REGISTRATION RIGHTS AGREEMENT BETWEEN
GLOBAL AXCESS CORP. AND CERTAIN INVESTORS
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of 29th day of January, 2004 by and among Global Axcess Corp., a
corporation organized and existing under the laws of the State of Nevada ("GLXS"
or the "Company"), and certain investors, (hereinafter referred to collectively
as "Investor" or "Investors") as listed on the signature page (each agreement
with an Investor being deemed a separate and independent agreement between the
Company and such Investor). Unless defined otherwise, capitalized terms herein
shall have the identical meaning as in the Stock Purchase Agreement.
PRELIMINARY STATEMENT
WHEREAS, pursuant to the Stock Purchase Agreement, of even date
herewith, by and among GLXS and the Investors, as part of the consideration,
Investors shall receive Shares and Warrants of GLXS; and
WHEREAS, the ability of the Investors to sell their shares of Common
Stock and the Shares of Common Stock underlying the Warrants is subject to
certain restrictions under the 1933 Act; and
WHEREAS, as a condition to the Stock Purchase Agreement, GLXS has
agreed to provide the Investors with a mechanism that will permit such Investors
to sell their Shares of Common Stock in the future.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements, and subject to the terms and conditions herein
contained, the parties hereto hereby agree as follows:
ARTICLE I
INCORPORATION BY REFERENCE, SUPERSEDER
1.1 Incorporation by Reference. The foregoing recitals and the
Exhibits attached hereto and referred to herein, are hereby acknowledged to be
true and accurate, and are incorporated herein by this reference.
1.2 Superseder. This Agreement, to the extent that it is inconsistent
with any other instrument or understanding among the parties governing the
affairs of the Company, shall supersede such instrument or understanding to the
fullest extent permitted by law. A copy of this Agreement shall be filed at the
Company's principal office.
ARTICLE II
DEMAND REGISTRATION RIGHTS
2.1 "Registrable Shares and Registrable Securities" means and includes
the Shares and the shares of common stock underlying the Warrants, of GLXS
issued to the Investors pursuant to the Stock Purchase Agreement. As to any
particular Registrable Shares, such securities will cease to be Registrable
Shares when (a) they have been effectively registered under the 1933 Act and
disposed of in accordance with the registration statement covering them, (b)
they are or may be freely traded without registration pursuant to Rule 144 under
the 1933 Act (or any similar provisions that are then in effect), or (c) they
have been otherwise transferred and new certificates for them not bearing a
restrictive legend have been issued by GLXS and GLXS shall not have "stop
transfer" instructions against them. "Shares" shall mean, collectively, the
shares of Common Stock of the Company being issued pursuant to the Stock
Purchase Agreement and those shares of Common Stock issuable to the Investor
upon exercise of the Warrants being issued pursuant to the Stock Purchase
Agreement.
2.2 Registration of Registrable Securities. Subject to filing the
Certificate of Amendment as set forth in Section 6.10 of the Stock Purchase
Agreement, the Company shall prepare and file by April 30, 2004 (the "Filing
Date") a registration statement (the "Registration Statement") covering the
resale of the Registrable Securities. The Company shall use its best efforts to
cause the Registration Statement to be declared effective by the SEC on the
earlier of (i) 180 days following the Closing Date as defined in the Stock
Purchase Agreement, (ii) ten (10) days following the receipt of a "No Review" or
similar letter from the SEC or (iii) the first day following the day the SEC
determines the Registration Statement eligible to be declared effective (the
"Required Effectiveness Date"). Nothing contained herein shall be deemed to
limit the number of Registrable Securities to be registered by the Company
hereunder. As a result, should the Registration Statement not relate to the
maximum number of Registrable Securities acquired by (or potentially acquirable
by) the holders of the Shares of GLXS issued to the Investors pursuant to the
Stock Purchase Agreement, the Company shall be required to promptly file a
separate registration statement (utilizing Rule 462 promulgated under the
Exchange Act, where applicable) relating to such Registrable Securities which
then remain unregistered. The provisions of this Agreement shall relate to any
such separate registration statement as if it were an amendment to the
Registration Statement.
2.3 Demand Registration. Subject to the limitations of Section 2.2, at
any time, holders of the majority of the Shares as of the date of the Stock
Purchase Agreement may request the registration, once and only once, under the
1933 Act of all or part of the Registrable Shares then outstanding (a "Demand
Registration"). Subject to the conditions of Section 3, the Company shall use
its best efforts to file such registration statement under the 1933 Act as
promptly as practicable after the date any such request is received by the
Company and to cause such registration statement to be declared effective. The
Company shall notify the Investors promptly when any such registration statement
has been declared effective. If more than 80 percent of the Shares as of the
date of the Stock Purchase Agreement have been registered or sold, this
provision shall expire.
2.4 Registration Statement Form. Registrations under Section 2.2 and
Section 2.3 shall be on Form SB-2 or such other appropriate registration form of
the SEC as shall permit the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition specified in the
Registration Statement; provided, however, such intended method of disposition
shall not include an underwritten offering of the Registrable Securities.
2.5 Expenses. The Company will pay all Registration expenses in
connection with any registration required by under Sections 2.2 and Section 2.3
herein.
2.6 Effective Registration Statement. A registration requested
pursuant to Sections 2.2 and Section 2.3 shall not be deemed to have been
effected (i) unless a registration statement with respect thereto has become
effective within the time period specified herein, provided that a registration
which does not become effective after the Company filed a registration statement
with respect thereto solely by reason of the refusal to proceed of any holder of
Registrable Securities (other than a refusal to proceed based upon the advice of
counsel in the form of a letter signed by such counsel and provided to the
Company relating to a disclosure matter unrelated to such holder) shall be
deemed to have been effected by the Company unless the holders of the
Registrable Securities shall have elected to pay all Registration Expenses in
connection with such registration, (ii) if, after it has become effective, such
registration becomes subject to any stop order, injunction or other order or
extraordinary requirement of the SEC or other governmental agency or court for
any reason or (iii) if, after it has become effective, such registration ceases
to be effective for more than the allowable Black-Out Periods (as defined
herein).
2.7 Plan Of Distribution. The Company hereby agrees that the
Registration Statement shall include a plan of distribution section reasonably
acceptable to the Holder; provided, however, such plan of distribution section
shall be modified by the Company so as to not provide for the disposition of the
Registrable Securities on the basis of an underwritten offering.
2.8 Liquidated Damages. If, as of the Required Effectiveness Date, in
the event the Company does not register the Registrable Securities pursuant to
the requirements of Section 2.2 herein, or if the Registration Statement filed
pursuant to Section 2.2 herein is not declared effective, or if the Registrable
Securities are registered pursuant to an effective Registration Statement and
such Registration Statement or other Registration Statement including the
Registrable Securities is not effective in the period from the Required
Effectiveness Date through two years following the date hereof, the Company
shall, for each such day, pay the Purchaser, as liquidated damages and not as a
penalty, an amount equal to thirty six (36%) of the Purchase Price per annum;
and for any such day, such payment shall be made no later than the first
business day of the calendar month next succeeding the month in which such day
occurs. In addition, if the Company has not filed a registration statement by
the Filing Date as specified in Section 2.2 of this Agreement, the Company
shall, for each such day after thirty days from the Filing Date and until the
filing of a registration statement, pay the Purchaser, as liquidated damages and
not as a penalty, an amount equal to thirty six (36%) of the Purchase Price per
annum; and for any such day, such payment shall be made no later than the first
business day of the calendar month next succeeding the month in which such day
occurs.
The parties agree that the only damages payable for a violation of the terms of
this Agreement with respect to which liquidated damages are expressly provided
shall be such liquidated damages. Nothing shall preclude the Purchaser from
pursuing or obtaining specific performance or other equitable relief with
respect to this Agreement.
The parties hereto agree that the liquidated damages provided for in this
Section 2.8 constitute a reasonable estimate of the damages that may be incurred
by the Purchaser by reason of the failure of the Registration Statement to be
filed or declared effective in accordance with the provisions hereof.
The obligation of the Company terminates when the holder of shares of
Registrable Securities no longer holds more than twenty percent (20%) of their
shares of Registrable Securities.
ARTICLE III
INCIDENTAL REGISTRATION RIGHTS
3.1 Right To Include ("Piggy-Back") Registrable Securities. Provided
that the Registrable Securities have not been registered, if at any time after
the date hereof but before the second anniversary of the date hereof, the
Company proposes to register any of its securities under the 1933 Act (other
than by a registration in connection with an acquisition in a manner which would
not permit registration of Registrable Securities for sale to the public, on
Form S-8, or any successor form thereto, on Form S-4, or any successor form
thereto and other than pursuant to Section 2), on an underwritten basis (either
best-efforts or firm-commitment), then, the Company will each such time give
prompt written notice to all holders of Registrable Securities of its intention
to do so and of such holders of Registrable Securities' rights under this
Section 3.1. Upon the written request of any such holders of Registrable
Securities made within ten (10) days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such holders of Registrable Securities and the intended method of disposition
thereof), the Company will, subject to the terms of this Agreement, use its
commercially reasonable best efforts to effect the registration under the 1933
Act of the Registrable Securities, to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid) of
such Registrable Securities so to be registered, by inclusion of such
Registrable Securities in the registration statement which covers the securities
which the Company proposes to register, provided that if, at any time after
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason either not to register
or to delay registration of such securities, the Company may, at its election,
give written notice of such determination to each holders of Registrable
Securities and, thereupon, (i) in the case of a determination not to register,
shall be relieved of this obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith), without prejudice, however, to
the rights of any holder or holders of Registrable Securities entitled to do so
to request that such registration be effected as a registration under Section 2,
and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities, for the same period as the
delay in registering such other securities. No registration effected under this
Section 3.1 shall relieve the Company of its obligation to effect any
registration upon request under Section 2. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 3.1. The right provided the Holders of the
Registrable Securities pursuant to this Section shall be exercisable at their
sole discretion and will in no way limit any of the Company's obligations to pay
the Securities according to their terms.
3.2 Priority In Incidental Registrations. If the managing underwriter
of the underwritten offering contemplated by this Section 3 shall inform the
Company and holders of the Registrable Securities requesting such registration
by letter of its belief that the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering, then
the Company will include in such registration, to the extent of the number which
the Company is so advised can be sold in such offering, (i) first securities
proposed by the Company to be sold for its own account, and (ii) second
Registrable Securities and securities of other selling security holders
requested to be included in such registration pro rata on the basis of the
number of shares of such securities so proposed to be sold and so requested to
be included; provided, however, the holders of Registrable Securities shall have
pro rata rights of registration with all shares sought to be included by
officers and directors of the Company as well as holders of ten percent (10%) or
more of the Company's Common Stock.
ARTICLE IV
REGISTRATION PROCEDURES
4.1 REGISTRATION PROCEDURES. If and whenever the Company is required
to effect the registration of any Registrable Securities under the 1933 Act as
provided in Section 2.2 and, as applicable, 2.3, the Company shall, as
expeditiously as possible:
(i) prepare and file with the SEC the Registration
Statement, or amendments thereto, to effect such registration
(including such audited financial statements as may be required
by the 1933 Act or the rules and regulations promulgated
thereunder) and thereafter use its commercially reasonable best
efforts to cause such registration statement to be declared
effective by the SEC, as soon as practicable, but in any event no
later than the Required Effectiveness Date (with respect to a
registration pursuant to Section 2.2); provided, however, that
before filing such registration statement or any amendments
thereto, the Company will furnish to the counsel selected by the
holders of Registrable Securities which are to be included in
such registration, copies of all such documents proposed to be
filed;
(ii) with respect to any registration statement pursuant to
Section 2.2 or Section 2.3, prepare and file with the SEC such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the
provisions of the 1933 Act with respect to the disposition of all
Registrable Securities covered by such registration statement
until the earlier to occur of thirty six (36) months after the
date of this Agreement (subject to the right of the Company to
suspend the effectiveness thereof for not more than 10
consecutive Trading Days or an aggregate of 20 Trading Days
during each year (each a "Black-Out Period")) or such time as all
of the securities which are the subject of such registration
statement cease to be Registrable Securities (such period, in
each case, the "Registration Maintenance Period");
(iii) furnish to each holder of Registrable Securities
covered by such registration statement such number of conformed
copies of such registration statement and of each such amendment
and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and
any summary prospectus) and any other prospectus filed under Rule
424 under the 1933 Act, in conformity with the requirements of
the 1933 Act, and such other documents, as such holder of
Registrable Securities and underwriter, if any, may reasonably
request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by such holder of
Registrable Securities;
(iv) use its commercially reasonable best efforts to
register or qualify all Registrable Securities and other
securities covered by such registration statement under such
other securities laws or blue sky laws as any holder of
Registrable Securities thereof shall reasonably request, to keep
such registrations or qualifications in effect for so long as
such registration statement remains in effect, and take any other
action which may be reasonably necessary to enable such holder of
Registrable Securities to consummate the disposition in such
jurisdictions of the securities owned by such holder of
Registrable Securities, except that the Company shall not for any
such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not but
for the requirements of this subdivision (iv) be obligated to be
so qualified or to consent to general service of process in any
such jurisdiction;
(v) use its commercially reasonable best efforts to cause
all Registrable Securities covered by such registration statement
to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the holder
of Registrable Securities thereof to consummate the disposition
of such Registrable Securities;
(vi) furnish to each holder of Registrable Securities a
signed counterpart, addressed to such holder of Registrable
Securities, and the underwriters, if any, of an opinion of
counsel for the Company, dated the effective date of such
registration statement (or, if such registration includes an
underwritten public offering, an opinion dated the date of the
closing under the underwriting agreement), reasonably
satisfactory in form and substance to such holder of Registrable
Securities) including that the prospectus and any prospectus
supplement forming a part of the Registration Statement does not
contain an untrue statement of a material fact or omits a
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances
under which they were made, not misleading, and
(vii) notify the Investor and its counsel promptly and
confirm such advice in writing promptly after the Company has
knowledge thereof:
(A) when the Registration Statement, the prospectus or any prospectus
supplement related thereto or post-effective amendment to the Registration
Statement has been filed, and, with respect to the Registration Statement
or any post-effective amendment thereto, when the same has become
effective;
(B) of any request by the SEC for amendments or supplements to the
Registration Statement or the prospectus or for additional information;
(C) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings by any Person for that purpose; and
(D) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any Registrable Securities for sale
under the securities or blue sky laws of any jurisdiction or the initiation
or threat of any proceeding for such purpose;
(viii) notify each holder of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act, upon discovery
that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material facts required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
then existing, and at the request of any such holder of Registrable
Securities promptly prepare and furnish to such holder of Registrable
Securities a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(ix) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(x) otherwise use its commercially reasonable best efforts to
comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months,
but not more than eighteen months, beginning with the first full
calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder;
(xi) enter into such agreements and take such other actions as
the Investors shall reasonably request in writing (at the expense of
the requesting or benefiting Investors) in order to expedite or
facilitate the disposition of such Registrable Securities; and
(xii) use its commercially reasonable best efforts to list all
Registrable Securities covered by such registration statement on any
securities exchange on which any of the Registrable Securities are
then listed.
The Company may require each holder of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such holder of Registrable Securities and the distribution of such
securities as the Company may from time to time reasonably request in writing.
4.2 The Company will not file any registration statement pursuant to
Section 2.2 or Section 2.3, or amendment thereto or any prospectus or any
supplement thereto to which the Investors shall reasonably object, provided that
the Company may file such documents in a form required by law or upon the advice
of its counsel.
4.3 The Company represents and warrants to each holder of Registrable
Securities that it has obtained all necessary waivers, consents and
authorizations necessary to execute this Agreement and consummate the
transactions contemplated hereby other than such waivers, consents and/or
authorizations specifically contemplated by the Stock Purchase Agreement.
4.4 Each holder of Registrable Securities agrees that, upon receipt of
any notice from the Company of the occurrence of any event of the kind described
in subdivision (viii) of Section 4.1, such Holder will forthwith discontinue
such holder of Registrable Securities' disposition of Registrable Securities
pursuant to the Registration Statement relating to such Registrable Securities
until such holder of Registrable Securities' receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (viii) of Section
4.1 and, if so directed by the Company, will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
ARTICLE V
UNDERWRITTEN OFFERINGS
5.1 Incidental Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the 1933 Act as contemplated by
Section 3.1 and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any holder of Registrable
Securities as provided in Section 3.1 and subject to the provisions of Section
3.2, use its commercially reasonable best efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and sold by
such holder among the securities to be distributed by such underwriters.
5.2 Participation In Underwritten Offerings. No holder of Registrable
Securities may participate in any underwritten offering under Section 3.1 unless
such holder of Registrable Securities (i) agrees to sell such Person's
securities on the basis provided in any underwriting arrangements approved,
subject to the terms and conditions hereof, by the holders of a majority of
Registrable Securities to be included in such underwritten offering and (ii)
completes and executes all questionnaires, indemnities, underwriting agreements
and other documents (other than powers of attorney) required under the terms of
such underwriting arrangements. Notwithstanding the foregoing, no underwriting
agreement (or other agreement in connection with such offering) shall require
any holder of Registrable Securities to make a representation or warranty to or
agreements with the Company or the underwriters other than representations and
warranties contained in a writing furnished by such holder of Registrable
Securities expressly for use in the related registration statement or
representations, warranties or agreements regarding such holder of Registrable
Securities, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by law.
5.3 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the 1933 Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, and their respective
counsel and accountants, the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
SEC, and each amendment thereof or supplement thereto, and will give each of
them such access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
reasonable opinion of such holders' and such underwriters' respective counsel,
to conduct a reasonable investigation within the meaning of the 1933 Act.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification by the Company. In the event of any registration
of any securities of the Company under the 1933 Act, the Company will, and
hereby does agree to indemnify and hold harmless the holder of any Registrable
Securities covered by such registration statement, its directors and officers,
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such holder or any
such underwriter within the meaning of the 1933 Act against any losses, claims,
damages or liabilities, joint or several, to which such holder or any such
director or officer or underwriter or controlling person may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the 1933 Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will reimburse such holder
and each such director, officer, underwriter and controlling person for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding, provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability, (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such holder or
underwriter stating that it is for use in the preparation thereof and, provided
further that the Company shall not be liable to any Person who participates as
an underwriter in the offering or sale of Registrable Securities or to any other
Person, if any, who controls such underwriter within the meaning of the 1933
Act, in any such case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of such
Person's failure to send or give a copy of the final prospectus, as the same may
be then supplemented or amended, within the time required by the 1933 Act to the
Person asserting the existence of an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus or an amendment or
supplement thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such holder or any such
director, officer, underwriter or controlling person and shall survive the
transfer of such securities by such holder.
6.2 Indemnification by the Investors. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to this Agreement, that the Company shall have received an
undertaking satisfactory to it from the prospective holder of such Registrable
Securities, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 6.1) the Company, each director of the Company,
each officer of the Company and each other Person, if any, who controls the
Company within the meaning of the 1933 Act, with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company through an
instrument duly executed by such holder of Registrable Securities specifically
stating that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Any such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer of such securities
by such Investor.
6.3 Notices Of Claims, Etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in Sections 6.1 and Section 6.2, such indemnified party will,
if claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Sections 6.1 and Section
6.2, except to the extent that the indemnifying party is actually prejudiced by
such failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that the indemnifying party
may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement of any such action which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability, or a covenant not to xxx, in respect to such
claim or litigation. No indemnified party shall consent to entry of any judgment
or enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying party.
6.4 Other Indemnification. Indemnification similar to that specified
in Sections 6.1 and Section 6.2 (with appropriate modifications) shall be given
by the Company and each holder of Registrable Securities (but only if and to the
extent required pursuant to the terms herein) with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority, other than the 1933 Act.
6.5 Indemnification Payments. The indemnification required by Sections
6.1 and Section 6.2 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
6.6 Contribution. If the indemnification provided for in Sections 6.1
and Section 6.2 is unavailable to an indemnified party in respect of any
expense, loss, claim, damage or liability referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such expense, loss, claim, damage or liability (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the holder of Registrable Securities or underwriter, as the case may
be, on the other from the distribution of the Registrable Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the holder of Registrable Securities or underwriter, as the
case may be, on the other in connection with the statements or omissions which
resulted in such expense, loss, damage or liability, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the holder of Registrable Securities or underwriter, as the
case may be, on the other in connection with the distribution of the Registrable
Securities shall be deemed to be in the same proportion as the total net
proceeds received by the Company from the initial sale of the Registrable
Securities by the Company to the purchasers bear to the gain, if any, realized
by all selling holders participating in such offering or the underwriting
discounts and commissions received by the underwriter, as the case may be. The
relative fault of the Company on the one hand and of the holder of Registrable
Securities or underwriter, as the case may be, on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates to
information supplied by the Company, by the holder of Registrable Securities or
by the underwriter and the parties' relative intent, knowledge, access to
information supplied by the Company, by the holder of Registrable Securities or
by the underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
provided that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the provisions contained herein, and in no event
shall the obligation of any indemnifying party to contribute under this Section
6.6 exceed the amount that such indemnifying party would have been obligated to
pay by way of indemnification if the indemnification provided for hereunder had
been available under the circumstances.
The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 6.6
were determined by pro rata allocation (even if the holders of Registrable
Securities and any underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth herein, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6.6, no holder of
Registrable Securities or underwriter shall be required to contribute any amount
in excess of the amount by which (i) in the case of any such holder, the net
proceeds received by such holder from the sale of Registrable Securities or (ii)
in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
ARTICLE VII
RULE 144
7.1 Rule 144. The Company shall timely file the reports required to be
filed by it under the 1933 Act and the 1934 Act (including but not limited to
the reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 adopted by the SEC under the 0000 Xxx) and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, will, upon the request of any holder of
Registrable Securities, make publicly available other information) and will take
such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (a) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with the requirements of this Section
7.1.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendments And Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holder or
holders of the sum of the 51% or more of the shares of (i) Registrable
Securities issued at such time, plus (ii) Registrable Securities issuable upon
exercise or conversion of the Securities then constituting derivative securities
(if such Securities were not fully exchanged or converted in full as of the date
such consent if sought). Each holder of any Registrable Securities at the time
or thereafter outstanding shall be bound by any consent authorized by this
Section 8.1, whether or not such Registrable Securities shall have been marked
to indicate such consent.
8.2 Nominees For Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Registrable Securities for purposes of any request or other action by any holder
or holders of Registrable Securities pursuant to this Agreement or any
determination of any number of percentage of shares of Registrable Securities
held by a holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership or such Registrable Securities.
8.3 Notices. Except as otherwise provided in this Agreement, all
notices, requests and other communications to any Person provided for hereunder
shall be in writing and shall be given to such Person (a) in the case of a party
hereto other than the Company, addressed to such party in the manner set forth
in the Stock Purchase Agreement or at such other address as such party shall
have furnished to the Company in writing, or (b) in the case of any other holder
of Registrable Securities, at the address that such holder shall have furnished
to the Company in writing, or, until any such other holder so furnishes to the
Company an address, then to and at the address of the last holder of such
Registrable Securities who has furnished an address to the Company, or (c) in
the case of the Company, at the address set forth on the signature page hereto,
to the attention of its President, or at such other address, or to the attention
of such other officer, as the Company shall have furnished to each holder of
Registrable Securities at the time outstanding. Each such notice, request or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means (including, without
limitation, by fax or air courier), when delivered at the address specified
above, provided that any such notice, request or communication shall not be
effective until received.
8.4 Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto. In addition, and whether or
not any express assignment shall have been made, the provisions of this
Agreement which are for the benefit of the parties hereto other than the Company
shall also be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities. Each of the Holders of the Registrable Securities
agrees, by accepting any portion of the Registrable Securities after the date
hereof, to the provisions of this Agreement including, without limitation,
appointment of the Investors' Representative to act on behalf of such Holder
pursuant to the terms hereof which such actions shall be made in the good faith
discretion of the Investors' Representative and be binding on all persons for
all purposes.
8.5 Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
8.6 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Florida, without giving effect to
applicable principles of conflicts of law.
8.7 Jurisdiction. This Agreement shall be exclusively governed by and
construed in accordance with the laws of the State of Florida. If any action is
brought among the parties with respect to this Agreement or otherwise, by way of
a claim or counterclaim, the parties agree that in any such action, and on all
issues, the parties irrevocably waive their right to a trial by jury. Exclusive
jurisdiction and venue for any such action shall be the State Courts of Florida.
In the event suit or action is brought by any party under this Agreement to
enforce any of its terms, or in any appeal therefrom, it is agreed that the
prevailing party shall be entitled to reasonable attorneys fees to be fixed by
the arbitrator, trial court, and/or appellate court.
8.8 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and each other party hereto relating to the
subject matter hereof and supercedes all prior agreements and understandings
relating to such subject matter.
8.9 Severability. If any provision of this Agreement, or the
application of such provisions to any Person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to Persons or circumstances other than those to which it is held invalid, shall
not be affected thereby.
8.10 Binding Effect. All the terms and provisions of this Agreement
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and assignees.
8.11 Preparation of Agreement. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
preparation. The parties acknowledge each contributed and is equally responsible
for its preparation.
8.12 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure
or delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty, covenant or agreement herein, nor
shall nay single or partial exercise of any such right preclude other or further
exercise thereof or of any other right. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
8.13 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same agreement. A facsimile transmission
of this signed Agreement shall be legal and binding on all parties hereto.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Investors and the Company have as of the date
first written above executed this Agreement.
GLOBAL AXCESS CORP.
______________________
By: ___________________
Title:__________________
INVESTORS
Print Name:_________________________ Print Name:
Entity (if appropriate):____________ Entity(if appropriate):____
Title: (if appropriate):____________ Title: (if appropriate):___
Print Name:_________________________ Print Name:________________
Entity (if appropriate):____________ Entity(if appropriate):____
Title: (if appropriate):____________ Title: (if appropriate):___
Print Name:_________________________ Print Name:________________
Entity (if appropriate):____________ Entity(if appropriate):____
Title: (if appropriate):____________ Title: (if appropriate):___
