THE SHARES SUBJECT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), OR THE SECURITIES LAWS OF
CERTAIN STATES, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR THE
SECURITIES LAWS OF CERTAIN STATES OR UNLESS AN EXEMPTION THEREFROM IS AVAILABLE.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made effective on October
16, 2000, by and between Accesspoint Corporation ("Accesspoint") and RoyCap
Inc., a Canadian corporation ("RoyCap"). Accesspoint and RoyCap agree as set
forth herein and represent to each other with regard thereto as follows:
1. This Agreement is made pursuant to the Securities Purchase Agreement dated as
of the date hereof, by and between Accesspoint and RoyCap ("Securities Purchase
Agreement"). As used herein, "Regiserable Securities" shall mean the shares of
Common Stock of Accesspoint issuable upon conversion of the Convertible Note
("Note") or the exercise of the Callable Warrant or the Common Warrant
(collectively or separately the "Warrants") contemplated in the Securities
Purchase Agreement. As used herein, "Holder" or "Holders" shall mean RoyCap
and/or any other holder or holders, as the case may be, from time to time, of
the Registrable Securities. All of the definitions of terms contained in the
Securities Purchase Agreement shall be incorporated herein by this reference and
the terms used herein shall have the same meanings and definitions as set forth
in the Securities Purchase Agreement.
2. Accesspoint shall use its best reasonable efforts to prepare and, on or
before the thirtieth (30th) day following the Closing Date set forth in the
Securities Purchase Agreement ("Filing Date"), file with the U.S. Securities and
Exchange Commission ("Commission") a "Shelf" registration statement registering
for resale all Registrable Securities for an offering to be made on a continuous
basis pursuant to Rule 415, unless the Holders shall otherwise elect to effect
an underwritten offering. The registration statement shall be on an appropriate
form as determined by Accesspoint. Accesspoint shall use its best reasonable
efforts to cause the registration statement to be declared effective under the
Securities Act as promptly as reasonably possible after the filing thereof, but
in any event prior to the one ninetieth (90th) day following the filing date,
and shall use its best reasonable efforts to keep such registration statement
continuously effective under the Securities Act until the date which is two (2)
years after the date that such registration statement is declared effective by
the Commission or such earlier date when all Registrable Securities covered by
such registration statement have been sold or may be sold without volume
restrictions pursuant to Rule 144(k) as determined by the counsel to Accesspoint
pursuant to a written opinion letter to such effect, addressed and acceptable to
the Accesspoint's transfer agent (the "Effectiveness Period"), provided, that,
subject to the terms and conditions of this Agreement, Accesspoint shall not be
deemed to have used its best reasonable efforts to keep the registration
statement effective during the Effectiveness Period if it voluntarily takes any
action that would result in the Holders not being able to sell the Registrable
Securities covered by such registration statement during the Effectiveness
Period, unless such action is required
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under applicable law or the Company has filed a post-effective amendment to the
registration statement and the Commission has not declared it effective.
3. Accesspoint and the Holders shall each comply in all respects, to the extent
applicable, with the provisions of all applicable Rules promulgated by the
Commission, including, without limitation, Rule 415, Rule 424 and Rule 512.
Accesspoint and the Holders shall each reasonably cooperate with the other in
effecting any such compliance. The Holders, and the affiliates, assigns and
agents of the Holders, including, without limitation any underwriters, brokers
or investment bankers engaged by the Holders, shall reasonably cooperate with
Accesspoint in regard to any undertakings required pursuant to Rule 512(a) of
Regulation S-K.
.
4. Accesspoint shall prepare and file with the Commission such reasonable
amendments, including post-effective amendments, to the registration statement
and the prospectus used in connection therewith as may be reasonably necessary
to keep the registration statement continuously effective as to the applicable
Registrable Securities for the Effectiveness Period and reasonably prepare and
file with the Commission such additional registration statements in order to
register for resale under the Securities Act all of the Registrable Securities;
(ii) cause the related prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed pursuant to
Rule 424 (or any similar provisions then in force); and (iii) respond as
promptly as reasonably possible, using its best reasonable efforts to respond
within five (5) days, to any comments received from the Commission with respect
to the registration statement or any amendment thereto and as promptly as may be
commercially-reasonable provide the Holders true and complete copies of all
correspondence from and to the Commission relating to the registration
statement. The Holders shall as promptly as commercially-reasonable inform
Accesspoint, from time to time, of their intended methods of disposition of the
Registrable Securities, and as promptly as may be commercially-reasonable
provide the Holders true and complete copies of all documents pertaining to any
such intended method of disposition. Accesspoint and the Holders shall each
comply in all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities
covered by the registration statement during the applicable period in accordance
with the intended methods of disposition by the Holders thereof set forth in the
registration statement as so amended or in such prospectus as so supplemented.
5. Accesspoint shall pay to the Holders an amount, as liquidated damages for the
estimated cost to the Holders of not having liquid securities in the time
contemplated herein and not as a penalty, equal to 2% of the purchase price paid
by such Holder pursuant to the Purchase Agreement. The payments to which the
Holders shall be entitled pursuant to this Section are referred to herein as
"Registration Delay Payments." The Registration Delay Payments shall be paid in
cash or cash equivalent representing good and immediately available funds.
Registration Delay Payments shall be calculated on each full thirty (30) day
period and paid within five (5) Business Days of the end of each applicable
delay month.
6. The obligations of Accesspoint to register the Registrable Securities
hereunder shall be subject to the following provisions:
6.1 Notwithstanding anything to the contrary, if the Commission either
(i) refuses to
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declare effective or review a registration statement because shares of Common
Stock issuable upon exercise of the Warrants or upon conversion of the Note are
included in such registration statement; (ii) deems all or any portion of the
offering of the Registrable Securities pursuant to the registration statement to
be a primary offering of Common Stock; or (iii) otherwise refuses to declare
effective or renew a registration statement for reasons that pertain solely to,
or are under the exclusive control of, the Holders or the affiliates, assigns or
agents of the Holders, or which are otherwise outside the reasonable control of
Accesspoint, then each of Accesspoint and the Holders shall have the unilateral
right to terminate the registration statement with respect to any portion of the
Registrable Securities included therein which causes the Commission to take such
position without further liability of any kind with respect thereto, no
Registration Delay Payments shall apply with respect to Accesspoint's failure to
register such shares of Common Stock and Accesspoint will, to the extent
applicable, either promptly file an amendment to the registration statement
removing such shares of Common Stock from the registration statement or to
otherwise terminate the registration statement. If the Company shall have filed
the registration statement on or prior to the Filing Date, upon receipt of
written or oral comments from the Commission relating to whether the inclusion
of Common Stock issuable upon exercise of the Warrants or upon conversion of the
Convertible Note in the registration statement is permissible, which comments do
not rise to the level of a refusal, as set forth above, to declare effective or
review a registration statement or the determination that all or any portion of
the offering of the Registrable Securities pursuant to the registration
statement is a primary offering of Common Stock, Accesspoint shall be entitled,
promptly after the receipt of such comments from the Commission and upon consent
of the Purchasers (which consent shall not be unreasonably withheld), to
terminate the registration statement with respect to any portion of the
Registrable Securities it reasonably believes, on advice of its outside counsel,
should be removed in light of such comments, without further liability of any
kind with respect thereto, to file an amendment to the registration statement
removing such shares from the registration statement and to issue such shares in
a private placement exempt from the registration requirements of the Securities
Act, and, upon the timely filing of such an amendment, the "Effectiveness Date"
shall be adjusted to mean the ninetieth (90th) day following the date of the
filing of such an amendment.
6.2 RoyCap, the Holders, and its and their affiliates, assigns and
agents, shall use its and their best reasonable efforts to promptly provide
Accesspoint, its attorneys and any underwriter with such non-confidential and
non-proprietary information as any of them may reasonably request in order to
prepare the registration statement. The material failure of RoyCap to promptly
and fully provide any such information shall relieve Accesspoint of the
obligation to file or cause to be made effective any registration statement
hereunder.
6.3 RoyCap, and its affiliates, assigns or agents, shall use its best
reasonable efforts promptly to cooperate with Accesspoint, its attorneys and any
underwriter, and perform such acts and execute, acknowledge and deliver such
documents and instruments as may deemed reasonably necessary by Accesspoint, its
attorneys or any underwriter, with regard to the preparation and filing of the
registration statement. Failure to promptly and fully provide any such
cooperation or perform such acts or execute, acknowledge and deliver such
documents or instruments shall relieve Accesspoint of the obligation to file or
cause to be made effective any registration statement hereunder.
-3-
6.4 Accesspoint shall be responsible for reasonable and necessary
expenses incurred by it in connection with the preparation of the registration
statement, including, without limitation, Accesspoint's legal and accounting
fees, but not including fees or disbursements for consultants, experts or legal,
accounting or valuation services retained by RoyCap, or underwriting discounts
or commissions incurred by RoyCap. Accesspoint shall pay any and all
registration filing fees, or portions thereof on a pro rata basis, which pertain
to securities which are to be registered and offered for its own account or the
account of its subsidiaries. The Holders shall pay any and all registration
filing fees, or portions thereof on a pro rata basis, which pertain to
Registrable Securities which are to be registered and offered for the account of
the Holders, including, without limitation, Registrable Securities which are
identified pursuant to Rule 415(a)(1)(i) or Rule 415(a)(1)(iii).
7. Accesspoint shall notify the Holders of Registrable Securities as promptly as
reasonably possible (i) of any request by the Commission or any other Federal or
state governmental authority for amendments or supplements to the registration
statement or prospectus or for additional information; (ii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
registration statement covering any or all of the Registrable Securities or the
initiation of any proceedings for that purpose; (iii) of the receipt by
Accesspoint of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose; and (iv) of the occurrence of any event or passage
of time that makes the financial statements included in the registration
statement ineligible for inclusion therein or any statement made in the
registration statement or prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires any revisions to the registration statement, prospectus or other
documents so that, in the case of the registration statement or the prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
8. Prior to any public offering of Registrable Securities, Accesspoint shall use
its best reasonably efforts to register or qualify, at the sole cost and expense
of the Holders, or cooperate with the selling Holders, any underwriters and
their Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder or underwriter may request
in writing. The Holders shall be solely responsible for all Blue Sky
registration and qualification fees and costs pertaining to the Registrable
Securities. Accesspoint shall use its best reasonably efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by a registration statement; provided, however, that
Accesspoint shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject Accesspoint to any material tax in any such
jurisdiction where it is not then so subject. RoyCap, the Holders, and its and
their affiliates, assigns and agents, shall use its and their best
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reasonable efforts to promptly provide Accesspoint, its attorneys and any
underwriter with such non-confidential and non-proprietary information as any of
them may reasonably request in order to prepare any Blue Sky registration or
qualification statement or application. The material failure of RoyCap or the
Holders to promptly and fully provide any such information, or promptly and
fully pay any applicable fees or costs, or otherwise reasonably cooperate with
Accesspoint, shall relieve Accesspoint of the obligation to file or cause to be
made effective Blue Sky registration or qualification statement or application
hereunder.
9. RoyCap and (if applicable) RoyCap's advisors and representatives have had an
opportunity to ask questions of and receive satisfactory answers from
Accesspoint or any person or persons acting on its behalf, concerning the terms
and conditions of RoyCap's proposed investment in the Registrable Securities,
and all such questions have been answered to the complete satisfaction of RoyCap
and its advisors and representatives.
10. RoyCap represents that all of the information provided by RoyCap or RoyCap's
representatives to Accesspoint is true, correct, accurate and current and that
RoyCap is not subject to backup withholding. RoyCap specifically represents that
all of the information provided in this Agreement or on any separate signature
page questionnaire is true, correct, accurate and current.
11. RoyCap is an accredited investor. RoyCap is a business entity not
formed for the specific purpose of acquiring the Registrable Securities and has
total assets in excess of Five Million Dollars (U.S. $5,000,000.00).
12. The Registrable Securities will be acquired for RoyCap's own account for
investment with no present intention of dividing RoyCap's interest with others
or of reselling or otherwise disposing of all or any portion of the same. RoyCap
shall not engage in a distribution of the Registrable Securities.
13. RoyCap has such knowledge and experience in financial and business matters
that RoyCap is capable of evaluating the merits and risks of an investment in
the Registrable Securities, or (if applicable) RoyCap and RoyCap's
representatives, together, have such knowledge and experience in financial and
business matters that RoyCap and RoyCap's representatives are capable of
evaluating the merits and risks of the prospective investment in the Registrable
Securities.
15. RoyCap is an Accredited Investor as defined in rule 501 (a) of
egulation D as promulgated by the Securities and Exchange Commission.
16. RoyCap is not a member of the NASD or other self-regulatory agency
which would require prior approval of the Note or Warrants or issuance of the
Registrable Securities
17. RoyCap acknowledges and understands that the Registrable Securities may be
subject to transfer and sale restrictions imposed pursuant to SEC Rule 144 of
the Rules promulgated under the Securities Act of 1933 ("Securities Act") and
the regulations promulgated thereunder. RoyCap shall comply with Rule 144 and
with all policies and procedures established by
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Accesspoint with regard to Rule 144 matters. RoyCap acknowledged that
Accesspoint or its attorneys or transfer agent may require a restrictive legend
on the certificate or certificates representing the Registrable Securities
pursuant to the restrictions on transfer of the Registrable Securities imposed
by Rule 144.
18. Notwithstanding anything in this Agreement to the contrary, the undersigned
Acknowledges that: (i) the Registrable Securities may be acquired in a private
transaction which is not part of a distribution of the Registrable Securities;
(ii) to the extent that Rule 144 may be applicable, the undersigned intends to
hold the Registrable Securities for the account of the undersigned and does not
intend to sell the shares as a part of a distribution or otherwise; and (iii)
the Holders of the Registrable Securities are not an underwriter for purposes of
Rule 144.
19. Neither RoyCap nor any of its affiliates, assigns or agents will, directly
or indirectly, maintain any short position, or engage in short sales against the
box, in the Registrable Securities or any other securities of Accesspoint for so
long as any of the Registrable Securities are owned by the Subscriber.
20. For purposes of issuance of the Note and Warrants, neither RoyCap
nor any person or entity for whom RoyCap is acting as fiduciary is a U.S.
person. A U.S. person means any one of the following:
20.1 any natural person resident in the United States of America;
20.2 any partnership or corporation organized or incorporated under
the laws of the United States of America;
20.3 any trust of which any trustee is a U.S. person;
20.4 any agency or branch of a foreign entity located in the United
States of America;
20.5 any non-discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a U.S. person;
20.6 any discretionary account or similar account (other than an estate
or trust) held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States of America; and
20.7 any partnership or corporation if:
(a) organized or incorporated under the laws of any
foreign jurisdiction; and
(b) formed by a U.S. person principally for the purpose
of investing in securities not registered under the
Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as
defined in Rule 501(a) under the Securities Act) who
are not natural persons, estates or trusts.
-6-
21. To the extent that the Note or Warrants are issued pursuant to Regu-
lation S, RoyCap acknowledges the following:
21.1 ALL OFFERS AND SALES OF THE REGULATION S SHARES PRIOR TO THE
EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD AS DEFINED IN RULE 902
PROMULGATED UNDER THE ACT SHALL ONLY BE MADE IN COMPLIANCE WITH THE SAFE HARBOR
CONTAINED IN REGULATION S, PURSUANT TO REGISTRATION OF SECURITIES UNDER THE
SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT, AND ALL OFFERS AND SALES AFTER THE DISTRIBUTION COMPLIANCE
PERIOD SHALL BE MADE ONLY PURSUANT TO SUCH A REGISTRATION OR TO SUCH EXEMPTION
FROM REGISTRATION, INCLUDING, WITHOUT LIMITATION, RULE 144.
21.2 ALL OFFERING DOCUMENTS RECEIVED BY THE PURCHASER INCLUDE
STATEMENTS TO THE EFFECT THAT THE SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S.
PERSONS OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON (OTHER THAN DISTRIBUTORS
AS DEFINED IN REGULATION S) DURING THE DISTRIBUTION COMPLIANCE PERIOD AS DEFINED
IN RULE 902 PROMULGATED UNDER THE ACT UNLESS THE SHARES ARE REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS IS AVAILABLE.
21.3 IN THE VIEW OF THE SEC, THE STATUTORY BASIS FOR THE EXEMPTION
CLAIMED FOR THIS TRANSACTION WOULD NOT BE PRESENT IF THE OFFERING OF SHARES,
ALTHOUGH IN TECHNICAL COMPLIANCE WITH REGULATION S, IS PART OF A PLAN OR SCHEME
TO EVADE THE REGISTRATION PROVISIONS OF THE SECURITIES ACT. THE PURCHASER IS
ACQUIRING THE SHARES FOR INVESTMENT PURPOSES AND HAS NO PRESENT INTENTION TO
SELL THE SHARES IN THE UNITED STATES OF AMERICA TO A U.S. PERSON OR FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON.
22. RoyCap understands and agrees that the following restrictions and
limitations are applicable to RoyCap's acquisition and any sale, transfer,
assignment, pledge, hypothecation or other disposition of Note or Warrants
pursuant to the Securities Act and Regulation D and Regulation S promulgated
pursuant thereto:
22.1. RoyCap agrees that notwithstanding any other restrictions placed
on the sale or transfer of the Note or the Warrants pursuant to this Agreement,
Rule 144, or otherwise, the Note or Warrants shall not be sold, pledged,
hypothecated or otherwise disposed of unless the same are registered pursuant to
the Act and applicable state securities laws or are exempt therefrom; and
22.2. A legend in substantially the following form may be placed
on any certificate(s) or other documents evidencing the Note or Warrants:
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THE SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT ONLY AND HAVE NOT BEEN REGISTERED PURSUANT TO
THE PROVISIONS OF THE SECURITIES ACT OF 1933 AS AMENDED ("ACT"), AND
HAVE BEEN OFFEREDAND SOLD IN RELIANCE UPON THE EXEMPTION SET FORTH IN
THE ACT AND UPON REGULATION D OR REGULATION S PROMULGATED PURSUANT
THERETO. WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF,
EXCEPT UPON DELIVERY TO ACCESSPOINT OF AN OPINION OF COUNSEL
SATISFACTORY TO ACCESSPOINT THAT REGISTRATION IS NOT REQUIRED FOR SUCH
TRANSFER OR THE SUBMISSION TO ACCESSPOINT OF SUCH OTHER EVIDENCE AS MAY
BE SATISFACTORY TO ACCESSPOINT TO THE EFFECT THAT ANY SUCH TRANSFER
SHALL NOT BE IN VIOLATION OF THE ACT, APPLICABLE STATE SECURITIES LAWS
OR ANY RULE OR REGULATION PROMULGATED THEREUNDER.
23. This Agreement shall be subject to the following terms and conditions:
23.1 In the event of a breach by Accesspoint or by a Holder, of any of
their obligations under this Agreement, each Holder or Accesspoint, as the case
may be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Accesspoint and each
Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
23.2 Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it in
connection with sales of Registrable Securities pursuant to any applicable
registration statement.
23.3 Each Holder agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from Accesspoint of the occurrence of
any event of the kind described in Section 7(i)-(iv), such Holder will forthwith
discontinue disposition of such Registrable Securities under the registration
statement until such Holder's receipt of the copies of a supplemented prospectus
and/or amended registration statement, or until it is advised in writing (the
"Advice") by Accesspoint that the use of the applicable prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such prospectus or registration statement. Accesspoint may provide
appropriate stop orders to enforce the provisions of this paragraph.
23.4 If at any time when there is not an effective registration
statement covering all of the Registrable Securities then outstanding and
Accesspoint shall determine to prepare and file
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with the Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee
benefit plans, then Accesspoint shall send to each Holder of Registrable
Securities written notice of such determination and, if within twenty (20) days
after receipt of such notice, any such holder shall so request in writing,
Accesspoint shall include in such registration statement all or any part of such
Registrable Securities such holder requests to be registered. If any
registration of Accesspoint pursuant to this Section is for a registered public
offering involving an underwriting, the right of any Holder to registration
shall be conditioned upon such Holder's entering into an underwriting agreement
and/or lock-up agreement in customary forms with the representative of the
underwriter or underwriters.
23.5 The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the same shall
be in writing and signed by Accesspoint and the Holders of at least two-thirds
of the then outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities to which such waiver or consent
relates; provided, however, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the provisions of
the immediately preceding sentence.
23.6 Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall be deemed
given and effective on the earliest of (i) the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Section prior to 8:00 p.m. (Pacific Standard time) on a
Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in the Purchase Agreement later than 8:00 p.m. (Pacific
Standard time) on any date and earlier than 11:59 p.m. (Pacific Standard time)
on such date, (iii) the Business Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) if sent other than by
the methods set forth in (i)-(iii) of this section, upon actual receipt by the
party to whom such notice is required to be given. The address for such notices
and communications shall be as follows:
If to the Company: Accesspoint Corporation
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
U.S.A.
Attn: Xxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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With copies to: Floratos, Loll & Xxxxxx
00000 Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
U.S.A.
Attn: Xxxxxx X. Xxxx, Esq.
(000) 000-0000
(000) 000-0000
If to the Purchaser: RoyCap, Inc.
0000 Xxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to: Fogler, Xxxxxxxx, XXX
Xxxxx 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxxxxxx Xxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to any other person who is then the registered Holder: To the address of such
Holder as it appears in the stock transfer books of Accesspoint or such other
address as may be designated in writing hereafter, in the same manner, by such
Person.
23.7 This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties and shall inure to
the benefit of each Holder. Accesspoint may not assign its rights or obligations
hereunder without the prior written consent of each Holder. Each Holder may
assign their respective rights hereunder in the manner and to the Persons as
permitted under this Agreement and the Securities Agreement.
23.8 This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement. In the event that
any signature is delivered by facsimile transmission, such signature shall
create a valid binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as if such
facsimile signature were the original thereof.
23.9 The remedies provided herein are cumulative and not exclusive
of any remedies provided by law.
23.10 If any term, provision, covenant or restriction of this Agreement
is held by a court
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of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
23.11 The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
23.12 Whenever the consent or approval of holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by Accesspoint or its affiliates (other than any holder or
transferees or successors or assigns thereof if such holder is deemed to be an
affiliate solely by reason of its holdings of such Registrable Securities) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
23.13 The obligations of each party hereunder is several and not joint
with the obligations of any other party hereunder, and neither party shall be
responsible in any way for the performance of the obligations of any other party
hereunder. Nothing contained herein or in any other agreement or document
delivered at any closing, and no action taken by any party pursuant hereto or
thereto, shall be deemed to constitute the parties as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the parties are in any way acting in concert with respect to
such obligations or the transactions contemplated by this Agreement. Each party
shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other party to be joined as an additional party in any
proceeding for such purpose.
IN WITNESS WHEREOF, this Registration Rights Agreement is made
effective as of the date first written above.
ACCESSPOINT CORPORATION
By: /s/ XXX X. XXXXXXXXX
---------------------------------------------
Xxx X. Xxxxxxxxx,
Chief Executive Officer
ROYCAP INC.
By: /s/ XXXXX XXXXX
---------------------------------------------
Xxxxx Xxxxx,
President
