EXHIBIT 2.6
ASSET TRANSFER AGREEMENT
THIS ASSET TRANSFER AGREEMENT (the "Agreement"), is made and entered into as
of the 6th day of August, 1999, by and between Direct Access Interactive, Inc.,
a Georgia corporation ("Direct Access"), and The InterCept Group, Inc., a
Georgia corporation ("InterCept").
WHEREAS, SBS Corporation, an Alabama corporation ("SBS"), has merged with and
into Direct Access pursuant to an Agreement and Plan of Merger dated August 6,
1999 between Direct Access and SBS, and Direct Access, as the surviving
corporation of such merger, has assumed all rights, privileges, obligations and
liabilities of SBS; and
WHEREAS, the parties hereto deem it in their respective best interests to
transfer those assets of Direct Access relating to its non-remote banking
operations (the "Assets") to InterCept immediately subsequent to the merger of
Direct Access and SBS; and
WHEREAS, Direct Access desires to transfer to InterCept, and InterCept desires
to acquire from Direct Access, the Assets as hereinafter described upon the
terms and conditions hereinafter set forth; and
WHEREAS, the parties hereto desire that this Agreement shall set forth their
full and complete understanding of the terms and conditions under which Direct
Access shall transfer and InterCept shall acquire the Assets;
NOW, THEREFORE, in consideration of InterCept's agreement to assume certain
liabilities of Direct Access and Direct Access' agreement to transfer certain
assets to InterCept, and for other good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
1.1 Transfer of Assets. Subject to the terms and conditions hereof, Direct
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Access does hereby sell, transfer, assign, and convey to InterCept, its
successors and assigns, all of Direct Access' rights, privileges, and
obligations to and under the following properties, assets, rights, contracts and
businesses, which taken together constitute the Assets:
(a) Operating Contracts. All right, title and interest in the written or
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oral contracts and other agreements to provide, or which are otherwise necessary
to, Direct Access' non-remote banking operations ("Operating Contracts") more
particularly set forth in Exhibit 1.1a, attached hereto;
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(b) Accounts Receivable. All right, title and interest in the accounts and
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account receivables generated from Direct Access' non-remote banking operations
and set forth in Exhibit 1.1b, attached hereto, and any "open receivables,"
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i.e., receivables generated by non-remote banking services performed and
products sold by Direct Access prior to the date of this Agreement and not yet
billed;
(c) Intangible Property. All right, title and interest in all claims,
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deposits, prepayments, refunds, causes of action, choses in action, rights of
recovery, rights of set off and rights of recoupment (including any such item
relating to the payment of any federal, state or local tax), and all licenses,
permits, registrations and/or authorities, issued and/or required by any local,
state, federal or other governmental agency, related and/or necessary to the
non-remote banking operations of Direct Access or the Assets;
(d) Fixed Assets. All right, title and interest to the equipment and other
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fixed assets set forth in Exhibit 1.1d, attached hereto which are reasonably
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necessary to perform the non-remote banking functions provided by Direct
Access; and
(e) Other Assets. All right title and interest to all books, records,
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ledgers, files, documents, correspondence, telephone numbers, printed materials
and other information necessary for InterCept to commence delivery of the non-
remote banking operations or otherwise relating to the Assets.
1.2 Assets Excluded. Direct Access shall retain title and possession of all of
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its property and assets other than the Assets.
1.3 Assumption of Liabilities.
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(a) Operating Contracts. Subject to the limitations set forth in Section
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1.1(a) hereof, InterCept hereby agrees to assume and satisfy all obligations and
duties of Direct Access under the Operating Contracts listed in Exhibit 1.1a
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hereto.
(b) Accounts Payable. InterCept hereby agrees to assume and satisfy all
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obligations and duties of Direct Access under the accounts payable listed
in Exhibit 1.3b hereto.
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(c) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 1.3, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT INTERCEPT SHALL NOT ASSUME AND IS NOT ASSUMING, NOR
SHALL INTERCEPT BECOME LIABLE, OBLIGATED OR RESPONSIBLE FOR THE PAYMENT OF ANY
DEBTS, LIABILITIES OR OBLIGATIONS OR THE PERFORMANCE OF ANY DUTIES OF DIRECT
ACCESS, OF ANY KIND OR NATURE WHATSOEVER, WHETHER NOW OR HEREAFTER ARISING AND
WHETHER CONTINGENT OR LIQUIDATED IN AMOUNT, INCLUDING, WITHOUT LIMITATION, ANY
DEBTS, LIABILITIES, OBLIGATIONS OR DUTIES ARISING OUT OF ACCOUNTS PAYABLE, TAX
LIABILITIES, EMPLOYEE BENEFITS, CONTRACTS, AGREEMENTS
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OR OTHER TYPES OF LIABILITIES OF DIRECT ACCESS OR RELATED TO THE OPERATION OF
ITS BUSINESS.
ARTICLE 2
TRANSFER VALUE OF ASSETS
The parties agree that the Assets shall be transferred to InterCept at book
value as shown on Direct Access' most recent financial statements. Direct
Access shall be responsible for and shall pay any and all costs and expenses for
taxes, fees, stamps, charges, and all documentary, recording or filing fees
payable in connection with the transfer of the Assets.
ARTICLE 3
MISCELLANEOUS
3.1 Further Assurances. Direct Access shall execute and deliver or cause to be
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executed and delivered such further instruments and take such other action as
InterCept may require to more effectively carry out the transfer of the Assets
and the consummation of the matters contemplated by this Agreement.
3.2 Collection of Receivables. After the effective date of this Agreement,
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InterCept shall have the sole right to collect and to endorse with the name of
Direct Access or SBS any checks received on account of any receivables
transferred to InterCept pursuant to Section 1.7(b). If Direct Access receives
payment from customers owing hereunder to InterCept, Direct Access will remit
such payments to InterCept within ten (10) days of receipt thereof.
3.3 Governing Law. This Agreement shall be governed, construed and enforced in
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accordance with the laws of the State of Georgia in all respects.
3.4 Terms and Captions. The term "Agreement" as used herein, as well as the
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terms "herein," "hereof," "hereunder" and the like shall mean this Agreement in
its entirety and all Schedules and Exhibits attached hereto and made a part
hereof. The captions and section headings hereof are for reference and
convenience only and do not enter into or become part of the context. All
pronouns, singular and plural, masculine, feminine or neuter, shall mean and
include the person, entity, firm, or corporation to which they relate as the
context may require.
3.5 Severability. In the event that any term, covenant, condition, agreement,
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section or provision hereof shall be deemed invalid or unenforceable by a court
of competent and final jurisdiction in the premises, this Agreement shall not
terminate or be deemed void or voidable, but shall continue in full force and
effect and there shall be substituted for such stricken provision a like but
legal and enforceable provision which most nearly accomplishes the intention of
the parties hereto.
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3.6 Notices. All notices, requests, demands, and other communications
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hereunder shall be deemed to have been duly given if in writing and sent by hand
or reliable overnight delivery, telecopier (receipt confirmed) or certified or
registered mail, postage prepaid, to the appropriate address indicated below or
such other address as may be given in a notice sent to the other parties hereto:
If to InterCept:
The InterCept Group, Inc.
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, President
If to Direct Access
Direct Access Interactive, Inc.
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, President
3.7 Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
3.8 Schedules and Exhibits. Each Schedule and Exhibit referred to in this
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Agreement is hereby incorporated by reference and made an integral part hereof,
and may be referred to in this Agreement and any other related instrument or
document without being attached thereto.
3.9 Binding Effect. This Agreement shall be binding upon and shall inure to
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the benefit or detriment of the parties hereto and their respective heirs,
personal representatives, permitted successors and assigns.
3.10 Assignment. Neither party hereto may assign any of its rights, duties or
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obligations under this agreement without the prior written consent of the other
party hereto and any attempt to do so shall be null and void and of no force and
effect upon the non-consenting party.
3.11 Entire Agreement; Modification of Agreement. This Agreement embodies the
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entire agreement of the parties hereto relating to the subject matter hereof and
supersedes all prior oral or written agreements between the parties with respect
to said subject matter. No amendment or modification of this Agreement shall be
valid or binding upon the parties hereto unless made in writing and signed by
each of the parties hereto.
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3.12 No Third Party Beneficiaries. Nothing in this Agreement is intended to
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create a benefit in favor of, or an obligation to, any person or entity not a
party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
DIRECT ACCESS INTERACTIVE, INC.
/s/ Xxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxxx
Its: President
[CORPORATE SEAL]
THE INTERCEPT GROUP, INC.
/s/ Xxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxxx
Its: President
[CORPORATE SEAL]
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