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AGREEMENT AND PLAN OF MERGER
AMONG
NATIONAL TRANSACTION NETWORK, INC.,
IVI CHECKMATE CORP.,
IVI CHECKMATE INC.
AND
NTN MERGER CORP.
DATED AS OF
July 20, 1999
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TABLE OF CONTENTS
ARTICLE I
The Merger
Section 1.1 Company Action............................................... 2
1.2 The Merger................................................... 2
1.3 Conversion of Shares......................................... 2
1.4 Exchange Procedures.......................................... 3
1.5 Dissenting Shares............................................ 4
1.6 Stock Options................................................ 4
ARTICLE II
The Surviving Corporation
Section 2.1 Certificate of Incorporation................................. 4
2.2 Bylaws....................................................... 4
2.3 Directors and Officers....................................... 4
ARTICLE III
Representations and Warranties of the Company
Section 3.1 Corporate Existence and Power................................ 5
3.2 Corporate Authorization...................................... 5
3.3 Governmental Authorization................................... 5
3.4 Non-Contravention............................................ 5
3.5 Capitalization............................................... 5
3.6 SEC Filings.................................................. 5
3.7 Financial Statements......................................... 6
3.8 Disclosure Documents......................................... 6
3.9 Finders' and Bankers' Fees................................... 6
3.10 Opinion of Financial Advisor................................. 6
ARTICLE IV
Representations and Warranties of IVI Corp
Section 4.1 Corporate Existence and Power................................ 6
4.2 Corporate Authorization...................................... 6
4.3 Governmental Authorization................................... 7
4.4 Capitalization............................................... 7
4.5 Non-Contravention............................................ 7
4.6 Disclosure Documents......................................... 7
4.7 Finders' and Bankers' Fees................................... 7
4.8 SEC Filings.................................................. 8
ARTICLE V
Representations and Warranties of IVI Inc. and Merger Subsidiary
Section 5.1 Corporate Existence and Power................................ 8
5.2 Corporate Authorization...................................... 8
5.3 Governmental Authorization................................... 8
5.4 Non-Contravention............................................ 8
5.5 Disclosure Documents......................................... 8
5.6 Finders' and Bankers' Fees................................... 9
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ARTICLE VI
Covenants of the Company
Section 6.1 Conduct of the Company.................................... 9
6.2 Stockholder Meeting; Proxy Statement Material............. 10
6.3 Access to Information..................................... 10
6.4 Other Potential Bidders................................... 10
6.5 Notices of Certain Events................................. 10
ARTICLE VII
Covenants of Buyer
Section 7.1 Voting of Shares.......................................... 10
7.2 Director and Officer Liability............................ 11
7.3 Notices of Certain Events................................. 11
ARTICLE VIII
Covenants of Buyer and the Company
Section 8.1 Reasonable Efforts........................................ 11
8.2 Certain Filings........................................... 11
8.3 Public Announcements...................................... 11
8.4 Further Assurances........................................ 11
8.5 Registration Statement; Company Proxy Statement........... 12
ARTICLE IX
Conditions to the Merger
Section 9.1 Conditions to the Obligations of Each Party............... 12
9.2 Additional Conditions to the Obligations of Buyer and
Merger Subsidiary........................................ 13
9.3 Additional Conditions to the Obligations of the Company... 13
ARTICLE X
Termination
Section 10.1 Termination............................................... 14
10.2 Effect of Termination..................................... 14
ARTICLE XI
Miscellaneous
Section 11.1 Definitions............................................... 15
11.2 Notices................................................... 17
11.3 No Survival of Representations and Warranties............. 17
11.4 Amendments; No Waivers.................................... 17
11.5 Fees and Expenses......................................... 18
11.6 Successors and Assigns.................................... 18
11.7 Governing Law............................................. 18
11.8 Severability.............................................. 18
11.9 Captions.................................................. 18
11.10 Interpretations........................................... 18
11.11 Counterparts; Effectiveness............................... 18
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of July 20, 1999, by and among
NATIONAL TRANSACTION NETWORK, INC., a Delaware corporation (the "Company"), IVI
CHECKMATE CORP., a Delaware corporation ("IVI Corp."), IVI CHECKMATE INC., a
Georgia corporation and wholly-owned subsidiary of IVI Corp. ("IVI Inc.") (IVI
Corp. and IVI Inc. are sometimes referred to collectively as "Buyer"), and NTN
MERGER CORP., a Delaware corporation and wholly-owned subsidiary of IVI Inc.
("Merger Subsidiary").
WHEREAS:
A. The authorized capital stock of the Company consists of (i) 20,000,000
shares of common stock, $.15 par value (the "Company Common Stock"), of which
3,325,468 shares were issued and outstanding as of the close of business on
July 23, 1999, and (ii) 5,000,000 shares of preferred stock, $.10 par value
(the "Company Preferred Stock"), none of which shares are issued and
outstanding as of the date hereof.
B. IVI Inc. currently owns, and immediately prior to the Effective Time (as
defined herein) will own, 2,726,440 shares of Company Common Stock representing
approximately 82.0% of the total issued and outstanding Company Common Stock.
C. A special negotiating committee of the Board of Directors of the Company,
appointed on January 8, 1999 and comprised of the sole director who is neither
a member of management of the Company nor affiliated with Buyer or any
Affiliate, as defined herein, of Buyer (other than the Company) (the "Special
Committee"), has determined that the Merger, as defined herein, is fair to and
in the best interests of the stockholders of the Company other than Buyer (the
"Public Stockholders") and has approved this Agreement and recommends its
approval and adoption by the Board of Directors of the Company.
D. The Board of Directors of the Company, based in part on the
recommendation of the Special Committee, has determined that the Merger is fair
and in the best interests of the Public Stockholders and has resolved to
approve and adopt this Agreement and the transactions contemplated hereby and,
subject to the terms and conditions set forth herein, to recommend the approval
and adoption of this Agreement and the Merger by the stockholders of the
Company.
E. The Board of Directors of the Company, IVI Corp., IVI Inc. and Merger
Subsidiary each have approved the merger of Merger Subsidiary with and into the
Company (the "Merger") in accordance with the Delaware General Corporation Law
(the "DGCL") with respect to the Company, IVI Corp. and Merger Subsidiary, and
the Georgia Business Corporation Code (the "GBCC") with respect to IVI Inc.,
and the terms and conditions provided below, pursuant to which each Share, as
defined herein (other than Shares held by the Company as treasury stock, Shares
owned by Buyer immediately prior to the Effective Time and Shares as to which
appraisal rights have been perfected), shall be converted into the right to
receive the Merger Consideration.
F. Certain capitalized terms used herein are defined in Section 10.1.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements herein contained, the parties hereto agree as
follows:
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ARTICLE I
The Merger
Section 1.1 Company Action. The Company represents that its Board of
Directors, at a meeting duly called and held and acting, in part, on the
unanimous recommendation of the Special Committee, has (i) unanimously
determined that this Agreement and the transactions contemplated hereby,
including the Merger, are fair to and in the best interests of the Public
Stockholders, (ii) unanimously approved this Agreement and the transactions
contemplated hereby, including the Merger, and (iii) unanimously resolved to
recommend approval of this Agreement and the transactions contemplated hereby;
including the Merger, by the Company's stockholders, provided, that such
recommendation may be withdrawn, modified or amended by the Board of Directors
of the Company if the Board deems such withdrawal, modification or amendment
necessary in light of its fiduciary obligations to the Company's stockholders
after consultation with counsel.
Section 1.2 The Merger.
(a) At the Effective Time, Merger Subsidiary shall be merged with and into
the Company in accordance with the DGCL, whereupon the separate existence of
Merger Subsidiary shall cease, and the Company shall be the Surviving
Corporation, as defined herein.
(b) As soon as practicable after satisfaction or, to the extent permitted
hereunder, waiver of all conditions to the Merger, the Company and Merger
Subsidiary shall file a certificate of merger with the Secretary of State of
the State of Delaware and make all other filings or recordings required by the
DGCL in connection with the Merger. The Merger shall become effective at such
time as such certificate of merger is duly filed with the Secretary of State of
the State of Delaware or at such later time as is specified in such certificate
of merger (the "Effective Time").
(c) From and after the Effective Time, the Surviving Corporation shall
possess all the rights, privileges, powers and franchises and be subject to all
of the restrictions, liabilities and duties of the Company and Merger
Subsidiary, all as provided under the DGCL.
Section 1.3 Conversion of Shares. Subject to the provisions of this
Agreement, at the Effective Time, automatically by virtue of the Merger and
without any action on the part of any party or stockholder:
(a) the shares (excluding shares held by the Company or by Buyer or any of
its subsidiaries, in each case other than in a fiduciary capacity ("Non-Public
Shares"), and excluding shares held by Public Stockholders who perfect their
statutory dissenters' rights as provided in Section 1.5) of Company Common
Stock (each a "Share" and collectively the "Shares") issued and outstanding
immediately prior to the Effective Time shall be converted into and exchanged
for the right to receive the number of shares of the common stock, $.01 par
value, of IVI Corp. ("IVI Common Stock") that would be equal to $.30 multiplied
by the number of Shares (excluding Non-Public Shares) issued and outstanding
immediately prior to the Effective Time, as provided in Section 1.4 (the
"Merger Consideration"). For purposes of this calculation, the number of shares
of IVI Common Stock to be issued in exchange for the Shares shall be calculated
pursuant to a valuation determined by a base period trading price (the "Base
Period Trading Price"), which shall mean the average of the daily closing price
for shares of IVI Common Stock for the twenty (20) consecutive full trading
days on which such shares are actually traded on the Nasdaq National Market
ending at the close of trading on the second trading day immediately preceding
the Effective Time;
(b) each Share of Company Common Stock held as Non-Public Shares immediately
prior to the Effective Time shall be canceled and retired at the Effective Time
and no consideration shall be issued in exchange therefor;
(c) each share of common stock of Merger Subsidiary issued and outstanding
immediately prior to the Effective Time shall cease to be outstanding and shall
be converted into one share of the common stock of the Surviving Corporation;
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(d) holders of Shares shall cease to be, and shall have no rights as,
stockholders of the Company, other than to receive (i) any dividend or other
distribution with respect to such Company Common Stock with a record date
occurring prior to the date hereof and (ii) the Merger Consideration provided
under this Section 1.3. After the Effective Time, there shall be no transfers
on the share transfer books of the Company or the Surviving Corporation of
shares of Company Common Stock; and
(e) notwithstanding any other provision hereof, no fractional shares of IVI
Common Stock and no certificates or scrip therefor, or other evidence of
ownership thereof, will be issued in the Merger; instead, Buyer shall pay to
each holder of Company Common Stock who would otherwise be entitled to a
fractional share of IVI Common Stock an amount in cash (without interest)
determined by multiplying such fraction by the Base Period Trading Price.
Section 1.4 Exchange Procedures.
(a) At or prior to the Effective Time, the Company shall appoint First Union
National Bank as agent (the "Exchange Agent") for the purpose of exchanging
certificates representing Shares ("Old Certificates") for the Merger
Consideration. At or prior to the Effective Time, Buyer shall deposit, or shall
cause to be deposited, with the Exchange Agent, for the benefit of the holders
of Old Certificates, for exchange in accordance with this Section 1.4,
certificates representing the shares of IVI Common Stock ("New Certificates")
and an estimated amount of cash (such New Certificates and cash, together with
any dividends or distributions with respect thereto (without any interest
thereon), being hereinafter referred to as the "Exchange Fund") to be paid
pursuant to Section 1.3 in exchange for outstanding Shares.
(b) As promptly as practicable after the Effective Time, Buyer shall send or
cause to be sent to each former holder of record of Shares immediately prior to
the Effective Time transmittal materials for use in exchanging such holder's
Old Certificates for the Merger Consideration. Buyer shall cause the New
Certificates representing shares of IVI Common Stock into which a holder's
Shares are converted at the Effective Time, together with any check in respect
of any fractional share interests or dividends or distributions which such
stockholder shall be entitled to receive, to be delivered to such stockholder
upon delivery to the Exchange Agent of Old Certificates representing such
Shares (or an affidavit and indemnity in form reasonably satisfactory to Buyer
and the Exchange Agent if any of such certificates are lost, stolen or
destroyed) owned by such holder. No interest will be paid on any such cash to
be paid pursuant to this Section 1 upon such delivery.
(c) Notwithstanding the foregoing, neither the Exchange Agent nor any party
hereto shall be liable to any former holder of Shares for any amount properly
delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws.
(d) No dividends or other distributions with respect to IVI Common Stock
with a record date occurring after the Effective Time shall be paid to the
holder of any unsurrendered Old Certificate representing shares of Company
Common Stock converted in the Merger into the right to receive shares of such
IVI Common Stock until the holder thereof shall surrender such Old Certificate
in accordance with this Section 1.4. After the surrender of an Old Certificate
in accordance with this Section 1.4, the record holder thereof shall be
entitled to receive any such dividends or other distributions, without any
interest thereon, which theretofore had become payable with respect to shares
of IVI Common Stock represented by such Old Certificate.
(e) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of the Company for twelve months after the Effective Time shall be
paid to Buyer. Any stockholders of the Company who have not theretofore
complied with this Section 1.4 shall thereafter look only to Buyer for payment
of the shares of IVI Common Stock, cash in lieu of any fractional shares and
unpaid dividends and distributions on the IVI Common Stock deliverable in
respect of each share of Company Common Stock such holder of Shares holds as
determined pursuant to this Agreement, in each case without any interest
thereon. Any amounts remaining unclaimed by holders of Shares two years after
the Effective Time (or such earlier date immediately prior to such time as such
amounts would otherwise escheat to or become property of any governmental
entity) shall, to the extent permitted by applicable Law, become the property
of the Buyer free and clear of any claims or
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interest of any Person previously entitled thereto; provided, however, that
nothing herein shall limit the obligations of the Buyer under Section 1.4(b).
Section 1.5 Dissenting Shares. Notwithstanding Section 1.3, Shares
outstanding immediately prior to the Effective Time and held by a holder who
has not voted in favor of the Merger or consented thereto in writing and who
has demanded appraisal for such Shares in accordance with Section 262 of the
DGCL shall not be converted into a right to receive the Merger Consideration
but shall be converted into the right to receive such consideration from the
Company as may be determined to be due in respect of such dissenting Shares
pursuant to Section 262 of the DGCL; provided, however, that if the holder of
such dissenting Shares shall have failed to perfect or shall have waived,
rescinded or otherwise lost (in each such instance, to the reasonable
satisfaction of the Surviving Corporation) its status as a "dissenting
shareholder" pursuant to Section 262 of the DGCL, then such holder of
dissenting Shares shall forfeit the right to dissent from the Merger and such
Shares shall thereupon be deemed to have been converted into the right to
receive, as of the Effective Time, the Merger Consideration. The Company shall
give Buyer prompt notice of any demands received by the Company for appraisal
of Shares, and Buyer shall have the right to participate in all negotiations
and proceedings with respect to such demands. The Company shall not, except
with the prior written consent of Buyer, make any payment with respect to, or
settle or offer to settle, any such demands.
Section 1.6 Stock Options. As of the Effective Time, each outstanding option
to purchase shares of Company Common Stock ("Company Options") pursuant to
stock options granted under the stock option plans of the Company, whether or
not exercisable, shall be converted into an option to purchase the number of
shares of IVI Common Stock that would equal $.30 divided by the Base Period
Trading Price (the "Option Exchange Ratio") multiplied by the number of shares
of Company Common Stock subject to such option at an exercise price per share
equal to (i) the exercise price in effect under such option immediately prior
to the Effective Time, divided by (ii) the Option Exchange Ratio, and otherwise
on substantially the same terms and conditions, including the terms under which
such option is exercisable, as in effect under such option immediately prior to
the Effective Time.
ARTICLE II
The Surviving Corporation
Section 2.1 Certificate of Incorporation. The certificate of incorporation
of the Company in effect at the Effective Time shall be the certificate of
incorporation of the Surviving Corporation until amended in accordance with
applicable Law.
Section 2.2 Bylaws. The bylaws of the Company in effect at the Effective
Time shall be the bylaws of the Surviving Corporation until amended in
accordance with applicable Law.
Section 2.3 Directors and Officers. From and after the Effective Time, until
successors are duly elected or appointed and qualified in accordance with
applicable Law, (i) the directors of Merger Subsidiary at the Effective Time
shall be the directors of the Surviving Corporation, and (ii) the officers of
the Company at the Effective Time shall be the officers of the Surviving
Corporation.
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ARTICLE III
Representations and Warranties of The Company
The Company represents and warrants to Buyer that:
Section 3.1 Corporate Existence and Power. The Company is a corporation duly
incorporated, validly existing and in good standing under the Laws of the State
of Delaware and has all corporate powers and approvals required to carry on its
business as now conducted.
Section 3.2 Corporate Authorization. The execution, delivery and performance
by the Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby are within the Company's corporate powers, and
except for any required approval by the Company's stockholders in connection
with the consummation of the Merger, this Agreement will have been duly
authorized by all necessary corporate action. This Agreement constitutes a
valid and binding agreement of the Company.
Section 3.3 Governmental Authorization. The execution, delivery and
performance by the Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby require no action by or in
respect of, or filing with, any Governmental Authority other than (i) the
filing of a certificate of merger in accordance with the DGCL, and (ii)
compliance with applicable requirements of the Securities Laws.
Section 3.4 Non-Contravention. The execution, delivery and performance by
the Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) contravene or conflict
with the certificate of incorporation or bylaws of the Company, (ii) assuming
compliance with the matters referred to in Section 3.3, contravene or conflict
with or constitute a violation of any provision of any Law or Order binding
upon or applicable to the Company or (iii) constitute or result in a default
under, or require any consent pursuant to, any material Contract of the
Company, except where such default or the absence of such consent is not likely
to result in a Material Adverse Effect to the Company .
Section 3.5 Capitalization. The authorized capital stock of the Company
consists of 20,000,000 authorized shares of Company Common Stock and 5,000,000
authorized shares of Company Preferred Stock. As of June 23, 1999, (a)
3,325,468 shares of Company Common Stock were issued and outstanding, (b) no
shares of Company Common Stock were held in the treasury of the Company, (c)
800,000 shares of Company Common Stock were reserved for future issuance
pursuant to employee stock options issued or issuable pursuant to the Company's
1988 Stock Plan, and (d) 300,000 shares of Company Common Stock were reserved
for future issuance pursuant to director stock options issued or issuable
pursuant to the Company's 1995 Director Stock Option Plan. As of June 23, 1999,
(a) no shares of Preferred Stock were issued and outstanding, and (b) no shares
of Preferred Stock were held in the treasury of the Company. All outstanding
shares of Company Common Stock have been duly authorized and validly issued and
are fully paid and nonassessable. Except as set forth in this Section and for
changes since June 23, 1999, resulting from the exercise of stock options
outstanding on such date, there are outstanding (i) no shares of capital stock
or other voting securities of the Company, (ii) no securities of the Company
convertible into or exchangeable for shares of capital stock or voting
securities of the Company, and (iii) no options or other rights to acquire from
the Company, and no obligation of the Company to issue, any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of the Company (the items in clauses (i), (ii) and
(iii) being referred to collectively as the "Company Securities"). There are no
outstanding obligations of the Company to repurchase, redeem or otherwise
acquire any Company Securities.
Section 3.6 SEC Filings. The Company has delivered to Buyer (i) its Annual
Report on Form 10-K, as amended, for its fiscal year ended December 31, 1998
(the "Company 10-K"), (ii) its proxy or information statements relating to
meetings of, or actions taken without a meeting by, the stockholders of the
Company held since June 2, 1998, and (iii) all of its other reports,
statements, schedules and registration statements filed with the Securities and
Exchange Commission (the "SEC") since December 31, 1998. All reports filed by
the Company with the SEC (i) at the time filed, complied in all material
respects with the applicable requirements
5
of the Securities Laws and other applicable Law and (ii) did not, at the time
they were filed (or, if amended or superseded by a filing prior to the date of
this Agreement, then at the date of such filing), contain any untrue statement
of a material fact or omit to state a material fact required to be stated in
such report or necessary to make the statements in such report, in light of the
circumstances under which they were made, not misleading.
Section 3.7 Financial Statements. The audited consolidated financial
statements and unaudited consolidated interim financial statements of the
Company included in the Company's 10-K and in the Company's Quarterly Reports
on Form 10-Q filed for quarterly periods of fiscal year 1998 (the "Company
10-Qs") fairly present, in conformity with GAAP (except as may be indicated in
the notes thereto), the consolidated financial position of the Company as of
the dates thereof and its consolidated statements of operations and of cash
flows for the periods then ended (subject to normal year-end adjustments in the
case of any unaudited interim financial statements).
Section 3.8 Disclosure Documents. The information with respect to the
Company and its Affiliates that the Company furnishes to the Buyer in writing
specifically for use in each document required to be filed with the SEC in
connection with the transactions contemplated by this Agreement (the
"Disclosure Documents") will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading (i) in the case of the Registration Statement, which
includes the proxy statement of the Company (the "Company Proxy Statement") and
the Prospectus of IVI Corp. (the "IVI Corp. Prospectus"), at the time the
Company Proxy Statement or the IVI Corp. Prospectus or any amendment or
supplement thereto is first mailed to stockholders of the Company, at the time
the stockholders of the Company vote on the adoption of this Agreement and at
the Effective Time, and (ii) in the case of any Disclosure Document other than
the Registration Statement, at the time of the filing thereof and at the time
of any distribution thereof.
Section 3.9 Finders' and Bankers' Fees. There is no investment banker,
broker, finder or other intermediary which has been retained by or is
authorized to act on behalf of the Company or the Special Committee who might
be entitled to any fee or commission from Buyer or any of its Affiliates upon
consummation of the transactions contemplated by this Agreement.
Section 3.10 Opinion of Financial Advisor. The Company has received the
opinion of Southeastern Appraisal Resource Associates, Inc., dated July 20,
1999, to the effect that the Merger Consideration to be paid to the
stockholders of the Company upon the consummation of the Merger is fair, from a
financial point of view, to the Company.
ARTICLE IV
Representations and Warranties of IVI Corp.
IVI Corp. represents and warrants to the Company that:
Section 4.1 Corporate Existence and Power. IVI Corp. is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to consummate the
transactions contemplated by this Agreement.
Section 4.2 Corporate Authorization. The execution, delivery and performance
by IVI Corp. of this Agreement and the consummation by IVI Corp. of the
transactions contemplated hereby are within the corporate powers of IVI Corp.,
and upon approval and adoption of this Agreement by the Board of Directors of
IVI Corp., will have been duly authorized by all necessary corporate action.
This Agreement constitutes a valid and binding agreement of IVI Corp.
6
Section 4.3 Governmental Authorization. The execution, delivery and
performance by IVI Corp. of this Agreement and the consummation by IVI Corp. of
the transactions contemplated by this Agreement require no action by or in
respect of, or filing with, any Governmental Authority other than (i) the
filing of a certificate of merger in accordance with the DGCL, and (ii)
compliance with any applicable requirements of the Securities Laws.
Section 4.4 Capitalization. The authorized capital stock of IVI Corp.
consists of 99,000,000 authorized shares of IVI Common Stock and 1,000,000
authorized shares of preferred stock, $.01 par value ("IVI Preferred Stock").
As of July 1, 1999, (a) 12,498,000 shares of IVI Common Stock were issued and
outstanding, (b) 5,616,000 exchangeable shares of IVI Checkmate Ltd., which are
exchangeable by the holders for shares of IVI Common Stock on a share-for-share
basis, were issued and outstanding, (c) 332,150 shares of IVI Common Stock were
held in the treasury of IVI Corp., (d) 2,500,000 shares of IVI Common Stock
were reserved for future issuance pursuant to stock options issued or issuable
pursuant to IVI Corp.'s 1998 Long-Term Incentive Plan, and (e) 250,000 shares
of IVI Common Stock were reserved for future issuance pursuant to stock options
issued or issuable pursuant to IVI Corp.'s 1998 Directors Stock Option Plan. As
of July 1, 1999, (a) one share of IVI Series B Preferred Stock was issued and
outstanding, (b) 894,663 shares of IVI Series D Preferred Stock were issued and
outstanding and (c) no shares of IVI Preferred Stock were held in the treasury
of IVI Corp. All outstanding shares of IVI Common Stock and IVI Preferred Stock
have been duly authorized and validly issued and are fully paid and
nonassessable. Except as set forth in this Section and on Schedule 4.4 and
except for changes since July 1, 1999, resulting from the exercise of employee
stock options outstanding on such date, there are outstanding (i) no shares of
capital stock or other voting securities of IVI Corp. (ii) no securities of IVI
Corp. convertible into or exchangeable for shares of capital stock or voting
securities of IVI Corp., and (iii) no options or other rights to acquire from
IVI Corp., and no obligation of IVI Corp. to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of IVI Corp. (the items in clauses (i), (ii) and (iii) being
referred to collectively as the "IVI Corp. Securities"). Other than certain
rights of the holders of IVI Corp.'s Series D Preferred Stock to have IVI Corp.
repurchase such shares, there are no outstanding obligations of IVI Corp. or
any IVI Corp. subsidiary to repurchase, redeem or otherwise acquire any IVI
Corp. Securities.
Section 4.5 Non-Contravention. The execution, delivery and performance by
IVI Corp. of this Agreement and the consummation by IVI Corp. of the
transactions contemplated hereby do not and will not (i) contravene or conflict
with the certificate of incorporation or bylaws of IVI Corp., (ii) assuming
compliance with the matters referred to in Section 4.3, contravene or conflict
with any material provision of Law or Order binding upon or applicable to IVI
Corp or (iii) constitute or result in a default under, or require any consent
pursuant to, any material Contract of the Company, except where such default or
the absence of such consent is not likely to result in a Material Adverse
Effect to IVI Corp.
Section 4.6 Disclosure Documents. The information with respect to IVI Corp.
and its Affiliates that IVI Corp. furnishes to the Company in writing
specifically for use in any Disclosure Document will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading (i) in the case of the Registration
Statement, which includes the Company Proxy Statement and the IVI Corp.
Prospectus, at the time the Company Proxy Statement and the IVI Corp.
Prospectus or any amendment or supplement thereto is first mailed to
stockholders of the Company, at the time the stockholders vote on adoption of
this Agreement and at the Effective Time, and (ii) in the case of any
Disclosure Document other than the Registration Statement, at the time of the
filing thereof and at the time of any distribution thereof.
Section 4.7 Finders' and Bankers' Fees. There is no investment banker,
broker, finder or other intermediary which has been retained by or is
authorized to act on behalf of IVI Corp. who might be entitled to any fee or
commission from the Company if the transactions contemplated by this Agreement
are not consummated.
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Section 4.8 SEC Filings. IVI Corp. has delivered to the Company (i) the
Annual Report on Form 10-K for its fiscal year ended December 31, 0000 (xxx
"XXX Xxxx. 00-X"), (xx) its proxy or information statements relating to
meetings of, or actions taken without a meeting by, the stockholders of IVI
Corp. held since June 23, 1998, and (iii) all of its other reports, statements,
schedules and registration statements filed with the SEC since December 31,
1998. All reports filed by IVI Corp. with the SEC (i) at the time filed,
complied in all material respects with the applicable requirements of the
Securities Laws and other applicable Law and (ii) did not, at the time they
were filed (or, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
report or necessary to make the statements in such report, in light of the
circumstances under which they were made, not misleading.
ARTICLE V
Representations and Warranties of IVI Inc. and Merger Subsidiary
Each of IVI Inc. and Merger Subsidiary represent and warrant to the Company
that:
Section 5.1 Corporate Existence and Power. Each of IVI Inc. and Merger
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Georgia and the State of Delaware,
respectively, and each has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to consummate the
transactions contemplated by this Agreement. Since the date of its
incorporation, Merger Subsidiary has not engaged in any material activities
other than in connection with or as contemplated by this Agreement.
Section 5.2 Corporate Authorization. The execution, delivery and performance
by IVI Inc. and Merger Subsidiary of this Agreement and the consummation by IVI
Inc. and Merger Subsidiary of the transactions contemplated hereby are within
the corporate powers of IVI Inc. and Merger Subsidiary, and upon approval and
adoption of this Agreement by the respective Board of Directors of each such
corporation and by IVI Inc. as the sole stockholder of Merger Subsidiary, will
have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of IVI Inc. and Merger Subsidiary.
Section 5.3 Governmental Authorization. The execution, delivery and
performance by IVI Inc. and Merger Subsidiary of this Agreement and the
consummation by IVI Inc. and Merger Subsidiary of the transactions contemplated
by this Agreement require no action by or in respect of, or filing with, any
Governmental Authority other than (i) the filing of a certificate of merger in
accordance with the DGCL, and (ii) compliance with any applicable requirements
of the Securities Laws.
Section 5.4 Non-Contravention. The execution, delivery and performance by
IVI Inc. and Merger Subsidiary of this Agreement and the consummation by IVI
Inc. and Merger Subsidiary of the transactions contemplated hereby do not and
will not (i) contravene or conflict with the articles or certificate of
incorporation or bylaws of IVI Inc. or Merger Subsidiary, (ii) assuming
compliance with the matters referred to in Section 5.3, contravene or conflict
with any material provision of Law or Order binding upon or applicable to IVI
Inc. or Merger Subsidiary or (iii) constitute or result in a default under, or
require any consent pursuant to, any material Contract of the Company, except
where such default or the absence of such consent is not likely to result in a
Material Adverse Effect to either IVI Inc. or Merger Subsidiary.
Section 5.5 Disclosure Documents. The information with respect to IVI Inc.
and its Affiliates that IVI Inc. furnishes to the Company or IVI Corp. in
writing specifically for use in any Disclosure Document will not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading (i) in the case of the
Registration Statement, which includes the Company Proxy Statement and the IVI
Corp. Prospectus, at the time the Company Proxy Statement and the IVI Corp.
Prospectus or any amendment or supplement thereto is first mailed to
stockholders of the Company, at the time the stockholders vote on
8
adoption of this Agreement and at the Effective Time, and (ii) in the case of
any Disclosure Document other than the Registration Statement, at the time of
the filing thereof and at the time of any distribution thereof.
Section 5.6 Finders' and Bankers' Fees. There is no investment banker,
broker, finder or other intermediary which has been retained by or is
authorized to act on behalf of either IVI Inc. or Merger Subsidiary who might
be entitled to any fee or commission from the Company if the transactions
contemplated by this Agreement are not consummated.
ARTICLE VI
Covenants of the Company
The Company agrees that:
Section 6.1 Conduct of the Company. From the date hereof until the
Effective Time, the Company shall conduct its business in the ordinary course
consistent with past practice (except for acts in connection with the Merger)
and shall use reasonable efforts to preserve intact its business organizations
and relationships with third parties and to keep available the services of its
present officers and employees. Without limiting the generality of the
foregoing, from the date hereof until the Effective Time, without the consent
of Buyer:
(a) the Company will not adopt or propose any change in its certificate
of incorporation or bylaws;
(b) the Company will not acquire, whether by purchase of equity
securities, merger or consolidation, any other Person or acquire a material
amount of assets of any other Person except (i) pursuant to existing
Contracts or commitments or (ii) in the ordinary course consistent with
past practice;
(c) the Company will not sell, lease, license or otherwise dispose of
any material assets or property except (i) pursuant to existing Contracts
or commitments or (ii) in the ordinary course consistent with past
practice;
(d) except as otherwise contemplated herein, the Company will not agree
or commit to do any of the foregoing;
(e) the Company will not authorize for issuance, issue, sell, deliver or
agree or commit to issue, sell or deliver (whether through the issuance or
granting of options, warrants, commitments, subscriptions, rights to
purchase or otherwise) any stock of any class or any other securities or
equity equivalents (including, without limitation, any stock options or
stock appreciation rights), except as required by outstanding options or
stock appreciation rights under the stock option plans of the Company as in
effect as of the date hereof, or amend any of the terms of any such
securities, options or rights outstanding as of the date hereof, except as
specifically contemplated by this Agreement;
(f) the Company will not split, combine or reclassify shares of its
capital stock, declare, set aside or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in respect
of its capital stock, or redeem or otherwise acquire any of its securities;
and
(g) the Company will not, except as may be required by Law, enter into,
adopt or amend or terminate any bonus, profit sharing, compensation,
severance, termination, stock option, stock appreciation right, restricted
stock, performance unit, stock equivalent, stock purchase agreement,
pension, retirement, deferred compensation, employment, severance or other
employee benefit agreement, trust, plan, fund or other arrangement for the
benefit or welfare of any director, officer or employee in any manner, or
(except for normal increases in the ordinary course of business consistent
with past practice that, in the aggregate, do not result in a material
increase in benefits or compensation expense to the Company, or as required
under existing agreements) increase in any manner the compensation or
fringe benefits of any director, officer or employee or pay any benefit not
required by any plan and arrangement as in effect as of the date hereof
(including, without limitation, the granting of stock appreciation rights
or performance units).
9
Section 6.2 Stockholder Meeting; Proxy Statement Material. The Company shall
cause a meeting of its stockholders (the "Company Stockholder Meeting") to be
duly called and held as soon as reasonably practicable for the purpose of
voting on the approval and adoption of this Agreement the transactions
contemplated hereby, including the Merger. The directors of the Company, acting
in part on the recommendation of the Special Committee, shall, subject to their
fiduciary duties after consultation with counsel, recommend approval and
adoption of this Agreement and the transactions contemplated hereby, including
the Merger, by the Company's stockholders. In connection with such meeting, but
subject to the terms hereof, the Company (i) will promptly prepare and file
with the SEC, will use reasonable efforts to have cleared by the SEC and will
thereafter mail to its stockholders as promptly as practicable the Company
Proxy Statement as set forth in Section 8.5 and all other proxy materials for
such meeting, and will prepare and file the Schedule 13E-3 Transaction
Statement required pursuant to Section 13(e) of the Securities Exchange Act of
1934, as amended (the "Schedule 13E-3"), (ii) will use reasonable efforts to
obtain the necessary approvals by its stockholders of this Agreement and the
transactions contemplated hereby and (iii) will otherwise comply with all legal
requirements applicable to such meeting.
Section 6.3 Access to Information. From the date hereof until the Effective
Time, the Company will give Buyer and its counsel, financial advisors, auditors
and other authorized representatives full access to the offices, properties,
books and records of the Company, will furnish to Buyer and its counsel,
financial advisors, auditors and other authorized representatives such
financial and operating data and other information as such Persons may
reasonably request and will instruct the Company's employees, counsel,
financial advisors and auditors to cooperate with Buyer in its investigation of
the business of the Company; provided that no investigation pursuant to this
Section shall affect any representation or warranty given by the Company to
Buyer hereunder.
Section 6.4 Other Potential Bidders. The Company shall, directly or
indirectly, furnish information and access, in each case in response to
unsolicited requests therefor received prior to or after the date of this
Agreement, to the same extent permitted by Section 6.3 hereof, to any Person
pursuant to appropriate confidentiality agreements, and may participate in
discussions and negotiate with any such Person concerning any merger, sale of
assets, sale of shares of capital stock or similar transaction involving the
Company or any division of the Company (any such transaction being referred to
herein as a "Competing Transaction"), if the Special Committee determines that
such action is necessary in light of its fiduciary obligations to the Company's
stockholders after consultation with counsel. In addition, the Company shall
direct its officers and other appropriate personnel to cooperate with and be
reasonably available to consult with any such Person. Except as set forth
above, the Company shall not solicit, participate in or initiate discussions or
negotiations with, or provide any information to, any Person (other than Buyer)
concerning any merger, sale of assets, sale of shares of capital stock or
similar transaction involving the Company or any division of the Company.
Section 6.5 Notices of Certain Events. The Company shall promptly notify
Buyer of:
(i) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement; and
(ii) any notice or other communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement.
ARTICLE VII
Covenants of Buyer
Buyer agrees that:
Section 7.1 Voting of Shares. In any vote of the Company's stockholders with
respect to this Agreement and the transactions contemplated hereby, IVI Inc.
shall, and IVI Corp. shall cause IVI Inc. to, vote
10
or cause to be voted all of the Shares then outstanding and beneficially owned
by IVI Inc. in favor of the approval and adoption of this Agreement and the
transactions contemplated hereby.
Section 7.2 Director and Officer Liability. For six years from and after the
Effective Time, Buyer will or will cause the Surviving Corporation to indemnify
and hold harmless the present and former officers and directors of the Company
in respect of acts or omissions occurring at or prior to the Effective Time to
the extent provided under the Company's certificate of incorporation and bylaws
in effect on the date hereof; provided that such indemnification shall be
available to the extent permitted by applicable Law. For such six years after
the Effective Time, Buyer will or will cause the Surviving Corporation to
provide officers' and directors' liability insurance in respect of acts or
omissions occurring at or prior to the Effective Time covering each such Person
currently covered by the Company's officers' and directors' liability insurance
policy on terms with respect to coverage and amount no less favorable than
those of such policy in effect on the date hereof, provided that if such
coverage is not obtainable at a cost less than or equal to two times the amount
per annum the Company paid in its last full fiscal year, Buyer shall or shall
cause the Surviving Corporation to purchase such lesser amount of coverage, on
terms as similar in coverage as practicable to such coverage in effect on the
date hereof, as may be obtained having a per annum cost not to exceed two times
the amount per annum the Company paid in its last full fiscal year, which
amount has been disclosed to Buyer.
Section 7.3 Notices of Certain Events. Buyer shall promptly notify the
Company of:
(i) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement; and
(ii) any notice or other communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement.
ARTICLE VIII
Covenants of Buyer and The Company
The parties hereto agree that:
Section 8.1 Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each party will use reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done all things necessary, proper
or advisable under applicable Laws to consummate the transactions contemplated
by this Agreement.
Section 8.2 Certain Filings. The Company and Buyer shall cooperate with one
another (a) in connection with the preparation of the Disclosure Documents as
set forth in Sections 6.2 and 8.5, (b) in determining whether any action by or
in respect of, or filing with, any Governmental Authority is required, or any
actions, consents, approvals or waivers are required to be obtained from
parties to any material Contracts, in connection with the consummation of the
transactions contemplated by this Agreement, and (c) in seeking any such
actions, consents, approvals or waivers or making any such filings, furnishing
information required in connection therewith or with the Disclosure Documents
and seeking timely to obtain any such actions, consents, approvals or waivers.
Section 8.3 Public Announcements. Buyer and the Company will consult with
each other before issuing any press release or making any public statement with
respect to this Agreement and the transactions contemplated hereby and, except
as may be required by applicable Law or any listing agreement with any national
securities exchange, will not issue any such press release or make any such
public statement prior to such consultation.
Section 8.4 Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of the Company or
11
Merger Subsidiary, any deeds, bills of sale, assignments or assurances and to
take and do, in the name and on behalf of the Company or Merger Subsidiary, any
other actions and things they may deem desirable to vest, perfect or confirm of
record or otherwise in the Surviving Corporation any and all right, title and
interest in, to and under any of the rights, properties or assets of the
Company acquired or to be acquired by the Surviving Corporation as a result of,
or in connection with, the Merger.
Section 8.5 Registration Statement; Company Proxy Statement.
(a) As soon as possible after the execution of this Agreement, the Company
and IVI Corp. shall prepare and file with the SEC the Registration Statement,
including therein the Company Proxy Statement and IVI Corp. Prospectus to be
sent to the stockholders of the Company, in connection with the registration
under the Securities Laws of the shares of IVI Common Stock to be issued to the
holders of Company Common Stock pursuant to the Merger. The Company and IVI
Corp. each shall use all reasonable efforts to cause the Registration Statement
to become effective as promptly as practicable, and, prior to the effective
date of the Registration Statement, IVI Corp. shall take all or any action
required under any applicable Securities Laws in connection with the issuance
of shares of IVI Common Stock pursuant to the Merger. As promptly as
practicable after the Registration Statement shall have become effective, the
Company shall mail the Company Proxy Statement and IVI Corp. Prospectus to its
stockholders. The Company Proxy Statement and IVI Corp. Prospectus shall
include the recommendation of the Board of Directors of the Company and the
recommendation of each of the Board of Directors of IVI Inc. and IVI Corp. in
favor of the Merger.
No amendment to the Registration Statement or supplement to the Company
Proxy Statement or IVI Corp. Prospectus shall be made by IVI Corp. or the
Company without the approval of the other party, which shall not be
unreasonably withheld. The Company or IVI Corp. each will advise the other,
promptly after it receives notice thereof, of the time when the Registration
Statement has become effective or any supplement or amendment has been filed,
the issuance of any stop order, the suspension of the qualification of the IVI
Common Stock issuable in connection with the Merger for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Registration
Statement or the Company Proxy Statement or comments thereon and responses
thereto or requests by the SEC for additional information.
(b) The Company, IVI Inc., IVI Corp. and Merger Subsidiary each hereby (i)
consents to the use of its name and, on behalf of its subsidiaries and
affiliates, the names of such subsidiaries and affiliates, and to the inclusion
of financial statements and business information relating to such party and its
subsidiaries and affiliates (in each case, to the extent required by applicable
Securities Laws), in the Registration Statement and the Company Proxy
Statement, (ii) agrees to use all reasonable efforts to obtain the written
consent of any person or entity retained by it which may be required to be
named (as an expert or otherwise) in the Registration Statement or the Company
Proxy Statement, and (iii) agrees to cooperate fully, and agrees to use all
reasonable efforts to cause its subsidiaries and affiliates to cooperate fully,
with any legal counsel, investment banker, accountant or other agent or
representative retained by any of the parties specified in clause (i) above in
connection with the preparation of any and all information required, as
determined after consultation with each party's counsel, to be disclosed by
applicable Securities Laws in the Registration Statement or the Company Proxy
Statement.
ARTICLE IX
Conditions to The Merger
Section 9.1 Conditions to the Obligations of Each Party. The obligations of
the Company, Buyer and Merger Subsidiary to consummate the Merger are subject
to the satisfaction at or prior to the Effective Time of the following
conditions, any or all of which may be waived, in whole or in part, by each of
the parties intended to benefit therefrom, to the extent permitted by
applicable Law:
(a) this Agreement and the transactions contemplated hereby, including
the Merger, shall have been approved and adopted by the Board of Directors
of the Company;
12
(b) this Agreement and the transactions contemplated hereby, including
the Merger, shall have been approved and adopted by a majority of all
shares of the Company Common Stock entitled to vote thereon, in accordance
with Section 251 of the DGCL;
(c) no Governmental Authority shall have enacted, issued, promulgated,
enforced or entered any Law or Order (whether temporary, preliminary or
permanent) which is in effect and which has the effect of making the Merger
illegal or otherwise prohibiting consummation of the Merger;
(d) all actions by or in respect of or filings with any Governmental
Authority required to permit the consummation of the Merger shall have been
obtained, other than the filing of the requisite certificate of merger with
the Secretary of State of the State of Delaware;
(e) the Registration Statement shall be effective under the Securities
Act of 1933, as amended, no stop orders suspending the effectiveness of the
Registration Statement shall have been issued, no action, suit, proceeding
or investigation by the SEC to suspend the effectiveness thereof shall have
been initiated and be existing, and all necessary clearances under the
Securities Laws relating to the issuance or trading of the shares of IVI
Common Stock issuable pursuant to the Merger shall have been received; and
(f) there shall be no action, suit, investigation or proceeding pending
against, or to the knowledge of the Company or Buyer, threatened against or
affecting, the Company, Buyer or any of their respective officers or
directors, which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the Merger or any of the other transactions
contemplated hereby.
Section 9.2 Additional Conditions to the Obligations of Buyer and Merger
Subsidiary. The obligations of Buyer and Merger Subsidiary to consummate the
Merger are also subject to the satisfaction at or prior to the Effective Time
of the following further conditions, any or all of which may be waived, in
whole or in part, by each of the parties intended to benefit therefrom, to the
extent permitted by applicable Law:
(a) the Company shall have performed in all material respects all of its
obligations hereunder required to be performed by it at or prior to the
Effective Time, the representations and warranties of the Company contained
in this Agreement and in any certificate delivered by the Company pursuant
hereto shall be true and correct in all respects, except where the breach
or inaccuracy thereof would not, individually or in the aggregate, have a
Material Adverse Effect, at and as of the Effective Time as if made at and
as of such time, except that those representations and warranties which
address matters only as of a particular date shall remain true and correct
as of such date, and Buyer shall have received a certificate signed by the
principal financial officer of the Company to the foregoing effect;
(b) no Material Adverse Effect shall have occurred;
(c) Buyer shall have received or be satisfied that it will receive all
consents and approvals contemplated by Section 3.3 and any other consents
of third parties necessary in connection with the consummation of the
Merger if the failure to obtain any such consent would have a Material
Adverse Effect; and
(d) Buyer shall have received all documents it may reasonably request
relating to the existence of the Company and the authority of the Company
to enter into this Agreement, all in form and substance reasonably
satisfactory to Buyer.
Section 9.3 Additional Conditions to the Obligations of the Company. The
obligations of the Company to consummate the Merger are also subject to the
satisfaction at or prior to the Effective Time of the following further
conditions, any or all of which may be waived, in whole or in part, by the
Company to the extent permitted by applicable Law:
(a) Buyer and Merger Subsidiary shall have performed in all material
respects all of their respective obligations hereunder required to be
performed by them at or prior to the Effective Time, the representations
and warranties of Buyer contained in this Agreement and in any certificate
delivered by Buyer or Merger Subsidiary pursuant hereto shall be true and
correct in all material respects at and as of
13
the Effective Time as if made at and as of such time, except that those
representations and warranties which address matters only as of a
particular date shall remain true and correct as of such date, and the
Company shall have received a certificate signed by the President or any
Vice President of each of Buyer and Merger Subsidiary to the foregoing
effect;
(b) the Company shall have received all documents it may reasonably
request relating to the existence of Buyer or Merger Subsidiary and the
authority of Buyer or Merger Subsidiary to enter into this Agreement, all
in form and substance reasonably satisfactory to the Company;
(c) Southeastern Appraisal Resource Associates, Inc. shall have
reaffirmed in writing the fairness opinion described in Section 3.10, as if
such opinion was issued at the Effective Time; and
(d) this Agreement and the Merger shall have been approved and adopted
by the Board of Directors of each of IVI Corp., IVI Inc. and Merger
Subsidiary and by IVI Inc. as the sole stockholder of Merger Subsidiary.
ARTICLE X
Termination
Section 10.1 Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time (notwithstanding any
approval of this Agreement by the stockholders of the Company):
(a) by mutual written consent of the Company and Buyer;
(b) by either the Company or Buyer, if the Merger has not been
consummated by September 30, 1999;
(c) by either the Company or Buyer, if there shall be any Law that makes
consummation of the Merger illegal or otherwise prohibited or if any Order
enjoining Buyer or the Company from consummating the Merger is entered and
such Order shall become final and nonappealable;
(d) by either the Company or Buyer if this Agreement and the Merger
shall fail to be approved and adopted by the stockholders of the Company at
the Company Stockholder Meeting called for such purpose, as set forth in
Section 9.1(b) above;
(e) by either the Company (such determination to be made on behalf of
the Company by the Special Committee in its sole discretion) or Buyer, if,
consistent with the terms of this Agreement, the Board of Directors of the
Company or the Special Committee withdraws, modifies or changes its
recommendation of this Agreement or the Merger in a manner adverse to Buyer
or Merger Subsidiary or shall have resolved to do any of the foregoing or
the Board of Directors of the Company or the Special Committee shall have
recommended to the stockholders of the Company any Competing Transaction or
resolved to do so.
Section 10.2 Effect of Termination. If this Agreement is terminated pursuant
to Section 10.1, this Agreement shall become void and of no effect with no
liability on the part of any party hereto, except that the agreements contained
in Section 11.5 shall survive the termination hereof; provided, however, that,
except as specifically provided herein, nothing herein shall relieve any party
hereto of liability for any breach of this Agreement.
ARTICLE XI
Miscellaneous
Section 11.1 Definitions. As used herein, the following terms have the
following respective meanings (such meanings to be equally applicable to both
the singular and plural forms of the terms defined):
14
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such given Person.
"Agreement" means this Agreement and Plan of Merger, as the same may be
supplemented, modified or amended from time to time.
"Contract" means any written agreement, arrangement, authorization,
commitment, contract, indenture, instrument, lease, obligation, plan,
practice, restriction, understanding, or undertaking of any kind or character,
or other document to which any Person is a party or that is binding on any
Person or its capital stock, assets or business.
"Expenses" means all reasonable out-of-pocket expenses (including, without
limitation, all fees and expenses of counsel, accountants, investment bankers,
experts and consultants (which shall not include fees and expenses of officers
or directors of Buyer and/or Affiliates thereof) and commitment fees and other
financing fees and expenses) incurred by Buyer, Merger Subsidiary or the
Company or on behalf of any such party in connection with or related to the
authorization, preparation, negotiation, execution and performance of this
Agreement, the preparation, printing, filing and mailing of the Registration
Statement and the Company Proxy Statement and IVI Corp. Prospectus and the
Schedule 13E-3, the solicitation of the stockholder approvals and all other
matters related to the consummation of the transactions contemplated hereby.
"GAAP" means United States generally accepted accounting principles
consistently applied.
"Governmental Authority" means any federal, state, county, local, foreign
or other governmental or public agency, instrumentality, commission,
authority, board or body, and any court, arbitrator, mediator or tribunal.
"Law" means any code, law, ordinance, regulation, rule or statute of any
Governmental Authority.
"Material Adverse Effect" means any matter that would reasonably be
expected to affect materially and adversely the business, condition (financial
or otherwise) or results of operations of the Company considered as a whole.
"Order" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or writ
of any federal, state, local or foreign or other court, arbitrator, mediator,
tribunal, administrative agency or other Governmental Authority.
"Person" means an individual, a corporation, a partnership, an association,
a trust, a limited liability company or any other entity or organization,
including a government or political subdivision or any agency or
instrumentality thereof.
"Registration Statement" means the Registration Statement on Form S-4, or
other appropriate form, including any pre-effective or post-effective
amendments or supplements thereto, filed with the SEC by IVI Corp. under the
Securities Act of 1993, as amended, with respect to the shares of IVI Corp. to
be issued to the stockholders of the Company in connection with the
transactions contemplated by the Agreement.
"Securities Laws" means the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, and all applicable state securities or "blue sky" laws
and regulations.
"Surviving Corporation" means the Company as the surviving corporation
resulting from the Merger.
15
The following terms are defined in the following Sections of this Agreement:
Term Section
---- -------
"Base Period Trading Price" 1.3(a)
"Buyer" Opening Paragraph
"Company" Opening Paragraph
"Company Common Stock" Recital A
"Company Options" 1.6
"Company Preferred Stock" Recital A
"Company Proxy Statement" 3.8
"Company Securities" 3.5
"Company Stockholder Meeting" 6.2
"Company 10-K" 3.6
"Company 10-Qs" 3.7
"Competing Transaction" 6.4
"DGCL" Recital E
"Disclosure Documents" 3.8
"Effective Time" 1.2(b)
"Exchange Agent" 1.4(a)
"Exchange Fund" 1.4(a)
"GBCC" Recital E
"IVI Common Stock" 1.3(a)
"IVI Corp." Opening Paragraph
"IVI Corp. Prospectus" 3.8
"IVI Corp. Securities" 4.4
"IVI Corp. 10-K" 4.8
"IVI Inc." Opening Paragraph
"IVI Preferred Stock" 4.4
"Merger" Recital E
"Merger Consideration" 1.3(a)
"Merger Subsidiary" Opening Paragraph
"New Certificates" 1.4(a)
"Non-Public Shares" 1.3(a)
"Old Certificates" 1.4(a)
"Option Exchange Ratio" 1.6
"Public Stockholders" Recital C
"Schedule 13E-3" 6.2
"SEC" 3.6
"Share" 1.3(a)
"Shares" 1.3(a)
"Special Committee" Recital C
16
Section 11.2 Notices. Unless otherwise specifically provided herein, any
notice, demand, request or other communication herein requested or permitted to
be given shall be in writing and may be personally served, sent by overnight
courier service, or sent by telecopy with a confirming copy sent by United
States first-class mail, each with any postage or delivery charge prepaid. For
the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this Section) shall be as follows:
If to the Company: National Transaction Network, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy (which shall Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
not constitute notice) to:
First Union Plaza
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Buyer or Merger IVI Checkmate Corp.
Subsidiary: 0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy (which shall Xxxxxx & Bird LLP
not constitute notice) to:
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: X. Xxxx Xxxxxxxx, Esq.
Telephone: 000-000-0000
Telecopy: 000-000-0000
Any notice provided hereunder shall be deemed to have been given on the date
delivered in person, or on the next business day after deposit with an
overnight courier service, or on the date received by telecopy transmission.
Section 11.3 No Survival of Representations and Warranties. The
representations and warranties contained herein and in any certificate
delivered pursuant hereto shall not survive the Effective Time or the
termination of this Agreement.
Section 11.4 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived prior to the
Effective Time if, and only if, such amendment or waiver is in writing and
signed by all parties hereto, or in the case of a waiver, by the party against
whom the waiver is to be effective; provided that any such amendment and any
such waiver by the Company shall have been approved by the Board of Directors
of the Company, acting on the recommendation of the Special Committee; and
provided, further, that after the adoption of this Agreement by the
stockholders of the Company, no such amendment or waiver shall, without the
further approval of such stockholders, alter or change (i) the amount or kind
of consideration to be received in exchange for any shares
17
of capital stock of the Company or (ii) any of the terms or conditions of this
Agreement if such alteration or change would adversely affect the holders of
any shares of capital stock of the Company.
(b) 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 rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 11.5 Fees and Expenses. Except as otherwise provided in this
Section, all Expenses incurred in connection with this Agreement shall be paid
by the party incurring such Expense, including the cost of any fairness
opinion, which shall be borne by the Company; provided that, if the Merger is
not consummated, all printing expenses and filing fees associated with the
preparation and distribution of the Registration Statement and the Company
Proxy Statement and IVI Corp. Prospectus shall be paid by Buyer.
Section 11.6 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other parties hereto, except that Buyer may transfer
or assign, in whole or from time to time in part, to one or more of its
Affiliates, its rights under this Agreement, but any such transfer or
assignment will not relieve Buyer of its obligations under this Agreement or
prejudice the rights of stockholders to receive the Merger Consideration for
Shares properly surrendered in accordance with Section 1.4. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns.
Section 11.7 Governing Law. Regardless of the place or places where this
Agreement may be executed, delivered or consummated, this Agreement shall be
governed by and construed in accordance with the Laws of the State of Delaware,
without regard to any applicable conflicts of Laws.
Section 11.8 Severability. Any term or provision 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.
Section 11.9 Captions. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
Section 11.10 Interpretations. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any party, whether
under any rule of construction or otherwise. No party to this Agreement shall
be considered the draftsman. The parties acknowledge and agree that this
Agreement has been reviewed, negotiated and accepted by all parties and their
attorneys and shall be construed and interpreted according to the ordinary
meaning of the words used so as fairly to accomplish the purposes and
intentions of all parties hereto.
Section 11.11 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures were upon the same instrument. This Agreement shall
become effective when each party hereto shall have received counterparts hereof
signed by all of the other parties hereto.
[Signatures on the Following Page]
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In Witness Whereof, each of the parties has caused this Agreement to be
executed on its behalf as of the day and year first above written.
National Transaction Network, Inc.
Attest:
/s/ Xxxxxxx X. Xxxxx
By: _________________________________
/s/ L. Xxxxx Xxxxxxx
_____________________________________
L. Xxxxx Xxxxxxx, Secretary
Xxxxxxx X. Xxxxx
Name: _______________________________
President and Chief Executive
Officer
Title: ______________________________
IVI Checkmate Corp.
Attest:
/s/ L. Xxxxx Xxxxxxx
By: _________________________________
/s/ Xxxx X. Xxxxxxx
_____________________________________
Xxxx X. Xxxxxxx, Secretary
L. Xxxxx Xxxxxxx
Name: _______________________________
President and Chief Executive
Officer
Title: ______________________________
IVI Checkmate Corp.
Attest:
/s/ Xxxx X. Xxxxxxx
By: _________________________________
/s/ Xxxxxxxx Xxxxxxx
_____________________________________
Xxxxxxxx Xxxxxxx, Secretary
Xxxx X. Xxxxxxx
Name: _______________________________
Executive Vice President and
Title: ______________________________
Chief Financial Officer
_____________________________________
NTN Merger Corp.
Attest:
/s/ L. Xxxxx Xxxxxxx
By: _________________________________
/s/ Xxxx X. Xxxxxxx
_____________________________________
Xxxx X. Xxxxxxx, Secretary
L. Xxxxx Xxxxxxx
Name: _______________________________
President
Title: ______________________________
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