly liquid consideration. The amount of the consideration is to be calculated
two business days prior to any stockholders' vote required on such a
transaction.
2. Notwithstanding Section 1 above, in the event a Tender Offer has been
made by a third party for consideration less than US$15, each party shall have
the right to make a Tender Offer; provided that the consideration offered by
such party for tendered shares in such Tender Offer must be greater than the
amount offered in the initial third-party Tender Offer. Any party hereto may
tender Shares to another party in a Tender Offer permitted under this Section 2.
3. For a period of three years from the Effective Date of the Combination
Agreement, each of the parties hereto agrees to vote all of its or his Shares
(or to cause the Trustee to vote its Exchangeable Shares), at any stockholders'
meeting or in any written consent for that purpose, and take all other actions
necessary, to ensure the election to the Board of Directors of IVI Checkmate of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (or any other designee of Ingenico), ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
provided further, that if such persons are so elected by the stockholders of IVI
Checkmate, the parties agree to use their best efforts to ensure the appointment
of ▇▇▇▇▇▇ as Chairman of the Board, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as Vice Chairman of the Board
of IVI Checkmate and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as a member of the three-member Executive
Committee of the Board of Directors.
4. Nothing contained herein shall prevent any party, during the period
ending the earlier of December 31, 1999 or 18 months following the Effective
Date of the Combination Agreement, from (a) buying or otherwise acquiring
additional Shares, or (b) selling Shares (i) to the public pursuant to a
registered offering under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), (ii) to the public through a broker or market-maker pursuant
to the provisions of Rule 144 (or any successor rule) promulgated under the
Securities Act, (iii) in a Tender Offer consistent with Section 1 or Section 2
above, or (iv) in a business combination transaction approved by the
stockholders of IVI Checkmate. Notwithstanding any other provision of this
Agreement, no sale or other transfer of Shares may be made, other than pursuant
to the immediately preceding sentence, unless the transferee has agreed in
writing to be bound by the terms and conditions of this Agreement pursuant to an
instrument in form and substance satisfactory to the parties hereto and the
transfer complies with all applicable laws.
5. In the event that Ingenico is conclusively and finally prohibited from
exercising its right under the Investment Agreement to purchase shares of IVI
Checkmate in an amount that would increase its ownership to 15% (as calculated
in accordance with the Investment Agreement) of the voting capital stock of IVI
Checkmate because such action would preclude pooling of interests accounting
treatment with regard to the transactions contemplated by the Combination
Agreement, the terms of Sections 1 and 2 of this Agreement shall terminate and
shall be of no further force and effect.
6. This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware applicable to agreements made and to be performed
entirely within such state, without regard to the principles of conflicts of law
thereof.
7. With respect to any claim arising out of this Agreement, the parties
agree to waive their right to a jury trial and agree to have such matter
adjudicated in front of an arbitration panel in accordance with the provisions
of the Combination Agreement.
Capitalized terms used herein and not defined shall have the meanings
ascribed to such terms in the Combination Agreement dated as of January 16, 1998
by and among IVI Checkmate Corp., a Delaware corporation ("IVI CHECKMATE"),
International Verifact Inc., a Canadian corporation, Checkmate Electronics,
Inc., a Georgia corporation, and Future Merger Corporation, a Georgia
corporation and wholly-owned subsidiary of Newco.
For purposes of this Agreement, "Investment Agreement" means that certain
Investment Agreement dated as of December 5, 1996 between International Verifact
Inc. and Ingenico, as amended.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
INGENICO S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VICE CHAIRMAN
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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