EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is dated and executed
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effective as of August 6, 1999, by Direct Access Interactive, Inc., a Georgia
corporation (the "Company"), and the persons named on the signature page hereto
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(collectively, the "Shareholders" and each, a "Shareholder"). The Company and
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the Shareholders are hereinafter collectively called the "Parties."
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WHEREAS, the Company, SBS Corporation, an Alabama corporation ("SBS"), and
the Shareholders have entered into an Agreement and Plan of Merger dated as of
August 6, 1999 (the "Merger Agreement"), pursuant to which, among other things,
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the Company has agreed to issue to the Shareholders shares of the Company's
common stock, without par value (the "Common Stock"); and
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WHEREAS, the Shareholders will acquire a total of 2,600,000 shares of
Common Stock, subject to an escrow of 10% of such shares; and
WHEREAS, the Company and the Shareholders desire to provide for the rights
of the Shareholders with respect to the registration of the shares of Common
Stock to be received by the Shareholders pursuant to the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Definitions. For purposes of this Agreement:
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(a) "1933 Act" means the United States Securities Act of 1933, as
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amended, or any similar U.S. federal statute enacted hereafter, and the rules
and regulations of the Commission thereunder, all as the same shall be in effect
from time to time;
(b) "Commission" means the United States Securities and Exchange
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Commission or any other U.S. federal agency at the time administering the 1933
Act and 1934 Act;
(c) "Register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the 1933 Act and the declaration or ordering of effectiveness of
such registration statement by the Commission;
(d) "Registrable Securities" means shares of Common Stock issued or
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issuable to the Shareholders pursuant to the Merger Agreement and any Common
Stock issued as a dividend or other distribution with respect to, or in exchange
or replacement of, the foregoing, but shall not include any other shares of
Common Stock acquired by Shareholders other than the foregoing;
(e) "Holder" means a Shareholder if the Shareholder holds Registrable
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Securities; provided, however, that any person who acquires any of the
Registrable Securities in a distribution or transfer pursuant to a registration
statement filed under the 1933 Act or pursuant
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to a sale under Rule 144, Regulation S or any other exemption from registration
under the 1933 Act, shall not be considered a Holder;
(f) "1934 Act" means the United States Securities Exchange Act of
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1934, as amended, or any similar U.S. federal statute enacted hereafter, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time; and
(g) All other capitalized terms used herein but not otherwise defined
shall have the meanings ascribed to them in the Merger Agreement.
2. Piggyback Registration. Subject to the other provisions hereof, if at
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any time after consummation of its initial public offering, the Company proposes
to register any of its securities under the 1933 Act, either for its own account
or for the account of other holders of Common Stock (other than on a Form ▇-▇,
▇▇▇▇ ▇-▇ or similar registration statement or registration for foreign issuance
or distribution), in connection with the public offering of such securities
solely for cash, on a registration form that would also permit the registration
of Registrable Securities, the Company shall, with respect to any such
registration, promptly give each Holder written notice of such proposal. Upon
the written request of any Holder given within 15 days after mailing of any such
notice by the Company, the Company shall use all commercially reasonable efforts
to cause to be included in such registration under the 1933 Act all the
Registrable Securities that each such Holder has requested be registered.
3. Obligations of the Company. Whenever required under this Agreement to
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use all commercially reasonable efforts to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the Commission a registration statement
covering such Registrable Securities and use all commercially reasonable efforts
to cause such registration statement to be declared effective by the Commission
as expeditiously as possible and to keep such registration effective until the
earlier of (1) the date when all Registrable Securities covered by the
registration statement have been sold or (2) 45 days from the effective date of
the registration statement; provided, that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
will furnish to each Holder of Registrable Securities covered by such
registration statement and the underwriters, if any, copies of all such
documents proposed to be filed (excluding exhibits, unless any such person shall
specifically request exhibits), which documents will be subject to the review of
such Holders and underwriters. The Company agrees that it will not file such
registration statement or any amendment thereto or any prospectus or any
supplement thereto (including any documents incorporated by reference therein)
with the Commission if the information in such registration statement or
prospectus concerning a particular selling Holder has changed and such Holder or
the underwriters, if any, shall reasonably object; provided, that the Company
may file and amend the registration statement under this clause if it removes
the Holder and any incorrect or outdated information from the registration
statement before such filing or amendment.
(b) Prepare and file with the Commission such amendments and post-
effective amendments to such registration statement as may be necessary to keep
such registration
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statement effective during the period referred to in Section 3(a) and to comply
with the provisions of the 1933 Act with respect to the disposition of all
securities covered by such registration statement, and cause the prospectus to
be supplemented by any required prospectus supplement, and as so supplemented to
be filed with the Commission pursuant to Rule 424 under the 1933 Act.
(c) Furnish to the selling Holders such numbers of copies of such
registration statement, each amendment thereto, the prospectus included in such
registration statement (including each preliminary prospectus), each supplement
thereto and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use all commercially reasonable efforts to register and qualify
the Registrable Securities under such other securities laws of such
jurisdictions as shall be reasonably requested by any selling Holder and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such selling Holder to consummate the disposition of the Registrable
Securities owned by such Holder in such jurisdictions; provided that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to transact business or to file a general consent to service of process
in any such counties, states or jurisdictions; and provided further that
(anything in this Agreement to the contrary notwithstanding with respect to the
bearing of expenses) if any jurisdiction in which the Registrable Securities
shall be qualified shall require that expenses incurred in connection with the
qualification of the Registrable Securities in that jurisdiction be borne by
selling shareholders, then such expenses shall be payable by the selling Holders
pro rata, to the extent required by such jurisdiction, including but not limited
to filing fees and expenses of counsel and other advisors and any commissions or
discounts related to the registration of Registrable Securities in such other
jurisdictions.
(e) Promptly notify each selling Holder of such Registrable Securities
at any time when a prospectus relating thereto is required to be delivered under
the 1933 Act of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading and, at the request of any such Holder, the Company will prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading.
(f) Provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement.
(g) Enter into such customary agreements (including underwriting
agreements in customary form for a secondary offering) and take all such other
actions as the Holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities.
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(h) Make available for inspection by any selling Holder of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such selling Holder or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
officers, directors, employees and independent accountants of the Company to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement.
(i) Promptly notify the Holders of Registrable Securities and the
underwriters, if any, of the following events and (if requested by any such
person) confirm such notification in writing: (1) the filing of the prospectus
or any prospectus supplement and the registration statement and any amendment or
post-effective amendment thereto and, with respect to the registration statement
or any post-effective amendment thereto, the declaration of the effectiveness of
such documents, (2) any requests by the Commission for amendments or supplements
to the registration statement or the prospectus or for additional information,
(3) the issuance or threat of issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose and (4) the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or threat
of initiation of any proceeding for such purpose.
(j) Cooperate with the selling Holders of Registrable Securities and
the underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends, and enable such Registrable Securities to be in such lots
and registered in such names as the underwriters may request at least two
business days prior to any delivery of Registrable Securities to the
underwriters.
(k) Provide a CUSIP number for all Registrable Securities not later
than the effective date of the registration statement.
(l) Prior to the effectiveness of the registration statement and any
post-effective amendment thereto and at each closing of an underwritten
offering, (1) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
Holders of Registrable Securities and the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with primary underwritten
offerings; and (2) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable Securities being sold
and by the underwriters, if any, to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company and such Holder.
4. Termination of Registration. Notwithstanding any other provision in
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this Agreement, at any time before or after the filing of a registration
statement, the Company may, in its sole discretion, abandon or terminate such
registration without the consent of the Holders with no liability to the Holders
or any third party arising therefrom.
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5. Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Agreement that
the Holders shall furnish to the Company such information regarding them, the
Registrable Securities held by them, and the intended method of disposition of
such Registrable Securities as the Company shall reasonably request and as shall
be required or, in the opinion of the Company, reasonably necessary, in
connection with the action to be taken by the Company.
6. Suspension of Disposition of Registrable Securities. Each selling
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Holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 3(e) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities until such Holder's
receipt of copies of a supplemented or amended prospectus contemplated by
Section 3(e) hereof, or until it is advised in writing (the "Advice") by the
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Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus, and, if so directed by the Company, such Holder will deliver to
the Company (at the expense of the Company) all copies, other than permanent
file copies then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time periods mentioned in
Section 3(a) hereof shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to Section
3(e) hereof to and including the date when each selling Holder of Registrable
Securities shall have received the copies of the supplemented or amended
prospectus contemplated by Section 3(e) hereof or the Advice.
7. Expenses of Registration. All expenses incurred in connection with a
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registration pursuant to this Agreement, including all registration and
qualification fees, printing and accounting fees, and fees and disbursements of
counsel for the Company, shall be borne by the Company. All other expenses
(including the underwriting discounts, commissions and costs, costs and expenses
described in Section 3(d), and expenses of counsel and other advisors to the
selling Holders) shall be borne by the Holders selling Registrable Securities.
8. Underwriting Requirements; Priorities.
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(a) The Company shall select the investment banker(s) and manager(s)
to administer any offering required hereunder, if any. If the managing
underwriters advise the Company in writing that, in their opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold at the desired price in such offering, the Company will
include in such registration (1) first, the securities the Company proposes to
sell, (2) second, the number of securities requested to be included, which in
the opinion of such underwriters can be sold, pro rata among the respective
selling shareholders of Common Stock on the basis of the number of shares of
Common Stock owned by each selling shareholder and (3) third, all other
securities requested to be included in such registration.
(b) No person may participate in any underwritten registration
hereunder unless such person (1) agrees to sell such person's securities on the
basis provided in any underwriting arrangements approved by the Company and (2)
completes and executes all
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questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
9. Termination of the Company's Obligations.
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(a) The Company shall not be obligated to register or include in any
registration Registrable Securities that any Holder has requested to be
registered if all Registrable Securities that such Holder holds may be publicly
offered, sold and distributed without registration under the 1933 Act pursuant
to Rule 144, Regulation S or other exemption from registration promulgated by
the Commission under the 1933 Act (whether or not subject to applicable volume
limitations thereunder).
(b) The Company shall not be obligated to register the Registrable
Securities of any Holder if, within the six months prior to the time of a
proposed registration, the Company has offered such Holder the opportunity to
register Registrable Securities under the terms hereof and either (1) the Holder
declined such offer or (2) Registrable Securities of such Holder were registered
by the Company.
(c) With a view to making available to the Holders the benefits of
Rule 144 promulgated under the 1933 Act and any other rule or regulation of the
Commission that may at any time permit a Holder to sell securities of the
Company to the public without registration, the Company agrees to use all
commercially reasonable efforts to:
(i) file with the Commission in a timely manner all reports and
other documents required of the Company under the 1933 Act and the 1934 Act
while it is subject to such registration requirements; and
(ii) furnish to any Holder so long as such Holder owns any of the
Registrable Securities forthwith upon request a written statement by the Company
that it has complied with the reporting requirements the 1934 Act (at any time
for which it remains subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as may be reasonably requested by any Holder
in availing any Holder of any rule or regulation of the Commission permitting
the selling of any such securities without registration.
10. Lockup Agreement. As a condition to the exercise of any registration
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rights hereunder, each Holder hereby agrees in connection with any registration
of its Registrable Securities not to sell, make any short sale of, pledge, grant
any option for the purchase of or otherwise dispose of or reduce his or her risk
of ownership with respect to any Registrable Securities (other than those
included in the registration) without the prior written consent of the Company
or the underwriters, as the case may be, for 180 days following the offering.
Each holder agrees to execute and deliver a lock-up letter (setting forth the
above restrictions in greater detail) if requested by the underwriters or the
Company in connection with any offering of Registrable Securities.
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11. Put Right.
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(a) If the Purchaser has not consummated its initial public offering of
Common Stock on or before the one (1) year anniversary of the date of this
Agreement (the "Anniversary Date"), each Holder of Registrable Securities shall
have the right (the "Put Right") to require the Company to purchase all (but not
less than all) Registrable Securities then held by such Holder at a price of
$____ per share (the "Purchase Price"). The Purchase Price shall be adjusted
appropriately to reflect changes in the number of Registrable Securities as a
result of the anti-dilution provisions in the Merger Agreement, as well as for
stock splits, dividends and other similar transactions with respect to the
Registrable Securities. Any holder who desires to exercise his Put Right shall
deliver to the Company within ten (10) business days after the Anniversary Date
written notice of the exercise of such right and a statement certifying the
number of Registrable Securities then owned by such Holder (the "Exercise
Notice").
(b) Provided the Holder exercises his Put Right in accordance with Section
11(a) above, the Company shall set a date for purchase which date must be
within sixty (60) days after the receipt by the Company of notice of exercise
of the Put Right. On such purchase date, upon the receipt of documentation from
the Holder reasonably satisfactory to the Company, including properly executed
stock powers and written representations and warranties from such Holder
regarding (1) such Holder's ownership, free of all liens and encumbrances, of
the Registrable Securities subject to the Put Right, (2) his capacity and
authority to sell the Registrable Securities and (3) other representations and
warranties substantially similar to those set forth in Article 6 of the Merger
Agreement, as appropriate, the Company shall pay to each Holder who exercises
his Put Right the aggregate Purchase Price to which such Holder is entitled in
exchange for such Holder's Registrable Securities. Such amount shall be payable,
at the option of the Company, either in cash or in shares of common stock of The
InterCept Group, Inc. ("InterCept"). In the event such payment is made by the
Company in shares of InterCept, the number of shares of InterCept common stock
to be delivered by the Company to each Holder shall equal (i) the aggregate
Purchase Price attributable to the Registrable Securities held by the Holder
divided by (ii) the average closing price of InterCept's common stock as
reported on the Nasdaq National Market for the five (5) consecutive trading days
ending at the end of the second business day prior to the date of issuance of
such shares, rounded to the nearest whole share amount.
(c) In no event shall the Put Right provided to the Holders pursuant to
this Section 11 be exercisable if the exercise of such rights would adversely
affect any transaction being contemplated by the Company that is intended to
be accounted for as a pooling of interest at the time the Put Right becomes
exercisable; provided, however, that any Put Rights so affected by a pooling
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transaction shall become exercisable in accordance with this Section 11 upon the
cessation of the restrictions imposed by such pooling transaction. The Company
shall notify the Holders of such cessation of pooling restrictions and provide
them no less than ten (10) business days to exercise the Put Right.
(d) To secure the obligations of the Purchaser in connection with the Put
Right, Purchaser hereby grants to the Holders a security interest and lien
on the properties and assets of Purchaser listed on Exhibit A hereto (the
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"Assets"), which is incorporated by reference.
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The Purchaser agrees to execute and deliver to the Holders all financing
statements and other security documents necessary to perfect the Holders'
security interest within a reasonable period of time after Closing of the
transactions contemplated in the Merger Agreement. Upon expiration of the Put
Right described above, the Holders agree to execute and deliver to Purchaser
such release documents and termination statements as necessary to terminate the
security interests within a reasonable period of time after Purchaser delivers a
written request for such documents and agreements to the Holders. The security
interests granted herein are intended to be prior in right to all other security
interests in the Assets except for (1) purchase money security interests granted
or incurred in the ordinary course of the Company's business (2) the security
interest granted to First Union pursuant to a Loan and Security Agreement dated
April 28, 1998 between the Company, its subsidiaries and First Union, as
amended, restated and modified, which security interest will at all times be
superior to the Holders' security interest notwithstanding the time or filing of
any financing statement related thereto, and (3) Liens (as defined in the Merger
Agreement) on the Assets as described in the Merger Agreement.
12. Indemnification. In the event any Registrable Securities are included in
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a registration statement under this Agreement:
(a) To the full extent permitted by law, the Company hereby agrees to
indemnify and hold harmless each Holder requesting or joining in a registration
and each person, if any, who controls such Holder within the meaning of the 1933
Act, against any losses, claims, damages or liabilities, joint or several, to
which they may become subject under the 1933 Act and applicable state securities
laws insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based on any untrue or alleged untrue
statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein in light of the circumstances under which they were made or
necessary to make the statements therein not misleading or arise out of any
violation by the Company of any rule or regulation promulgated under the 1933
Act applicable to the Company and relating to action or inaction required of
the Company in connection with any such registration; and will reimburse each
such person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 12(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld)
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in connection with such registration statement, preliminary prospectus,
final prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by or on behalf of any such Holder or controlling person.
(b) To the full extent permitted by law, each Holder requesting or
joining in a registration under this Agreement hereby agrees to indemnify and
hold harmless the Company,
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each of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within the meaning of
the 1933 Act, and any underwriter for the Company (within the meaning of the
1933 Act), each other selling Holder and each person, if any, who controls such
other selling Holder within the meaning of Section 15 of the 1933 Act against
any losses, claims, damages or liabilities, joint or several, to which the
Company or any such director, officer, controlling person or underwriter may
become subject, under the 1933 Act and applicable state securities laws, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in such registration
statement, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
by such Holder expressly for use in connection with such registration; and each
such Holder will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling person or underwriter
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 12(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of such Holder (which consent shall not be unreasonably withheld).
(c) In no event shall the liability of any selling Holder of
Registrable Securities or the Company hereunder be greater than the dollar
amount of the proceeds received by such Holder or, in the case of the Company,
the proceeds received by all Holders, upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(d) Promptly after receipt by an indemnified party under this Section
12 of notice of the commencement of any action or knowledge of a claim that
would, if asserted, give rise to a claim for indemnity hereunder, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 12, notify the indemnifying party in
writing of the commencement thereof or knowledge thereof and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to notify an indemnifying party
promptly of the commencement of any such action or of the knowledge of any such
claim, if prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
12, but the omission so to notify the indemnifying party will not relieve him of
any liability that he may have to any indemnified party otherwise than under
this Section 12.
13. Remedies. In addition to being entitled to exercise all rights provided
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in this Agreement and the Merger Agreement as well as all rights granted by law,
including recovery of damages, the Company and each Holder of Registrable
Securities will be entitled to specific performance of its rights under this
Agreement.
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14. Amendments and Waivers. The provisions of this Agreement, including the
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provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of at least a
majority of the outstanding Registrable Securities, voting together as a single
class.
15. Notices. All notices and other communications provided for or permitted
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hereunder shall be made in writing by personal delivery, by internationally
recognized overnight courier (with charges prepaid) or by telecopy (with
telephone confirmation) as follows:
(a) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in accordance with the provisions
of this Section 15, which address initially is, with respect to the
Shareholders, the address set forth in the Merger Agreement, with a copy (which
shall not constitute notice) to the Shareholders' respective counsel as
identified in the therein; and
(b) if to the Company, initially at its address set forth in the Merger
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 15, with a copy (which shall not
constitute notice) to the Company's counsel as identified in the Merger
Agreement.
(c) All such notices and communications shall be deemed to have been
duly given or made when personally delivered, the day of guaranteed delivery by
such overnight courier service or when transmitted to the specified telecopy
number and confirmed by telephone, in each case addressed to the respective
parties as set forth above.
16. Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
17. Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF AMERICA AND THE STATE OF
GEORGIA, EXCLUDING CHOICE OF LAW PRINCIPLES.
The Company and the Shareholders irrevocably consent to the exclusive
jurisdiction and venue of the courts of any county in the State of Georgia and
the United States Federal District Court of Georgia, in any judicial proceeding
brought to enforce this Agreement. The parties agree that any forum other than
the State of Georgia is an inconvenient forum and that a lawsuit (or non-
compulsory counterclaim) brought by one party against another party, in a court
of any jurisdiction other than the State of Georgia should be forthwith
dismissed or transferred to a court located in the State of Georgia.
19. Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the
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validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
20. Entire Agreement. This Agreement (together with the Merger Agreement and
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such other agreements as specifically referred to in the Merger Agreement) is
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Common Stock held by the Holders. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
21. No Assignment; Parties Benefited. None of the Parties may assign its
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rights, duties or obligations under this Agreement without the express written
consent of the other Parties. Any attempted assignment without such written
consent shall be null and void. Nothing in this Agreement, express or implied,
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is intended to confer upon any third party any rights, remedies, obligations or
liabilities.
The Parties have executed this Registration Rights Agreement as of the date
first above written.
DIRECT ACCESS INTERACTIVE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
SHAREHOLDERS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, III
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Registration Rights Agreement Page 11 of 13
EXHIBIT "A"
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All property of Debtor now or hereafter in the possession, custody, or
control of Secured Party, and all monies, collection items, deposits, savings
accounts, certificates, and other amounts now or hereafter due, owing or issued
by or from Secured Party to Debtor, whether matured or not (the "Miscellaneous
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Property").
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All accounts, accounts receivable, contract rights, general intangibles,
notes, documents, chattel paper, instruments, acceptances, drafts, whether or
not the same is subject to, or defined by, Article 9 of the Uniform Commercial
Code or whether or not the same constitutes by reason of one or more of the
foregoing clauses, a right to the payment of money or other form of
consideration of any kind at any time existing now or hereafter owing or to be
owing to Debtor, whether or not the same are listed on any scheduled assignments
or reports furnished to Secured Party from time to time, whether now existing or
created or acquired at any time hereafter; any and all liens securing the
foregoing, any and all guaranties and securities securing the foregoing and all
proceeds thereof (the "Receivables").
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All inventory of Debtor, whether now owned or hereafter acquired,
including, without limitation, all goods held by Debtor for sale or lease or to
be furnished under contracts of service or so furnished, and all raw materials,
work in process, supplies and finished goods, and all materials used or consumed
in Debtor's business (the "Inventory").
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All equipment, machinery, furniture, leasehold improvements and fixtures
of Debtor, whether now owned or hereafter acquired, including, without
limitation, all replacements thereof and all accessions, parts and equipment now
or hereafter affixed thereto or used in connection therewith (the "Equipment").
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All presently existing and hereafter issued, filed, acquired or licensed
patents and patent applications, including, without limitation, divisional,
continuations and continuations-in-part, copyrights, trade names, trademarks and
service marks, as well as all registrations and applications for registration
thereof, all income, royalties, damages and payments now or hereafter due or
payable under and with respect to any of the foregoing, including without
limitation damages and payments for past or future infringements thereof, the
right to ▇▇▇ and recover for past, present and future infringements of any of
the foregoing, all rights throughout the world corresponding to any of the
foregoing, whether existing or granted under the laws of the United States or
any other domestic or foreign jurisdiction (all of the foregoing hereinafter
collectively called "Intellectual Property").
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All present and future books, records, customer lists, supplier lists,
ledgers, invoices, purchase orders, sales orders, and other evidence of Debtor's
business records, including, but not limited to, all cabinets, drawers, files,
correspondence, etc., that may hold same; computer records, lists, software,
programs, tapes and discs, all wherever located and all whether now existing or
hereafter arising or acquired which evidence or in any way relate to the
Miscellaneous Property, Receivables, Inventory, Equipment and Proceeds (the
"Records").
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Registration Rights Agreement Page 12 of 13
All proceeds of any of the foregoing, including, but not limited to,
accounts, contract rights, chattel paper, notes, drafts, instruments, general
intangibles, inventory, equipment, fixtures, money deposit accounts, goods, the
proceeds of insurance or other tangible or intangible property, resulting from
the sale or other disposition of any of the foregoing or the rendition of
services by Debtor, and the proceeds thereof (the "Proceeds").
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Registration Rights Agreement Page 13 of 13