EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is made and entered
into as of May 28, 1999 between The InterCept Group, Inc., a Georgia corporation
("Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (collectively,
"Holders").
W I T N E S S E T H:
WHEREAS, Company has entered into an Acquisition and Merger Agreement,
dated May 28, 1999 (the "Merger Agreement") among itself, LEV Acquisition Corp.,
a Georgia corporation, ▇. ▇. ▇▇▇▇▇▇▇ & Associates, Inc., a Tennessee corporation
("▇▇▇▇▇▇▇"), Data Equipment Services, Inc., a Tennessee corporation ("Data"),
(▇▇▇▇▇▇▇ and Data are collectively referred to herein as the "Targets") and the
Holders; and
WHEREAS, as of the date hereof the Merger Agreement has been approved by
the Holders which constitute all of the stockholders of the Targets.
NOW THEREFORE, for and in consideration of the premises, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any other
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federal agency at the time administering the Securities Act.
"Common Stock" shall mean the voting common stock, without par value per
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share, of Company.
"Estimated Offering Price" means an estimate of the gross proceeds, before
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underwriting discounts and commissions, reasonably obtainable from the sale of
Registrable Stock in an Underwritten Public Offering, as determined by either
the Board of Directors of the Company or an underwriter of national reputation
reasonably acceptable to the Company, based upon the highest closing price or
bid price, as the case may be, during the 30-day period preceding the applicable
date of determination in the principal trading market for the Common Stock, or,
if there shall be no active trading market for the Common Stock, based on all
other relevant considerations.
The terms "register", "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities" means shares of Common Stock issued to the Holders
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upon and at the time of consideration of the merger pursuant to the Agreement,
any Registrable Securities
sold by a Holder in a transaction, including a transaction pursuant to a
registration statement under Sections 2 or 3 or a transaction pursuant to Rule
144 of the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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similar federal statute promulgated in replacement thereof, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"Underwritten Public Offering" means a public offering of Common Stock for
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cash which is offered and sold in a registered transaction on a firm commitment
underwritten basis through one or more underwriters, all pursuant to an
underwriting agreement between the Company, any selling shareholders and such
underwriters.
2. Registration.
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(a) Subject to the conditions of this Agreement, as soon as reasonably
practicable after the date upon which (1) at least thirty (30) days of the post-
merger combined operating results of the Company and the Targets are published
as contemplated by ASR 135 and, in any event, no later than August 16, 1999 and
(2) the Company is eligible to file a registration statement on Form S-3
covering the resale of the Registrable Securities by the Holders, the Company
shall file a registration statement on Form S-3 covering the resale of the
Registrable Securities held by the Holders in accordance with the terms of this
Agreement. Subject to the conditions of this Agreement, the Company shall use
all commercially reasonable efforts (1) to file with the Commission a
registration statement on Form S-3 covering the resale of the Registrable
Securities by the Holders and (2) to effect all such registrations,
qualifications, and compliances as would permit or facilitate the resale of the
Registrable Securities then outstanding.
(b) The right of each Holder to registration pursuant to Section 2(a) shall
be conditioned upon such Holder's participation and cooperation in the offering.
If the Holders agree to participate in an Underwritten Public Offering under
Section 2(a) the Company shall provide notice to the Holders of the name of the
underwriter to be employed if an Underwritten Public Offering, if then
determined.
(c) The Company shall be entitled to include in any registration statement
referred to in this Section 2 shares of Common Stock to be sold by the Company
for its own account or other then existing shareholders for their own account.
(d) The Company shall be entitled to postpone for a reasonable period of
time (but, except as otherwise provided in this Agreement, not exceeding one
hundred eighty (180) days) the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to this Section 2, if and only
if, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, on behalf of the Holders, consents in writing to a
postponement after being advised in writing by the Company that the Company has
determined, in good faith and in the exercise of reasonable judgment, that such
action would materially delay or interfere with any material financing,
acquisition, corporate reorganization or other transaction involving the Company
then pending or contemplated. ▇▇. ▇▇▇▇▇▇▇ agrees to promptly execute and
deliver a confidentiality agreement in form and
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substance reasonably acceptable to the Company in connection with any
disclosures the Company is required to make under this paragraph.
(e) If either a limitation under Section 2(c) or a postponement under
Section 2(d) occurs, the Holders shall have the piggyback registration rights
set forth in Section 3.
(f) If a registration statement pursuant to this Section 2 does not become
effective within twelve (12) months after the initial filing thereof as a result
of any reason other than a material adverse development in the business or
condition (financial or other) of the Company or other acts or matters within
the control of the Company, or if such registration statement is abandoned or
withdrawn at the request of the Holders, then, unless the Holders, promptly upon
receipt of a request therefor, supported by an invoice setting forth the
expenses in reasonable detail, reimburse the Company for the registration
expenses in respect of such registration statement, the Company shall be deemed
to have satisfied its obligation pursuant to this Section 2.
(g) Notwithstanding anything in this Agreement to the contrary, the
Company shall not be obligated to take any action to effect any registration,
qualification or compliance pursuant to Section 2 in any particular jurisdiction
in which the Company would be required to execute a general consent to service
of process or to register as a dealer or to cause any officer or employee of the
Company to register as a salesman in effecting such registration, qualification
or compliance.
3. Piggyback Registration.
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If (1) registration by the Holders of their Registrable Securities has
been delayed pursuant to Section 2(d), (2) thirty (30) days of post merger
combined operating results of Company and Direct Access have been published as
contemplated by ▇▇▇ ▇▇▇, and (3) the Company shall determine to register for
sale for cash any of its Common Stock, for its own account, other than a
registration relating solely to employee benefit plans or securities issued or
issuable to employees or consultants (including a registration on Form S-8), a
registration relating solely to a Commission Rule 145 transaction, a
registration on Form S-4 in connection with a merger, acquisition, divestiture,
reorganization or similar event or a registration on any registration form which
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, then the Company promptly will give to each Holder written notice
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thereof and shall use its commercially reasonable efforts in good faith to
include in such registration (and any related qualification under blue sky laws
or other compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests, made within
ten (10) days after receipt of such written notice from the Company, by any
Holder or Holders. However, the Company may, without the consent of the
Holders, withdraw such registration statement prior to its becoming effective if
the Company has abandoned its proposal to register the securities proposed to be
registered thereby.
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4. Underwritten Public Offerings. If the registration being effected
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under this Agreement is for an Underwritten Public Offering, the Company shall
so advise the Holders. In such event the right of any Holder to registration
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their securities
through any Underwritten Public Offering shall (together with the Company and
any other shareholders of the Company distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 4, if the underwriter or the
Company determines that marketing factors require a limitation of the number of
shares to be underwritten, the underwriter may exclude some or all Registrable
Securities from such registration and underwriting. The Company shall so advise
all Holders (except those Holders who have indicated to the Company their
decision not to distribute any of their Registrable Securities through such
underwriting), and the number of shares of Registrable Securities that may be
included in the registration and underwriting, if any, shall be allocated among
such Holders as follows: the number of shares that may be included in the
registration and underwriting shall be allocated first to the Company and then
to all selling shareholders, including the Holders, who have requested to sell
in the registration on a pro rata basis according to the number of shares
requested to be included. No Registrable Securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any Holder disapproves of the terms of any
such underwriting, such person may elect to withdraw therefrom by written notice
to the Company and the underwriter.
5. Registration Procedures.
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(a) In the case of each registration, qualification or compliance effected
by the Company pursuant to Sections 2 or 3, the Company will keep each Holder
advised in writing as to the initiation of each registration, qualification and
compliance and as to the completion thereof. At its expense, the Company in good
faith will use its commercially reasonable efforts to, subject to the provisions
of paragraph 5(b) below:
(1) Keep such registration, qualification or compliance effective for
a period of twelve (12) months from the Effective Time or until the Holder or
Holders have completed the distribution described in the registration statement
relating thereto, whichever first occurs;
(2) Furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request;
(3) Notify the Holders, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus forming a part of such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein,
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made insofar as it relates to the Company.
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(4) Cause the shares of Company Common Stock to be issued upon
consummation of the Merger to be listed for trading on the NASDAQ National
Market.
(b) If the Company determines, in good faith and in the exercise of its
reasonable judgment, that a registration statement effected pursuant to this
Agreement interferes with any material financing, acquisition, corporate
reorganization or other transaction involving the Company then pending or
contemplated, it shall notify the Holders in writing of such transaction and the
resulting need to terminate or withdrawal the registration statement. ▇▇.
▇▇▇▇▇▇▇ agrees to promptly execute and deliver a confidentiality agreement in
form and substance reasonably acceptable to the Company in connection with any
disclosures the Company is required to make under this paragraph. ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, on behalf of the Holders, shall either consent to such withdrawal or
termination of the registration statement or indicate the Holders' objection to
such withdrawal or termination within three (3) business days of the Company's
delivery of such notice to him. In the event ▇▇. ▇▇▇▇▇▇▇ fails to make a
written response to the notice provided by the Company within such three (3)
business day period, it shall be presumed that the Company may withdrawal or
terminate such registration statement without liability to the Holders except as
provided in paragraph 5(c) below with respect to demand registration rights.
(c) If the Company withdraws or terminates a registration statement
covering Registrable Securities of the Holders, then, unless Registrable
Securities of the Holders are included in another offering of shares of Common
Stock or have been registered and sold pursuant to this Agreement within the
preceding sixty (60) days, upon notice from the Holders requesting the
registration on Form S-3 of Registrable Securities collectively having an
Estimated Offering Price of at least $500,000 (the "Request Notice"), the
Company agrees to use its good faith reasonable efforts to prepare and file a
registration statement on Form S-3 covering the remaining Registrable Securities
of the Holders within ten (10) business days after such Request Notice is first
received.
6. Rule 144. Notwithstanding anything to the contrary contained herein,
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no Holder shall have rights to a registration under this Agreement after the
time that such Holder could sell all of its Registrable Securities pursuant to
Rule 144 promulgated under the Securities Act or any successor rule thereto.
7. Registration Expenses. The Company shall pay the expenses in
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connection with any registration involving shares of Common Stock, including,
without limitation, all registration, filing and NASD fees, printing expenses,
all fees and expenses of complying with securities or blue sky laws, and the
fees and disbursements of counsel for the Company and of its independent
accountants. In any registration, each party shall pay for its own underwriting
discounts and commissions and transfer taxes.
8. Assignment of Rights. No Holder may assign its rights under this
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Agreement to any party without the prior written consent of the Company, and any
attempted transfer in violation of this Section 8 shall be null and void.
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9. Information by Holder. The Holder or Holders of Registrable
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Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing.
10. "Market Stand-off" Agreement. If at least 50% of the Registrable
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Securities requested by the Holders to be included in a registration under this
Agreement are so included and sold, then each Holder agrees that until May 28,
2000 Holder will not sell or otherwise transfer or dispose of any other Common
Stock (or other securities) of the Company held by such Holder during the 120-
day period following the effective date of any public offering if so requested
by the Company or the underwriters of Common Stock (or other securities) of the
Company. The Company may impose stop-transfer instructions with respect to the
shares (or securities) subject to the foregoing restriction until the end of
such period.
11. Indemnification.
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(a) In the event of the offer and sale of Registrable Securities held by
Holders under the Securities Act, the Company shall, and hereby does, indemnify
and hold harmless each Holder, its directors, officers and partners and each
other Person, if any, who controls such Holder within the meaning of Section 15
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which the Holder or any such director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such shares were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company shall
reimburse the Holder, and each such director, officer, partner and controlling
person for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of such Holder specifically stating
that it is for use in the preparation thereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company, or any such director, officer, partner or controlling person and
shall survive the transfer of such shares by the Holder.
(b) The Company may require, as a condition to including any Registrable
Securities to be offered by a Holder in any registration statement filed
pursuant to this Section 11, that the Company shall have received an
agreement from such Holder to be bound by the terms of this
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Section 11, including an undertaking reasonably satisfactory to it from such
Holder, to indemnify and hold the Company, its directors and officers and each
other Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which the Company or any such director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information about such Holder as
a Holder of the Company furnished to the Company through an instrument duly
executed by such Holder specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, however, that
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such indemnity agreement found in this Section 11(b) shall in no event exceed
the gross proceeds from the offering received by such Holder. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Company or any such director, officer or controlling person
and shall survive the transfer by any Holder of such shares.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in
Section 11(a) or (b) (including any governmental action), such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the indemnifying party of the commencement of such
action; provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under Section 11(a) or (b), except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist or the indemnified party may have defenses not
available to the indemnifying party in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. Neither an indemnified nor an indemnifying party shall be liable
for any settlement of any action or proceeding effected without its consent. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation.
(d) The indemnification required by Section 11(a) and (b) shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expenses, losses, damages or
liabilities are incurred.
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(e) If the indemnification provided for in this Section 11 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage or expense as is appropriate to
reflect the relative benefits received by the indemnified party on the one hand,
and the indemnifying party on the other from the offering of the Common Stock,
as well as other relevant equitable considerations.
12. Miscellaneous
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(a) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Georgia applicable to contracts between
Georgia residents entered into and to be performed entirely within the State of
Georgia.
(b) Successors and Assigns. Except as otherwise provided herein, the
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provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
(c) Entire Agreement. This Agreement constitutes the full and entire
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understanding and agreement between the parties with regard to the subjects
hereof.
(d) Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be delivered in accordance
with the notice provisions of the Merger Agreement
(e) Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any Holder of any Registrable Securities, upon any
breach or default of the Company under this Agreement, shall impair any such
right, power or remedy of such Holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereunder occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any Holder of any breach or default under
this Agreement, or any waiver on the part of any Holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
(f) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which may be executed by less than all of the Purchasers,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
(g) Severability. In the case any provision of this Agreement shall be
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invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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(h) Amendments. The provisions of this Agreement may be amended at any
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time and from time to time, and particular provisions of this Agreement may be
waived, with and only with an agreement or consent in writing signed by the
Company and by the Holders of a majority of the number of shares of Registrable
Securities outstanding as of the date of such amendment or waiver; provided,
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however, that without obtaining the consent of any other party to this
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Agreement, the Company may amend this Agreement to add hereto as parties any
person or entity who beneficially owns securities of the Company, such Amendment
to be effected by obtaining the signature of each such party and the Company to
a counterpart to this Agreement.
This Registration Rights Agreement is hereby executed as of the date first
above written.
"Company"
The InterCept Group, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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"Holders"
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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