EXHIBIT 17
SHAREHOLDER'S AGREEMENT
SHAREHOLDER'S AGREEMENT, dated as of September 8, 2004 (this
"AGREEMENT"), between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation
("PARENT") and DLJ CAPITAL CORPORATION, a Delaware corporation (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 any lien or interest
securing a broker margin loan entered into after the date hereof consistent with
the provisions of this Agreement (a "Share Lien") in favor of a broker-dealer (a
"Lien Holder") (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, (i) the number of shares of Series B
Preferred Stock, no par value, of the Company (the "PREFERRED STOCK") and (ii)
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 Preferred
Stock and Company Common Stock and any shares of Preferred Stock and 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:
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
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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. Shareholder agrees
that prior to the Effective Time it will convert its shares of the Preferred
Stock into shares of Company Common Stock, which it will surrender following the
Effective Time in exchange for the Per Share Merger Consideration. In addition,
notwithstanding anything herein to the contrary, the Transfer of Shares in
connection with the terms of any Share Indebtedness shall not 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 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. Shareholder acknowledges hereby that pursuant to the terms of the
Certificate of Designations of Preferences, Limitations, and Relative Rights of
Series B Preferred Stock of the Company (the "Certificate of Designations"), its
vote in favor of the Merger and transactions contemplated by the Merger
Agreement is not required.
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.
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
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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) 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 and other than as provided in
the Certificate of Designations or in the Exchange Agreement dated June 23,
2004, among the Shareholder, the Company and certain affiliates of the
Shareholder (the "Exchange 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 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").
(c) The Shareholder acknowledges that, upon the Effective
Time, all of its rights under (i) the Exchange Agreement with the Company dated
June 23, 2004 and (ii) the Registration Rights Agreement with the Company dated
September 16, 2003, as amended by an amendment thereto dated June 23, 2004,
shall terminate and be of no further force and effect,
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since it will no longer be the owner of any Company Common Stock or Company
Preferred Stock.
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 the right of
first refusal contained in the Exchange Agreement and any Share Liens otherwise
permitted under the terms hereof (none of which Share Liens shall impose any
limit on the right of the Shareholder to vote or grant a proxy with respect to
the Shares). The shares of Preferred Stock and 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. This Section 3.1 shall in no event
require the Shareholder to convert the Preferred Stock to Company Common Stock
until immediately prior to and subject to the occurrence of the Effective Time.
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 agrees that from
the date of this Agreement until the Termination Date, the Shareholder shall
not, directly or indirectly, nor shall it authorize or permit any of its
directors, officers, partners or employees or any investment banker, financial
advisor, attorney, accountant or other representative retained by it or any of
its partners or 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
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reasonably may be expected to lead to a proposal or offer for, any Competing
Transaction (as defined in the 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.
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
(excluding those transferred pursuant to a Permitted Transfer) with respect to
which the Shareholder has the power of disposition (the "OPTION SHARES") at a
purchase price per share of Preferred Stock equal to $180.00 (the "PREFERRED
STOCK EXERCISE PRICE") and at a purchase price per share of Company Common Stock
equal to $18.90 (the "COMMON STOCK 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 Preferred Stock or the Company Common Stock after
the date of this Agreement. In addition to the Preferred Stock
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Exercise Price and the Common Stock Exercise Price, in the event of any exercise
of the Option, Parent 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.
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(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 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 an
amount equal to the sum of (i) the Preferred Stock Exercise Price times the
number of shares of Preferred Stock to be purchased and (ii) the Common Stock
Exercise Price times the number of shares of Company Common Stock to be
purchased.
(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 in consideration of
the Option 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 Fair
Market Value, on the date of disposition, 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 sum
of (i) the Preferred Stock Exercise Price times the aggregate number of
shares of Preferred Stock disposed of and (ii) the Common Stock
Exercise Price times the aggregate number of shares of Company Common
Stock disposed of by the Shareholder.
(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.
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(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 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 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
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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 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:
DLJ Capital Corporation
000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile: 000-000-0000
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with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
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,
(iii) the Effective Time (as defined in the Merger Agreement) or (iv) the date
of any amendment of the Merger Agreement that reduces the Per Share Merger
Consideration, if such reduction causes the Merger to no longer constitute a
"Permitted Transaction", as defined in the Certificate of Designations (the
"TERMINATION DATE"); provided, that if the Merger Agreement is terminated
pursuant to a Qualifying Termination, then Sections 1.1, 3.1, 3.6 and 3.7 and
Article 4 hereof shall survive the
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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.
Section 4.13. Change in Company Shares. In the event of a stock dividend or
distribution, or any change in the Preferred Stock or 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 Preferred
Stock and 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 Shareholder shall not grant any Lien
unless the prior written consent of the proposed Lien Holder to the grant of the
Option hereunder shall have first been obtained.
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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
DLJ CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Managing Director
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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.
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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
DLJ CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Managing Director
Signature of Shareholder:
Print Name of Shareholder: DLJ Capital Corporation
Shares beneficially owned:
208 shares of Preferred Stock
0 shares of Preferred Stock issuable upon
exercise of outstanding options or warrants
0 shares of Company Common Stock
0 shares of Company Common Stock issuable upon
exercise of outstanding options or warrants
Signature Page to Irrevocable Proxy
14
