EXHIBIT 10.1
EXECUTION COPY
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (this "Agreement") is dated as of
March 22, 1999, among First Data Corporation, a Delaware corporation
("FDC"), FDC Offer Corporation, a Delaware corporation and a direct
wholly-owned subsidiary of FDC ("Holdco"), FB Merging Corporation, a
Delaware corporation and a direct wholly-owned subsidiary of Holdco
("Merger Sub"), BANK ONE CORPORATION, a Delaware corporation ("Bank One"),
and First USA Financial, Inc., a Delaware corporation and wholly-owned
subsidiary of Bank One ("First USA").
W I T N E S S E T H:
WHEREAS, concurrently herewith, FDC, Merger Sub and Paymentech,
Inc., a Delaware corporation (the "Company"), are entering into an
Agreement and Plan of Merger, a form of which is appended hereto as Exhibit
A (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), pursuant to which Merger Sub will be merged into the
Company (the "Merger").
WHEREAS, the Merger Agreement contemplates that Merger Sub will
be merged into the Company, upon the terms and subject to the conditions
set forth therein, and pursuant to which each of the issued and outstanding
shares, par value $.01 per share, of common stock of the Company (the
"Company Common Stock") not owned directly or indirectly by Parent, Bank
One, the Company or any of their Subsidiaries (including, without
limitation, Merger Sub) (other than such shares held by Parent, Bank One,
the Company or any of their Subsidiaries in a fiduciary, collateral,
custodial or similar capacity which will be converted) will be converted
into the right to receive the Merger Consideration;
WHEREAS, First USA Beneficially Owns (as defined herein)
19,979,081 shares of the Company Common Stock (all such shares so owned and
which may hereafter be acquired by First USA prior to the termination of
this Agreement, whether by means of purchase, dividend, distribution,
split-up, recapitalization, combination, exchange of shares or otherwise,
being referred to herein as the "First USA Shares");
WHEREAS, the Merger Agreement contemplates that First USA shall,
in a tax-free exchange pursuant to Section 351 of the Internal Revenue Code
of 1986, as amended (the "Code"), contribute the Company Common Stock owned
by it to Holdco and Holdco will make a capital contribution of such Company
Common Stock to Merger Sub;
WHEREAS, contemporaneously with the First USA contribution, FDC
shall contribute sufficient cash to pay the aggregate Merger Consideration
to Holdco and Holdco will make a capital contribution of such cash to
Merger Sub;
WHEREAS, concurrently herewith, FDC and Bank One are entering
into a Contribution Agreement (the "Contribution Agreement"), which
provides that following the Merger, FDC and Bank One will, through Holdco,
cause substantially all of the assets and liabilities and business of the
Company, as the Surviving Corporation, to be contributed to Bank One
Payment Services L.L.C., a Delaware limited liability company and an
alliance between wholly-owned subsidiaries of FDC and Bank One (the
"Alliance"), in exchange for a membership interest in the Alliance;
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, FDC and Merger Sub have required that each of Bank One
and First USA agree, and each of Bank One and First USA has agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereby agree as follows:
1. Agreement to Vote: Restriction on Transfer. Proxies and
Non-Interference.
(a) First USA hereby agrees that during the period
commencing on the date hereof and continuing until the termination of this
Agreement in accordance with its terms, at any meeting of the holders of
the Company Common Stock, however called, or in connection with any written
consent of the holders of the Company Common Stock, First USA shall vote
(or cause to be voted) the First USA Shares, (i) in favor of adoption of
the Merger Agreement and the approval of the Merger, all other transactions
contemplated thereby, and any actions required in furtherance thereof and
hereof; (ii) against any action or agreement that is intended, or could
reasonably be expected, to impede, interfere with, or prevent the Merger or
result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company or any of its
subsidiaries under the Merger Agreement or this Agreement; and (iii) except
as specifically requested in writing in advance by FDC or as permitted
pursuant to the terms of the Merger Agreement, against the following
actions (other than the Merger and the transactions contemplated by or
required to implement the Merger Agreement, this Agreement and the
Contribution Agreement): (A) any extraordinary corporate transaction, such
as a merger, consolidation or other business combination involving the
Company or any of its subsidiaries or affiliates; (B) a sale, lease,
transfer or disposition by the Company or any of its subsidiaries of any
assets outside the ordinary course of business or any assets which in the
aggregate are material to the Company and its subsidiaries taken as a
whole, or a reorganization, recapitalization, dissolution or liquidation of
the Company or any of its subsidiaries or affiliates; (C)(1) any change in
the management of the Company or any of its subsidiaries or in a majority
of the persons who constitute the board of directors of the Company or any
of its subsidiaries; (2) any change in the present capitalization of the
Company or any of its subsidiaries or any amendment of the Company's
charter or by-laws or the charter or by-laws of any of its subsidiaries;
(3) any other material change in the Company's or any of its subsidiaries'
corporate structure or business; or (4) any other action that, in the case
of each of the matters referred to in clauses (C)(1), (2) or (3), is
intended, or could reasonably be expected, to impede, interfere with,
delay, postpone or materially adversely affect the Merger or the
transactions contemplated by this Agreement, the Contribution Agreement and
the Merger Agreement. Neither Bank One nor First USA shall enter into any
agreement or understanding with any Person (as defined herein) the effect
of which would be inconsistent with or violative of the provisions and
agreements contained in this Agreement.
(b) First USA shall not, directly or indirectly: (i) tender
the First USA Shares in any tender offer for the Company Common Stock; (ii)
except as contemplated by this Agreement, the Contribution Agreement or the
Merger Agreement, otherwise offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to
the offer for sale, transfer, tender, pledge, encumbrance, assignment or
other disposition of, any or all of the First USA Shares or any interest
therein; (iii) grant any proxies or powers of attorney, deposit any First
USA Shares into a voting trust or enter into a voting agreement with
respect to any First USA Shares; or (iv) take any action that would make
any representation or warranty of First USA contained herein that is
qualified by materiality untrue or incorrect in any respect or any
representation or warranty of First USA contained herein that is not so
qualified untrue or incorrect in any material respect or have the effect of
preventing or disabling First USA from performing First USA's obligations
under this Agreement.
(c) So long as this Agreement remains in effect, each
instrument or certificate evidencing or representing First USA Shares shall
bear a legend substantially to the following effect:
"The shares of Common Stock represented by this certificate are
subject to the transfer and other restrictions stated in a Stockholder
Agreement dated as of March 22, 1999, a copy of which is on file at
the office of the Assistant Secretary of BANK ONE CORPORATION."
(d) First USA agrees with, and covenants to, FDC that First
USA shall not request that the Company register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any
of the First USA Shares, unless such transfer is made in compliance with
this Agreement.
2. Waiver of Appraisal and Dissenter's Rights. First USA
hereby irrevocably waives any rights of appraisal or rights to dissent from
the Merger that it may have.
3. Schedule 13e-3. FDC, Holdco, Merger Sub, Bank One and First
USA shall, in accordance with the rules and regulations of the SEC, file
with the SEC a Rule 13e-3 Transaction Statement (such Rule 13e-3
Transaction Statement, as amended from time to time, the "Rule 13e-3
Transaction Statement"), with respect to the Merger Agreement and the
Contribution Agreement, and such parties shall cause to be disseminated the
information contained therein to holders of the shares of the Company
Common Stock as and to the extent required by the applicable rules and
regulations of the SEC. Each of the parties hereto agrees promptly to
correct any information provided by it for use in the Rule 13e-3
Transaction Statement if and to the extent that such information shall have
become false or misleading in any material respect, and such parties
further agree to take all steps necessary to cause the Rule 13e-3
Transaction Statement as so corrected to be filed with the SEC and the
information contained in such corrected filing to be disseminated to
holders of shares of the Company Common Stock, in each case as and to the
extent required by the applicable rules and regulations of the SEC. FDC
and its counsel shall be given reasonable opportunity to review and comment
on the Rule 13e-3 Transaction Statement prior to its filing with the SEC or
dissemination to the stockholders of the Company. Bank One and First USA
agree to provide FDC and its counsel any comments Bank One, First USA or
their counsel may receive from the SEC or its staff with respect to the
Rule 13e-3 Transaction Statement promptly after the receipt of such
comments and to cooperate with FDC and its counsel in responding to any
such comments. The parties hereto jointly agree to cause the Rule 13e-3
Transaction Statement to comply as to form in all material respects with
the requirements of the Exchange Act and to allow the Company to rely upon
such agreement to do so.
4. No Solicitation. (a) Other than with respect to the
Excluded Assets, Bank One and its affiliates shall immediately cease
existing discussions or negotiations, if any, with any parties conducted
heretofore with respect to any acquisition of all or any material portion
of the assets of, or any equity interest in, the Company or any of its
subsidiaries or any business combination with the Company or any of its
subsidiaries.
(b) Bank One and First USA shall not, nor shall they
authorize or permit any of their affiliates or any director, officer,
employee, financial advisor, attorney or other advisor or representative of
any of the foregoing to, directly or indirectly: (i) solicit, initiate or
encourage any inquiries or the making or implementation of any Takeover
Proposal; (ii) make or implement or participate in the making or
implementation of any Takeover Proposal; (other than an agreement
conditioned upon the concurrent exercise by the Company, provided that
concurrently with the effectiveness of such agreement, the Company
exercises the termination right set forth in Section 7.1(e) of the Merger
Assignment) (iii) enter into any agreement with respect to or approve or
recommend any Takeover Proposal; or (iv) participate in any discussions or
negotiations regarding, or furnish to any Person any information with
respect to the Company or any of its Subsidiaries in connection with, or
take any other action that may reasonably be expected to lead to any
Takeover Proposal. Notwithstanding the foregoing, nothing in this Section
4(b) shall prohibit any affiliate of Bank One or First USA (i) from
providing shareholder or proxy services in the ordinary course of business
of such affiliate or (ii) to the extent such affiliate is acting in a
fiduciary capacity, from taking actions directed by one or more of the
beneficiaries or other legal representatives involved in the fiduciary
relationship or as is otherwise required by reason of the fiduciary
relationship. Any action taken by the Company or any member of the Board
of Directors of the Company in accordance with Section 4.2 of the Merger
Agreement shall be deemed not to violate this Section 4.
(c) If at any time Bank One or any of its affiliates (other
than the Company and its Subsidiaries) is approached (without any joint or
related approach to the Company or any of its Subsidiaries) by any Person
concerning its participation in a transaction involving any of the assets,
businesses or securities of the Company or any subsidiary thereof (other
than with respect to the Excluded Assets), Bank One will promptly inform
FDC of the nature of such contact and the parties thereto and provide a
copy of any such written proposal and a summary of any oral proposal
(including the material terms and conditions of such proposal) to FDC
immediately after receipt thereof. Notwithstanding the foregoing, nothing
in this Section 4(c) shall require any affiliate of Bank One to provide any
notification referred to in the preceding sentence if (i) such affiliate's
participation in such transaction is limited to the provision of
shareholder or proxy services in the ordinary course of business of such
affiliate or (ii) if such affiliate is acting in a fiduciary capacity and
such participation in such transaction is directed by one or more of the
beneficiaries or other legal representatives involved in the fiduciary
relationship or as is otherwise required by reason of the fiduciary
relationship.
5. Representations and Warranties by Bank One and First USA.
Each of Bank One and First USA hereby represents and warrants to FDC,
Holdco and Merger Sub as of the date hereof and as of the Closing as
follows:
(a) Ownership of Shares. First USA is the record and
Beneficial Owner of the First USA Shares and the First USA Shares
constitute all of the shares of the Company Common Stock owned of record by
First USA other than Shares Beneficially Owned by First USA or Bank One in
a fiduciary, custodial, collateral or similar capacity. First USA owns the
First USA Shares free and clear of all liens, claims, charges, security
interests, mortgages or other encumbrances, and the First USA Shares are
subject to no rights of first refusal, put rights, other rights to purchase
or encumber the First USA Shares, or to any agreements other than this
Agreement as to the encumbrance or disposition of the First USA Shares.
First USA has sole voting power and sole power to issue instruction with
respect to the matters set forth in Section 1 hereof, sole power of
disposition, sole power of conversion, sole power to demand appraisal
rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the First USA Shares, with
no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Each of Bank One and First
USA is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to execute, deliver and perform all
of its obligations under this Agreement and to consummate the transactions
contemplated by this Agreement. The execution, delivery and performance of
this Agreement by each of Bank One and First USA, and the consummation of
the transactions contemplated hereby, has been or will be duly authorized
by all necessary corporate action on the part of Bank One and First USA and
no other corporate proceedings on the part of Bank One or First USA or
their respective Board of Directors are or will be necessary to consummate
the transactions contemplated hereby. This Agreement has been duly
executed and delivered by each of Bank One and First USA and constitutes a
valid and binding agreement of each of Bank One and First USA, enforceable
against each of Bank One and First USA in accordance with its terms, except
as such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, and except as the availability
of equitable remedies may be limited by the application of general
principles of equity (regardless of whether such equitable principles are
applied in a proceeding at law or in equity).
(c) No Conflicts. Except for filings, permits,
authorizations, consents and approvals as may be required under the HSR Act
and the SEC with respect to the Rule 13E-3 Transaction Statement, no filing
with, and no permit, authorization, consent or approval of, any state or
federal public body or authority is necessary for the execution of this
Agreement by Bank One or First USA and the consummation by Bank One and
First USA of the transactions agreed to in this Agreement and none of the
execution or delivery of this Agreement by Bank One and First USA, the
consummation by Bank One and First USA of the transactions agreed to in
this Agreement or compliance by Bank One and First USA with any of the
provisions hereof shall (i) conflict with, violate, result in a breach of,
or constitute a default under the charter or by-laws of Bank One or First
USA, (ii) conflict with (A) any Court Order to which Bank One or First USA
is a party or by which Bank One or First USA is bound or (B) any
Requirements of Law affecting Bank One or First USA, other than for any
such conflicts, violations, breaches or defaults that individually or in
the aggregate would not have a material adverse effect on Bank One, or
(iii) conflict with or violate in any material manner or result in any
material breach of, or constitute a material default under any material
voting agreement, shareholder agreement or voting trust or any material
note, instrument, agreement, mortgage, lease, license, franchise, permit or
other authorization, right, restriction or obligation to which Bank One or
First USA is a party or by which Bank One or First USA or, to the best of
Bank One's or First USA's knowledge, any of Bank One's or First USA's
properties or assets may be bound. This Agreement hereby supersedes all
prior agreements to which Bank One or First USA is a party with respect to
Bank One's or First USA's Shares.
(d) No Finder's Fees. No broker, investment banker,
financial adviser or other Person is entitled to any broker's, finder's,
financial adviser's or other similar fee or commission from First USA or
Bank One in connection with the transactions contemplated by the Merger
Agreement, this Agreement or the Contribution Agreement based upon
arrangements made by or on behalf of Bank One or First USA.
6. Representations and Warranties by FDC, Holdco and Merger
Sub.
(a) Power; Binding Agreement. Each of FDC, Holdco and
Merger Sub is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to enter into and perform all of its
obligations under this Agreement. The execution, delivery and performance
of this Agreement by each of FDC, Holdco and Merger Sub, and the
consummation of the transactions contemplated hereby, has been duly
authorized by all necessary corporate action on the part of FDC, Holdco and
Merger Sub. This Agreement has been duly and validly executed and
delivered by each of FDC, Holdco and Merger Sub and constitutes a valid and
binding agreement of each of FDC, Holdco and Merger Sub, enforceable
against each of FDC, Holdco and Merger Sub in accordance with its terms,
except as such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, and except as the availability
of equitable remedies may be limited by the application of general
principles of equity (regardless of whether such equitable principles are
applied in a proceeding at law or in equity).
(b) No Conflicts. Except for filings, permits,
authorizations, consents and approvals as may be required under the HSR Act
and with the SEC with respect to the Rule 13e-3 Transaction Statement, no
filing with, and no permit, authorization, consent or approval of, any
state or federal public body or authority is necessary for the execution of
this Agreement by FDC, Holdco or Merger Sub and the consummation by FDC,
Holdco and Merger Sub of the transactions contemplated hereby and none of
the execution or delivery of this Agreement by FDC, Holdco or Merger Sub,
the consummation by FDC, Holdco and Merger Sub of the transactions
contemplated hereby or compliance by FDC, Holdco and Merger Sub with any of
the provisions hereof shall (i) conflict with, violate, result in a breach
of, or constitute a default under the charter or by-laws of FDC, Holdco or
Merger Sub, (ii) conflict with (A) any Court Order to which FDC, Holdco or
Merger Sub is a party or by which FDC, Holdco or Merger Sub is bound or (B)
any Requirements of Law affecting FDC, Holdco or Merger Sub, other than for
any such conflicts, violations, breaches or defaults that individually or
in the aggregate would not have a material adverse effect on FDC, or (iii)
conflict with or violate in any material manner or result in any material
breach of, or constitute a material default under any material voting
agreement, shareholder agreement, voting trust, note, instrument,
agreement, mortgage, lease, license, franchise, permit or other
authorization, right, restriction or obligation to which FDC, Holdco or
Merger Sub is a party or by which FDC, Holdco or Merger Sub or, to the best
of FDC's, Holdco's or Merger Sub's knowledge, any of FDC's, Holdco's or
Merger Sub's properties or assets may be bound.
(c) No Finder's Fees. No broker, investment banker,
financial adviser or other Person, other than Xxxxxx Xxxxxxx Xxxx Xxxxxx &
Co., the fees and expenses of which will be paid by FDC, is entitled to any
broker's, finder's, financial adviser's or other similar fee or commission
in connection with the transactions contemplated by the Merger Agreement
based upon arrangements made by or on behalf of FDC, Holdco or Merger Sub.
7. Further Assurances. From time to time, at FDC's request and
without further consideration, First USA agrees to execute and deliver such
additional documents and take such further lawful action as may be
necessary or desirable to consummate and make effective, and to cause the
Company to consummate and make effective the transactions provided for in
this Agreement, it being understood and agreed that First USA shall not be
required hereunder to make any payment (other than customary administrative
and processing fees and reasonable legal expenses), commence litigation or
agree to any material agreements in connection with the foregoing.
8. Actions Taken Prior to Consummation of the Merger. (a) Each
of the parties hereto shall take, or cause to be taken, the actions when
and as contemplated by Section 1.1 of the Merger Agreement to be taken by
such party; provided, however that the obligation of First USA to
contribute shares of Company Common Stock owned by it to Holdco shall be
subject to the receipt by First USA of a written opinion of Wachtell,
Lipton, Xxxxx & Xxxx to the effect that such contribution and the receipt
of ownership interests in Holdco by First USA shall constitute a
transaction qualifying under Section 351 of the Code. The stockholder
agreement relating to the governance of Holdco and the Company described
therein will be in the form attached hereto as Exhibit B. The total number
of shares of common stock to be issued to FDC and First USA in exchange for
their respective contributions to Holdco as contemplated by such Section
1.1 will be in an amount to be agreed upon between First USA and FDC and
will be allocated in the following percentages: (A) to First USA, the
percentage (the "First USA Percentage") obtained by dividing (i) the total
number of shares of Company Common Stock which are contributed by First USA
to Holdco in accordance with Section 1.1 of the Merger Agreement and
Section 8 of this Agreement by (ii) the total number of shares of Company
Common Stock outstanding immediately prior to the Effective Time; and (B)
to FDC, the percentage obtained by subtracting the First USA percentage
from 100%. The parties hereto agree to cause Merger Sub to cause all shares
of the Company Common Stock owned by it to be voted in approval of the
Merger.
(b) Bank One, as lender under that certain Credit
Agreement, dated February 18, 1999, between Bank One and the Company,
hereby grants all consents required to be obtained by the Company pursuant
to such Credit Agreement in connection with the transactions contemplated
by this Agreement, the Merger Agreement and the Contribution Agreement.
9. Actions Taken After Consummation of the Merger.
(a) Each of the parties hereto will take all steps
reasonably necessary to cause the consummation of the transactions
contemplated by the Contribution Agreement.
(b) Each of the parties hereto agree to cause the Surviving
Corporation to comply with the covenants set forth in Section 5.8 of the
Merger Agreement.
(c) FDC, Bank One and First USA shall take actions
necessary to cause the Board of Directors of the Surviving Corporation,
immediately after the Effective Time and until the closing of the
transactions contemplated by the Contribution Agreement occurs, to consist
of nine members, five of whom will be designated by Bank One and four of
whom will be designated by FDC. After the Closing ( as defined in the
Contribution Agreement) Bank One and First USA shall take actions necessary
to cause the Board of Directors of the Surviving Corporation to consist of
four members, two of whom will be designated by Bank One and two of whom
will be designated by FDC.
(d) Following any payment by the Surviving Corporation in
respect of Dissenting Shares pursuant to Section 262 of the DGCL (excluding
any Dissenting Shares held by stockholders who shall have failed to perfect
or who effectively shall have withdrawn or lost their rights to appraisal
of such Shares under Section 262 of the DGCL), FDC shall pay to the
Surviving Corporation, as a capital contribution (but without the issuance
of any additional shares of capital stock), an amount, in respect of each
such Dissenting Share, equal to the amount paid by the Surviving
Corporation in respect of such Dissenting Share; provided, however, that at
such time as the aggregate amount paid to the Surviving Corporation
pursuant to this sentence is equal to the sum of (i) the product obtained
by multiplying the number of Dissenting Shares in respect of which payment
is made multiplied by the Merger Consideration and (ii) $2 million, then
any payments thereafter made by FDC pursuant to this sentence shall be
limited to an amount per Share equal to the Merger Consideration.
Following any payment by the Surviving Corporation in respect of Dissenting
Shares that are held by stockholders who shall have failed to perfect or
who effectively shall have withdrawn or lost their rights to appraisal of
such Shares under Section 262 of the DGCL but as to which Shares a
contribution of cash to Holdco by Parent was not made pursuant to Section
1.1 of the Merger Agreement, FDC shall pay to the Surviving Corporation, as
a capital contribution (but without the issuance of any additional shares
of capital stock), an amount, in respect of each such Share, equal to the
Merger Consideration.
(e) The parties acknowledge and agree that the Surviving
Corporation shall bear the financial responsibility for amounts required to
be paid in respect of the Company Stock Options pursuant to Section 5.4 of
the Merger Agreement.
10. Termination. Except as otherwise provided herein, the
covenants and agreements contained herein shall terminate and have no
further force or effect upon the earliest of (i) the written consent of the
parties hereto, (ii) termination of the Merger Agreement in accordance with
its terms (including, without limitation, termination of the Merger
Agreement by the Company pursuant to Section 7.1(e) of the Merger
Agreement), (iii) failure to receive the opinion required under Section 8
hereof, (iv) the consummation of the transactions contemplated by the
Contribution Agreement, and (v) the termination of the Contribution
Agreement in accordance with its terms. No termination of this Agreement
shall relieve any party hereto from any liability for any breach of this
Agreement.
11. Miscellaneous.
(a) Certain Definitions. Capitalized terms used herein and
not defined herein shall have the respective meanings assigned to them in
the Merger Agreement. As used in this Agreement, the following capitalized
terms shall have the following meanings:
(i) "Beneficially Own" or "Beneficial Ownership" with
respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in
writing, but excluding securities held in a fiduciary, custodial,
collateral or similar capacity. Without duplicative counting of
the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a
"group" as within the meanings of Section 13(d)(3) of the
Exchange Act.
(ii) "Court Order" has the meaning assigned to it in the
Contribution Agreement.
(iii) "Excluded Assets" has the meaning assigned to it
in the Contribution Agreement.
(iv) "Person" means any general partnership, limited
partnership, corporation, limited liability company, joint
venture, trust, business trust, governmental agency, cooperative,
association, individual or other entity, and the heirs,
executors, administrators, legal representatives, successors and
assigns of such Person as the context may require.
(v) "Requirements of Law" has the meaning assigned to it in
the Contribution Agreement.
(vi) "Subsidiary" or "subsidiaries" of FDC, Holdco, Merger
Sub, Bank One, First USA or any other Person means any
corporation, partnership, limited liability company, association,
trust, unincorporated association or other legal entity of which
FDC, Holdco, Merger Sub, Bank One, First USA or any such other
Person, as the case may be (either alone or through or together
with any other subsidiary), owns, directly or indirectly, 50% or
more of the capital stock the holders of which are generally
entitled to vote for the election of the board of directors or
other governing body of such corporation or other legal entity.
(b) Entire Agreement. This Agreement, the Contribution
Agreement and the Merger Agreement constitute the entire agreement between
the parties with respect to the subject matter hereof and supersede all
other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
(c) Certain Events. Bank One and First USA agree that this
Agreement, the Contribution Agreement and the obligations hereunder shall
attach to the First USA Shares and shall be binding upon any Person or
entity to which legal or beneficial ownership of the First USA Shares shall
pass, whether by operation of law or otherwise. Notwithstanding any
transfer of the First USA Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the transferor.
(d) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the
other parties, provided that FDC may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly-owned
subsidiary of FDC, but no such assignment shall relieve FDC of its
obligations hereunder if such assignee does not perform such obligations.
(e) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by
the relevant parties hereto.
(f) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service, such
as Federal Express, providing proof of delivery. All communications
hereunder shall be addressed to the respective parties at the following
addresses:
If to Bank One or First USA:
BANK ONE CORPORATION
One First National Plaza
Law Department
Mail Suite 0287
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
First USA Financial, Inc.
3 Christiana Centre
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
If to FDC, Holdco or Merger Sub:
First Data Corporation
0000 Xxx Xxxxxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(g) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been
contained herein.
(h) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or
agreements contained in this Agreement will cause the other party to
sustain damages for which it would not have an adequate remedy at law for
money damages, and therefore each of the parties hereto agrees that in the
event of any such breach the aggrieved party shall be entitled to the
remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
(i) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at
law or in equity shall be cumulative and not alternative, and the exercise
of any thereof by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, and
any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver by such party of its right to exercise any
such or other right, power or remedy or to demand such compliance.
(k) No Third Party Beneficiaries. This Agreement, except
as expressly set forth in Section 3 with respect to the Company, is not
intended to be for the benefit of, and shall not be enforceable by, any
Person who is not a party hereto.
(l) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflicts and laws thereof.
(m) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended
to be part of or to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
(o) Expenses. All costs and expenses incurred in
connection with the transactions contemplated by this Agreement shall be
for the account of the party incurring such costs and expenses.
IN WITNESS WHEREOF, FDC, Holdco, Merger Sub, Bank One and First
USA have caused this Agreement to be duly executed as of the day and year
first above written.
FIRST DATA CORPORATION
By /s/ Xxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
FDC OFFER CORPORATION
By /s/ Xxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
FB MERGING CORPORATION
By /s/ Xxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
BANK ONE CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Operating
Officer
FIRST USA FINANCIAL, INC.
By /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Strategic Planning
