Exhibit 10.1
AGREEMENT TO FACILITATE MERGER
This Agreement to Facilitate Merger (this "Agreement") is made and entered
into as of [_________], 2005, between CORILLIAN CORPORATION, an Oregon
corporation ("Acquiror"), and the undersigned stockholder ("Stockholder") of
INTELIDATA TECHNOLOGIES CORPORATION, a Delaware corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, Acquiror, the Company
and [MERGER SUB], a Delaware corporation and wholly owned subsidiary of Acquiror
("Merger Sub"), have entered into an Agreement and Plan of Merger (the "Merger
Agreement") which provides for the merger (the "Merger") of the Company with and
into Merger Sub. Pursuant to the Merger, each share of common stock, par value
$0.001 per share, of the Company ("Company Common Stock") issued and outstanding
immediately prior to the effective time of the Merger (other than Cancelled
Shares, as defined in the Merger Agreement) will be converted into the right to
receive (i) a certain fraction of a share of common stock, no par value, of
Acquiror and (ii) a cash payment, each on the basis described in the Merger
Agreement.
B. Stockholder is the record holder and beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of such number of Shares as is indicated on
the final page of this Agreement.
C. As a condition to its willingness to enter into the Merger Agreement,
Acquiror has required that Stockholder enter into this Agreement, and
Stockholder is willing to enter into this Agreement in order to induce Acquiror
to enter into the Merger Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Certain Definitions. For purposes of this Agreement, the following terms
shall have the meanings specified:
1.1 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.2 "Expiration Time" shall mean the earlier to occur of (i) the
Effective Time (as such term is defined in the Merger Agreement) of the
Merger and (ii) the termination of the Merger Agreement pursuant to Article
7 thereof.
1.3 "Person" means any individual, corporation, limited liability
company, partnership, trust or other entity or governmental authority.
1.4 "Shares" means: (a) all equity securities of the Company
(including all shares of common stock or preferred stock, and all options,
warrants and other rights to acquire shares of common stock or preferred
stock) beneficially owned (as defined in Rule 13d-3 under the Exchange Act)
by Stockholder as of the date of this Agreement and (b) all additional
equity securities of the Company (including all additional shares of
common stock or preferred stock, and all additional options, warrants and
other rights to acquire shares of common stock or preferred stock) over
which Stockholder acquires beneficial ownership (as defined in Rule 13d-3
under the Exchange Act) during the period from the date of this Agreement
through the Expiration Time.
1.5 A Person shall be deemed to have effected a "Transfer" of a
security if such Person directly or indirectly: (a) sells, assigns,
pledges, encumbers, grants an option with respect to, transfers,
distributes or disposes of (by gift, operation of law or otherwise) such
security or any interest in such security (except that the exercise of an
option to purchase Shares by Stockholder shall not be deemed a Transfer);
(b) enters into an agreement or commitment providing for the sale of,
assignment of, pledge of, encumbrance of, grant of an option with respect
to, transfer of or disposition of (by operation of law or otherwise) such
security or any interest therein; or (c) tenders, or agrees or commits to
tender, any Shares in a tender offer, exchange offer, or like transaction.
1.6 All other capitalized terms not defined in this Agreement shall
have the meanings accorded them in the Merger Agreement.
2. Agreement to Retain Shares and Voting Rights.
2.1 Transfer and Encumbrance. Stockholder shall not (except as may be
specifically required by court order) Transfer any of the Shares or make
any offer or agreement relating thereto at any time prior to the Expiration
Time; provided, however, that nothing in this Agreement shall restrict
Stockholder from (a) exercising any options to acquire shares of Company
Common Stock, or (b) effecting any Transfer of the Shares (i) by will or
applicable laws of descent and distribution or (ii) to any member of the
immediate family of Stockholder, or to any trust the beneficial ownership
of which is held by Stockholder or any such family member (each a
"Permitted Transferee"), so long as such Permitted Transferee agrees in
writing, in form and substance reasonably satisfactory to Acquiror, to be
bound by the terms of this Agreement to the same extent as Stockholder is
bound. Any purported Transfer in violation of this Agreement shall be null
and void.
2.2 Voting Rights. Stockholder shall not (except as may be
specifically required by court order) deposit (or permit the deposit of)
any of the Shares in a voting trust or grant any proxy or enter into any
voting agreement or similar agreement in contravention of the obligations
of Stockholder under this Agreement at any time prior to the Expiration
Time.
3. Agreement to Vote Shares. At every meeting of stockholders of the
Company (or any adjournment thereof) called with respect to any of the
following, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following, Stockholder
shall vote the Shares in favor of approval of the Merger and the Merger
Agreement and any matter that could reasonably be expected to facilitate the
Merger. Stockholder agrees not to take any actions contrary to Stockholder's
obligations under this Agreement. Without limiting the generality of the
foregoing, Stockholder shall vote against any proposal (other than
the Merger Agreement) that could reasonably be expected to (a) result in any
change in the directors of the Company, any change in the present capitalization
of the Company or any amendment to the Company's Certificate of Incorporation or
Bylaws if the effect of such amendment could reasonably be expected to
materially impair the consummation of the Merger; (b) result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement; (c) impair in any material respect the
Company's ability to perform its obligations under the Merger Agreement; or (d)
otherwise prevent or materially delay the consummation of the transactions
contemplated by the Merger Agreement.
4. No Solicitation. Prior to the Expiration Time, Stockholder shall not as
a stockholder, either individually or through any representatives or agents (but
may as an officer or director to the extent permitted by the Merger Agreement):
(a) solicit, initiate, encourage or otherwise facilitate any inquiry, offer,
proposal or announcement that constitutes, or could be reasonably expected to
lead to, an Acquisition Proposal; (b) enter into any agreement or letter of
intent regarding, approve, endorse or recommend, an Acquisition Proposal; or (c)
participate or engage in or encourage in any way negotiations or discussions
concerning, or provide any non-public information to, any Person relating to, an
Acquisition Proposal, or which may reasonably be expected to lead to, any
Acquisition Proposal. Upon execution of this Agreement, Stockholder shall (y)
immediately terminate all discussions with any Person; and (z) promptly (but in
any event within twenty-four hours) notify Acquiror if it receives an
Acquisition Proposal or any inquiry reasonably likely to lead to an Acquisition
Proposal or if any discussions or negotiations are sought to be initiated or
continued with such Stockholder concerning an Acquisition Proposal.
5. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder shall deliver to Acquiror a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable to the extent provided
therein, with the total number of shares of outstanding capital stock of the
Company beneficially owned (as such term is defined in Rule 13d-3 under the
Exchange Act) by Stockholder and subject to the Proxy set forth therein.
6. Representations, Warranties and Covenants of Stockholder. Stockholder
hereby represents and warrants to Acquiror that Stockholder (a) is the sole
record and beneficial owner of the Shares, which at the date hereof and at all
times up until the Expiration Time will be free and clear of any liens, claims,
options, charges or other encumbrances; (b) does not beneficially own any shares
of capital stock of the Company other than the Shares; and (c) has full power
and authority to make, enter into and carry out the terms of this Agreement and
the Proxy.
7. Additional Documents. Stockholder hereby covenants and agrees to execute
and deliver any additional documents necessary or desirable, in the reasonable
opinion of Acquiror, to carry out the intent of this Agreement.
8. Consent and Waiver. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreements to which Stockholder is a party as a stockholder or pursuant
to any rights Stockholder may have as a stockholder.
9. No Ownership Interest. Nothing contained in this Agreement shall be
deemed to vest in Acquiror any direct or indirect ownership or incidents of
ownership of or with respect to any of the Shares, except as otherwise expressly
provided herein. All rights, ownership and economic benefits of and relating to
the Shares shall remain with, and belong to, Stockholder, and this Agreement
shall not be deemed to authorize Acquiror to manage, direct, superintend,
restrict, regulate, govern or administer any of the policies or operations of
the Company or to direct Stockholder in the voting of any of the Shares, except
as otherwise expressly provided herein.
10. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Time.
11. Miscellaneous.
11.1 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
11.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement
nor any of the rights, interests or obligations of the parties hereto may
be assigned by either of the parties without the prior written consent of
the other.
11.3 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of
a written agreement executed by the parties hereto.
11.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Acquiror will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein. Therefore, it is agreed that,
in addition to any other remedies that may be available to Acquiror upon
any such violation, Acquiror shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other
means available to Acquiror at law or in equity.
11.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telecopy, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight
courier (prepaid) to the respective parties as follows:
If to Acquiror: CORILLIAN CORPORATION
0000 X.X. Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxx
with a copy (which shall not constitute notice) to:
Xxxxxxx Coie LLP
0000 XX Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxx X. Xxxxxx
If to Stockholder: To the address for notice set forth on the
signature page hereof.
or to such other address as any party may have furnished to the other in writing
in accordance herewith. Notices shall only be effective upon receipt.
11.6 Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware without
giving effect to the conflict of laws provision thereof.
11.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties
with respect to such subject matter.
11.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
11.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of
this Agreement.
11.10 Fiduciary Duty as Director or Officer. The parties hereto
acknowledge and agree that Stockholder's obligations hereunder are solely
in his or her capacity as a stockholder of the Company, and that none of
the provisions herein set forth shall be deemed to restrict or limit any
fiduciary duty the undersigned or any of his or her respective affiliates
may have as a member of the Board of Directors of the Company or as an
executive officer of the Company or restrict or limit any actions taken by
the undersigned in his capacity as a member of the Board of Directors of
the Company or as an executive officer of the Company; provided that no
such duty shall excuse Stockholder from his or her obligations as a
stockholder of the Company to vote Shares
as herein provided and to otherwise comply with the terms and conditions of
this Agreement.
11.11 Waiver of Jury Trial. Each party acknowledges and agrees that
any controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a
trial by jury in respect of any litigation directly or indirectly arising
out of or relating to this Agreement or the transactions contemplated by
this Agreement. Each party certifies and acknowledges that (a) no
representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver, (b) each such party
understands and has considered the implications of this waiver, (c) each
such party makes this waiver voluntarily, and (d) each such party has been
induced to enter into this Agreement by, among other things, the waivers
and certifications in this Section 11.11.
[Remainder of page intentionally left blank. Signature page follows.]
Signature Page
to
Agreement to Facilitate Merger
IN WITNESS WHEREOF, the parties have caused this Agreement to
Facilitate Merger to be duly executed on the date and year first above written.
CORILLIAN CORPORATION
By:
Name:
Title:
STOCKHOLDER
Name:
Address:
Shares beneficially owned as of
the date hereof:
[__________] shares of InteliData
Technologies Corporation
Common Stock
Form of beneficial ownership:
[__________] shares are
currently held directly;
[__________] shares are
currently subject to
outstanding options.
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of INTELIDATA TECHNOLOGIES CORPORATION, a
Delaware corporation (the "Company"), hereby irrevocably appoints
[____________________] and [____________________] of CORILLIAN CORPORATION, an
Oregon corporation ("Acquiror"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
the shares of outstanding capital stock of the Company beneficially owned by the
undersigned as of the date hereof, which shares are listed below (the "Shares"),
and any and all other shares or securities issued or issuable in respect thereof
on or after the date hereof, until such time as that certain Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"), by and among
Acquiror, the Company and WIZARD ACQUISITION CORPORATION, a Delaware corporation
and wholly owned subsidiary of Acquiror, shall be terminated in accordance with
its terms or the Merger (as defined in the Merger Agreement) is effective,
whichever first occurs. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given.
This proxy is coupled with an interest and is irrevocable, is granted in
order to secure the obligations under the Agreement to Facilitate Merger, dated
as of the date hereof, between Acquiror and the undersigned stockholder (the
"Agreement to Facilitate Merger"), and is granted in consideration of Acquiror
entering into the Merger Agreement. The attorneys and proxies named above will
be empowered at any time prior to termination of the Merger Agreement to
exercise all voting and other rights (including, without limitation, the power
to execute and deliver written consents with respect to the Shares) of the
undersigned at every annual, special or adjourned meeting of the stockholders of
the Company, and in every written consent in lieu of such a meeting, or
otherwise, in favor of the Merger and the Merger Agreement and any matter that
could reasonably be expected to facilitate the Merger.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of the stockholders of
the Company and in every written consent in lieu of such meeting, in favor of
approval of the Merger and the Merger Agreement and any matter that could
reasonably be expected to facilitate the Merger, and may not exercise this proxy
on any other matter. The undersigned stockholder may vote the Shares on all
other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: [__________], 2005
Signature of Stockholder:
------------------------------------------------
Print Name of Stockholder:
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Shares beneficially owned as of the date hereof:
___________ shares of outstanding common stock, par value $0.001 per share, of
InteliData Technologies Corporation
