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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated and
executed effective as of November 10, 2000, by and between Netzee, Inc., a
Georgia corporation (the "Company"), and John H. Harland Company, a Georgia
corporation ("Harland"). The Company and Harland are hereinafter collectively
called the "Parties."
WHEREAS, the Company, Harland and certain of Harland's subsidiaries
have entered into an Asset Purchase Agreement dated as of September 29, 2000
(the "Acquisition Agreement"), pursuant to which, among other things, the
Company has agreed to issue to Harland in the aggregate 4,400,000 shares of the
Company's common stock, without par value (the "Common Stock"); and
WHEREAS, the Company and Harland desire to provide for the rights of
Harland and its affiliates with respect to the registration of the shares of
Common Stock to be received by Harland and its affiliates pursuant to the
Acquisition 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:
(a) "1933 Act" means the United States Securities Act of 1933, 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;
(b) "1934 Act" means the United States Securities Exchange Act of
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;
(c) "Closing" shall mean the date of the Second Closing as defined
in the Acquisition Agreement.
(d) "Commission" means the United States Securities and Exchange
Commission or any other U.S. federal agency at the time administering the 1933
Act and 1934 Act;
(e) "Current Market Price" of each share of Common Stock shall
mean (i) the average of the closing prices of the Common Stock reported by the
Nasdaq National Market for the five-day period immediately preceding the day in
question, as published in The Wall Street Journal (or under any successor
quotation system), or, if the Common Stock is no longer traded on the Nasdaq
National Market, then under the quotation system or exchange under which such
closing prices are reported or, if The Wall Street Journal no longer reports
such closing prices, such closing prices as reported by a newspaper or trade
journal selected by the Company or (ii) if
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no such closing prices are available on such dates, the fair market value of a
share of Common Stock as determined in good faith by the Board of Directors of
the Company.
(f) "Demand Prospectus" shall mean the prospectus included in any
Demand Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, including any supplement relating to the terms
of the offering of any portion of the Registrable Securities covered by the
Demand Registration Statement, and in each case including all material
incorporated by reference therein.
(g) "Demand Registration" shall mean a registration required to be
effected pursuant to Section 4 hereof.
(h) "Demand Registration Request" shall have the meaning set forth
in Section 4(a) hereof.
(i) "Demand Registration Statement" shall have the meaning set
forth in Section 4(b) hereof.
(j) "Effective Time" shall mean the first anniversary of the
Closing.
(k) "Maximum Number" shall have the meaning set forth in Section
4(e) hereof.
(l) "NASD" means the National Association of Securities Dealers,
Inc.
(m) "Person" means an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a government
or agency or political subdivision thereof, or any other entity of any kind;
(n) "Piggyback Registration" shall have the meaning set forth in
Section 5(a) hereof.
(o) "Piggyback Registration Request" shall have the meaning set
forth in Section 5(a) hereof.
(p) "Register," "registered" and "registration" refer to a
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;
(q) "Registrable Securities" means the Shares held by Harland or
any of its affiliates, excluding (i) Shares that have been disposed of under any
effective registration statement, (ii) Shares sold or otherwise transferred
pursuant to Rule 144 and (iii) Shares held by Harland and its affiliates if and
to the extent that any of such Shares are eligible for sale pursuant to Rule 144
and could be sold in one transaction in accordance with the volume limitations
of Rule 144(e);
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(r) "Registration Expenses" shall mean any and all expenses
incident to performance of or compliance with this Agreement, including, without
limitation: (i) all Commission, stock exchange and NASD registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance with
state securities or "blue sky" laws (including reasonable fees and disbursements
of counsel in connection with qualification of any of the Registrable Securities
under any state securities or blue sky laws and the preparation of a blue sky
memorandum) and compliance with the rules of the NASD, (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any prospectus, certificates and other
documents relating to the performance of and compliance with this Agreement,
(iv) all fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Securities on any securities exchange, quotation system
or exchanges, and (v) the fees and disbursements of counsel for the Company and
of the independent public accountants of the Company, including the expenses of
any special audits or "cold comfort" letters required by or incident to such
performance and compliance. Registration Expenses shall specifically exclude
underwriting discounts and commissions, the fees and disbursements of counsel
representing Harland, and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by Harland or any of its affiliates, all
of which shall be borne by Harland in all cases.
(s) "Registration Statement" means any registration statement of
the Company which includes any of the Registrable Securities pursuant to this
Agreement, including the prospectus included or deemed included in the
Registration Statement and all amendments and supplements to the Registration
Statement or the prospectus, including post-effective amendments, and all
exhibits to, and all materials incorporated by reference in, such registration
statement;
(t) "Rule 144" means Rule 144 promulgated under the 1933 Act or
any successor provision;
(u) "Shares" means the 4,400,000 shares of Common Stock that were
issued at the Second Closing and any shares of Common Stock issued or issuable
as dividends on, or other distributions with respect to, such shares.
(v) "Shelf Registration Effective Date" shall have the meaning set
forth in Section 2(a) hereof.
(w) "Shelf Prospectus" shall mean the prospectus included in the
Shelf Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, including any supplement relating to the terms
of the offering of any portion of the Registrable Securities covered by the
Shelf Registration Statement, and in each case including all material
incorporated by reference therein.
(x) "Shelf Registration" shall mean the registration required to
be effected pursuant to Section 2 hereof.
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(y) "Shelf Registration Request" shall have the meaning
set forth in Section 2(a) hereof.
(z) "Shelf Registration Statement" shall mean a
registration statement of the Company (and any other entity required to be a
registrant with respect to such registration statement pursuant to the
requirements of the 1933 Act) required to be filed in accordance with Section 2
hereof that covers all of the Registrable Securities to be offered on a delayed
or continuous basis pursuant to Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the Commission, and all amendments (including
post-effective amendments) to such registration statement, and all exhibits
thereto and materials incorporated by reference therein.
(aa) "Shelf Registration Termination Date" shall have the
meaning set forth in Section 2(a) hereof.
All other capitalized terms used herein but not otherwise defined shall
have the meanings ascribed to them in the Acquisition Agreement.
2. Shelf Registration Under the Securities Act for the Benefit of
Harland and its Affiliates.
(a) Request to File Shelf Registration Statement.
Harland, by written request delivered to the Company on or after the 45th day
prior to the Effective Time, may request a non-underwritten registration under
the 1933 Act of all or any portion of the Registrable Securities held by Harland
or its affiliates for sale in the method of disposition specified in such
request. Each initial request for a Shelf Registration shall specify the number
of Registrable Securities requested to be registered and sold by Harland or its
affiliates and the method of disposition to be employed. Any request for
registration pursuant to this Section 2(a) shall be referred to herein as a
"Shelf Registration Request" and a registration requested pursuant to this
Section 2 shall be referred to herein as a "Shelf Registration." Subject to
Section 2(d), the Company shall use commercially reasonable efforts to cause the
Shelf Registration Statement to be filed within 45 days after the date the
Company receives the Shelf Registration Request. The Shelf Registration
Statement shall provide for the sale by Harland and its affiliates of the number
of Registrable Securities set forth in the Shelf Registration Request in
accordance with the terms hereof and the Company will use its commercially
reasonable efforts to cause such Shelf Registration Statement to be declared
effective by the Commission within 45 days after it is filed (the "Shelf
Registration Effective Date"). The Company agrees to use its reasonable
commercial efforts to keep the Shelf Registration Statement with respect to the
Registrable Securities covered thereby continuously effective until the earlier
of one year after the Shelf Registration Effective Date or the date that all of
such Registrable Securities have been sold (the "Shelf Registration Termination
Date"). Subject to Section 3(b) and Section 3(i), prior to the Shelf
Registration Termination Date, the Company further agrees to amend the Shelf
Registration Statement if and as required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the 1933 Act or any rules and regulations
thereunder. The Company is obligated to effect only one Shelf Registration
pursuant to this
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Section 2(a). Further, the Company shall not be required to effect a Shelf
Registration at any time that there is an effective Demand Registration
Statement on file with the Commission.
(b) Inclusion in Shelf Registration Statement. If Harland
does not provide the information reasonably requested by the Company in
connection with the Shelf Registration Statement as promptly as practicable
after receipt of such request, but in no event later than 20 days thereafter, it
shall not be entitled to have any Registrable Securities included in the Shelf
Registration Statement.
(c) Inability to File or Maintain Shelf Registration
Statement. The Company shall be obligated to comply with the provisions of
Section 2 hereof only if the Company is permitted, under the 1933 Act and the
rules and regulations of the Commission then applicable, to file and maintain
the Shelf Registration Statement on a Form S-3 registration statement, or on any
other similar forms that permit the registration of Registrable Securities and
the incorporation by reference of subsequently filed documents under the 1934
Act. In the event that the Company is unable to comply with the provisions of
Section 2 hereof in accordance with the foregoing sentence, the Company shall
remain obligated to provide Harland with the demand registration rights provided
for in Section 4 hereof; provided, however, that at such later time as the
Company is able to comply with the provisions of Section 2 hereof, the Company
shall again be obligated to provide Harland with the shelf registration rights
provided for in Section 2 hereof.
(d) Inclusion of Additional Shares. Harland acknowledges
that the Company may be required to include shares of its Common Stock in the
Shelf Registration Statement pursuant to the exercise of registration rights by
any other Person to whom registration rights have been or will be granted by the
Company. Notwithstanding anything in this Agreement to the contrary, the
inclusion of such other shares shall be made in accordance with the applicable
provisions of such other applicable registration rights agreements.
3. Shelf Registration Procedures. Whenever the Company is
required by Section 2 hereof to use its commercially reasonable efforts to
effect the registration of any of the Registrable Securities under the 1933 Act,
the Company shall use its commercially reasonable efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of disposition thereof and will, as expeditiously as possible:
(a) prepare and file the Shelf Registration Statement
with the Commission within the time period set forth in Section 2(a) hereof,
which Shelf Registration Statement (i) shall be available for the sale of such
Registrable Securities in accordance with the intended method or methods of
distribution by Harland and its affiliates and (ii) at the time the Shelf
Registration Statement is declared effective by the Commission, it shall comply
as to form in all material respects with the requirements of the applicable form
and include all financial statements required by the Commission to be filed
therewith;
(b) subject to Section 3(i) hereof, and until the Shelf
Registration Termination Date, (i) prepare and file with the Commission such
amendments and post-effective amendments to such Shelf Registration Statement as
may be necessary to keep such Shelf Registration Statement effective for the
applicable period; (ii) cause the Shelf Prospectus to be amended or
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supplemented as required and to be filed as required by Rule 424 or any similar
rule that may be adopted under the 1933 Act; (iii) respond as promptly as
practicable to any comments received from the Commission with respect to the
Shelf Registration Statement or any amendment thereto; and (iv) comply with the
provisions of the 1933 Act with respect to the disposition of all securities
covered by such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by Harland and
its affiliates. Harland also shall promptly notify the Company in writing upon
the completion of such offer or sale, any material change in the plan of
distribution or disposition of all securities covered by such Shelf Registration
Statement as described therein, or at such time as Harland no longer intends to
make offers or sales under the Shelf Registration Statement;
(c) furnish Harland, without charge, as many copies of
each Shelf Prospectus and any amendment or supplement thereto reasonably
requested by Harland in order to facilitate the public sale or other disposition
of the Registrable Securities covered by the Shelf Registration Statement, and
the Company consents to the use of the Shelf Prospectus and any amendment or
supplement thereto by Harland and its affiliates in connection with the offering
and sale of the Registrable Securities covered by the Shelf Prospectus or
amendment or supplement thereto;
(d) use its commercially reasonable efforts to register
or qualify the Registrable Securities covered by the Shelf Registration
Statement by the time the Shelf Registration Statement is declared effective by
the Commission under all applicable state securities or blue sky laws of such
jurisdictions in the United States and its territories and possessions as
Harland shall reasonably request in writing, and to keep each such registration
or qualification effective during the period such Shelf Registration Statement
is required to be kept effective; provided, however, that in connection
therewith, the Company shall not be required to (i) qualify as a foreign
corporation to do business or to register as a broker or dealer in any such
jurisdiction where it would not otherwise be required to qualify or register but
for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction,
or (iii) file a general consent to service of process in any such jurisdiction;
and provided, further, that, notwithstanding anything in this Agreement to the
contrary, if any jurisdiction in which the Registrable Securities shall be
qualified shall require that expenses incurred in connection with such
qualification in that jurisdiction be borne by selling shareholders, then such
expenses shall be payable by Harland, its affiliates and any other selling
shareholders 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 Registrable Securities covered by the
Shelf Registration Statement;
(e) notify Harland promptly and, if requested by Harland,
confirm in writing (i) when the Shelf Registration Statement and any
post-effective amendments thereto have become effective, (ii) when any amendment
or supplement to the Shelf Prospectus has been filed with the Commission, (iii)
of the issuance by the Commission or any state securities authority of any stop
order suspending the effectiveness of the Shelf Registration Statement or any
part thereof or the initiation of any proceedings for that purpose, (iv) if the
Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities covered by the Shelf Registration
Statement for offer or sale in any jurisdiction or the initiation
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of any proceeding for such purpose, and (v) of the happening of any event during
the period the Shelf Registration Statement is effective as a result of which
(A) such Shelf Registration Statement contains any 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 or (B) the Shelf
Prospectus as then amended or supplemented contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(f) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Shelf Registration Statement or
any part thereof as promptly as possible;
(g) furnish to Harland, without charge, at least one
executed original copy of the Shelf Registration Statement and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) cooperate with Harland to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold under the Shelf Registration Statement and not bearing any 1933 Act
legend and enable certificates for such Registrable Securities to be issued for
such numbers of shares as Harland may reasonably request at least two business
days prior to any sale of such Registrable Securities;
(i) upon the occurrence of any event contemplated by
Section 3(e)(v) hereof, use its commercially reasonable efforts promptly to
prepare and file an amendment or a supplement to the Shelf Prospectus or any
document incorporated therein by reference or prepare, file and obtain
effectiveness of a post-effective amendment to the Shelf Registration Statement,
or file any other required document, in any such case to the extent necessary so
that, as thereafter delivered to the purchasers of the Registrable Securities
covered by the Shelf Prospectus, such Shelf Prospectus as then amended or
supplemented will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not misleading;
(j) make available for inspection during normal business
hours by Harland and any counsel, accountants or other representatives retained
by Harland all financial and other records, pertinent corporate documents and
properties of the Company and cause the officers, directors and employees of the
Company to supply all such records, documents or information reasonably
requested by Harland, counsel, accountants or representatives in connection with
the Shelf Registration Statement; provided, however, that such records,
documents or information which the Company determines in good faith to be
confidential and notifies Harland, counsel, accountants or representatives in
writing that such records, documents or information are confidential shall not
be disclosed by Harland, counsel, accountants or representatives unless (i) such
disclosure is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction (after providing the Company reasonable advance notice of
such subpoena or court order so that the Company may seek a protective order or
otherwise challenge the disclosure of such confidential information pursuant to
such subpoena or court order), or (ii) such records,
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documents or information become generally available to the public other than
through a breach of this Agreement;
(k) a reasonable time prior to the filing of any Shelf
Registration Statement or any pre- or post-effective amendment thereto, or any
Shelf Prospectus or any amendment or supplement thereto, provide copies of such
document (not including any documents incorporated by reference therein unless
requested) to Harland;
(l) use its commercially reasonable efforts to cause the
Registrable Securities covered by the Shelf Registration Statement to be listed
on any securities exchange or quotation system on which similar securities
issued by the Company are then listed or quoted;
(m) provide a CUSIP number (if one does not already
exist) for all Registrable Securities covered by the Shelf Registration
Statement not later than the effective date of a Shelf Registration Statement;
and
(n) use its commercially reasonable efforts to make
available to its security holders, as soon as reasonably practicable, an
earnings statement meeting the requirements of Section 11(a) of the 1933 Act and
Rule 158 thereunder or any similar rule as may be adopted by the Commission.
In connection with and as a condition to the Company's obligations with
respect to the Shelf Registration Statement pursuant to Section 2 hereof and
this Section 3, Harland covenants and agrees that (i) neither it nor any of its
affiliates will offer or sell any Registrable Securities under the Shelf
Registration Statement until Harland has received copies of the Shelf Prospectus
as then amended or supplemented as contemplated by Section 3(c) and notice from
the Company that the Shelf Registration Statement and any post-effective
amendments thereto have become effective as contemplated by Section 3(e); (ii)
upon receipt of any notice from the Company contemplated by Section 3(e) (in
respect of the occurrence of an event contemplated by Section 3(e)(v)), neither
Harland nor any of its affiliates shall offer or sell any Registrable Securities
pursuant to the Shelf Registration Statement until Harland receives copies of
the supplemented or amended Shelf Prospectus contemplated by Section 3(i) hereof
and receives notice that any post-effective amendment has become effective, and,
if so directed by the Company, Harland will deliver to the Company (at the
expense of the Company) all copies in its possession of the Shelf Prospectus as
amended or supplemented at the time of receipt of such notice; and (iii) Harland
and its affiliates will comply with the prospectus delivery requirements of the
1933 Act as applicable to them in connection with offers and sales of
Registrable Securities covered by the Shelf Registration Statement in accordance
therewith.
4. Demand Registrations for the Benefit of Harland.
(a) Requests for Demand Registration. In addition to the
rights set forth in Section 2 hereof, Harland shall also be entitled to the
rights contained in this Section 4. Subject to the remainder of Section 4
hereof, Harland, by written request delivered to the Company on or after the
first business day following the Effective Time, may request registration under
the 1933 Act of all or any portion of the Registrable Securities held by Harland
or its affiliates for sale in
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the manner specified in such request. Each initial request for a Demand
Registration shall specify the number of Registrable Securities requested to be
registered and sold by Harland or its affiliates and the method of disposition
to be employed. Any request for registration pursuant to this Section 4(a) shall
be referred to herein as a "Demand Registration Request" and all registrations
requested pursuant to this Section 4 are referred to herein as "Demand
Registrations."
(b) Number of Demand Registrations. Subject to Section
4(e)(iii) hereof, the Company shall be required to effect no more than one
Demand Registration per every twelve month period beginning on the Effective
Time pursuant to this Section 4; provided, however, that the Company shall not
be obligated to effect more than three Demand Registrations under this
Agreement. Further, the Company shall not be required to effect a Demand
Registration while there is an effective Shelf Registration Statement on file
with the Commission. Except as provided in Section 4(e)(iii), a registration
shall count as a Demand Registration only when a registration statement covering
all Registrable Securities covered by such Demand Registration Request shall
have become effective (except that if, after it has become effective, the
offering of Registrable Securities pursuant to such registration statement is
interfered with by any stop order, injunction or action of the Commission not
occasioned by the fault of Harland, such registration shall be deemed not to
have been effected unless such stop order, injunction or other order or request
shall subsequently have been vacated or otherwise removed) and, if such method
of disposition is a firm commitment underwritten public offering, all such
Demand Registrable Securities shall have been sold pursuant thereto; provided,
however, that if a registration statement filed by the Company pursuant to a
Demand Registration Request (a "Demand Registration Statement") shall be
abandoned or withdrawn at the behest of Harland, then the Company shall be
deemed to have effected a Demand Registration.
(c) Minimum Offering Amount. The Company shall not be
required to register Registrable Securities pursuant to a Demand Registration
Request unless the aggregate Current Market Price (calculated as of the date of
such Demand Registration Request) of all Demand Registrable Securities covered
by the Demand Registration Request shall be $5,000,000 or more.
(d) Selection of Underwriters. If the method of
disposition specified by Harland shall be an underwritten public offering, the
Company may designate the managing underwriter of such offering subject to the
approval of Harland, which approval shall not be unreasonably withheld.
(e) Priority on Demand Registrations.
(i) Underwriters' Carvebacks. The Company shall
be entitled to include in any Demand Registration Statement, for sale in
accordance with the method of disposition specified by Harland, shares of Common
Stock to be sold by the Company for its own account or by other shareholders of
the Company for their account. Nonetheless, whether or not the Company desires
to include any such additional shares in a Demand Registration, if such method
of disposition is an underwritten public offering and the managing underwriters
advise
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the Company in writing that in their opinion the number of securities requested
to be included in such Demand Registration exceeds the maximum number which can
be included in such offering without adversely affecting the marketability of
the offering (the "Maximum Number"), then the Company shall limit the number of
shares included in such Demand Registration to the Maximum Number, and the
shares registered shall be selected in the following order of priority: (1)
first, 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 holding registration rights senior in priority to
those granted under this Agreement, if any, (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 holding
registration rights (A) granted under this Agreement or (B) granted prior to the
date of this Agreement and that are not senior in priority to those granted
under this Agreement, (3) third, 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 holding registration rights
granted after the date of this Agreement, (4) fourth, the number of securities
requested to be included by the Company, which in the opinion of such
underwriters can be sold, and (5) fifth, 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 who have not been
given registration rights by the Company and who the Company determines, in its
sole discretion, may sell Common Stock in such registration, on the basis of the
number of shares of Common Stock owned by each selling shareholder.
(ii) Priority of Demand Registration Rights. So
long as Harland or its affiliates own any Registrable Securities, any
registration rights granted by the Company after the date of this Agreement
shall be junior in priority to the demand registration rights granted to Harland
and its affiliates pursuant to Section 4 hereof. Harland and its affiliates
acknowledge that the demand registration rights granted pursuant to this Section
4 hereof are (A) junior in priority to any registration rights that have been
granted on a priority basis prior to the date hereof, and (B) pari passu with
any other registration rights granted prior to the date hereof.
(iii) Effect of Underwriters' Carvebacks.
Notwithstanding anything in this Agreement to the contrary, if the number of
Registrable Securities ultimately included in a Demand Registration for
registration by Harland or its affiliates is less than the amount of Registrable
Securities to be registered by Harland or its affiliates originally set forth in
the applicable Demand Registration Request by virtue of the application of
Section 4(e)(i) hereof, then such Demand Registration shall not count as a
Demand Registration for purposes of the provisions of Section 4(b) hereof.
(f) Exceptions. Anything in this Section 4 to the
contrary notwithstanding, the Company shall not be required to file a
registration statement in connection with a Demand Registration (i) within six
months after the effective date of a Demand Registration or any Piggyback
Registration, provided that, as contemplated by Section 5, Harland and its
affiliates shall have been afforded the opportunity to sell Registrable
Securities pursuant to such registration statement, and, if such registration
statement shall relate to an underwritten public offering, shall have been
included therein to the extent requested by Harland and shall have been
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sold or (ii) if counsel for the Company, reasonably acceptable to Harland, shall
deliver an opinion to Harland to the effect that, pursuant to Rule 144 under the
1933 Act or otherwise, Harland and its affiliates can publicly offer and sell
the Registrable Securities as to which registration has been requested without
registration under the 1933 Act.
5. Piggyback Registrations for the Benefit of Harland.
(a) Right to Piggyback. If the Company at any time
proposes to register any of its Common Stock or other securities under the 1933
Act for sale to the public, whether for its own account or for the account of
other shareholders or both (except with respect to registration statements on
Form S-4, Form S-8 or another form not available for registering the Registrable
Shares for sale to the public) (a "Piggyback Registration"), the Company will
promptly (but in any event within 30 days) give written notice to Harland of its
intention to effect such registration and will include, subject to Section 5(a)
and in such registration all Registrable Securities with respect to which the
Company has received written requests for inclusion within five business days
after the receipt of the Company's notice (a "Piggyback Registration Request").
(b) Priority on Piggyback Registrations.
(i) Underwriters' Carvebacks. If a Piggyback
Registration is an underwritten registration, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such Piggyback Registration exceeds the Maximum
Number, the Company will include in such registration the shares requested to be
included therein by the holders requesting such Piggyback Registration and the
Registrable Securities covered by Piggyback Registration Requests and any other
securities to be included in such registration pro rata among the holders
thereof on the basis of the number of shares requested to be included in such
registration: (1) first, 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 holding registration rights
senior in priority to those granted under this Agreement, if any, (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 holding registration rights (A) granted under this Agreement or (B)
granted prior to the date of this Agreement and that are not senior in priority
to those granted under this Agreement, (3) third, 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 holding
registration rights granted after the date of this Agreement, (4) fourth, the
number of securities requested to be included by the Company, which in the
opinion of such underwriters can be sold, and (5) fifth, 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
who have not been given registration rights by the Company and who the Company
determines, in its sole discretion, may sell Common Stock in such registration,
on the basis of the number of shares of Common Stock owned by each selling
shareholder.
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(ii) Priority of Piggyback Registration Rights.
So long as Harland or its affiliates own any Registrable Securities, any
piggyback registration rights granted by the Company after the date of this
Agreement shall be junior in priority to the piggyback registration rights
granted to Harland and its affiliates pursuant to Section 5 hereof. Harland and
its affiliates acknowledge that the piggyback registration rights granted
pursuant to this Section 5 hereof are (A) junior in priority to any registration
rights that have been granted on a priority basis prior to the date hereof, and
(B) pari passu with any other registration rights granted prior to the date
hereof.
6. Demand Registration Procedures. Whenever the Company is
required by Section 4 hereof to use its commercially reasonable efforts to
effect the registration of any of the Registrable Securities under the 1933 Act,
the Company shall use its commercially reasonable efforts to effect the
registration and sale of the Registrable Securities in accordance with the
intended method of disposition thereof and will, as expeditiously as possible:
(a) and in any case within 45 days after receiving a
request for a Demand Registration, prepare and file with the Commission a
registration statement (the "Demand Registration Statement") with respect to
such Registrable Securities and use its reasonable efforts to cause such
Registration Statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prior to the filing described in Section 6(a) above,
furnish to Harland copies of the Demand Registration Statement and any
amendments or supplements thereto and any prospectus forming a part thereof,
which documents shall be subject to the approval of Harland only with respect to
any statement in the Demand Registration Statement which relates to Harland;
(c) notify Harland promptly and, if requested by Harland,
confirm in writing, (i) when the Demand Registration Statement and any
post-effective amendments thereto have become effective, (ii) when any amendment
or supplement to the Demand Prospectus has been filed with the Commission, (iii)
of the issuance by the Commission or any state securities authority of any stop
order suspending the effectiveness of the Demand Registration Statement or any
part thereof or the initiation of any proceedings for that purpose, (iv) if the
Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities covered by such Demand Registration
Statement for offer or sale in any jurisdiction or the initiation of any
proceeding for such purpose, and (v) of the happening of any event during the
period the Demand Registration Statement is effective as a result of which (A)
such Demand Registration Statement contains any 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 or (B) the Demand
Prospectus as then amended or supplemented contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
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(d) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Demand Registration Statement
or any part thereof as promptly as possible;
(e) furnish to Harland, after delivery of a Demand
Registration Request to the Company, without charge, at least one executed
original copy of the Demand Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(f) prepare and file with the Commission such amendments
and supplements to such Demand Registration Statement and the Demand Prospectus
used in connection therewith as may be necessary to keep such Demand
Registration Statement effective for the period specified in paragraph (a) above
and to comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities covered by such Demand Registration
Statement in accordance with Harland's intended method of disposition set forth
in such Demand Registration Statement for such period;
(g) furnish to Harland and to each underwriter such
number of copies of the Demand Registration Statement and the Demand Prospectus
included therein (including each preliminary prospectus) and such other
documents, as such persons may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities covered by such
Demand Registration Statement;
(h) use its commercially reasonable efforts to register
or qualify the Registrable Securities covered by a Demand Registration Statement
by the time such Demand Registration Statement is declared effective by the
Commission under all applicable state securities or blue sky laws of such
jurisdictions in the United States and its territories and possessions as
Harland shall reasonably request in writing, and to keep each such registration
or qualification effective during the period such Demand Registration Statement
is required to be kept effective; provided, however, that in connection
therewith, the Company shall not be required to (i) qualify as a foreign
corporation to do business or to register as a broker or dealer in any such
jurisdiction where it would not otherwise be required to qualify or register but
for this Section 6(h), (ii) subject itself to taxation in any such jurisdiction,
or (iii) file a general consent to service of process in any such jurisdiction;
and provided, further, that, notwithstanding anything in this Agreement to the
contrary, if any jurisdiction in which the Registrable Securities covered by
such Demand Registration Statement shall be qualified shall require that
expenses incurred in connection with such qualification in that jurisdiction be
borne by selling shareholders, then such expenses shall be payable by Harland,
its affiliates and any other selling shareholders 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 such Registrable Securities;
(i) provide a transfer agent and registrar, which may be
a single entity, for all Registrable Securities covered by such Demand
Registration Statement not later than the effective date of the Demand
Registration Statement;
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(j) use its reasonable efforts to cause all Registrable
Securities covered by such Demand Registration Statement to be listed on any
securities exchange or quotation system on which similar securities issued by
the Company are then listed;
(k) make available for inspection during normal business
hours by Harland after delivery of a Demand Registration Request to the Company
and any counsel, accountants or other representatives retained by Harland all
financial and other records, pertinent corporate documents and properties of the
Company and cause the officers, directors and employees of the Company to supply
all such records, documents or information reasonably requested by Harland,
counsel, accountants or representatives in connection with the Demand
Registration Statement; provided, however, that such records, documents or
information which the Company determines in good faith to be confidential and
notifies Harland, counsel, accountants or representatives in writing that such
records, documents or information are confidential shall not be disclosed by
Harland, counsel, accountants or representatives unless (i) such disclosure is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction (after providing the Company reasonable advance notice of such
subpoena or court order so that the Company may seek a protective order or
otherwise challenge the disclosure of such confidential information pursuant to
such subpoena or court order), or (ii) such records, documents or information
become generally available to the public other than through a breach of this
Agreement.
For purposes of Section 5(a), Section 6(a) and Section 6(f), the period of
distribution of Registrable Securities in a firm commitment underwritten public
offering shall be deemed to be that period during which the underwriters in such
offering require in an underwriting agreement in the form customarily used by
such underwriters for comparable transactions that the Company keep a
registration statement effective to permit each underwriter to complete the
distribution of all securities purchased by it, and the period of distribution
of Demand Registrable Securities in any other registration shall be deemed to
extend until the earlier of the sale of all Registrable Securities covered
thereby or 60 days after the effective date thereof.
7. Prospectus Deliveries. Harland and its affiliates will comply
with the prospectus delivery requirements of the 1933 Act as applicable to them
in connection with sales of Registrable Securities pursuant to any registration
statement that includes any of the Registrable Securities.
8. Demand and Piggyback Registration Expenses. In connection with
any Demand Registration or Piggyback Registration, the Company shall pay all
Registration Expenses and Harland shall pay all other expenses applicable to the
shares sold by Harland and its affiliates.
9. Suspension or Delay. Notwithstanding anything to the contrary
in this Agreement, the Company may delay filing any registration statement and
may withhold efforts to cause the registration statement to become effective, if
the Company determines in good faith that such registration might (a) interfere
with or affect the negotiation or completion of any transaction that is being
contemplated by the Company (whether or not a final decision has been made to
undertake such transaction) at the time the right to delay is exercised, or (b)
involve initial or continuing disclosure obligations that might not be in the
best interest of the Company's
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shareholders. If, after a registration statement becomes effective, the Company
advises the holders of registered shares that the Company considers it
appropriate for the registration statement to be amended, the holders of such
registered shares shall suspend any further sales of their registered shares
until the Company advises them that the registration statement has been amended.
Notwithstanding the foregoing, the Company shall not so delay, withhold or cause
such suspension for more than an aggregate of 120 days without the consent of
Harland.
10. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
Harland and its affiliates shall furnish to the Company such information
regarding Harland and its affiliates, the Registrable Securities held by them
and their intended method or plan of distribution, and such other information as
the Company shall reasonably request and as shall be required or appropriate, in
connection with the action to be taken by the Company.
11. Suspension of Disposition of Registrable Securities. Harland
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 3(e)(v), Harland will and will cause its
representatives and affiliates forthwith to discontinue any disposition of
Registrable Securities until Harland receives copies of a supplemented or
amended prospectus contemplated by Section 3(e)(v), or until it is advised in
writing (the "Advice") by the 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, Harland will deliver to the Company (at the expense of the Company) all
copies 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 6 (if applicable) 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)(v) to and including the date
when Harland shall have received the copies of the supplemented or amended
prospectus contemplated by Section 3(e)(v) or the Advice.
12. Expenses of Registration. The Company will pay all
Registration Expenses incurred in connection with registration of Registrable
Securities effected pursuant to this Agreement, including all registration and
qualification fees, printing and accounting fees, and fees and disbursements of
counsel for the Company. All other expenses (including the underwriting
discounts, commissions and costs, and the costs and expenses described in
Section 3(d) and Section 6(h)), and expenses of counsel and other advisors to
Harland and its affiliates, shall be borne by Harland.
13. Rule 144 Sales. With a view to making available to Harland 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 Harland to sell
securities of the Company to the public without registration, the Company agrees
to use commercially reasonable efforts to:
(a) 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
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<PAGE> 16
(b) furnish to Harland so long as such Harland 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) and such
other reports and documents so filed by the Company as may be reasonably
requested by the Harland in availing Harland of any rule or regulation of the
Commission permitting the selling of any such securities without registration.
14. Lockup Agreements.
(a) As a condition precedent to the Company's obligation
to cause any registration under this Agreement, Harland and its affiliates agree
that, from the date hereof and until the Effective Time, except as permitted
pursuant to Section 24(a) and with the prior written consent of the Company and
the prior written consent of any underwriter with respect to a public offering
of the Company's securities (other than on Forms S-4, S-8 or any other successor
forms), neither Harland nor any of its affiliates shall transfer, assign, convey
or otherwise dispose of any Registrable Securities or any rights with respect
thereto.
(b) As a condition precedent to the Company's obligation
to cause any registration under this Agreement, and upon request of the
underwriters managing an underwritten public offering (other than on Forms S-4,
S-8 or any other successor forms), Harland agrees to enter and agrees to cause
each of its affiliates who may sell Registrable Securities hereunder to enter
into an agreement providing that, except with the prior written consent of such
underwriters, for a period of time not to exceed one hundred eighty (180) days
after the effective date of a registration statement covering any such public
offering (or such shorter period as may be applicable with respect to such
underwritten offering to Harland, any shareholder of the Company holding more
than 1% of the shares of the Company's outstanding common stock, or any
executive officer or director of the Company), they shall not sell, make any
short sale of, loan, pledge, hypothecate, transfer, grant any option for the
purchase of, or otherwise dispose of any Registrable Securities, except for
sales made by Harland or any of its affiliates in such underwritten public
offering.
15. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the full extent permitted by law, the Company
hereby agrees to indemnify and hold harmless Harland and its affiliates holding
Registrable Securities and each agent, officer, director and employee thereof,
and each Person, if any, who controls Harland 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 or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading
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<PAGE> 17
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 in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this Section 15(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 (i) 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 Harland or any of its affiliates or any controlling Person of any of them, or
(ii) Harland's or such affiliate's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto to any offeree
after the Company has furnished Harland with a sufficient number of copies of
the same.
(b) To the full extent permitted by law, Harland and its
affiliates hereby agree to indemnify and hold harmless the Company, each of its
directors and officers, 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), 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, in light of
the circumstances under which they were made, not misleading, in each case only
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 Harland expressly for use in
connection with such registration; and Harland and such affiliates 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 15(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
Harland (which consent shall not be unreasonably withheld).
(c) In no event shall the liability of Harland or any of
its affiliates hereunder be greater than the dollar amount of the proceeds
received by Harland or any such affiliate upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
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(d) Promptly after receipt by an indemnified party under
this Section 15 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 15, 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, 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 its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
15, but the omission so to notify the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 15. The indemnification provided by this Section 15 shall be a
continuing right to indemnification and shall survive the registration and sale
of any securities by any Person entitled to indemnification hereunder and the
expiration or termination of this Agreement.
16. Remedies. In addition to being entitled to exercise all rights
provided in this Agreement and the Acquisition Agreement as well as all rights
granted by law, including recovery of damages, the Company and Harland will be
entitled to specific performance of its rights under this Agreement.
17. Amendments and Waivers. The provisions of this Agreement,
including the 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 such amendment, modification or supplement or waiver is
approved in writing by the Company and Harland.
18. Notices. All notices and other communications provided for or
permitted 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 Harland, at the most current address given in
accordance with the provisions of this Section 18, which address initially is
the address of Harland as set forth in the Acquisition Agreement, with a copy
(which shall not constitute notice) to Harland's counsel as identified in the
Acquisition Agreement;
(b) if to the Company, initially at its address set forth
in the Acquisition Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 18, with a copy
(which shall not constitute notice) to the Company's counsel as identified in
the Acquisition Agreement.
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.
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19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, and each of which shall
constitute one and the same agreement. Any Party may deliver an executed copy of
this Agreement and any documents contemplated hereby by facsimile transmission
to the other Party, and such delivery shall have the same force and effect as
any other delivery of a manually signed copy of this Agreement or of such other
documents.
20. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
21. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the United States of America and the
State of Georgia, excluding choice of law principles. The Company, Harland and
each person who holds Registrable Securities pursuant to Section 24(a) hereunder
consent to the exclusive jurisdiction and venue of the courts the United States
Federal District Court of Georgia, in any judicial proceeding brought to enforce
this Agreement. Without limiting the foregoing, each party hereby irrevocably
and unconditionally waives, and agrees not to use as a defense, to the fullest
extent permitted by applicable law (a) any objection which it may now or
hereafter have to the laying of jurisdiction or venue in such courts (including
any defense that it is not personally subject to the jurisdiction or venue of
such courts) and (b) any claim that any such forum is an inconvenient forum.
22. Invalidity of any Part. If any provision or part of this
Agreement shall for any reason be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement and shall be construed as if such invalid,
illegal or unenforceable provision or part thereof had never been contained
herein, but only to the extent of its invalidity, illegality, or
unenforceability. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the Parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in an acceptable manner to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
23. Entire Agreement. This Agreement, along with the Acquisition
Agreement and the agreements contemplated thereby, contain the entire agreement
among the Parties with respect to the transactions contemplated by this
Agreement and supersedes all prior negotiations, arrangements or understandings,
written or oral, with respect thereto.
24. No Assignment; Parties Benefited.
(a) Except as provided below, no Party may assign its
rights, duties or obligations under this Agreement without the express written
consent of the other Party. Any attempted assignment without such written
consent shall be null and void. Notwithstanding the foregoing, Harland or any of
the other Sellers (as such term is defined in the Acquisition Agreement) may
transfer its Registrable Securities among such entities in transactions effected
in accordance with the 1933 Act and all applicable state securities laws, rules
and regulations. By accepting such Registrable Securities pursuant to such
transfer, each such affiliate of Harland shall become a holder of Registrable
Securities for purposes of this Agreement and shall become
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bound to all of the terms and conditions herein. The Company may transfer its
rights and obligations under this Agreement to any Person who acquires all or
substantially all of the Company's business, whether by sale of stock, sale of
assets, merger or otherwise.
(b) Nothing in this Agreement, express or implied, is
intended to confer upon any third party any rights, remedies, obligations or
liabilities.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
The Parties have executed this Registration Rights Agreement as of the
date first above written.
NETZEE, INC.
By: /s/ Richard S. Eiswirth
------------------------------------------
Richard S. Eiswirth
Senior Executive Vice President and
Chief Financial Officer
JOHN H. HARLAND COMPANY
By: /s/ John C. Walters
------------------------------------------
Name: John C. Walters
----------------------------------------
Title: Vice President & Secretary
---------------------------------------
20
