EXHIBIT 4.2
Amendment to
Stockholder Protection Rights Agreement
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This Amendment to Stockholder Protection Rights Agreement ("Amendment"),
dated as of April 6, 2001, is by and between IVI Checkmate Corp., a Delaware
corporation (the "Company"), and First Union National Bank, as Rights Agent (the
"Rights Agent"). Capitalized terms not otherwise defined herein shall have the
meaning ascribed thereto in the Rights Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent entered into that certain
Stockholder Protection Rights Agreement on September 16, 1998 (the "Rights
Agreement");
WHEREAS, the Company is contemplating entering into an Agreement and Plan
of Merger (the "Merger Agreement") with Ingenico S.A., a societe anonyme
organized under the laws of France and its affiliate ("Ingenico"), pursuant to
which the Company shall be acquired by Ingenico (the "Merger");
WHEREAS, Ingenico is an existing stockholder of the Company;
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement, the Company proposes to sell and Ingenico proposes to purchase (the
"Stock Purchase"), additional shares of the Company's Common Stock, $.01 par
value per share ("Common Stock");
WHEREAS, the proposed Stock Purchase would cause Ingenico to become the
Beneficial Owner of greater than 15% of the Company's outstanding shares of
Common Stock, and as a result be deemed an Acquiring Person under the Rights
Agreement;
WHEREAS, the Board of Directors of the Company has approved an exemption
from the operation of the Rights Agreement and definition of Acquiring Person
for Ingenico's proposed Stock Purchase, with the effect that Ingenico would be
exempted from and not deemed to be an Acquiring Person;
WHEREAS, as of the date of this Amendment, no Flip-In Date or related
events have occurred;
WHEREAS, the Company has provided to the Rights Agent a certificate
satisfying the requirements of Section 5.4 of the Rights Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, benefits and
covenants herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Exemption/Amendment. As permitted pursuant to Section 5.4 of the
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Rights Agreement, the parties hereby amend the Rights Agreement as follows:
(a) The definition of "Acquiring Person" in Section 1.1 of the Rights
Agreement is amended and restated in its entirety as follows:
"Acquiring Person" shall mean any Person who is a Beneficial Owner of 15%
or more of the outstanding shares of Common Stock; provided, however, that the
term "Acquiring Person" shall not include any Person (i) who is the Beneficial
Owner of 15% or more of the outstanding shares of Common Stock on the date of
this Agreement or who shall become the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock solely as a result of an acquisition by the
Company or IVI Checkmate Ltd., as the case may be, of shares of Common Stock or
Exchangeable Shares, until such time hereafter or thereafter as any such Person
shall become the Beneficial Owner (other than by means of a stock dividend or
stock split) of any additional shares of Common Stock (including as a result of
becoming the Beneficial Owner of additional Exchangeable Shares), or (ii) who is
the Beneficial Owner of 15% or more of the outstanding shares of Common Stock
but who acquired Beneficial Ownership of shares of Common Stock without any plan
or intention to seek or effect control of the Company, if such Person promptly
enters into an irrevocable commitment promptly to divest, and thereafter
promptly divests (without exercising or retaining any power, including voting
power, with respect to such shares), sufficient shares of Common Stock (or
securities convertible into, exchangeable into or exercisable for Common Stock)
so that such Person ceases to be the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock. In addition, the Company, any wholly-owned
Subsidiary of the Company and any employee stock ownership or other employee
benefit plan of the Company or a wholly-owned Subsidiary of the company shall
not be an Acquiring Person. Notwithstanding anything in this Agreement to the
contrary, Ingenico S.A., a societe anonyme organized under the laws of France
("Ingenico") shall not be deemed to be an Acquiring Person solely by virtue of
(i) the approval, execution or delivery of the Agreement and Plan of Merger,
dated as of April 6, 2001, by and among the Company, Ingenico and Idaho
Acquisition Corp., as amended from time to time (including all schedules and
exhibits thereto, the "Merger Agreement"), (ii) the consummation of the
acquisition of shares of Common Stock described in Section 5.10 of the Merger
Agreement (the "Issuance"), (iii) the consummation of any of the other
transactions contemplated in the Merger Agreement or (iv) the public
announcement of any of the foregoing; provided, however, that immediately
following the Issuance and for so long as Ingenico Beneficially Owns in excess
of 15% of the outstanding shares of Common Stock, Ingenico shall be deemed an
Acquiring Person if it or its affiliates shall thereafter acquire Beneficial
Ownership of any additional shares of Common Stock (including, without
limitation, if following any disposition of shares of Common Stock by Ingenico
or its affiliates, Ingenico or its affiliates were to acquire Beneficial
Ownership of any additional shares of Common Stock) (other than as a result of
(x) a stock dividend, stock split, recapitalization or other similar transaction
or (y) an acquisition of Beneficial Ownership of shares of Common Stock provided
such acquisition is without any plan or intention to seek or effect control of
the Company, if Ingenico or such affiliate promptly enters into an irrevocable
commitment promptly to divest, and thereafter promptly divests (without
exercising or retaining any power, including
voting power, with respect to such shares), such newly acquired shares of Common
Stock (or securities convertible into, exchangeable into or exercisable for
Common Stock)."
(b) The definition of "Separation Time" in Section 1.1 of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Separation
Time shall not be deemed to have occurred solely as the result of (i) the
approval, execution or delivery of the Merger Agreement, (ii) the consummation
of the Merger, (iii) the consummation of any of the other transactions
contemplated in the Merger Agreement, including without limitation, the Issuance
or (iv) the public announcement of any of the foregoing."
(c) The definition of "Stock Acquisition Date" in Section 1.1 of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, no Stock
Acquisition Date shall occur solely by virtue of (i) the approval, execution or
delivery of the Merger Agreement, (ii) the consummation of the Merger, (iii) the
consummation of any of the other transactions contemplated in the Merger
Agreement, including without limitation, the Issuance or (iv) the public
announcement of any of the foregoing."
(d) The definition of "Flip-Over Transaction or Event" in Section 1.1 of
the Rights Agreement is amended by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Agreement to the contrary, no Flip-Over
Transaction or Event shall occur solely by virtue of (i) the approval, execution
or delivery of the Merger Agreement, (ii) the consummation of the Merger, (iii)
the consummation of any of the other transactions contemplated in the Merger
Agreement, including without limitation, the Issuance or (iv) the public
announcement of any of the foregoing."
(e) The definition of "Expiration Time" in Section 1.1 of the Rights
Agreement is amended and restated in its entirety as follows:
"Expiration Time" shall mean the earliest of (i) the Exchange Time, (ii)
the Redemption Time, (iii) October 16, 2008, (iv) upon the merger of the Company
into another corporation pursuant to an agreement entered into prior to the
Flip-in Date, and (v) simultaneously with the Effective Time (as defined in the
Merger Agreement) of the Merger.
(f) Section 5.6 of the Rights Agreement is amended to add the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, no person
shall have any right of action under the Rights Agreement solely by virtue of
(i) the approval, execution or delivery of the Merger Agreement, (ii) the
consummation of the Merger, (iii) the consummation of any of the other
transactions contemplated in the Merger Agreement, including without limitation,
the Issuance or (iv) the public announcement of any of the foregoing."
2. Corresponding Changes. All other applicable provisions of the Rights
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Agreement shall be interpreted consistent with the operative provisions of this
Amendment.
3. Remainder of Rights Agreement. Other than as specifically set forth
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herein, the balance of the Rights Agreement shall remain in full force and
effect as set forth therein.
[signatures on following page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
IVI CHECKMATE CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
FIRST UNION NATIONAL BANK,
as Rights Agent
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Corporate Trust Officer
Certificate
for
Stockholder Protection Rights Agreement
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(IVI Checkmate Corp.--First Union National Bank)
This Certificate is executed and delivered to First Union National Bank, as
Rights Agent (the "Rights Agent"), in connection with the Amendment to
Stockholder Protection Rights Agreement ("Amendment"), dated as of April 6,
2001, by and between IVI Checkmate Corp., a Delaware corporation (the
"Company"), and the Rights Agent. Capitalized terms not otherwise defined
herein shall have the meaning ascribed thereto in the Stockholder Protection
Rights Agreement dated September 16, 1998, by and between the Company and the
Rights Agent.
The Company hereby certifies that:
(a) no "Flip-In Date" has occurred prior to the date of this Certificate,
and the proposed amendment otherwise satisfies the requirements of the Rights
Agreement and Section 5.4 thereof; and
(b) the Company's Board of Directors has previously approved the Amendment
to the Rights Plan.
Date: April 5, 2001.
IVI Checkmate Corp.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer