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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
November 12, 1997, between Access Beyond, Inc., a Delaware corporation with
offices at 0000 Xxxxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx (the "Company")
and each of the entities listed under "Investors" on the signature page hereto
(each an "Investor" and collectively the "Investors"), each with offices at the
address listed under such Investor's name on Schedule I hereto.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Preferred Stock Investment Agreement
by and between the Company and the Investors (the "Purchase Agreement"), the
Company has agreed to sell and issue to the Investors, and the Investors have
agreed to purchase from the Company, an aggregate of up to 45,000 shares,
Liquidation Preference $1,000 of the Company's 6% Cumulative Convertible
Preferred Stock (the "Preferred Shares") at two separate closings and subject to
the terms and conditions set forth therein; and
WHEREAS, the Purchase Agreement contemplates that the Preferred Shares
will be convertible into shares (the "Common Shares") of common stock, par value
$.01, of the Company ("Common Stock") pursuant to the terms and conditions set
forth in the Certificate of Designations for the Preferred Shares (the
"Certificate");
WHEREAS, the Purchase Agreement contemplates that if the Company
exercises its option to redeem the Preferred Shares it will issue Warrants to
the Investors, which Warrants are themselves exercisable by the Holders for
Warrant Shares; and
WHEREAS, pursuant to the terms of, and in partial consideration for, the
Investors' agreement to enter into the Purchase Agreement, the Company has
agreed to provide the Investors with certain registration rights with respect to
the Common Shares and Warrant Shares and certain other rights and remedies with
respect to the Preferred Shares as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the Purchase
Agreement and this Agreement, the Company and the Investors agree as follows:
1. Certain Definitions. Capitalized terms used herein and not otherwise
defined shall have the meaning ascribed thereto in the Purchase Agreement or the
Certificate. As used in this Agreement, the following terms shall have the
following respective meanings:
"Applicable Closing" shall mean the Initial Closing when referring to
the issuance of Preferred Shares by the Company on the Initial Closing Date, the
Subsequent Closing when referring to the issuance of Preferred Shares by the
Company on the Subsequent Closing Date, and the Warrant Closing when referring
to the issuance of Warrants on a Warrant Closing Date, each as the context
requires.
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"Applicable Closing Date" means the Initial Closing Date, the Subsequent
Closing Date and the Warrant Closing Date, each as the context requires.
"Closing" and "Closing Date" shall have the meanings ascribed to such
terms in the Purchase Agreement.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Holder" and "Holders" shall include an Investor or the Investors,
respectively, and any transferee of the Preferred Shares, Warrants, Common
Shares, Warrant Shares or Registrable Securities which have not been sold to the
public to whom the registration rights conferred by this Agreement have been
transferred in compliance with this Agreement.
"Initial Closing" and "Initial Closing Date" shall have the meanings
ascribed to such terms in the Purchase Agreement.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" shall mean: (i) the Common Shares or other
securities issued or issuable to each Holder or its permitted transferee or
designee upon conversion of the Preferred Shares; (ii) the Warrant Shares or
other securities issued or issuable to each Holder or its permitted transferee
or designee upon exercise of the Warrants; (iii) securities issued or issuable
upon any stock split, stock dividend, recapitalization or similar event with
respect to such Common Shares or Warrant Shares; and (iv) any other security
issued as a dividend or other distribution with respect to, in exchange for or
in replacement of Registrable Securities.
"Registration Expenses" shall mean all expenses to be incurred by the
Company in connection with each Holder's registration rights under this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, reasonable fees and disbursements of counsel to Holders
(using a single counsel selected by a majority in interest of the Holders) for a
review of the Registration Statement and related documents, and the expense of
any special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company).
"Registration Statement" shall have the meaning set forth in Section 2(a)
herein.
"Regulation D" shall mean Regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"Securities Act" or "Act" shall mean the Securities Act of 1933, as
amended.
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"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for Holders not included within "Registration
Expenses".
"Subsequent Closing" and "Subsequent Closing Date" shall have the
meanings ascribed to such terms in the Purchase Agreement.
"Warrants" shall mean the warrants in form and substance of Exhibit 1.1B
to the Purchase Agreement between the Company and the Investors, dated as of the
date hereof.
"Warrant Closing" shall mean an issuance of Warrants by the Company.
"Warrant Shares" shall mean shares of Common Stock of the Company
issuable upon exercise of the Warrants.
"Warrant Closing Date" shall mean the date of a Warrant Closing
2. Registration Requirements. The Company shall use its best efforts to
effect the registration of the Registrable Securities (including without
limitation the execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act) as would permit or facilitate the sale or distribution of all
the Registrable Securities in the manner (including manner of sale) and in all
states reasonably requested by the Holder. Subject to Section 13(m), such best
efforts by the Company shall include the following:
(a) The Company shall, as expeditiously as reasonably possible
after the Applicable Closing Date:
(i) But in any event within 45 days of the Applicable
Closing Date, prepare and file a registration statement with the
Commission pursuant to Rule 415 under the Securities Act on Form
S-3 under the Securities Act (or in the event that the Company is
ineligible to use such form, such other form as the Company is
eligible to use under the Securities Act) covering the Registrable
Securities ("Registration Statement"), which Registration
Statement, to the extent allowable under the Securities Act and
the rules promulgated thereunder (including Rule 416), shall state
that such Registration Statement also covers such indeterminate
number of additional shares of Common Stock as may become issuable
upon conversion of the Preferred Shares or exercise of the
Warrants, inter alia, to prevent dilution resulting from stock
splits, stock dividends or similar transactions. The number of
shares of Common Stock initially included in such Registration
Statement shall be no less than the sum of (A) two times the sum
of the number of Common Shares that are then issuable
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upon conversion of the Preferred Shares then outstanding plus (B)
the number of Warrant Shares issuable upon exercise of the
Warrants then outstanding, in each case without regard to any
limitation on the Investor's ability to convert such Preferred
Shares. Thereafter the Company shall use its best efforts to cause
such Registration Statement and other filings to be declared
effective (including by promptly responding to all Commission
comments and inquiries and filing requests for acceleration with
the Commission as promptly as possible) as soon as possible, and
in any event prior to 110 days following the Applicable Closing
Date. The Company shall provide Holders reasonable opportunity to
review any such Registration Statement or amendment or supplement
thereto prior to filing.
(ii) Prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used
in connection with such Registration Statement as may be necessary
to comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration
Statement and promptly notify the Holders of the filing and
effectiveness of such Registration Statement and any amendments or
supplements.
(iii) Furnish to each Holder such numbers of copies of a
current prospectus conforming with the requirements of the Act,
copies of the Registration Statement, any amendment or supplement
thereto and any documents incorporated by reference therein and
such other documents as such Holder may reasonably require in
order to facilitate the disposition of Registrable Securities
owned by such Holder.
(iv) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other
securities or "Blue Sky" laws of such jurisdictions as shall be
reasonably requested by each Holder; provided that the Company
shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any
event as a result of which the prospectus (including any
supplements thereto or thereof) included in such Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then
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existing, and use its best efforts to promptly update and/or
correct such prospectus.
(vi) Notify each Holder immediately of the issuance by the
Commission or any state securities commission or agency of any
stop order suspending the effectiveness of the Registration
Statement or the threat or initiation of any proceedings for that
purpose. The Company shall use its best efforts to prevent the
issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible time.
(vii) Permit counsel to each Holder to review the
Registration Statement and all amendments and supplements thereto
within a reasonable period of time prior to each filing, and shall
not file any document in a form to which such counsel reasonably
objects.
(viii) Use its best efforts to list the Registrable
Securities covered by such Registration Statement by the time that
the Registration Statement is declared effective with all
securities exchange(s) and/or markets on which the Common Stock is
then listed and prepare and file any required filings with the
National Association of Securities Dealers, Inc. or any exchange
or market where the Common Shares are traded.
(ix) Take all steps necessary to enable Holders to avail
themselves of the prospectus delivery mechanism set forth in Rule
153 (or successor thereto) under the Act.
(b) Set forth below in this Section 2(b) are (I) events that may
arise that the Investors consider will interfere with the full enjoyment of
their rights under this Agreement, the Purchase Agreement and the Certificate
(the "Interfering Events"), and (II) certain remedies applicable in each of
these events.
Paragraphs (i) through (iv) of this Section 2(b) describe
the Interfering Events, provide a remedy to the Investors if an Interfering
Event occurs and provide that the Investors may require that the Company redeem
outstanding Preferred Shares at a specified price if certain Interfering Events
are not timely cured.
Paragraph (v) provides, inter alia, that if cash payments
required as the remedy in the case of certain of the Interfering Events are not
paid when due, the Company may be required by the Investors to redeem
outstanding Preferred Shares at a specified price.
Paragraph (vi) provides, inter alia, that the Investors have
the right to specific performance.
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The preceding paragraphs in this Section 2(b) are meant to
serve only as an introduction to this Section 2(b), are for convenience only,
and are not to be considered in applying, construing or interpreting this
Section 2(b).
(i) Delay in Effectiveness of Registration Statement. The
Company agrees that it shall file a Registration Statement (or an
amendment to an already effective Registration Statement)
complying with the requirements of this Agreement promptly
following each Applicable Closing Date, but in any event within 45
days after each Applicable Closing Date, and shall use its best
efforts to cause each such Registration Statement to become
effective within 110 days from each Applicable Closing Date. In
the event that any such Registration Statement has not been filed
within 45 days after the Applicable Closing Date, or has not been
declared effective within 110 days from the Applicable Closing
Date, then the Company shall pay in cash to each Holder a default
payment in an amount equal to two percent (2%) of the Liquidation
Preference of the Preferred Shares held by such Holder that should
have been registered on such Registration Statement for each
30-day period that such failure continues. If any such
Registration Statement has not been declared effective within 210
days after the Applicable Closing Date, then each Holder shall
have the right to sell any or all of its Preferred Shares to the
Company for consideration (the "Mandatory Purchase Price") equal
to the sum of (A) the price in cash at which the Company may
optionally redeem Preferred Shares pursuant to Section 4(e) of the
Certificate, plus (B) Warrants, in amounts and on terms equivalent
to those required to be delivered by the Company in connection
with any optional redemption under Section 4(e) of the
Certificate. Payment of such cash amount and delivery of Warrants
shall be due and payable from the Company to such Holder within 5
Trading Days of demand therefor.
(ii) No Listing; Premium Price Redemption for
Delisting of Class of Shares.
(A) In the event that the Company fails, refuses or
for any other reason is unable to cause the Registrable Securities
covered by any Registration Statement to be listed with the Nasdaq
NMS or one of the other Approved Markets at all times during the
period ("Listing Period") from the 110th day following the Initial
Closing Date until the Mandatory Conversion Date (as defined in
the Certificate; provided that such date shall be deferred 1.5
days for each day that there is no
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Effective Registration) then the Company shall pay in cash to each
Holder a default payment in an amount equal to two percent (2%) of
the Liquidation Preference of the Preferred Shares covered by such
Registration Statement and held by such Holder for each 30-day
period during the Listing Period from and after such failure,
refusal or inability to so list the Registrable Securities until
the Registrable Securities are so listed.
(B) In the event that shares of Common Stock of the
Company are not listed on any of the Approved Markets at all times
following the Initial Closing Date and remain delisted for 60
consecutive days, then at the option of each Holder and to the
extent such Holder so elects, each Holder shall have the right to
sell to the Company the Preferred Shares held by such Holder, in
whole or in part, for the consideration and on the terms set forth
in Section 2(b)(i) above.
(iii) Blackout Periods. In the event any Holder's ability to
sell Registrable Securities under any Registration Statement is
suspended for more than (i) twenty (20) consecutive Trading Days
in the aggregate or (ii) thirty (30) Trading Days in any 365 day
period beginning with the Initial Closing Date or an anniversary
thereof ("Suspension Grace Period"), including without limitation
by reason of a suspension of trading of the Common Stock on the
Nasdaq NMS (exclusive of a general trading suspension on the
Nasdaq NMS lasting no more than two Trading Days), any suspension
or stop order with respect to the Registration Statement or the
fact that an event has occurred as a result of which the
prospectus (including any supplements thereto) included in such
Registration Statement then in effect includes an untrue statement
of material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, then the
Company shall pay in cash to each Holder a default payment in an
amount equal to two percent (2%) of the Liquidation Preference for
the Preferred Shares held by such Holder for each 30-day period
from and after the expiration of the Suspension Grace Period and
continuing until the termination or cure of the suspension, stop
order or event giving rise to the Suspension Grace Period. At any
time after the tenth day following the expiration of the
Suspension Grace Period, a Holder shall have the right to sell to
the Company its Preferred
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Shares in whole or in part for the consideration and on the terms
set forth in Section 2(b)(i) above.
(iv) Conversion Deficiency; Mandatory Purchase Price
Redemption for Conversion Deficiency. In the event that the
Company, after receipt of a Conversion Notice, (x) does not have a
sufficient number of Common Shares or Warrant Shares authorized
and available to satisfy the Company's obligations to any Holder
upon receipt of a Conversion Notice (as defined in the
Certificate), (y) is otherwise unable but willing (which shall be
limited to the existence of (I) a lack of a sufficient number of
authorized and available Common Shares or Warrant Shares, other
than authorization deficiencies satisfying the provisions of
Section 2(b)(iv)(B)(I) below and (II) a force majeure event
resulting in the inability of the Company's transfer agent to
process the required conversion), or (z) is unwilling to issue
such Common Shares or Warrant Shares (including without limitation
by reason of the limit described in Section 10 below)(each, a
"Conversion Deficiency") in accordance with the terms of the
Certificate for any reason, then:
(A) The Company shall pay in cash to each Holder a
default payment in an amount equal to two percent (2%) of the
Liquidation Preference for the outstanding Preferred Shares held
by such Holder for each 30-day period that the Company fails or
refuses to issue Common Shares or Warrant Shares in accordance
with the Certificate terms (such amount not being payable in
respect of Preferred Shares actually converted into Common
Shares); and
(B) At any time, as applicable, (I) seventy days (in
the case of Section (iv)(x) above, provided that the deficiency of
authorized Common Shares or Warrant Shares was caused by one or a
series of market events occurring within a 7 Trading Day period,
the Company previously was in compliance with its covenant to keep
a sufficient number of Common Shares and Warrant Shares authorized
and available and promptly takes effective action to authorize and
make available more Common Shares and Warrant Shares in response
to market changes necessitating such action, and provided further
that the Company has not used Common Shares and Warrant Shares
reserved for the Holders for other purposes), (II) thirty days (in
the case of Section (iv)(y) above), or (III) five days (in the
case of Section (iv)(z) above) after the commencement of the
running of the first 30-day period described above in clause (A)
of this paragraph (iv), at the request of any
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Holder pursuant to a redemption notice, (unless the Company has,
within the relevant seventy, thirty or five day period, as
applicable, issued the Common Shares or Warrant Shares required by
such Conversion Notice) the Company promptly (1) shall purchase
from such Holder, for the consideration and on the terms set forth
in Section 2(b)(i) above, the outstanding Preferred Shares equal
to such Holder's pro rata share of the "Deficiency", as such terms
are defined below, if the failure to issue Common Shares results
from the lack of a sufficient number thereof and (2) shall
purchase all of such Holder's Preferred Shares (or such portion
requested by such Holder) for such consideration and on such terms
if the failure to issue Common Shares results from any other
cause. The "Deficiency" shall be equal to the amount of
outstanding Preferred Shares that would not be able to be
converted for Common Shares, due to an insufficient number of
Common Shares or Warrant Shares available, if all the outstanding
Preferred Shares were submitted for conversion at the Conversion
Price set forth in the Certificate as of the date such Deficiency
is determined.
(v) Liquidated Damages.
(A) The Company acknowledges that any failure, refusal
or inability by the Company described in the foregoing paragraphs
(i) through (iv) will cause the Holders to suffer damages in an
amount that will be difficult to ascertain, including without
limitation damages resulting from the loss of liquidity in the
Registrable Securities and the additional investment risk in
holding the Registrable Securities. Accordingly, the parties agree
that it is appropriate to include in this Agreement the foregoing
provisions for default payments and mandatory redemptions in order
to compensate the Holders for such damages. The parties
acknowledge and agree that the default payments and mandatory
redemptions set forth above represent the parties' good faith
effort to quantify such damages and, as such, agree (after
consultation with counsel) that the form and amount of such
default payments are reasonable and will not constitute a penalty.
(B) Each default payment provided for in the foregoing
paragraphs (i) through (iv) shall be in addition to each other
default payment; provided, however, that in no event shall the
Company be obligated to pay to any Holder default payments in an
aggregate amount greater than two percent (2%) of the Liquidation
Preference of the Preferred Shares held by such Holder for any
30-day period. All default payments required to be made in
connection with the above provisions shall be paid in cash by the
tenth (10th) day of each next succeeding calendar month (which
payments shall be pro rata on a per diem basis for any period of
less than 30 days).
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(C) In the event that the Company fails or refuses to
pay any default payment when due, at any Holder's request and
option, the Company shall purchase all (or such portion requested
by the Holder) of the Preferred Shares held by such Holder (with
default payments accruing through the date of such purchase),
within five (5) Trading Days of such request, for the
consideration and on the terms set forth in Section 2(b)(i) above,
provided that such Holder may revoke such request at any time
prior to receipt of such payment of such purchase price. Until
such time as the Company purchases such Preferred Shares at the
request of such Holder pursuant to the preceding sentence, at any
Holder's request and option the Company shall as to such Holder
pay such amount by adding and including the amount of such default
payment to the Liquidation Preference of a Holder's Preferred
Shares.
(vi) Cumulative Remedies. The default payments and mandatory
purchases provided for above are in addition to and not in lieu or
limitation of any other rights the Holders may have at law, in
equity or under the terms of the Certificate, the Purchase
Agreement, the Warrants or this Agreement, including without
limitation the right to specific performance. Each Holder shall be
entitled to specific performance of any and all obligations of the
Company in connection with the registration rights of the Holders
hereunder.
(vii) Deferral of Mandatory Conversion Date. In the event of
a failure of Effective Registration, including without limitation
by reason of any of the circumstances described in the foregoing
clauses (i) through (iv) above, then the Mandatory Conversion Date
shall be deferred by 1.5 days for each day that any of the
circumstances in clauses (i), (ii), (iii) (without regard to the
applicability of the Suspension Grace Period), or (iv) exist or
there is otherwise a lack of Effective Registration.
(viii)Remedies for Registrable Securities. In any case in
which a Holder of Preferred Shares has the right to cause the
purchase of its Preferred Shares under this Section 2(b), it shall
also have the right to cause the purchase of the Registrable
Securities that it owns as follows: in the case of Common Shares
issued to such Holder pursuant to conversion of Preferred Shares
and Warrant Shares issued to such Holder pursuant to exercise of
Warrants, such shares shall be purchased at a price per share
("Common Purchase Price") equal to the closing bid price of a
share of Common Stock on the Approved Market on which it is traded
as of the time such Common Shares or Warrant Shares were received
pursuant to conversion of Preferred Shares or exercise of the
Warrants, as the case may be; provided, however, that such Holder
may revoke such
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request at any time prior to receipt of such payment of such
redemption price.
In the case in which a Holder of Preferred Shares
would have the right to receive default payments with respect to
Preferred Shares under Section 2(b), it shall also have the right
to receive default payments with respect to Registrable Securities
owned by it in an amount equal to two percent (2%) per 30-day
period of the aggregate Common Purchase Price amount of such
Registrable Securities.
(ix) Mandatory Purchase Period. In the event a Holder has the
right to cause the Company to purchase Preferred Shares at the
Mandatory Purchase Price or Registrable Securities at the Common
Purchase Price, the period in which the Holder may exercise its
right to cause the Company to so purchase those securities (the
"Mandatory Purchase Period") shall terminate 90 days after the
Company notifies the Holder in writing of such purchase right
(which notice will specify the subsection(s) of Section 2(b)
pursuant to which the Holder may cause such purchase); provided
that if the Company does not honor the Holder's request that the
Company purchase the applicable securities in accordance with the
terms of this Agreement, the Holder may revoke its request for
such purchase by the Company, whereupon another Mandatory Purchase
Period will begin. Nothing in this Section 2(b)(ix) will limit the
right of a Holder to revoke any request to the Company seeking
repurchase at the Mandatory Purchase Price or at the Common
Purchase Price before such repurchase is effected and without
beginning a new Mandatory Purchase Period.
(c) If at any time and from time to time the Company shall
determine to register any of its securities either for its own account or the
account of a security holder or holders exercising their respective demand
registration rights, other than a registration relating solely to employee
benefit plans or a registration statement on Form S-4, the Company will:
(i) promptly give to each Holder written notice thereof
(which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by any Holder
within thirty (30) days after receipt of the written notice from
the Company described in clause (i) above, except as set forth in
Section 2(d) below. Such written request may specify all or a part
of a Holder's Registrable Securities.
(d) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
2(c). All Holders proposing to distribute their securities through such
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underwriting shall (together with the Company and the other shareholders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for underwriting by the Company. Notwithstanding any other provision of
Section 2(c) or Section 2(d), if the underwriter in good faith determines that
marketing factors require a limitation on the number of securities underwritten,
the underwriter may (subject to the proportional allocation below) exclude from
such registration and underwriting some or all of the Registrable Securities
which would otherwise be underwritten pursuant hereto. The Company shall so
advise all holders of securities requesting registration, and the number of
shares of securities that are entitled to be included in the registration and
underwriting shall be allocated in the following manner. The number of shares
that may be included in the registration and underwriting shall be allocated
among all such Holders and other shareholders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities and other
securities which they had requested to be included in such registration at the
time of filing the registration statement. If any Holder of Registrable
Securities or any other shareholder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
(e) The Company shall make available for inspection by the
Holders, representative(s) of all the Holders together, any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney or accountant retained by any Holder or underwriter, all financial and
other records customary for purposes of the Holders' due diligence examination
of the Company and review of any Registration Statement, all SEC Documents (as
defined in the Purchase Agreement) filed subsequent to the Closing, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such representative, underwriter, attorney or accountant in connection
with such Registration Statement, provided that such parties agree to keep such
information confidential.
(f) Subject to Section 2(b) above, the Company may suspend the use
of any prospectus used in connection with the Registration Statement only in the
event, and for such period of time as, such a suspension is required by the
rules and regulations of the Commission. The Company will use its best efforts
to cause such suspension to terminate at the earliest possible date.
(g) The Company shall file a Registration Statement with respect
to any newly authorized and/or reserved shares for purposes of complying
herewith within forty-five (45) days of any shareholders meeting authorizing
same and shall use its best efforts to cause such Registration Statement to
become effective within one hundred and ten (110) days of such shareholders
meeting. If the Holders become entitled, pursuant to an event described in
clause (iii) of the definition of Registrable Securities, to receive any
securities in respect of Registrable Securities that were already included in a
Registration Statement, subsequent to the date such Registration Statement is
declared effective, and the Company is unable under the securities laws to add
such securities to the then effective Registration Statement, the Company shall
promptly file, in accordance with the procedures set forth herein, an additional
Registration Statement with respect to such newly Registrable Securities. The
Company shall use its best efforts to (i) cause any such additional Registration
Statement, when filed, to become effective under the Securities Act, and (ii)
keep such additional Registration Statement effective during the period
described in Section 5 below and use its best efforts to cause such Registration
Statement to become effective within 110 days of that date that the need to file
the Registration Statement arose. All of the registration rights and remedies
under this
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Agreement shall apply to the registration of such newly reserved shares and such
new Registrable Securities, including without limitation the provisions
providing for default payments contained herein.
3. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance with registration
pursuant to this Agreement shall be borne by the Company, and all Selling
Expenses of a Holder shall be borne by such Holder.
4. Registration on Form S-3. The Company shall use its best efforts to
remain qualified for registration on Form S-3 or any comparable or successor
form or forms, or in the event that the Company is ineligible to use such form,
such form as the Company is eligible to use under the Securities Act. The
Company will use Form S-3 whenever available, and will use another Form only if,
and to the extent that, Form S-3 is not available.
5. Registration Period. In the case of the registration effected by the
Company pursuant to this Agreement, the Company will use its best efforts to
keep such registration effective until all the Holders have completed the sales
or distribution described in the Registration Statement relating thereto or, if
earlier, until such Registerable Securities may be sold under Rule 144(k)
(provided that the Company's transfer agent has accepted an instruction from the
Company to such effect).
6. Indemnification.
(a) The Company Indemnity. The Company will indemnify each Holder,
each of its officers, directors and partners, and each person controlling each
Holder, within the meaning of Section 15 of the Securities Act and the rules and
regulations thereunder with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls, within the meaning of Section 15 of the
Securities Act and the rules and regulations thereunder, any underwriter,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, or
based on 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 in light of the circumstances under which they were made, or any
violation by the Company of the Securities Act or any state securities law or in
either case, any rule or regulation thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each Holder,
each of its officers, directors and partners, and each person controlling such
Holder, each such underwriter and each person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to a Holder to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission based upon written information
furnished to the Company by such Holder or the underwriter (if any) therefor and
intended to be specifically for use therein. The indemnity agreement contained
in this Section 6(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent will not be unreasonably withheld).
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(b) Holder Indemnity. Each Holder will, severally and not jointly,
if Registrable Securities held by it are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of its directors, officers, partners, and each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act and the rules and regulations thereunder, each
other Holder (if any), and each of their officers, directors and partners, and
each person controlling such other Holder(s) against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statement therein not
misleading in light of the circumstances under which they were made, and will
reimburse the Company and such other Holder(s) and their directors, officers and
partners, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
intended to be specifically for use therein, and provided that the maximum
amount for which such Holder shall be liable under this indemnity shall not
exceed the net proceeds received by such Holder from the sale of the Registrable
Securities pursuant to the registration statement in question. The indemnity
agreement contained in this Section 6(b) shall not apply to amounts paid in
settlement of any such claims, losses, damages or liabilities if such settlement
is effected without the consent of such Holder (which consent shall not be
unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under this
Section 6 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim in any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld), and the Indemnified Party
may participate in such defense at its own expense, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Article except to
the extent that the Indemnifying Party is materially and adversely affected by
such failure to provide notice. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement 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 in respect
to such claim or litigation. Each Indemnified Party shall furnish such
non-privileged information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
7. Contribution. If the indemnification provided for in Section 6 herein
is unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such 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 losses, claims, damages or
liabilities as between the Company on the one hand and any Holder on the
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other, in such proportion as is appropriate to reflect the relative fault of the
Company and of such Holder in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of any Holder 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 or alleged omission to state a material fact relates to information
supplied by the Company or by such Holder.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 7 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 6(a) or 6(b) hereof had been
available under the circumstances.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Holders or the underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraphs. 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 paragraphs shall be deemed to include, subject to the limitations set
forth above, 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, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of any Holder, the net proceeds received by such Holder from the sale of
Registrable Securities pursuant to the registration statement in question 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 or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Survival. The indemnity and contribution agreements contained in
Sections 6 and 7 and the representations and warranties of the Company referred
to in Section 2(d)(i) shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement or the Purchase Agreement or
any underwriting agreement, (ii) any investigation made by or on behalf of any
Indemnified Party or by or on behalf of the Company, and (iii) the consummation
of the sale or successive resales of the Registrable Securities.
9. Information by Holders. Each Holder shall furnish to the Company such
information regarding such Holder and the distribution and/or sale proposed by
such Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement. The intended method or methods of
disposition and/or sale (Plan of Distribution) of such securities as so provided
by such Investor shall be included without alteration in the Registration
Statement covering the Registrable Securities and shall not be changed without
written consent of such Holder.
10. Limit on Stock Issuances. In the event that the Company is unable
to issue (i) any Common Shares upon conversion of Preferred Shares or (ii) any
Warrant Shares, due to the rules or regulations of any
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market or exchange regulator for the market or exchange on which the Common
Shares or Warrant Shares are then trading, the Company shall, at the request of
any Holder promptly following such determination, purchase such Preferred Shares
of such Holder which cannot be converted, or Warrant Shares which cannot be
issued, at a purchase price equal to the Mandatory Purchase Price.
11. Replacement Certificates. The certificate(s) representing the Common
Shares or Warrant Shares held by any Investor (or then Holder) may be exchanged
by such Investor (or such Holder) at any time and from time to time for
certificates with different denominations representing an equal aggregate number
of Common Shares or Warrant Shares, as reasonably requested by such Investor (or
such Holder) upon surrendering the same. No service charge will be made for such
registration or transfer or exchange.
12. Transfer or Assignment. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The rights granted to the Investors by
the Company under this Agreement to cause the Company to register Registrable
Securities may be transferred or assigned (in whole or in part) to a transferee
or assignee of Preferred Shares or Warrants, and all other rights granted to the
Investors by the Company hereunder may be transferred or assigned to any
transferee or assignee of any Preferred Shares or Warrants; provided in each
case that the Company must be given written notice by the such Investor at the
time of or within a reasonable time after said transfer or assignment, stating
the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned; and provided further that the transferee or assignee of such rights
agrees in writing to be bound by the registration provisions of this Agreement.
13. Miscellaneous.
(a) Remedies. The Company and each of the Investors acknowledge
and agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof, this being in addition to any other remedy to which
any of them may be entitled by law or equity.
(b) Jurisdiction. THE COMPANY AND EACH OF THE INVESTORS (I) HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT, THE NEW YORK STATE COURTS AND OTHER COURTS OF THE UNITED STATES SITTING
IN NEW YORK COUNTY, NEW YORK FOR THE PURPOSES OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND (II) HEREBY WAIVES, AND AGREES
NOT TO ASSERT IN ANY SUCH SUIT ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER. THE COMPANY AND EACH OF THE INVESTORS CONSENTS
TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY
THEREOF TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS
AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR
LIMIT ANY RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
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(c) Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing by facsimile, mail or
personal delivery and shall be effective upon actual receipt of such notice. The
addresses for such communications shall be:
to the Company:
Access Beyond, Inc.
0000 Xxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with copies to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
and:
Xxxxxx Xxxxxxx Sandrige & Rice
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention G. Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
to the Investors:
To each Investor at the address and/or fax number set forth on
Schedule I of this Agreement.
with copies to:
Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Any party hereto may from time to time change its address for notices by giving
at least 10 days' written notice of such changed address to the other parties
hereto.
(d) Indemnity. Each party shall indemnify each other party against
any loss, cost or damages (including reasonable attorney's fees) incurred as a
result of such parties' breach of any representation, warranty, covenant or
agreement in this Agreement.
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(e) Waivers. No waiver by any party of any default with respect to
any provision, condition or requirement of this Agreement shall be deemed to be
a continuing waiver in the future or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter. The representations and warranties and the agreements and
covenants of the Company and each Investor contained herein shall survive the
Closing.
(f) Execution in Counterpart. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement, it being understood that all parties need not sign the same
counterpart.
(g) Publicity. The Company agrees that it will not disclose, and
will not include in any public announcement, the name of any Investor without
its consent, unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement. The Company agrees
to deliver a copy of any public announcement regarding the matters covered by
this Agreement or any agreement or document executed herewith to each Investor
and any public announcement including the name of an Investor to such Investor,
prior to the publication of such announcements.
(h) Entire Agreement; Amendment and Termination. This Agreement,
together with the Purchase Agreement, the Certificate and the Warrants and the
agreements and documents contemplated hereby and thereby, contains the entire
understanding and agreement of the parties, and may not be modified, amended or
terminated except by a written agreement signed by all parties.
(i) Governing Law. This Agreement and the validity and performance
of the terms hereof shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts executed and to be
performed entirely within such state, except to the extent that the law of the
State of Delaware regulates the Company's issuance of securities.
(j) Severability. The parties acknowledge and agree that the
Investors are not agents, affiliates or partners of each other, that all
representations, warranties, covenants and agreements of the Investors hereunder
are several and not joint, that no Investor shall have any responsibility or
liability for the representations, warrants, agreements, acts or omissions of
any other Investor, and that any rights granted to "Investors" hereunder shall
be enforceable by each Investor hereunder.
(k) Jury Trial. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY
JURY.
(l) Titles. The titles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
(m) Timing of Registration. Nothing in this Agreement shall
require the Company to register the Common Shares issuable upon conversion of
the Preferred Shares issued at the Initial Closing until after the Initial
Closing Date, the Common Shares issuable upon conversion of the Preferred Shares
issued at the Subsequent Closing until after the Subsequent Closing Date, or the
Warrant Shares issuable upon exercise of the Warrants issued at a particular
Warrant Closing until after the applicable Warrant Closing Date. Common Shares
and Warrant Shares shall not be considered Registrable Securities for
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purposes of this Agreement until after the Applicable Closing Date on which the
Preferred Shares or Warrants convertible into or exercisable for such Common
Shares or Warrant Shares has occurred.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
ACCESS BEYOND, INC.
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Name:
Title:
INVESTORS:
XXXXXXX ASSOCIATES, L.P.
By: /s/ Xxxx X. Xxxxxx
_____________________________________
Xxxx X. Xxxxxx,
General Partner
WESTGATE INTERNATIONAL, L.P.
By: /s/ Xxxx X. Xxxxxx
_____________________________________
Xxxx X. Xxxxxx
President
Martley International, Inc.
Attorney-in-Fact for
Westgate International, L.P.
MONTROSE INVESTMENTS LTD.
By: /s/
_____________________________________
Name:
Title:
XXXXXXXX INVESTMENTS, L.P.
By: /s/
_____________________________________
Name:
Title:
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XXXXX INTERNATIONAL, LTD.
By: /s/
_____________________________________
Name:
Title:
SHEPHERD INVESTMENTS INTERNATIONAL, LTD.
By: /s/
_____________________________________
Name:
Title:
RAMIUS FUND, LTD.
By: AG. RAMIUS PARTNERS, L.L.C.,
Investment Manager
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Managing Officer
[SIGNATURE PAGE TO ACCESS BEYOND, INC.
REGISTRATION RIGHTS AGREEMENT]
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GAM ARBITRAGE INVESTMENTS, INC.
By: Xxxxxx Xxxxxx & Co., L.P.,
Investment Manager
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer
XXXXXXXX, L.P.
By: XXXXXX, XXXXXX & CO., L.P.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer
RAPHAEL, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer
AG SUPER FUND INTERNATIONAL PARTNERS, L.P.
By: XXXXXX, XXXXXX & CO., L.P.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer
[SIGNATURE PAGE TO ACCESS BEYOND, INC. REGISTRATION
RIGHTS AGREEMENT]
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SCHEDULE I
NAME OF PURCHASER ADDRESS OF PURCHASER
----------------- --------------------
1. Xxxxxxx Associates, L.P. 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
2. Westgate International, L.P. c/o Stonington Management Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
3. Xxxxxxxx Investments, L.P. 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
4. Montrose Investments Ltd. 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx
5. Xxxxxxx Investments International, Ltd. c/o Staro Asset Management
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
6. Xxxxx International c/o Staro Asset Management
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
7. Ramius Fund, Ltd. x/x Xxxxxx, Xxxxxx & Xx., X.X.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
8. Raphael, L.P. x/x Xxxxxx, Xxxxxx & Xx., X.X.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
9. Xxxxxxxx, L.P. x/x Xxxxxx, Xxxxxx & Xx., X.X.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
10. GAM Arbitrage Investments, Inc. x/x Xxxxxx, Xxxxxx & Xx., X.X.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
11. AG Super Fund International Partners, L.P. c/o Xxxxxx, Xxxxxx & Co., L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
23
