EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of June 17, 1998, by and among NOVA CORPORATION ("NOVA"), XXXXXXXXXX X.
XXXXXXX, and XXXXXXX X. DAILY, individuals who are sometimes hereinafter
referred to individually as a "Shareholder" and collectively as the
"Shareholders."
P R E A M B L E:
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The Shareholders have together received shares (the "Shares" or
"Registrable Securities") of NOVA Common Stock, par value $0.01 per share ("NOVA
Common Stock"), in consummation as of the date hereof of the Agreement and Plan
of Merger (the "Merger Agreement") between NOVA, PMT SERVICES, INC., a Tennessee
corporation ("PMT") and Church Merger Corp. The individual holdings by the
Shareholders of NOVA Common Stock are as set out in Schedule A attached hereto.
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The parties desire that, under certain circumstances, the Shares be
registered for sale under the Securities Act of 1933, as amended (the
"Securities Act"), and applicable Blue Sky or state securities laws, and also
that certain agreements be made with respect to the Shares now owned or
subsequently acquired by the Shareholders or certain other Persons.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants and agreements set forth herein, the parties agree as
follows:
ARTICLE I
REQUESTED REGISTRATION
1.1 REQUESTED REGISTRATION. After the expiration of the "Pooling Period"
(as defined in the Merger Agreement), if the Shareholders shall decide,
individually or collectively, to sell or otherwise dispose of Registrable
Securities then owned by them and having a market value, in the aggregate, of no
more than Fifteen Million and No/100 Dollars ($15,000,000) with respect to each
Shareholder (a "Disposition"), NOVA shall, consistent with the terms and
conditions of this Section 1.1, use its reasonable best efforts to comply with,
and render reasonable assistance with respect to, reasonable requests made by
the Shareholders in connection with, and as appropriate to effectuate, such
Disposition. NOVA's efforts in this regard would include, if reasonably
requested by the Shareholders, (i) assisting the Shareholders in effectuating
the Disposition by way of a "private placement," or (ii) preparing and filing
one registration statement (a "Registration Statement") under the Securities Act
registering Registrable Securities in connection with the Disposition. To the
extent a Disposition is effectuated through a Registration Statement, NOVA shall
bear all of the costs and expenses relating to the Registration Statement or the
Private Placement Memorandum, as the case may be, including but not limited to
registration, filing and qualification fees in the instance of the Registration
Statement, blue-sky expenses, printing expenses, reasonable fees and
disbursements of counsel to NOVA, and accounting fees ("Costs and Expenses");
provided, however, that underwriting discounts and commissions will be borne pro
rata by the Shareholders. The parties hereto acknowledge and agree that the
rights and obligations hereunder with respect to a Disposition shall be
conditioned upon such Disposition not having or causing a material adverse
impact or effect on (aa) NOVA, (bb) the market perception of NOVA, or (cc)
NOVA's financing needs or plans or prospects in connection with financing, the
determination with respect to each of "(aa)," "(bb)," and "(cc)" to be made by
NOVA in good faith
and with reasonableness in active consultation with the Shareholders and the
investment banking and other financial advisors of each of NOVA and the
Shareholders (as applicable).
1.2 INCIDENTAL REGISTRATION. If at any time NOVA shall propose the filing
of a Registration Statement on an appropriate form under the Securities Act of
any securities of NOVA, otherwise than pursuant to Section 1.1 hereof and other
than a Registration Statement on Form S-8 or S-4 or any equivalent form then in
effect, then NOVA shall give the Shareholders notice of such proposed
registration and shall include in any Registration Statement relating to such
securities all or a portion of the Registrable Securities then owned by such
Shareholders and which such Shareholders request (such holders to be considered
Selling Holders), by notice given by such Shareholders to NOVA within 30 days
after the giving of such notice by NOVA, be included in such Registration
Statement. In the event of the inclusion of Registrable Securities pursuant to
this Section 1.2, NOVA shall bear all of the Costs and Expenses of such
registration; provided, however, that the Selling Holders shall pay, pro rata
based upon the number of Registrable Securities included therein, the
underwriters' discounts and compensation attributable to the inclusion of such
Registrable Securities. In the event the distribution of securities of NOVA
covered by a Registration Statement referred to in this Section 1.2 is to be
underwritten, then NOVA's obligation to include Registrable Securities in such
Registration Statement shall be subject, at the option of NOVA, to the following
further conditions:
(a) the distribution for the account of the Selling Holders shall be
underwritten by the same underwriters who are underwriting the distribution
of the securities for the account of NOVA and/or any other persons whose
securities are covered by such Registration Statement, and the Selling
Holders will enter into an agreement with such underwriters containing
customary provisions;
(b) if the underwriting agreement entered into with the aforesaid
underwriters contains restrictions upon the sale of securities of NOVA,
other than the securities which are to be included in the proposed
distribution, for a period not exceeding 90 days from the effective date of
the Registration Statement (or such longer period, not to exceed 180 days,
as NOVA, each Selling Holder, and such underwriters may agree), then such
restrictions will be binding upon the Selling Holders and, if requested by
NOVA, the Selling Holders will enter into a written agreement to that
effect; and
(c) if the underwriters state in writing that they are unwilling to
include any or all of the Selling Holders' securities in the proposed
underwriting because such inclusion will materially interfere with the
orderly sale and distribution of the securities being offered by NOVA, then
the number of Selling Holders' securities to be included will be reduced
pro rata on the basis of the number of shares owned by such holders, or
there will be no inclusion of Selling Holders' securities in the
Registration Statement and proposed distribution, in accordance with such
statement by the underwriters.
ARTICLE II
INDEMNIFICATION
2.1 INDEMNIFICATION BY NOVA. NOVA will indemnify and hold harmless each
Selling Holder and any underwriter (as defined in the Securities Act) for such
Selling Holders (but, in the case of an underwriter or a controlling person of
an underwriter, only if such underwriter indemnifies the persons mentioned in
subdivision (b) of Section 2.2 hereof in the manner set forth therein) against
any losses, claims, damages or
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liabilities, joint or several, to which such Selling Holder or any such
underwriter, partner, officer, director or controlling person becomes subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) are caused by any untrue
statement or alleged untrue statement of any material fact contained in any
preliminary prospectus (if used prior to the effective date of the Registration
Statement), or contained, on the effective date thereof, in any Registration
Statement under which Registrable Securities were registered under the
Securities Act, the prospectus contained therein, or any amendment or supplement
thereto, or arising out of or based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; and NOVA will reimburse such Selling
Holder and any such underwriter, partner, officer, director or controlling
person for any legal or other expenses reasonably incurred by such Selling
Holder or any such underwriter, partner, officer, director or controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that NOVA will not be liable to any such
persons in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information furnished to NOVA in writing by such person
expressly for inclusion in any of the foregoing documents.
2.2 INDEMNIFICATION BY SELLING HOLDERS. Each Selling Holder shall:
(a) furnish in writing all information to NOVA concerning himself and
his holdings of securities of NOVA as shall be required in connection with
the preparation and filing of any Registration Statement covering any
Registrable Securities; and
(b) indemnify and hold harmless NOVA, each of its directors, each of its
officers who has signed a Registration Statement, each person, if any, who
controls NOVA within the meaning of the Securities Act and any underwriter
(as defined in the Securities Act) for NOVA and controlling Person of any
underwriter, against any losses, claims, damages or liabilities to which
NOVA or any such director, officer, controlling Person or underwriter may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) are
caused by any untrue or alleged untrue statement of any material fact
contained in any preliminary prospectus (if used prior to the effective
date of the Registration Statement) or contained, on the effective date
thereof, in any Registration Statement under which Registrable Securities
were registered under the Securities Act, the prospectus contained therein,
or any amendment or supplement thereof, or arising out of or based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished in writing to NOVA by such Selling Holder expressly for inclusion
in any of the foregoing documents, and such Selling Holder shall reimburse
NOVA and any such underwriter, officer, director or controlling person for
any legal or other expenses reasonably incurred by NOVA or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action.
Notwithstanding the foregoing provisions of this Section 2.2, no Selling
Holder shall be required to indemnify NOVA or any such underwriter,
officer, director or controlling persons for any amount in excess of the
amount of the proceeds received by such Selling Holder.
2.3 CONTRIBUTION. In order to provide for just and equitable contribution
to joint liability under the Securities Act in any case in which either (a) any
Selling Holder or other entity entitled to indemnification under this Agreement
makes a claim for indemnification pursuant to this Article II but it is
judicially
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determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that indemnification may not be enforced in such case
notwithstanding the fact that this Article II provides for indemnification in
such case, or (b) contribution under the Securities Act may be required on the
part of any such Selling Holder or other person in circumstances for which
indemnification is provided under this Article II, then, and in each case, NOVA
and such holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that such Selling Holder or other person is responsible for
the portion represented by the percentage that the offering price in any initial
distribution of securities in an underwritten public offering to the general
public pursuant to the Registration Statement (the "Public Offering Price") of
its Registrable Securities bears to the Public Offering Price of all securities
offered in such Registration Statement, and NOVA is responsible for the
remaining portion; provided, however, that, in any such case, (i) no such
Selling Holder or other person will be required to contribute any amount in
excess of the Public Offering Price of all such Registrable Securities offered
by it pursuant to such Registration Statement; and (ii) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 12(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
2.4 NOTIFICATION BY SELLING HOLDERS. Each Selling Holder and each other
person indemnified pursuant to this Article II will, in the event it receives
notice of the commencement of any action against it which is based upon an
alleged act or omission which, if proven, would result in NOVA's having to
indemnify it pursuant to this Article II, promptly notify NOVA, in writing, of
the commencement of such action and permit NOVA, if NOVA so notifies such
Selling Holder within ten days after receipt by NOVA of notice of the
commencement of the action, to participate in and to assume the defense of such
action with counsel reasonably satisfactory to such Selling Holder or such other
indemnified person, as the case may be; provided, however, that such Selling
Holder shall be entitled to retain its own counsel at NOVA's expenses if it
believes it has defenses available to it which are not available to NOVA or if
such Selling Holder believes there exists a potential for conflict of interest
between NOVA and such Selling Holder. The omission to notify NOVA promptly of
the commencement of any such action shall not relieve NOVA of any liability to
indemnify such Selling Holder or such other indemnified person, as the case may
be, under this Article II, except to the extent NOVA shall suffer any loss by
reason of such failure to give notice and shall not relieve NOVA of any other
liabilities which it may have under this or any other agreement.
2.5 NOTIFICATION BY NOVA. NOVA agrees that, in the event it receives
notice of the commencement of any action against it which is based upon an
alleged act or omission which, if proven, would result in any Selling Holder
having to indemnify NOVA pursuant to Section 2.2(b), NOVA will promptly notify
such Selling Holder in writing of the commencement of such action and permit
such Selling Holder, if such Selling Holder so notifies NOVA within ten days
after receipt by it of notice of the commencement of the action, to participate
in and to assume the defense of such action with counsel reasonably satisfactory
to NOVA. The omission to notify such Selling Holder promptly of the
commencement of any such action will not relieve such Selling Holder of
liability to indemnify NOVA pursuant to Section 2.2(b), except to the extent
that such Selling Holder suffers any loss by reason of such failure to give
notice and shall not relieve such Selling Holder of any other liabilities which
it may have under this or any other agreement.
ARTICLE III
MISCELLANEOUS
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3.1 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of the Shares
without registration, NOVA agrees to:
(a) cause public information with respect to NOVA to be available, as
set forth in Rule 144 or any comparable rule or regulation under the
Securities Act, at all times;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of NOVA under the Securities Act and
the Exchange Act; and
(c) furnish to each Shareholder forthwith upon request a written
statement by NOVA as to its compliance with the reporting requirements of
Rule 144 and of the Securities Act and the Exchange Act.
3.2 AMENDMENT. Except as otherwise provided in this Agreement, neither
this Agreement nor any provision hereof can be amended or modified except by an
instrument in writing signed by NOVA and by each of the Shareholders.
3.3 RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to NOVA Common
Stock, or any interest thereof, or any successor or assign of NOVA (whether by
merger, consolidation, sale of assets or otherwise) that may be issued in
respect of, in exchange for, or in substitution of, NOVA Common Stock, or any
interest therein, and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, recapitalizations and the like occurring
after the date of this Agreement. In such event, any and all new, substituted
or additional securities a holder of Registrable Securities is entitled to by
reason of his ownership of NOVA Common Stock, or any interest therein, shall,
upon issuance, be immediately subject to the provisions of this Agreement and
shall be deemed included in the term "NOVA Common Stock, or any interest
therein," for all purposes of this Agreement with the same force and effect as
the NOVA Common Stock, or any interest therein, presently subject to this
Agreement and with respect to which such new, substituted or additional
securities were distributed.
3.4 DEFINITION OF PERSON. As used herein, the term "Person" shall mean a
natural person or any legal, commercial or governmental entity, such as, but not
limited to, a corporation, general partnership, joint venture, limited
partnership, limited liability company, trust, business association, group
acting in concert, or any person acting in a representative capacity.
3.5 APPLICABILITY OF LAWS. Any transfer of NOVA Common Stock, or any
interest therein, made pursuant to and in accordance with the terms of this
Agreement shall be subject to applicable state and federal securities and other
laws, notwithstanding its permissibility under this Agreement.
3.6 NOTICE. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by cable, telegram, telecopy or telex, or by registered or certified
mail (postage prepaid, return receipt requested) at the respective addresses of
the parties set forth below:
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Xxxxxxxxxx X. Xxxxxxx Xxxxxxx X. Daily NOVA Information Systems, Inc.
PMT Services, Inc. PMT Services, Inc. Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
0000 Xxxxx Xxxxx Village Drive 0000 Xxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000 Attention: Xxxxxx Xxxxxxxxxxx
Chairman and
Chief Executive Officer
3.7 NO WAIVER; REMEDIES. No failure by the parties to exercise, and no
delay in exercising, any right under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided in this Agreement are cumulative and not
exclusive of any remedies provided by law.
3.8 THIRD-PARTY BENEFICIARIES. No party to this Agreement intends this
Agreement to benefit or create any right or cause of action in or on behalf of
any person other than the signatures hereto and their respective permitted
successors and assigns.
3.9 ASSIGNMENT; BINDING EFFECT. Except as expressly contemplated hereby,
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any party hereto (whether by operation of law or otherwise)
without the prior written consent of each other party; provided that no such
consent shall be required (a) for the assignment by any party of its rights and
privileges hereunder to any other Person that directly, or indirectly through
one or more intermediaries, controls, is controlled by or is under common
control with such party (it being understood that no such assignment shall
relieve the assigning party of its duties or obligations hereunder) or (b) for
the assignment and delegation by any party of its rights, privileges, duties and
obligations hereunder to any Person into or with which the assigning party shall
merge or consolidate or to which the assigning party shall sell all or
substantially all of its assets (other than insubstantial assets). Subject to
the foregoing, this Agreement will be binding upon, inure to the benefit of and
be enforceable by the parties hereto and their respective successors and
assigns.
3.10 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, without regard to any
applicable conflicts of laws.
3.11 ENTIRE AGREEMENT. This Agreement embodies the entire understanding of
the parties with respect to the subject matter hereof, and there are no further
or other agreements or understandings, written or oral, in effect between the
parties relating to the subject matter of this Agreement.
3.12 ENFORCEMENT OF AGREEMENT. The parties hereto agree that irreparable
damage would occur in the event that any provision of this Agreement was not
performed in accordance with its specific terms or was otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
3.13 INDEPENDENT CONTRACTORS. Nothing contained in this Agreement shall be
construed as constituting a partnership, joint venture, trust or agency between
or among any of the signatories hereto. Rather, the signatories hereto shall be
deemed independent contractors for all purposes.
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3.14 SEVERABILITY. Any term or provisions of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
3.15 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
3.16 PRONOUNS. Any masculine personal pronoun shall be considered to mean
the corresponding feminine or neuter personal pronoun, and vice versa, as the
context requires.
3.17 CAPTIONS. The captions contained in this Agreement are for reference
purposes only and are not part of this Agreement.
(SIGNATURES BEGIN ON FOLLOWING PAGE)
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WITNESS WHEREOF, the parties have caused this Agreement to be executed and
entered into as of the day and year first above written.
"NOVA:"
NOVA CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name:
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Title:
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/s/ Xxxxxxxxxx X. Xxxxxxx
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Xxxxxxxxxx X. Xxxxxxx
Shareholder
/s/ Xxxxxxx X. Daily
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Xxxxxxx X. Daily
Shareholder
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