EXHIBIT 99.(B)
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: President
FB MERGING CORPORATION
By /s/ Xxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: President
BANK ONE CORPORATION
By /s/ Signature
_____________________________________
Name:
Title:
FIRST USA FINANCIAL, INC.
By /s/ Xxxxxxx Xxxxxx
_____________________________________
Name:
Title:
Exhibits A and B intentionally omitted.
