Exhibit 4.3.2
SECOND AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT is dated and
effective as of March 29, 2002 ("Amendment"), by and between Netzee, Inc., a
Georgia corporation (the "Company"), ▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇") and each of the
former shareholders of DPSC Software, Inc. ("DPSC") whose names appear on the
signature page hereof (each a "Shareholder" and, collectively, the
"Shareholders").
W I T N E S S E T H:
WHEREAS, the Company, DPSC and the Shareholders entered into a
Registration Rights Agreement, dated as of December 15, 1999, as amended on
September 29, 2000 (the "Registration Rights Agreement"), in connection with the
acquisition by Netcal, Inc., a wholly owned subsidiary of the Company, of
substantially all of the assets of DPSC (the "Acquisition");
WHEREAS, in connection with the Acquisition, DPSC changed its name to
▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, Inc., which entity was subsequently dissolved and
liquidated under California law effective December 31, 2000 (the "Dissolution");
WHEREAS, in connection with the Dissolution, Gall purchased and
acquired from each Shareholder all shares of Preferred Stock acquired by such
person from the Company in connection with the Acquisition, such that Gall is
the only record and beneficial owner of the Preferred Stock; and
WHEREAS, the Company, Gall and the Shareholders desire to amend the
Registration Rights Agreement, in accordance with the terms and provisions of
Section 15 thereof.
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 herby acknowledged, the parties hereby agree as
follows:
1. CAPITALIZED TERMS. All capitalized terms not defined herein
shall have the meanings ascribed to them in the Registration Rights Agreement.
2. REPRESENTATION AND WARRANTY OF GALL. Gall hereby represents
and warrants that he owns in the aggregate a majority of the Registrable
Securities, voting together as a single class.
3. AMENDMENT OF PUT RIGHT EXERCISE DATE. The parties hereto
hereby strike the first sentence of Section 12(a) of the Registration Rights
Agreement in its entirety and replace it with the following:
"If any Preferred Stock remains outstanding on or after April 10, 2003
(or such earlier Put Option Exercise Date as provided and defined in Section 5
of the Second Amendment to this Agreement dated March 29, 2002), each Holder of
Preferred Stock
shall have the right (the "Put Right") to require the Company to purchase all
(but not less than all) of the shares of Preferred Stock then held by such
Holder at a price equal to the Stated Value (as defined in the Designations) per
share, plus accrued but unpaid dividends thereon (the "Purchase Price"), payable
by the Company in cash."
4. EXTENSION FEE. Upon the Company's receipt of an executed copy
of this Amendment, the Company shall pay by wire transfer to Gall's account the
following amounts:
(a) A cash payment of $501,000 (the "Extension Payment"),
of which the sum of $100 shall be disbursed by Gall to each Shareholder
as soon as practicable after Gall's receipt thereof.
(b) Anything in Section 4(a) to the contrary
notwithstanding, Gall and each other Shareholder acknowledges and
agrees that if the Company completes a merger, share exchange, sale of
substantially all of its assets or other similar transaction on or
before June 15, 2002, and Gall receives the Stated Value of the
Preferred Stock, plus accrued dividends, then, and only then, $275,000
of the Extension Payment shall be deducted from the value of the
consideration Gall shall receive in such transaction.
(c) If the Company fails to make the Extension Payment
referred to in this Section 4 within one business day following the
date hereof, then this Amendment shall be null and void and of no
further force or effect.
5. INTERCEPT AND ▇▇▇▇▇▇▇ DEBT. If either The InterCept Group,
Inc. ("InterCept") or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Company ("▇▇▇▇▇▇▇") is unwilling to extend
the maturity date of its credit facility to April 10, 2003 (the "Put Option
Exercise Date"), but agrees on an earlier maturity date (such date being
referred to as the "Debt Extension Date"), then the Put Option Exercise Date
will be the earliest Debt Extension Date to which InterCept or ▇▇▇▇▇▇▇, as the
case may be, agrees. Further, if either InterCept or ▇▇▇▇▇▇▇ accelerates
repayment of the indebtedness owed to it prior to the scheduled Debt Extension
Date due to the Company's default, then the Put Option Exercise Date will
similarly be moved up to the date on which such acceleration shall have
occurred. The Company hereby covenants and agrees that it will advise Gall
promptly in writing of any breach, or alleged breach, of its credit facility
with InterCept or ▇▇▇▇▇▇▇.
6. AMENDMENT OF AGREEMENT. Section 15 of the Agreement shall
hereby be amended in its entirety to read as follows:
"15. 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, supplement, waiver or consent is in writing
and signed by the Company and ▇▇▇▇▇ ▇. ▇▇▇▇."
7. NO OTHER CHANGES. Except as otherwise provided herein, the
terms and provisions of the Registration Rights Agreement shall remain in full
force and effect as set forth therein.
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8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery by facsimile or
of a photocopy of an executed counterpart of this Amendment shall constitute a
valid execution and delivery of such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
NETZEE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Executive Vice President and
Chief Financial Officer
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
Gall Family Trust
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇, Trustee
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