Exhibit 7.2
STOCKHOLDERS AGREEMENT
This AGREEMENT is dated January 16, 1998 (this
"Agreement") among Ingenico S.A., an entity incorporated under
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the laws of France ("Ingenico"), Xxxxxx X. Xxxxx, Xx., a resident
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of the State of Georgia ("Xxxxx"), and J. Xxxxxxxx Xxxxxx, a
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resident of the State of Texas ("Xxxxxx").
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In consideration of the mutual promises and agreements
set forth herein, the parties agree as follows:
1. For a period ending the earlier of December 31,
1999 or 18 months from the Effective Date of the Combination
Agreement, each of the parties hereto agrees to vote all of its
or his shares of the capital stock of IVI Checkmate (or to cause
the Trustee to vote its Exchangeable Shares) then owned
(including any shares acquired after the parties entered into
this Agreement) (collectively, the "Shares"), at any stockholders
meeting or in any written consent for that purpose, against any
business combination transaction involving IVI Checkmate or its
subsidiaries, such as a merger or share exchange, and further
agrees not to tender shares into, make, cause any of its
affiliates to make, or encourage others to make, during the term
of this Agreement, a tender or exchange offer (in which the
tendering party is required to make a filing under Section
14(d)(1) of the Securities Exchange Act of 1934, as amended) (a
"Tender Offer") for Shares, in which the consideration to be
received by each stockholder of IVI Checkmate is less than US$15
per Share in cash or other highly liquid consideration. The
amount of the consideration is to be calculated two business days
prior to any stockholders' vote required on such a transaction.
2. Notwithstanding Section 1 above, in the event a
Tender Offer has been made by a third party for consideration
less than US$15, each party shall have the right to make a Tender
Offer; provided that the consideration offered by such party for
tendered shares in such Tender Offer must be greater than the
amount offered in the initial third-party Tender Offer. Any
party hereto may tender Shares to another party in a Tender Offer
permitted under this Section 2.
3. For a period of three years from the Effective
Date of the Combination Agreement, each of the parties hereto
agrees to vote all of its or his Shares (or to cause the Trustee
to vote its Exchangeable Shares), at any stockholders' meeting or
in any written consent for that purpose, and take all other
actions necessary, to ensure the election to the Board of
Directors of IVI Checkmate of Xxxxxx Xxxxxxx (or any other
designee of Ingenico), Xxxxxx and Xxxxxx Xxxxxxx; provided
further, that if such persons are so elected by the stockholders
of IVI Checkmate, the parties agree to use their best efforts to
ensure the appointment of Xxxxxx as Chairman of the Board, Xxxxxx
Xxxxxxx as Vice Chairman of the Board of IVI Checkmate and Xxxxxx
Xxxxxxx as a member of the three-member Executive Committee of
the Board of Directors.
4. Nothing contained herein shall prevent any party,
during the period ending the earlier of December 31, 1999 or 18
months following the Effective Date of the Combination Agreement,
from (a) buying or otherwise acquiring additional Shares, or (b)
selling Shares (i) to the public pursuant to a registered
offering under the Securities Act of 1933, as amended (the
"Securities Act"), (ii) to the public through a broker or
market-maker pursuant to the provisions of Rule 144 (or any
successor rule) promulgated under the Securities Act, (iii) in a
Tender Offer consistent with Section 1 or Section 2 above, or
(iv) in a business combination transaction approved by the
stockholders of IVI Checkmate. Notwithstanding any other
provision of this Agreement, no sale or other transfer of Shares
may be made, other than pursuant to the immediately preceding
sentence, unless the transferee has agreed in writing to be bound
by the terms and conditions of this Agreement pursuant to an
instrument in form and substance satisfactory to the parties
hereto and the transfer complies with all applicable laws.
5. In the event that Ingenico is conclusively and
finally prohibited from exercising its right under the Investment
Agreement to purchase shares of IVI Checkmate in an amount that
would increase its ownership to 15% (as calculated in accordance
with the Investment Agreement) of the voting capital stock of IVI
Checkmate because such action would preclude pooling of interests
accounting treatment with regard to the transactions contemplated
by the Combination Agreement, the terms of Sections 1 and 2 of
this Agreement shall terminate and shall be of no further force
and effect.
6. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state,
without regard to the principles of conflicts of law thereof.
7. With respect to any claim arising out of this
Agreement, the parties agree to waive their right to a jury trial
and agree to have such matter adjudicated in front of an
arbitration panel in accordance with the provisions of the
Combination Agreement.
Capitalized terms used herein and not defined shall
have the meanings ascribed to such terms in the Combination
Agreement dated as of January 16 ,1998 by and among IVI Checkmate
Corp., a Delaware corporation ("IVI Checkmate"), International
Verifact Inc., a Canadian corporation, Checkmate Electronics,
Inc., a Georgia corporation, and Future Merger Corporation, a
Georgia corporation and wholly-owned subsidiary of Newco.
For purposes of this Agreement, "Investment Agreement"
means that certain Investment Agreement dated as of December 5,
1996 between International Verifact Inc. and Ingenico, as
amended.
IN WITNESS WHEREOF, the undersigned have executed, or
have caused to be executed, this Agreement on the date first
written above.
INGENICO S.A.
By: /s/ Xxxx Xxxxxxx Poutrec
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Name: Xxxx Xxxxxxx Poutrec
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Title: President and C.F.O
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Xxxxxx X. Xxxxx, Xx.
/s/ J. Xxxxxxxx Xxxxxx
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J. Xxxxxxxx Xxxxxx
