EXHIBIT 10.5
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of
November 9, 2000 by and among Global Payments Inc., a Georgia corporation (the
"Company"), Canadian Imperial Bank of Commerce, a bank governed by the Bank Act
(Canada) (the "Investor"), and, acting as guarantor of the Company's obligations
hereunder, National Data Corporation, a Delaware corporation ("NDC").
WHEREAS, the Company, through its wholly-owned subsidiary, National
Data Payment Systems, a New York corporation ("NDPS"), operates, among other
things, a Merchant Business (as defined in the Asset Purchase Agreement, dated
as of the date hereof, between NDPS and the Investor (the "Asset Purchase
Agreement")) pursuant to agreements between the Investor and certain Merchants
(as defined in the Asset Purchase Agreement);
WHEREAS, the Investor desires to sell and transfer, and NDPS desires
to purchase and assume, certain assets and liabilities related to the Investor's
Merchant Business and to enter into certain other agreements in connection
therewith, all on the terms and subject to the conditions set forth in the Asset
Purchase Agreement; and
WHEREAS, the Asset Purchase Agreement requires, as a condition to
closing, that the Company and the Investor enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter
set forth, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1. DEFINITIONS. Unless otherwise defined herein, capitalized terms
used in this Agreement that are defined in the Asset Purchase Agreement shall
have the meanings given such terms in the Asset Purchase Agreement. The
following terms shall have the following meanings:
"Closing" has the meaning set forth in Section 3.1.
"Closing Date" has the meaning set forth in Section 3.1.
"Common Stock" has the meaning set forth in Section 4.6(a).
"Company Material Adverse Effect" means, for the purposes of this
Agreement, a material adverse effect, singly or in the aggregate taking
into account all representations containing a Company Material Adverse
Effect qualifier, which could result in a loss of 20% or more in annual
revenue, a 20% or more increase in expenses or a 20% or more
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reduction in the value of the assets of the Company from the revenue,
expense and asset values, respectively, set forth on the financial
statements of the Company for the twelve months ended May 31, 2000 (as set
forth in the Form 10 Filing) or that would otherwise be reasonably
expected to result in a material limitation on the Company's ability to
perform its obligations under any of the Operative Documents.
"Company SEC Documents" has the meaning set forth in Section 4.7(a).
"Company's Knowledge" or other references to the "Knowledge of the
Company" or words of similar import shall mean the actual knowledge after
reasonable inquiry of Paul R. Garcia, Thomas M. Dunn, James Kelly, Barry
Lawson, Suellyn Tornay and Vincent Perrelli, or any person who has assumed
any of the duties and responsibilities of the any of the foregoing
individuals prior to the time the applicable representation or warranty is
being made.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Financial Statements" means the balance sheets, statements of
income, statements of changes in the Investor's equity in division and
statements of cash flows of the Investor in respect of the Merchant
Business as at and for the fiscal year ending October 31, 1999 and the
nine-month period ending July 31, 2000 and the accompanying statements of
income for the year then ended.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Initial Transferred Shares" has the meaning set forth in Section
2.1(a).
"Investor Material Adverse Effect" means, for the purposes of this
Agreement, a material adverse effect, singly or in the aggregate taking
into account all representations containing an Investor Material Adverse
Effect qualifier, which could result in a loss of 5% or more in annual
revenue, a 3% or more increase in annual expenses, or a 3% or more
reduction in the value of the applicable assets, from the revenues,
expense and asset values, respectively, set forth on the Financial
Statements or would otherwise be reasonably expected to result in a
material limitation on the Investor's ability to perform its obligations
under any of the Operative Documents.
"Purchase Price" has the meaning set forth in Section 2.1.
"Remaining Transferred Shares" has the meaning set forth in Section
2.1(b).
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Transferred Shares" has the meaning set forth in Section 2.1.
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"Voting Securities" means at any time (i) shares of any class of
capital stock or other securities of the Company which are then entitled
to vote generally in the election of Directors and not solely upon the
occurrence and during the continuation of certain specified events, and
(ii) securities of the Company convertible into, or exchangeable or
exercisable for, the securities described in clause (i), and options,
warrants or other rights to acquire such securities (regardless of whether
such securities, options, warrants or other rights are then exercisable or
convertible).
SECTION 2
PURCHASE AND SALE OF STOCK
2.1. PURCHASE AND SALE OF COMMON STOCK. Subject to the terms and
conditions hereof, the Company hereby agrees to issue and sell to the Investor,
and the Investor agrees to purchase from the Company, that number of shares of
Common Stock equal to 26.25% of the total number of shares of Common Stock
outstanding on a diluted basis (as determined in accordance with GAAP) on the
Closing Date after giving effect to such purchase (the "Transferred Shares"),
for a purchase price equal to the Cash Amount (the "Purchase Price"). The
delivery of the Transferred Shares shall occur as follows:
(a) on the Closing Date, the Company shall deliver that number of
shares of Common Stock equal to 26.25% of the total number of shares of Common
Stock issued and outstanding after giving effect to the purchase (the "Initial
Transferred Shares"); and
(b) no later than 60 days following the Closing Date, the Company
shall deliver that number of additional shares of Common Stock equal to the
difference between (i) 26.25% of the total number of shares of Common Stock
outstanding on a diluted basis (as determined in accordance with GAAP) after
giving effect to the issuance of the Initial Transferred Shares and calculated
as of the Closing Date and (ii) the Initial Transferred Shares.
SECTION 3
CLOSING
3.1. CLOSING. The closing of the sale and purchase of the
Transferred Shares (the "Closing"), shall take place on the same date as the
closing of the transactions contemplated in the Asset Purchase Agreement (the
"Closing Date"). The Closing shall take place at the offices of Simpson Thacher
& Bartlett, 425 Lexington Avenue, New York, New York, or at such other location
as the parties hereto agree. The Company and the Investor agree to use their
Commercially Reasonable Efforts to consummate the Closing on the terms and
subject to the conditions set forth in this Agreement. At the Closing, subject
to the terms and conditions hereof:
(a) the Company shall deliver to the Investor a certificate
representing the Transferred Shares; and
(b) the Investor shall satisfy the Purchase Price by delivering to
(and endorsing in favor of, if required) the Company the same form of
consideration received by the Investor from
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NDPS in satisfaction of the Cash Amount pursuant to Section 4.1(a)(i) of the
Asset Purchase Agreement.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants as follows to the Investor and
acknowledges and confirms that the Investor is relying upon the following
representations and warranties in connection with the purchase by the Investor
of the Transferred Shares.
4.1. ORGANIZATION. The Company is a corporation duly organized and
validly existing under the Laws of the State of Georgia. The Company has all
requisite corporate power to own and to carry on its business as now being
conducted and is duly qualified, licensed or registered to carry on its business
in the jurisdictions in which the ownership of its property or the conduct of
its business makes such qualification necessary or where the Company owns or
leases any material properties or assets or conducts any material business,
except jurisdictions in which the failure to be so qualified, licensed or
registered would not, individually or in the aggregate, have or reasonably be
expected to result in a Company Material Adverse Effect.
4.2. AUTHORITY. The Company has the corporate power and authority to
enter into and perform its obligations under this Agreement and each of the
other Operative Documents to which it is a party and to effect the transactions
contemplated hereby and thereby. The execution, delivery and performance of the
Operative Documents to which it is a party have been approved by all requisite
corporate action on the part of the Company, and, assuming this Agreement
constitutes the legally valid and binding agreement of the Investor, this
Agreement constitutes (and each other Operative Document to which the Company is
a party, when executed and delivered, will constitute) a legally valid and
binding obligation of the Company, enforceable in accordance with its terms,
subject only to any limitation under applicable Laws relating to bankruptcy,
insolvency, reorganization, moratorium and other similar Laws relating to or
affecting creditors' rights generally and the discretion that a court may
exercise in the granting of equitable remedies (whether considered in a
proceeding in equity or at law).
4.3. LEGAL PROCEEDINGS. Except as set forth on SCHEDULE 4.3, there
are no actions, suits or proceedings pending or, to the Knowledge of the
Company, threatened against the Company that are reasonably likely to be
adversely determined and that, if adversely determined, would have a Company
Material Adverse Effect.
4.4. NO VIOLATIONS. Except as set forth in SCHEDULE 4.4, the
execution, delivery and performance by the Company of this Agreement and the
other Operative Documents to which it is a party will not (i) violate, conflict
with, result in a breach of or constitute a default under (with or without
notice or lapse of time or both) any agreement, indenture, mortgage or lease to
which the Company is a party or by which the Company or its properties are
bound; (ii) constitute a violation by the Company of any Laws, (iii) violate,
conflict with or allow any other Person to exercise any rights under any of the
terms or provisions of its constituting documents or by-laws or any contracts or
instruments to which it is a party or to which any of its assets or properties
are subject, (iv) violate any order, judgment, injunction or decree of any
court,
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arbitrator or Governmental Entity against or binding upon the Company,
and/or (v) result in a breach of, or cause the termination or revocation of, any
Authorization held by the Company that is necessary to the ownership of its
properties or the operation of its businesses, other than, in each of the
preceding clauses (i) through (vi), such violations, conflicts, breaches,
defaults or exercise of rights as would not reasonably be expected to have,
either individually or in the aggregate, a Company Material Adverse Effect.
4.5. COMPLIANCE WITH LAWS. Except as set forth in SCHEDULE 4.5, the
Company is not in violation of any Law or any Association Rules (as defined in
the Marketing Alliance Agreement) or Clearing System Rules (as defined in the
Marketing Alliance Agreement) applicable to its business or properties in each
jurisdiction in which the Company carries on business or will carry on business
pursuant to the Operative Documents at the time it commences to carry on such
business, other than violations which, individually or in the aggregate, would
not reasonably be expected to result in a Company Material Adverse Effect.
Within the past twelve months and except as set forth on SCHEDULE 4.5, neither
the Company nor NDPS nor any of their respective Affiliates has received notice
from any Network Organization or Card Association that the Company or NDPS or
any of their respective Affiliates is not in compliance with any Association
Rules or Clearing System Rules and has not received notice of the assessment of
any fines or penalties due from the Company or NDPS or any of their respective
Affiliates to a Card Association or Network Organization.
4.6. CAPITALIZATION AND RELATED MATTERS.
(a) The authorized capital stock of the Company consists of (i)
200,000,000 shares of common stock, no par value (the "Common Stock") and (ii)
5,000,000 shares of preferred stock, no par value; none of which are issued or
outstanding. All issued and outstanding shares have been duly authorized and
validly issued, are fully paid and nonassessable and have been issued in
compliance with applicable federal and state securities Law and not in violation
of the preemptive rights of any Person. Except as set forth on SCHEDULE 4.6
attached hereto, there are no options, warrants, conversion rights, preemptive
rights, rights of first refusal, or similar rights presently outstanding to
purchase or otherwise acquire from the Company any of the Company's securities.
(b) The Transferred Shares to be issued pursuant to the terms of
this Agreement have been duly authorized and, when issued in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable. The
Transferred Shares will be issued free and clear of any Liens, are not and will
not be subject to any preemptive rights, rights of first refusal or restrictions
on transfer, except as set forth in the Investor Rights Agreement and except for
restrictions on transfer under applicable Canadian, United States federal and
state securities Laws.
(c) As of November 8, 2000, the authorized capital stock of NDC
consists of (i) 200,000,000 shares of common stock, no par value, of which
32,956,215 shares are issued and outstanding, and (ii) 1,000,000 shares of
preferred stock, none of which are issued or outstanding. All issued and
outstanding shares have been duly authorized and validly issued, are fully paid
and nonassessable and have been issued in compliance with applicable federal and
state securities Law and not in violation of the preemptive rights of any
Person.
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4.7. SEC FILINGS; FINANCIAL STATEMENTS; ABSENCE OF CERTAIN CHANGES.
(a) The Company has timely filed all reports, statements and
documents required to be filed by it with the SEC since September 8, 2000,
including without limitation the Form 10 Filing (collectively, the "Company SEC
Documents"), each of which complied in all material respects with the applicable
requirements of the Securities Act and the rules and regulations promulgated
thereunder, or the Exchange Act and the rules and regulations promulgated
thereunder, each as in effect on the date so filed. The Company has heretofore
delivered or made available to the Investor or (in the case of any such document
not yet filed with the SEC) promptly will deliver or make available to the
Investor, in the form filed with the SEC (including any amendments thereto),
true and complete copies of the Company SEC Documents. None of such Company SEC
Documents (including but not limited to any financial statements or schedules
included or incorporated by reference therein) contained when filed (or, if
amended or superseded by a filing prior to the Closing Date, then on the date of
such amending or superseding filing), any untrue statement of a material fact or
omitted to state a material fact required to be stated or incorporated by
reference therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(b) Each of the audited and unaudited pro forma financial statements
of the Company (including any related notes thereto) included in the Company SEC
Documents, complies or, if not yet filed, will comply as to form in all material
respects with all applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto; has been or, if not yet
filed, will have been prepared in accordance with GAAP (except, in the case of
unaudited quarterly statements, as permitted by Form 10-Q under the Exchange
Act) applied on a consistent basis throughout the periods involved (except as
may be disclosed in the notes thereto) and fairly presents or, if not yet filed,
will fairly present the pro forma financial position and historical combined
results of operations and changes in cash flows of the Company as of the
respective dates or for the respective periods reflected therein (subject, in
the case of unaudited quarterly statements, to normal recurring adjustments that
are not material).
(c) Except as and to the extent set forth on SCHEDULE 4.7(C) or the
combined balance sheet of the Company at August 31, 2000, including the notes
thereto, included in the Company SEC Documents, the Company has no liabilities,
debts, claims or obligations of any nature (whether accrued, absolute, direct or
indirect, contingent or otherwise, whether due or about to become due) which
would be required to be reflected on a balance sheet or in the notes thereto
prepared in accordance with GAAP, and there is no existing condition or set of
circumstances which would reasonably be expected, individually or in the
aggregate, to result in such a liability, in each case except for (i)
liabilities, debts, claims or obligations incurred in the Ordinary Course since
August 31, 2000, (ii) liabilities incurred pursuant to the terms of or as
contemplated by this Agreement, and (iii) liabilities, debts, claims and
obligations that would not, individually or in the aggregate, have or reasonably
be expected to have a Company Material Adverse Effect.
4.8. AUTHORIZATIONS. Except as set forth on SCHEDULE 4.8 and except
as would not reasonably be expected to have a Company Material Adverse Effect,
no Authorization is required to be obtained or made by or with respect to the
Company in connection with the
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execution, delivery or performance by the Company of the Operative Documents or
the consummation of the transactions contemplated hereby or thereby. Except as
set forth on SCHEDULE 4.8 and except as would not reasonably be expected to have
a Company Material Adverse Effect, all Authorizations necessary for the conduct
by the Company of its businesses have been issued or granted to the Company and
all such Authorizations are in full force and effect.
4.9. MATERIAL ADVERSE CHANGES. Since August 31, 2000, no event has
occurred or circumstances exist which has had or could reasonably be expected to
result in a Company Material Adverse Effect.
4.10. NO BROKERS' OR OTHER FEES. Except with respect to Goldman,
Sachs & Co., no broker, finder or investment banker is entitled to any fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Company.
4.11. OFFERING VALID. Assuming the accuracy of the representations
of the Investor contained in Section 6 hereof, the offer, sale and issuance of
the Transferred Shares will be exempt from the registration requirements of the
Securities Act and will have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable United States state securities Laws.
SECTION 5
CERTAIN ADDITIONAL AGREEMENTS
5.1. GUARANTEE. From the date hereof until the Distribution Date,
NDC hereby guarantees full and timely performance by the Company of the
Company's obligations under this Agreement.
5.2. CALCULATION OF THE REMAINING TRANSFERRED SHARES. Concurrently
with the delivery of the Remaining Transferred Shares pursuant to Section 2.1,
the Company shall execute and deliver a certificate of a senior officer of the
Company setting forth the capitalization of the Company on a diluted basis (as
determined in accordance with GAAP) on such date and the calculation used by the
Company to determine the Remaining Transferred Shares to be issued pursuant to
the terms of this Agreement, which certificate shall be satisfactory to the
Investor.
SECTION 6
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants as follows to the Company and
acknowledges and confirms that the Company is relying upon the following
representations and warranties in connection with the sale by the Company of the
Transferred Shares.
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6.1. INVESTMENT REPRESENTATIONS. The Investor acknowledges that the
Transferred Shares have not been registered under the Securities Act or under
any state securities Laws. The Investor (a) is acquiring the Transferred Shares
for investment for its own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution thereof, (b) is an
"accredited investor" within the meaning of Regulation D, Rule 501(a),
promulgated by the SEC, and (c) acknowledges that the Transferred Shares must be
held indefinitely unless subsequently registered under the Securities Act or
unless an exemption from the registration requirements of the Securities Act is
available.
6.2. ORGANIZATION. The Investor is a bank governed by the Bank Act
(Canada). The Investor has all requisite corporate power to own and to carry on
its business as now being conducted and is duly qualified, licensed or
registered to carry on its business in the jurisdictions in which the ownership
of its property or the conduct of its business makes such qualification
necessary or where the Investor owns or leases any material properties or assets
or conducts any material business, except jurisdictions in which the failure to
be so qualified, licensed or registered would not, individually or in the
aggregate, have or reasonably be expected to result in an Investor Material
Adverse Effect.
6.3. AUTHORITY. The Investor has the corporate power and authority
to enter into and perform its obligations under this Agreement and each of the
other Operative Documents to which it is a party and to effect the transactions
contemplated hereby and thereby. The execution, delivery and performance of the
Operative Documents to which it is a party have been approved by all requisite
corporate action on the part of the Investor, and, assuming this Agreement
constitutes the legally valid and binding agreement of the Company, this
Agreement constitutes (and each other Operative Document, when executed and
delivered pursuant hereto, will constitute) a legally valid and binding
obligation of the Investor, enforceable in accordance with its terms, subject
only to any limitation under applicable Laws relating to bankruptcy, insolvency,
reorganization, moratorium and other similar Laws relating to or affecting
creditors' rights generally and the discretion that a court may exercise in the
granting of equitable remedies (whether considered in a proceeding in equity or
at law).
6.4. NO VIOLATIONS. The execution, delivery and performance by the
Investor of this Agreement and the other Operative Documents will not (i)
violate, conflict with, result in a breach of or constitute a default under
(with or without notice or lapse of time or both) any agreement, indenture,
mortgage or lease to which the Investor is a party or by which the Investor or
its properties are bound; (ii) constitute a violation by the Investor of any
Laws, (iii) violate, conflict with or allow any other Person to exercise any
rights under any of the terms or provisions of its constituting documents or
by-laws or any contracts or instruments to which it is a party or pursuant to
which any of its assets or properties are subject, (iv) violate any order,
judgment, injunction or decree of any court, arbitrator or Governmental Entity
against or binding upon the Investor, and/or (v) result in a breach of, or cause
the termination or revocation of, any Authorization held by the Investor that is
necessary to the ownership of its properties or the operation of its businesses,
other than, in each of the preceding clauses (i) through (v), such violations,
conflicts, breaches, defaults or exercise of rights as would not reasonably be
expected to have, either individually or in the aggregate, an Investor Material
Adverse Effect.
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6.5. AUTHORIZATIONS. Except as set forth on SCHEDULE 6.5 and except
as would not reasonably be expected to have an Investor Material Adverse Effect,
no Authorization is required to be obtained or made by or with respect to the
Investor in connection with the execution, delivery or performance by the
Investor of the Operative Documents or the consummation of the transactions
contemplated hereby or thereby. Except as set forth on SCHEDULE 6.5 and except
as would not reasonably be expected to have an Investor Material Adverse Effect,
all Authorizations necessary for the conduct by the Investor of its businesses
have been issued or granted to the Investor and all such Authorizations are in
full force and effect.
6.6. NO BROKERS' OR OTHER FEES. Except with respect to CIBC World
Markets Corp., no broker, finder or investment banker is entitled to any fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Investor.
SECTION 7
CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING
The obligation of the Investor to consummate the Closing is subject
to the fulfillment at or before the Closing of each of the following conditions:
7.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in this Agreement and the Operative
Documents shall be true and correct (in all material respects, in the case of
those representations and warranties which are not by their express terms
qualified by reference to materiality) on and as of the Closing Date with the
same force and effect as if such representations and warranties had been made on
and as of the Closing Date, except that any representations and warranties that
are made as of a specified date shall be true and correct (in all material
respects, in the case of those representations and warranties which are not by
their express terms qualified by reference to materiality) as of such date, and
the Company shall have executed and delivered a certificate of a senior officer
of the Company to such effect. The receipt of such certificate and the
consummation of the Closing shall not constitute a waiver by the Investor of any
of the representations and warranties of the Company that are contained in this
Agreement or in any of the other Operative Documents.
7.2. PERFORMANCE. The Company and its Affiliates shall have
fulfilled or complied with all covenants contained in this Agreement and in any
other Operative Document to be fulfilled or complied with by it or such
Affiliate, respectively, at or prior to the Closing, except where the failure to
so fulfill or comply would not reasonably be expected to have a Company Material
Adverse Effect, and the Company shall have executed and delivered a certificate
of a senior officer to that effect. The receipt of such certificate and the
consummation of the Closing shall not constitute a waiver by the Investor of the
covenants of the Company that are contained in this Agreement or in any of the
Operative Documents.
7.3. LEGAL INVESTMENT. On the Closing Date, there shall not be in
effect any Law directing that the purchase and sale of the Transferred Shares
and the other transactions
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contemplated by this Agreement or any of the other Operative Documents not be
consummated or which has the effect of rendering it unlawful to consummate such
transactions.
7.4. PROCEEDINGS AND LITIGATION. No action shall have been commenced
by any Governmental Entity against any party hereto seeking to restrain or delay
the purchase and sale of the Transferred Shares or the other transactions
contemplated by this Agreement or any of the other Operative Documents.
7.5. BLUE SKY COMPLIANCE. The Company shall have complied with, and
the offer and sale of the Transferred Shares pursuant to this Agreement shall be
effective under all United States federal or state or Canadian provincial
securities or blue sky Laws applicable thereto.
7.6. OPERATIVE DOCUMENTS. The Investor and an Affiliate of the
Company shall have entered into the Asset Purchase Agreement, the Marketing
Alliance Agreement, the General Conveyance Agreement, the Transition Agreement,
the Investor Rights Agreement, the Trademark License Agreement and the Credit
Facility.
7.7. BANK REGULATORY APPROVALS. The Investor shall have received all
consents and approvals required under the Bank Act (Canada) and the Bank Holding
Company Act of 1956, as amended, and any required waiting periods under the HSR
Act shall have expired or been terminated, without the imposition of any
conditions that either party, in its reasonable discretion, considers unduly
burdensome.
7.8. COMPETITION ACT AND INVESTMENT CANADA ACT. (a) Each of the
Investor and the Company shall have filed all notices and information required
under Part IX of the Competition Act (Canada) and satisfied any request for
additional information thereunder and the applicable waiting periods shall have
expired without the Commissioner of Competition having notified the Company that
he intends to apply to the Competition Tribunal for an order under Sections 92,
100 or 104 of the Competition Act (Canada) in respect of the transactions
contemplated herein, or the parties shall have received an Advance Ruling
Certificate ("ARC") pursuant to the Competition Act (Canada) from the Commission
of Competition; (b) no proceedings shall have been taken or threatened to be
taken under the merger provisions of Part VIII or under Section 45 of the Act in
respect of the transactions contemplated herein; and (c)Investment Canada shall
have provided a receipt to the Company pursuant to the Investment Canada Act or
the Company shall have received evidence, satisfactory to it, indicating that
the acquisition of the Assets Sold and the Merchant Business is not a reviewable
transaction or, if it is a reviewable transaction, the Minister shall have been
satisfied or deemed to have been satisfied that such acquisition is likely to be
a net benefit to Canada.
7.9. CONSUMMATION OF THE ASSET PURCHASE. All the conditions to
closing set forth in Sections 10.2 and 10.3 of the Asset Purchase Agreement
shall have been satisfied and the transactions contemplated in the Asset
Purchase Agreement shall have been consummated substantially on the terms set
forth therein.
7.10. CALCULATION OF THE INITIAL TRANSFERRED SHARES. The Company
shall have executed and delivered a certificate of a senior officer of the
Company setting forth the total
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number of shares of capital stock of the Company issued and outstanding on the
Closing Date after giving effect to the Closing and the calculation used by the
Company to determine the Initial Transferred Shares to be issued pursuant to the
terms of this Agreement, which certificate shall be satisfactory to the
Investor.
SECTION 8
CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING
The obligation of the Company to consummate the Closing is subject
to the fulfillment at or before the Closing of each of the following conditions:
8.1. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Investor contained in this Agreement shall be true and correct
(in all material respects, in the case of those representations and warranties
which are not by their express terms qualified by reference to materiality) on
and as of the Closing Date with the same force and effect as if such
representations and warranties had been made on and as of the Closing Date,
except that any representations and warranties that are made as of a specified
date shall be true and correct (in all material respects, in the case of those
representations and warranties which are not by their express terms qualified by
reference to materiality) as of such date, and the Investor shall have executed
and delivered a certificate of a senior officer to such effect. The receipt of
such certificate and the consummation of the Closing shall not constitute a
waiver by the Company of any of the representations and warranties of the
Investor that are contained in this Agreement or in any of the other Operative
Documents.
8.2. PERFORMANCE. The Investor shall have fulfilled or complied with
all covenants contained in this Agreement and in any other Operative Document,
respectively, to be fulfilled or complied with by it at or prior to the Closing,
except where the failure to so fulfill or comply would not reasonably be
expected to have a Company Material Adverse Effect, and the Investor shall have
executed and delivered a certificate of a senior officer of the Investor to that
effect. The receipt of such certificate and the consummation of the Closing
shall not constitute a waiver by the Company of the covenants of the Investor
that are contained in this Agreement or in any of the other Operative Documents.
8.3. LEGAL INVESTMENT. On the Closing Date, there shall not be in
effect any Law directing that the purchase and sale of the Transferred Shares
and the other transactions contemplated by this Agreement or any of the other
Operative Documents not be consummated or which has the effect of rendering it
unlawful to consummate such transactions.
8.4. PROCEEDINGS AND LITIGATION. No action shall have been commenced
by any Governmental Authority against any party hereto seeking to restrain or
delay the purchase and sale of the Transferred Shares or the other transactions
contemplated by this Agreement or any of the other Operative Documents.
8.5. BLUE SKY COMPLIANCE. The offer and sale of the Transferred
Shares pursuant to this Agreement shall be effective under all United States
federal or state or Canadian provincial securities or blue sky Laws applicable
thereto.
12
8.6. OPERATIVE DOCUMENTS. The Investor and an Affiliate of the
Company shall have entered into the Asset Purchase Agreement, the Marketing
Alliance Agreement, the Transition Agreement, the Investor Rights Agreement and
the Trademark License Agreement.
8.7. BANK REGULATORY APPROVALS. The Investor shall have received all
consents and approvals required under the Bank Act (Canada) and the Bank Holding
Company Act of 1956, as amended, and any required waiting periods under the HSR
Act shall have expired or been terminated, without the imposition of any
conditions that either party, in its reasonable discretion, considers unduly
burdensome.
8.8. COMPETITION ACT AND INVESTMENT CANADA ACT. (a) Each of the
Investor and the Company shall have filed all notices and information required
under Part IX of the Competition Act (Canada) and satisfied any request for
additional information thereunder and the applicable waiting periods shall have
expired without the Commissioner of Competition having notified the Company that
he intends to apply to the Competition Tribunal for an order under Sections 92,
100 or 104 of the Competition Act (Canada) in respect of the transactions
contemplated herein, or the parties shall have received an Advance Ruling
Certificate ("ARC") pursuant to the Competition Act (Canada) from the Commission
of Competition; (b) no proceedings shall have been taken or threatened to be
taken under the merger provisions of Part VIII or under Section 45 of the Act in
respect of the transactions contemplated herein; and (c)Investment Canada shall
have provided a receipt to the Company pursuant to the Investment Canada Act or
the Company shall have received evidence, satisfactory to it, indicating that
the acquisition of the Assets Sold and the Merchant Business is not a reviewable
transaction or, if it is a reviewable transaction, the Minister shall have been
satisfied or deemed to have been satisfied that such acquisition is likely to be
a net benefit to Canada.
8.9. CONSUMMATION OF THE ASSET PURCHASE. All the conditions to
closing set forth in Sections 10.1 and 10.3 of the Asset Purchase Agreement
shall have been satisfied and the transactions contemplated in the Asset
Purchase Agreement shall have been consummated substantially on the terms set
forth therein.
SECTION 9
MISCELLANEOUS
9.1. LIMITATION OF CLAIMS. Notwithstanding anything to the contrary
herein, (a) neither the Company nor the Investor shall be entitled to recover
from the other party for any claims for indemnity or damages with respect to any
inaccuracy or breach of any representations or warranties unless and until the
total of all such claims exceeds $500,000 and then only for the amount by which
such claims exceed such amount; (b) in no event shall such recovery exceed
Cdn.$150,000,000 in the aggregate; and (c) in no event shall the Investor or the
Company recover more than once with respect to any inaccuracy or breach of the
same or similar representations or warranties in this Agreement and the Asset
Purchase Agreement with regard to the same event, circumstance or occurrence.
9.2. EXPENSES. Except as otherwise specifically provided in this
Agreement, all parties shall pay their own costs and expenses in connection with
this Agreement and the
13
transactions contemplated hereby, including, but not by way of limitation, all
attorney's fees, accounting fees and other expenses.
9.3. NOTICES. All notices, demands and other communications hereunder shall be
sent as set forth below, shall be in writing, and shall be delivered in person;
deposited in regular mail, sent via national overnight carrier; or sent via
facsimile as long as the sending party has telephone confirmation that the
entire facsimile was actually received by the receiving party.
(i) If to the Investor to:
c/o CIBC World Markets Inc.
BCE Place, 8th Floor
161 Bay Street
Toronto ON M5J 2S8
Attention: Executive Vice President, Card Products,
Collections and Merchant Card Services
Facsimile No.: (416) 784-6868
with a copy to:
Canadian Imperial Bank of Commerce
Legal and Compliance Division
199 Bay Street
Commerce Court West
15th Floor
Toronto, Ontario M5L 1A2
Attention: Associate General Counsel
Facsimile No.: (416) 304-2860
and to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Lee Meyerson, Esq.
Facsimile No.: (212) 455-2502
(ii) If to the Company, to:
National Data Payment Systems, Inc.
#2 National Data Plaza
Atlanta, Georgia 30329-2010
Attention: Office of the Corporate Secretary
Facsimile No.: (404) 728-2990
14
with a copy to:
National Data Payment Systems, Inc.
#2 National Data Plaza
Atlanta, Georgia 30329-2010
Attention: Paul R. Garcia, Chief Executive Officer
Facsimile No.: (404) 728-3412
The persons or addresses to which mailings or deliveries shall be made may be
changed from time to time by notice given pursuant to the provisions of this
Section 9.2. Any notice, demand or other communication given pursuant to the
provisions of this Section 9.2 shall be deemed to have been given on the date
actually delivered.
9.4. THIRD PARTY BENEFICIARIES. Except as provided in Section 9.6,
neither party to this Agreement intends this Agreement to benefit or create any
right or cause of action in or on behalf of any Person other than the Company,
the Investor or NDC.
9.5. INDEPENDENT CONTRACTORS. Nothing contained in this Agreement or
any other Operative Document shall be construed as constituting a partnership,
joint venture or agency between the Company and the Investor. Rather, the
parties shall be deemed independent contractors for all purposes.
9.6. SUCCESSORS AND ASSIGNS. All terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective transferees, successors and permitted assigns. This Agreement
and the rights, privileges, duties and obligations of the parties hereto may not
be assigned or delegated by either party without the written consent of the
other party; provided, however, that no such consent shall be required for the
assignment (or designation of performance) by either party of its rights,
privileges, duties and obligations hereunder to a Person controlling, controlled
by or under common control with such party (it being understood that no such
assignment (or designation of performance) shall relieve the assigning party of
its duties or obligations hereunder).
9.7. AMENDMENTS AND WAIVERS. This Agreement, any of the instruments
referred to herein and any of the provisions hereof or thereof shall not be
amended, modified or waived in any fashion except by an instrument in writing
signed by the parties hereto or thereto. No delay on the part of any party
hereto in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party hereto of any
right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
9.8. SEVERABILITY OF PROVISIONS. If any provision of this Agreement, or
the application of any such provision to any Person or circumstance, shall be
held invalid by a court of competent jurisdiction, the remainder of this
Agreement, or the application of such provision to Persons or circumstances
other than those as to which it is held invalid, shall not be affected thereby.
15
9.9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
9.10. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the Laws of the State of New York applicable to contracts
made and to be performed therein. The Company and the Investor hereby agree to
submit to the jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof in any action or proceeding arising out of or
relating to this Agreement. The parties hereto irrevocably and unconditionally
waive trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
9.11. CAPTIONS. The captions contained in this Agreement are for
convenience of reference only and do not form a part of this Agreement.
9.12. ENTIRE AGREEMENT. The making, execution and delivery of this
Agreement by the parties hereto have been induced by no representations,
statements, warranties or agreements other than those herein expressly set
forth. This Agreement and the other written instruments specifically referred to
herein embody the entire understanding of the parties and there are no further
or other representations, warranties, agreements or understandings, written or
oral, in effect between the parties relating to the subject matter hereof. The
Schedules attached to this Agreement shall, for all purposes of this Agreement,
form an integral part of it.
9.13. JOINT ANNOUNCEMENT; CONFIDENTIALITY. Except as required by Law or
by any stock exchange, the Company and the Investor agree not to publicly
disclose the transactions contemplated by this Agreement, provided, however,
that promptly after the date hereof, after prior consultation with each other as
to the substance and form of the public disclosure of the transactions
contemplated by this Agreement, the Company and the Investor shall make
individual announcements or a joint announcement of the execution of, and the
transactions provided for under, this Agreement. Notwithstanding the foregoing,
after the Closing, and subject to the confidential provisions set out in any of
the Operative Documents, nothing herein shall prevent either party from
disclosing, either publicly or otherwise, that the transaction contemplated
herein took place, provided that any such disclosure does not contain any
information regarding any term or condition of this Agreement or any Operative
Document which has not been previously disclosed pursuant to a mutually agreed
press release or which has not been approved for disclosure by the other party.
9.14. GENDER AND NUMBER. Any reference in this Agreement or any other
Operative Document to gender includes all genders and words importing the
singular number only shall include the plural and vice versa.
9.15. CURRENCY. All references in this Agreement or any other Operative
Document to dollars, unless otherwise specifically indicated, are expressed in
United States dollars.
9.16. TIME OF THE ESSENCE. Time shall be of the essence of this
Agreement.
16
9.17. HEADINGS. The section headings of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
9.18. SURVIVAL OF WARRANTIES. The representations and warranties of the
parties contained in or made pursuant to this Agreement shall survive for a
period of one year from the date of the Closing.
9.19. ADDITIONAL AGREEMENTS OF THE PARTIES. Each of the parties, as
promptly as practicable after the execution of this Agreement, will (i) make, or
cause to be made, all such filings and submissions under all Laws applicable to
it, as may be required for it to consummate the purchase and sale of the
Transferred Shares in accordance with the terms of this Agreement, (ii) use its
Commercially Reasonable Efforts to obtain, or to cause to be obtained, all
Authorizations necessary or advisable to be obtained by it in order to
consummate such transfer, and (iii) use its Commercially Reasonable Efforts to
take, or to cause to be taken, all other actions which are necessary or
advisable in order for it to fulfill its obligations under this Agreement. The
parties will coordinate and cooperate with one another in exchanging such
information and supplying such assistance as may be reasonably requested by each
in connection with the foregoing including, without limitation, providing each
other with all notices and information supplied to or filed with any
Governmental Entity (except for notices and information which the Company or the
Investor, in each case acting reasonably, considers highly confidential and
sensitive which may be filed on a confidential basis), and all notices and
correspondence received from any Governmental Entity.
9.20. TERMINATION. This Agreement shall be terminated and the
transactions contemplated hereby abandoned at any time prior to the Closing upon
the earlier to occur of:
(a) the mutual consent of the Company and the Investor; or
(b) termination of the Asset Purchase Agreement in accordance with
the provisions of Article XI thereof.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date above set forth.
GLOBAL PAYMENTS INC.
By: /s/ Suellyn P. Tornay
--------------------------------
Name: Suellyn P. Tornay
Title: General Counsel
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Christine Croucher
--------------------------------
Name: Christine Croucher
Title:
By: /s/ David A. Caldwell
--------------------------------
Name: David A. Caldwell
Title:
With respect to Sections 4.6(c) and 5.1 only:
NATIONAL DATA CORPORATION
By: /s/ Suellyn P. Tornay
--------------------------------
Name: Suellyn P. Tornay
Title: General Counsel
SCHEDULE 4.3
LEGAL PROCEEDINGS
None.
SCHEDULE 4.4
NO VIOLATIONS
None.
SCHEDULE 4.5
COMPLIANCE WITH LAWS
Nothing material.
SCHEDULE 4.6
CAPITALIZATION AND RELATED MATTERS
2000 Non-Employee Director's Stock Option Plan.
2000 Long Term Incentive Plan.
2000 Employee Stock Purchase Plan.
SCHEDULE 4.7(C)
SEC FILINGS; FINANCIAL STATEMENTS; ABSENCE OF CERTAIN CHANGES
None.
SCHEDULE 4.8
COMPANY AUTHORIZATIONS
These include approvals or waivers under the Canadian Competition Act and
the Investment Canada Act, the Bank Act (Canada), the Bank Holding Company
Act (U.S.), and the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(US), and by the Office of the Superintendent of Financial Institutions
(Canada).
SCHEDULE 6.5
INVESTOR AUTHORIZATIONS
Any approval required under the Bank Act (Canada).
TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS
1.1. DEFINITIONS..........................................................1
SECTION 2 PURCHASE AND SALE OF STOCK
2.1. PURCHASE AND SALE OF COMMON STOCK....................................3
SECTION 3 CLOSING
3.1. CLOSING..............................................................3
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.1. ORGANIZATION.........................................................4
4.2. AUTHORITY............................................................4
4.3. LEGAL PROCEEDINGS....................................................4
4.4. NO VIOLATIONS........................................................4
4.5. COMPLIANCE WITH LAWS.................................................5
4.6. CAPITALIZATION AND RELATED MATTERS...................................5
4.7. SEC FILINGS; FINANCIAL STATEMENTS; ABSENCE OF CERTAIN CHANGES........6
4.8. AUTHORIZATIONS.......................................................6
4.9. MATERIAL ADVERSE CHANGES.............................................7
4.10. NO BROKERS' OR OTHER FEES............................................7
4.11. OFFERING VALID.......................................................7
SECTION 5 CERTAIN ADDITIONAL AGREEMENTS
5.1. GUARANTEE............................................................7
5.2. CALCULATION OF THE REMAINING TRANSFERRED SHARES......................7
SECTION 6 REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
6.1. INVESTMENT REPRESENTATIONS...........................................8
6.2. ORGANIZATION.........................................................8
6.3. AUTHORITY............................................................8
6.4. NO VIOLATIONS........................................................8
6.5. AUTHORIZATIONS.......................................................9
6.6. NO BROKERS' OR OTHER FEES............................................9
SECTION 7 CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING
7.1. REPRESENTATIONS AND WARRANTIES.......................................9
7.2. PERFORMANCE..........................................................9
7.3. LEGAL INVESTMENT.....................................................9
7.4. PROCEEDINGS AND LITIGATION..........................................10
7.5. BLUE SKY COMPLIANCE.................................................10
7.6. OPERATIVE DOCUMENTS.................................................10
7.7. BANK REGULATORY APPROVALS...........................................10
7.8. COMPETITION ACT AND INVESTMENT CANADA ACT...........................10
7.9. CONSUMMATION OF THE ASSET PURCHASE..................................10
7.10. CALCULATION OF THE INITIAL TRANSFERRED SHARES.......................10
SECTION 8 CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING
8.1. REPRESENTATIONS AND WARRANTIES......................................11
8.2. PERFORMANCE.........................................................11
8.3. LEGAL INVESTMENT....................................................11
2
8.4. PROCEEDINGS AND LITIGATION..........................................11
8.5. BLUE SKY COMPLIANCE.................................................11
8.6. OPERATIVE DOCUMENTS.................................................12
8.7. BANK REGULATORY APPROVALS...........................................12
8.8. COMPETITION ACT AND INVESTMENT CANADA ACT...........................12
8.9. CONSUMMATION OF THE ASSET PURCHASE..................................12
SECTION 9 MISCELLANEOUS
9.1. LIMITATION OF CLAIMS................................................12
9.2. EXPENSES............................................................12
9.3. NOTICES.............................................................13
9.4. THIRD PARTY BENEFICIARIES...........................................14
9.5. INDEPENDENT CONTRACTORS.............................................14
9.6. SUCCESSORS AND ASSIGNS..............................................14
9.7. AMENDMENTS AND WAIVERS..............................................14
9.8. SEVERABILITY OF PROVISIONS..........................................14
9.9. COUNTERPARTS........................................................15
9.10. GOVERNING LAW.......................................................15
9.11. CAPTIONS............................................................15
9.12. ENTIRE AGREEMENT....................................................15
9.13. JOINT ANNOUNCEMENT; CONFIDENTIALITY.................................15
9.14. GENDER AND NUMBER...................................................15
9.15. CURRENCY............................................................15
9.16. TIME OF THE ESSENCE.................................................15
9.17. HEADINGS............................................................16
9.18. SURVIVAL OF WARRANTIES..............................................16
9.19. ADDITIONAL AGREEMENTS OF THE PARTIES................................16
9.20. TERMINATION.........................................................16