EXHIBIT 2.1
AGREEMENT OF SHARE EXCHANGE
This Agreement of Share Exchange ("Agreement") is made and entered into as
of the 4th day of June, 1996, by and between Intercept Holdings Inc., a
corporation ("Holdings"); Intercept Systems, Inc., a corporation ("Intercept");
Data Services Corporation, a corporation ("Data"); Xxxx Xxxxxxx, an individual
("Xxxxxxx"); Vir A. Nanda, an individual ("Nanda"); J. Xxxxxx Xxxxxxxxx, an
individual ("Xxxxxxxxx"); and Xxxxxxx Xxxxxxxx, an individual ("Xxxxxxxx").
W I T N E S S E T H:
WHEREAS, Holdings is a Georgia corporation with its principal office at
0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, in Gwinnett County;
WHEREAS, Holdings has authorized capital stock consisting of (i) 10,000,000
shares of common stock, of which no shares are issued and outstanding, (ii)
50,000 shares of preferred stock, of which no shares are issued and outstanding;
WHEREAS, Intercept is a Georgia corporation with its principal office at
0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, in Gwinnett County;
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WHEREAS, Intercept has authorized capital stock consisting of 5,000 shares
of common stock, par value $1.00 per share, of which 721 shares are issued and
outstanding;
WHEREAS, Data is a Georgia corporation with its principal office at 0000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, in Gwinnett County;
WHEREAS, Data has authorized capital stock of 1,000,000 shares of common
stock of no par value, of which 500 shares are issued and outstanding;
WHEREAS, the Board of Directors of Holdings has determined that it is
advisable to acquire up to all of the shares of capital stock of Data and
Intercept which are issued and outstanding on the Closing Date defined below;
WHEREAS, such acquisition of the shares of Intercept and Data is to be made
solely in exchange for the issuance of shares of common stock of Holdings on the
terms and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the premises and of the mutual
agreements, promises and covenants contained herein, it is agreed by and between
the parties hereto, subject to the conditions hereinafter set forth, that all of
the outstanding shares of capital stock of Data on the Closing Date
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shall be exchanged for an aggregate of 290,000 shares of common stock of
Holdings and that all of the outstanding shares of capital stock of Intercept on
the Closing Date shall be exchanged for an aggregate of 1,155,000 shares of
common stock of Holdings, and that the terms and conditions of the share
exchange hereby agreed upon, the mode of carrying the same into effect and the
manner of exchanging shares shall be as follows:
Section 1
Data Share Exchange
1.1 On the Closing Date, all of the then outstanding shares of capital
stock of Data shall be exchanged for an aggregate of 290,000 shares of common
stock of Holdings as follows:
Name of Exchanging Number of Shares Number of Shares of
Shareholder of Data Exchanged Holdings to be Issued
------------------ ----------------- ---------------------
Xxxx Xxxxxxx 350 203,000
Xxxxxxx Xxxxxxxx 150 87,000
--- -------
Totals 500 290,000
1.2 Prior to and from and after the Closing Date, Holdings, Data, Xxxxxxx
and Xxxxxxxx each shall take all such action as shall be necessary or
appropriate in order to effectuate the share exchange.
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Section 2
Intercept Share Exchange
2.1 On the Closing Date, all of the then outstanding shares of
capital stock of Intercept shall be exchanged for an aggregate of 1,155,000
shares of common stock of Holdings, as follows:
Name of Exchanging Number of Shares of Number of Shares of
Shareholder Intercept Exchanged Holdings to be Issued
------------------ ------------------- ---------------------
Xxxx Xxxxxxx 309 495,000
Vir A. Nanda 309 495,000
J. Xxxxxx Xxxxxxxxx 103 165,000
--- ---------
Total 721 1,155,000
2.2 Prior to and from and after the Closing Date, Intercept, Holdings,
Xxxxxxx, Xxxxx and Xxxxxxxxx shall each take all such action as shall be
necessary or appropriate in order to effectuate the share exchange.
Section 3
Representations and Warranties of Data Shareholders
As an inducement to Holdings to enter into this Agreement and to
consummate the transactions contemplated hereby, each of Xxxxxxx and Xxxxxxxx
(collectively, the "Data Shareholders") hereby represents and warrants to
Holdings as set forth below in Subsections 3.1 through 3.6. Each such
representation or warranty made by Xxxxxxx relates only to Xxxxxxx and Data,
while
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each such representation or warranty made by Xxxxxxxx relates only to Xxxxxxxx
and Data.
3.1 Authority. Such shareholder has full power and authority to
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enter into this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance by such shareholder of this
Agreement and all transactions contemplated hereby have been duly and validly
authorized by all necessary action of such shareholder, and this Agreement
constitutes the legal, valid and binding obligation of such shareholder and of
Data, enforceable in accordance with its terms, except as may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally and general equitable principles
and (ii) judicial discretion in the enforcement of legal and equitable remedies.
3.2 Title to Shares. All of the number of Data shares set opposite
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such shareholder's name in Subsection 1.1 above are owned of record and
beneficially by such shareholder. Such shareholder has good and valid title to
such shares, free and clear of all pledges, security interests, liens, charges,
encumbrances, shareholder agreements, other contracts or agreements, equities,
claims and options of whatever nature, except the rights of Holdings under this
Agreement. Any agreement among the shareholders restricting transfer of any
shares or limiting the manner in which any shareholder may vote
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his shares on any matter has been terminated and is of no force and effect.
3.3 Additional Shares. Such shareholder has no option, warrant or
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other legal or equitable right to acquire any additional shares of the capital
stock of Data. Data has not granted to any person any right to require Data to
issue any securities that are not already outstanding.
3.4 Residence. Such shareholder is a bona fide resident of the State
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of Georgia, registered to vote in Georgia (and in no other state) and holds a
valid vehicle drivers license from the State of Georgia (and from no other
state).
3.5 Information. In his capacity as a shareholder and director of
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Data and through his longstanding business dealings with Intercept and his
business and social relationships with the Intercept Shareholders (defined
below), such shareholder has obtained or has access to all information which he
deems important or otherwise desires with respect to (i) his investment decision
to exchange his Data shares for Holdings shares, (ii) the transactions
contemplated by this Agreement, (iii) the status and proposed operations of
Holdings, and (iv) the contemplated status of Data and Intercept as subsidiaries
of Holdings.
3.6 Purchase for Investment. Such shareholder is acquiring the
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shares of common stock of Holdings for such shareholder's own
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account for investment purposes only and with no intent to engage in a
distribution of such shares.
Section 4
Representations and Warranties of Intercept Shareholders
As an inducement to Holdings to enter into this Agreement and to
consummate the transactions contemplated hereby, each of Xxxxxxx, Xxxxx and
Xxxxxxxxx (collectively, the "Intercept Shareholders") represents and warrants
as set forth below in Subsections 4.1 through 4.6. Each such representation or
warranty made by Xxxxxxx relates only to Xxxxxxx and Intercept, and each such
representation or warranty made by Nanda or Xxxxxxxxx relates only to himself
and Intercept.
4.1 Authority. Such shareholder has full power and authority to enter
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into this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by such shareholder of this Agreement and
all transactions contemplated hereby have been duly and validly authorized by
all necessary action of such shareholder, and this Agreement constitutes the
legal, valid and binding obligation of such shareholder and of Intercept,
enforceable in accordance with its terms, except as may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally and general
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equitable principles and (ii) judicial discretion in the enforcement of legal
and equitable remedies.
4.2 Title to Shares. All of the number of Intercept shares set
---------------
opposite such shareholder's name in Subsection 2.1 above are owned of record and
beneficially by such shareholder. Such shareholder has good and valid title to
such shares, free and clear of all pledges, security interests, liens, charges,
encumbrances, shareholder agreements, other contracts or agreements, equities,
claims and options of whatever nature, except the rights of Holdings under this
Agreement. Any agreements among the shareholders restricting transfer of any
shares or limiting the manner in which any shareholder may vote his shares on
any matter, including but not limited to that certain Agreement Among
Stockholders of Bank Service Corporation dated December 2, 1986, and Amendment
to Agreement Among Stockholders of Intercept Systems, Inc. f/k/a Bank Service
Corporation dated January 31, 1991, have been terminated on or before the date
hereof and are of no force and effect.
4.3 Additional Shares. Such shareholder has no option, warrant or
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other legal or equitable right to acquire any additional shares of the capital
stock of Intercept. Intercept has not granted to any person any right to
require Intercept to issue any securities that are not already outstanding.
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4.4 Residence. Such shareholder is a bona fide resident of the State
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of Georgia, is registered to vote in Georgia (and in no other state) and holds a
valid vehicle drivers license from the State of Georgia (and from no other
state).
4.5 Information. In his capacity as a shareholder and director of
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Intercept, and through his longstanding business dealings with Data and the Data
Shareholders, such shareholder has obtained or has access to all information
which he deems important or otherwise desires with respect to (i) his investment
decision to exchange his Intercept shares for Holdings shares, (ii) the
transactions contemplated by this Agreement, (iii) the status and proposed
operations of Holdings, and (iv) the contemplated status of Intercept and Data
as subsidiaries of Holdings.
4.6 Purchase for Investment. Such shareholder is acquiring the shares
-----------------------
of Holdings for such shareholder's own account for investment purposes only and
with no intent to engage in a distribution of such shares.
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Section 5
Representation and Warranties of Intercept
As an inducement to Holdings to enter into this Agreement and to
consummate the transactions contemplated hereby, Intercept hereby represents and
warrants to Holdings as follows:
5.1 Authority. Intercept has full power and authority to enter into
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this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Intercept of this Agreement and all
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action by the Board of Directors and shareholders of
Intercept, and this Agreement constitutes the legal, valid and binding
obligation of Intercept, enforceable in accordance with its terms, except as may
be limited by (i) bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting the rights and remedies of creditors generally and general
equitable principles and (ii) judicial discretion in the enforcement of legal
and equitable remedies.
5.2 Capital Structure. Prior to the time that Holdings has acquired
-----------------
721 shares of common stock of Intercept, Intercept will not issue or agree to
issue any other securities and will not acquire or agree to acquire any
currently outstanding securities of Intercept, Data or Holdings without
Holdings' prior consent.
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Section 6
Representations and Warranties of Data
As an inducement to Holdings to enter into this Agreement and to
consummate the transactions contemplated hereby, Data hereby represents and
warrants to Holdings as follows:
6.1 Authority. Data has full power and authority to enter into this
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Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Data of this Agreement and all
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action by the Board of Directors and shareholders of Data,
and this Agreement constitutes the legal, valid and binding obligation of Data,
enforceable in accordance with its terms, except as same may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally and general equitable principles
and (ii) judicial discretion in the enforcement of legal and equitable remedies.
6.2 Capital Structure. Prior to the time Holdings has acquired 500
-----------------
shares of common stock of Data, Data will not issue or agree to issue any other
securities and will not acquire or agree to acquire any currently issued
securities of Data, Intercept or Holdings without Holdings' prior consent.
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Section 7
Representations and Warranties of Holdings
As an inducement to the shareholders to enter into this Agreement and
to consummate the transactions contemplated hereby, Holdings hereby represents
and warrants to the shareholders as follows:
7.1 Authority. Holdings has full power and authority to enter into
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this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Holdings of this Agreement and all
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action by the Board of Directors of Holdings, and this
Agreement constitutes the legal, valid and binding obligation of Holdings,
enforceable in accordance with its terms, except as may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally and general equitable principles
and (ii) judicial discretion in the enforcement of legal and equitable remedies.
7.2 Capital Structure. Prior to the time that Holdings has acquired
-----------------
at least a majority of the 721 shares of common stock of Intercept and at least
a majority of the 500 shares of common stock of Data currently outstanding,
Holdings will not issue or
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agree to issue any securities except by means of the exchanges contemplated
hereby. After Holdings has issued shares of its common stock in exchange for
shares of common stock of Data or Intercept or both, Holdings shall not be
subject to or bound by any shareholder agreement or similar agreement unless the
agreement has been approved by a vote of the holders of a majority of the
outstanding common stock of Holdings and approved by vote of its Board of
Directors.
Section 8
Conditions of Closing by Data Shareholders
The obligation of each Data shareholder to consummate the transactions
contemplated hereby is subject to the following conditions:
8.1 Other Data Shareholder. The other Data shareholder shall have
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executed and delivered this Agreement and shall be bound by this Agreement at
the time of Closing, and such other shareholder shall have tendered to Holdings
his share certificate evidencing all of his capital stock in Data and shall have
not withdrawn such tender.
8.2 No Material Change. There shall have occurred since the date of
------------------
this Agreement no material adverse change in the principal assets and ongoing
operations of Intercept which caused
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the value of Intercept relative to the value of Data to be materially
diminished.
8.3 Litigation. None of the parties to this Agreement shall be
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subject on the Closing Date to any order, decree or injunction of a court of
competent jurisdiction which enjoins or prohibits the consummation of this
Agreement.
8.4 Performance. Holdings shall have conformed and complied with, in
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all material respects, Holdings' undertakings contained in this Agreement at or
prior to the Closing Date, and the representations and warranties of Holdings
set forth in this Agreement shall be true and correct in all material respects
as of such Closing Date as though made at and as of such Closing Date. If the
Closing Date is later than the date of this Agreement, such shareholder shall
have received a certificate as to the matters set forth in this Subsection
executed by Holdings as of the Closing Date.
Section 9
Conditions of Closing by Intercept Shareholders
The obligation of each Intercept Shareholders to consummate the
transactions contemplated hereby are subject to the following conditions:
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9.1 Other Intercept Shareholders. The other Intercept Shareholders
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shall have executed and delivered this Agreement and shall be bound by this
Agreement at the time of Closing, and such other shareholders shall have
tendered to Holdings their share certificates evidencing all of their capital
stock in Intercept and shall have not withdrawn such tenders.
9.2 No Material Change. There shall have occurred since the date of
------------------
this Agreement no material adverse change in the principal assets and ongoing
operations of Data which caused the value of Data relative to the value of
Intercept to be materially diminished.
9.3 Litigation. None of the parties to this Agreement shall be
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subject on the Closing Date to any order, decree or injunction of the court or
competent jurisdiction which enjoins or prohibits the consummation of this
Agreement.
9.4 Performance. Holdings shall have conformed and complied with, in
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all material respects, Holdings' undertakings contained in this Agreement at or
prior to the Closing Date, and the representations and warranties of Holdings
set forth in this Agreement shall be true and correct in all material respects
as of such Closing Date as though made at and as of such Closing Date. If the
Closing Date is later than the date of this Agreement, such shareholder shall
have received a certificate as to the matters set forth in this Subsection
executed by Holdings
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as of the Closing Date. In addition, each Data Shareholder shall have signed
and delivered this Agreement and shall be bound by this Agreement. Each such
Data Shareholder shall have tendered to Holdings his respective share
certificates evidencing all of his capital stock of Data, Holdings shall have
accepted such tenders, and, in exchange therefor, Holdings shall have issued all
of the shares of Holdings common stock to which the Data Shareholders are
entitled under this Agreement.
Section 10
Conditions to Closing By Holdings
10.1 Litigation. None of the parties to this Agreement shall be
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subject on the Closing Date to any threatened or existing order, decree or
injunction of a court which would enjoin or prohibit the consummation of this
Agreement.
10.2 Performance. All other parties to this Agreement shall have
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conformed and complied with their respective undertakings contained in this
Agreement at or prior to the Closing Date, and the representations and
warranties of all such other parties to this Agreement shall be true and correct
as of such Closing Date as though made at and as of such Closing Date. If the
Closing Date is later than the date of this Agreement, Holdings shall have
received certificates as to the matters set forth herein executed by such other
parties as of the Closing Date.
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Section 11
Deliveries
At the Closing, each party to this Agreement who is a shareholder of Data
or Intercept or both shall deliver share certificates evidencing all of his
shares of stock in Data or Intercept or both, duly endorsed for transfer. Each
party hereto shall deliver certificates indicating his or its compliance with
their respective obligations under this Agreement. Each party to this Agreement
who is an officer or director of Intercept or Data or both shall, upon the
request of Holdings, deliver his resignation as an officer and/or as a member of
the Board of Directors of Intercept or Data or both.
Section 12
Termination
The holders of a majority of the shares of Intercept set forth in
Subsection 2.1 above, together with the holders of a majority of the shares of
Data set forth under Subsection 1.1 above, acting concurrently, may terminate
this Agreement if the Closing Date has not occurred on or before by the close of
business on June 28, 1996.
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Section 13
Miscellaneous
13.1 Assignment. This Agreement and all of the provisions hereof
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shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. No part of this Agreement or any
of the rights, interest or obligations of any shareholder who is a party to this
Agreement may be assigned by such person without the prior written consent of
all other parties hereto.
13.2 Governing Law. This Agreement shall be governed by the laws of
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the State of Georgia as to all matters, including but not limited to matters of
validity, construction, effect, enforcement, performance and remedies.
13.3 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.4 Recitals. Each of the recitals in the forepart of this
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Agreement are deemed to be incorporated into and made a part of the body of this
Agreement, and each such recital shall be regarded as a representation of fact
by each party who had knowledge, or under the circumstances should have had
knowledge,
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with respect to the substance of such recital at the time of the execution and
delivery of this Agreement.
13.5 Survival. All representations, warranties and agreements made
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by any party in this Agreement or pursuant hereto shall survive the Closing.
13.6 Entire Agreement. This Agreement, including the documents
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delivered at Closing pursuant to this Agreement, embody the entire agreement and
understanding of the parties hereto in respect of the transactions contemplated
by this Agreement.
13.7 Headings. The Section and Subsection headings contained in this
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Agreement are solely for the purpose of reference, are not part of the Agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
13.8 Severability. If any of the provisions of this Agreement or the
------------
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby unless Holdings, in its sole discretion, determines that this Agreement
in its entirety should be terminated due to such invalidity or unenforceability.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year first above written.
"Holdings"
INTERCEPT HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxxx
Its: President
"Intercept"
INTERCEPT SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
Its: President
"Data"
DATA SERVICES CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
Its: President
"Data Shareholders"
/s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx
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"Intercept Shareholders"
/s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
/s/ Vir A. Nanda
--------------------------------
Vir A. Nanda
/s/ J. Xxxxxx Xxxxxxxxx
--------------------------------
J. Xxxxxx Xxxxxxxxx
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