<PAGE> 1
As filed with the Securities and Exchange Commission on January 23, 1998
------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
HAYES CORPORATION
(FORMERLY, ACCESS BEYOND, INC.)
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
5854 PEACHTREE CORNERS EAST
DELAWARE NORCROSS, GEORGIA 30093 52-1987873
- ------------------------------- ---------------------------------------- ----------------------
(State or other jurisdiction of (Address of principal executive offices) (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
HAYES MICROCOMPUTER PRODUCTS, INC.
STOCK OPTION PLAN
----------------------------------
(Full title of the plan)
--------------------------
JAMES A. JONES
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
HAYES CORPORATION
5854 PEACHTREE CORNERS EAST
NORCROSS, GEORGIA 30092
(770) 840-9200
--------------------------
(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE(1)
- ---------- ---------- ------------ --------- ------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 5,426,256 shares $1.89 $10,255,624 $3,025.41
</TABLE>
(1) Pursuant to Rule 457(h)(1), based on the average option
price ($1.89) for shares of the registrant's common stock upon
exercise of outstanding options assumed by the registrant under the
Hayes Microcomputer Products, Inc. Stock Option Plan.
---------------------
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Hayes Corporation (formerly,
"Access Beyond, Inc.") (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended July 31, 1997, filed with the Commission on October
16, 1997 and November 24, 1997;
(b) The Company's quarterly report on Form 10-Q for the
quarter ended October 31, 1997, filed with the Commission on December
15, 1997;
(c) The Company's current reports on Form 8-K filed with
the Commission on August 7, 1997, November 11, 1997 and January 9,
1998;
(d) The Company's Registration Statement on Form
S-4 (File No. 333-37993), filed with the Commission on December 12,
1997; and
(e) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the period referred to in
(a), above.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby has been passed
upon by the firm of Womble Carlyle Sandridge & Rice, PLLC, counsel to the
Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the DGCL permits the indemnification of the
directors and officers of the Company. The Bylaws of the Company do not contain
any provisions or indemnification.
The Certificate of Incorporation provides for the
indemnification of directors and officers and employees of the Company, and
persons who serve or served at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred with respect to any action, suit or proceeding, if such person acted
in good faith and in a manner he reasonably believed to being or not opposed to
the best interest of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
indemnification provisions set forth in the Certificate of Incorporation do not
preclude the indemnification of, and advancement of expenses to, any other
person to whom the
II - 1
<PAGE> 3
Company has the power of obligation to indemnify under the provisions of the
DGCL, or otherwise. The right to indemnification conferred in the Certificate
of Incorporation is a contract right and shall include the right to have paid
by the Company the expenses incurred in defending any such proceeding in
advance of its final disposition. The Company maintains insurance, at its
expense, liability or loss, whether or not the Company would have the power or
the obligation to indemnify such person against such expense, liability or loss
under state law or under the terms of the Certificate of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this
Registration Statement:
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the
Company, which is incorporated by reference to
Exhibit 3.2 of the Company's Registration Statement
on Form S-4, as amended (File No. 333-37993).
4.2 Amended and Restated Bylaws of the Company.
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as
to the legality of the Common Stock being
registered.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC,
which is contained in its opinion filed as Exhibit
5.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Coopers & Lybrand LLP.
24 Power of Attorney (included in the signature page to
this Registration Statement).
99.1 Hayes Microcomputer Products, Inc. Stock Option
Plan, which is incorporated by reference to Exhibit
10.17 of the Company's Registration Statement on
Form S-4, as amended (File No. 333-37993).
99.2 1997 Declaration of Amendment to Hayes Microcomputer
Products, Inc. Stock Option Plan, which is
incorporated by reference to Exhibit 10.18 of the
Company's Registration Statement on Form S-4, as
amended (File No. 333-37993).
99.3 Forms of Agreements under Hayes Microcomputer
Products, Inc. Stock Option Plan, which are
incorporated by reference to Exhibit 10.19 of the
Company's Registration Statement on Form S-4, as
amended (File No. 333-37993).
99.4 1997 Declaration of Amendment to Hayes Microcomputer
Products, Inc. Stock Option Plan
</TABLE>
II - 2
<PAGE> 4
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Hayes Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Norcross, State of Georgia, on this day of
January 22, 1998.
HAYES CORPORATION
By:/s/ Dennis C. Hayes
--------------------------------
Dennis C. Hayes
Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears on the signature pages to this Registration Statement hereby
constitutes and appoints Dennis C. Hayes and James A. Jones, and each of them,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned, and in his name, place
and stead, in any and all capacities to sign any and all amendments, including
post-effective amendments, exhibits thereto and other documents in connection
therewith, to this Registration Statement, to make such changes in the
Registration Statement as such attorneys-in-fact deems appropriate, and to file
the same, with all exhibits thereto and other documents in connection therewith
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents and each of them, full power and authority to do
so and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on January 22, 1998.
<TABLE>
<S> <C>
/s/ P. K. Chan /s/ Dennis C. Hayes
- ----------------------------------------------- --------------------------------------------------
P. K. Chan Dennis C. Hayes
President, Chief Operating Officer and Director Chairman
/s/ Barbara Perrier Dreyer /s/ Ronald A. Howard
- ----------------------------------------------- --------------------------------------------------
Barbara Perrier Dreyer Ronald A. Howard
Director Vice Chairman, Chief Executive
Officer and Director (principal executive officer)
/s/ Chiang Lam /s/ S. P. Quek
- ----------------------------------------------- --------------------------------------------------
Chiang Lam S. P. Quek
Director Director
/s/ M. C. Tam /s/ James A. Jones
- ----------------------------------------------- --------------------------------------------------
M. C. Tam James A. Jones
Director Vice President and Chief Financial Officer
(principal financial and accounting officer)
</TABLE>
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<PAGE> 6
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8 OF
HAYES CORPORATION
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the
Company, which is incorporated by reference to
Exhibit 3.2 of the Company's Registration Statement
on Form S-4, as amended (File No. 333-37993).*
4.2 Amended and Restated Bylaws of the Company.
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as
to the legality of the Common Stock being
registered.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC,
which is contained in its opinion filed as Exhibit
5.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Coopers & Lybrand LLP.
24 Power of Attorney (included in the signature page to
this Registration Statement).
99.1 Hayes Microcomputer Products, Inc. Stock Option
Plan, which is incorporated by reference to Exhibit
10.17 of the Company's Registration Statement on
Form S-4, as amended (File No. 333-37993). *
99.2 1997 Declaration of Amendment to Hayes Microcomputer
Products, Inc. Stock Option Plan, which is
incorporated by reference to Exhibit 10.18 of the
Company's Registration Statement on Form S-4, as
amended (File No. 333-37993). *
99.3 Forms of Agreements under Hayes Microcomputer
Products, Inc. Stock Option Plan, which are
incorporated by reference to Exhibit 10.19 of the
Company's Registration Statement on Form S-4, as
amended (File No. 333-37993). *
99.4 1997 Declaration of Amendment to Hayes Microcomputer
Products, Inc. Stock Option Plan
</TABLE>
* Incorporated by reference.
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<PAGE> 1
EXHIBIT 4.2
BYLAWS
OF
HAYES CORPORATION
ARTICLE I
STOCKHOLDERS
SECTION 1. PLACE OF STOCKHOLDERS' MEETINGS. All meetings of the
stockholders of the Corporation shall be held at such place or places, within or
outside the State of Delaware, as may be fixed by the Board of Directors from
time to time or as shall be specified in the respective notices thereof.
SECTION 2. DATE, HOUR AND PURPOSE OF ANNUAL MEETINGS OF STOCKHOLDERS.
Annual meetings of Stockholders, commencing with the year 1996, shall be held on
such day and at such time as the Directors may determine from time to time by
resolution, at which meeting the stockholders shall elect, by a plurality of the
votes cast at such election, a Board of Directors, and transact such other
business as may properly be brought before the meeting in accordance with these
Bylaws. To be properly brought before the annual meeting, business must be
either (i) specified in the notice of annual meeting (or any supplement or
amendment thereto) given by or at the direction of the Board of Directors, (ii)
otherwise brought before the annual meeting by or at the direction of the Board
of Directors, or (iii) otherwise properly brought before the annual meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
sixty (60) days prior to the meeting; provided, however, that in the event that
less than seventy (70) days notice or prior public disclosure of the date of the
annual meeting is given or made to stockholders, notice by a stockholder, to be
timely, must be received no later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made, whichever first occurs. A
stockholder's notice to the Secretary shall set forth (a) as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, and (ii) any material
interest of the stockholder in such business, and (b) as to the stockholder
giving the notice (i) the name and record address of the stockholder and (ii)
the class, series and number of shares of capital stock of the Corporation which
are beneficially owned by the stockholder. Notwithstanding anything in these
Bylaws to the contrary, no business shall be conducted at the annual meeting
except in accordance with the procedures set forth in this
<PAGE> 2
Article II, Section 2. The officer of the Corporation presiding at an annual
meeting shall, if the facts warrant, determine and declare to the annual meeting
that business was not properly brought before the annual meeting in accordance
with the provisions of this Article II, Section 2, and if such officer should so
determine, such officer shall so declare to the annual meeting and any such
business not properly brought before the annual meeting shall not be transacted.
If for any reason a Board of Directors shall not be elected at the
Annual Meeting of Stockholders, or if it appears that such Annual Meeting is not
held on such date as may be fixed by the Directors in accordance with the
provisions of these Bylaws, then in either such event the Directors shall cause
the election to be held as soon thereafter as convenient.
SECTION 3. SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of the
stockholders entitled to vote may be called by the Chairman of the Board, if
any, the Vice Chairman of the Board, if any, the Chief Executive Officer, the
President or any Vice President, the Secretary or by the Board of Directors,
and shall be called by any of the foregoing at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the meeting.
SECTION 4. NOTICE OF MEETINGS OF STOCKHOLDERS. Except as otherwise
expressly required or permitted by the laws of Delaware, not less than ten (10)
days nor more than sixty (60) days before the date of every stockholders'
meeting the Secretary shall give to each stockholder of record entitled to vote
at such meeting written notice stating the place, day and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Such notice, if mailed, shall be deemed to be given when
deposited in the United States mail, with postage thereon prepaid, addressed to
the stockholder at the post office address for notices to such stockholder as it
appears on the records of the Corporation.
An Affidavit of the Secretary or an Assistant Secretary or of a
transfer agent of the Corporation that the notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
SECTION 5. QUORUM OF STOCKHOLDERS.
(a) Unless otherwise provided by the laws of Delaware,
at any meeting of the stockholders the presence in person or
by proxy of stockholders entitled to cast a majority of the votes
thereat shall constitute a quorum.
2
<PAGE> 3
(b) At any meeting of the stockholders at which a quorum shall
be present, a majority of those present in person or by proxy may
adjourn the meeting from time to time without notice other than
announcement at the meeting. In the absence of a quorum, the officer
presiding thereat shall have power to adjourn the meeting from time to
time until a quorum shall be present. Notice of any adjourned meeting
other than announcement at the meeting shall not be required to be
given, except as provided in paragraph (d) below and except where
expressly required by law.
(c) At any adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been
transacted at the meeting originally called, but only those
stockholders entitled to vote at the meeting as originally noticed
shall be entitled to vote at any adjournment or adjournments thereof,
unless a new record date is fixed by the Board of Directors.
(d) If an adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
SECTION 6. CHAIRMAN AND SECRETARY OF MEETING. The Chairman, or in his
absence, the Vice Chairman, or in his absence, the President, or in his absence,
any Vice President, shall preside at meetings of the stockholders. The Secretary
shall act as secretary of the meeting, or in his absence an Assistant Secretary
shall act, or if neither is present, then the presiding officer shall appoint a
person to act as secretary of the meeting.
SECTION 7. VOTING BY STOCKHOLDERS. Except as may be otherwise provided
by the Certificate of Incorporation or by these Bylaws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
stock standing in his name on the books of the Corporation on the record date
for the meeting. All elections and questions shall be decided by the vote of a
majority in interest of the stockholders present in person or represented by
proxy and entitled to vote at the meeting, except as otherwise permitted or
required by the laws of Delaware, the Certificate of Incorporation or these
Bylaws.
SECTION 8. PROXIES. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by his attorney-in-fact. Every proxy
shall be in writing, subscribed by the stockholder or his duly authorized
attorney-in-fact, but need not be dated, sealed, witnessed or acknowledged.
3
<PAGE> 4
SECTION 9. LIST OF STOCKHOLDERS.
(a) At least ten (10) days before every meeting of
stockholders, the Secretary shall prepare or cause to be prepared a
complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder.
(b) During ordinary business hours, for a period of at least
ten (10) days prior to the meeting, such list shall be open to
examination by any stockholder for any purpose germane to the meeting,
either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held.
(c) The list shall also be produced and kept at the time and
place of the meeting during the whole time of the meeting, and it may
be inspected by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list
required by this Section or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
ARTICLE II
DIRECTORS
SECTION 1. POWERS OF DIRECTORS. The property, business and affairs of
the Corporation shall be managed by its Board of Directors, which may exercise
all the powers of the Corporation except such as are by the laws of Delaware or
the Certificate of Incorporation or these Bylaws required to be exercised or
done by the stockholders.
SECTION 2. NOMINATION OF DIRECTORS. Nominations of persons for election
to the Board of Directors at the annual meeting may be made at such meeting by
or at the direction of the Board of Directors, by any committee or persons
appointed by the Board of Directors or by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Article III, Section 2. Such nominations
by any stockholder shall be made pursuant to timely notice in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days prior to the meeting; provided
however, that in the event that less than
4
<PAGE> 5
seventy (70) days notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder, to be timely, must
be received no later than that the close of business on the tenth (10th) day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made, whichever first occurs. Such stockholder's
notice to the Secretary shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
person, and (iv) any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of directors pursuant
to the Rules and Regulations of the Securities and Exchange Commission under
Section 14 of the Securities Exchange Act of 1934, as amended; and (b) as to the
stockholder giving the notice (i) the name and record address of the stockholder
and (ii) the class and number of shares of capital stock of the Corporation
which are beneficially owned by the stockholder. The Corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the Corporation to determine the eligibility of such proposed nominee to
serve as a director of the Corporation. No person shall be eligible for election
as a director of the Corporation unless nominated in accordance with the
procedures set forth herein. The officer of the Corporation presiding at an
annual meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the foregoing procedure, and
if he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded. The directors shall be elected at the annual
meeting of the stockholders, except as provided in the Certificate of
Incorporation, and each director elected shall hold office until his successor
is elected and qualified; provided, however, that unless otherwise restricted by
the Certificate of Incorporation or by law, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors at any meeting of stockholders by a majority of the stock represented
and entitled to vote thereat.
SECTION 3. VACANCIES ON BOARD OF DIRECTORS. Any Director may resign his
office at any time by delivering his resignation in writing to the Chairman or
the President or the Secretary. It will take effect at the time specified
therein, or if no time is specified, it will be effective at the time of its
receipt by the Corporation. The acceptance of a resignation shall
not be necessary to make it effective, unless expressly so provided
in the resignation.
5
<PAGE> 6
SECTION 4. MEETINGS OF THE BOARD OF DIRECTORS.
(a) The Board of Directors may hold their meetings, both regular
and special, either within or outside the State of Delaware.
(b) Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by
resolution of the Board of Directors.
(c) The first meeting of each newly elected Board of Directors
except the initial Board of Directors shall be held as soon as practicable
after the Annual Meeting of the stockholders for the election of officers and
the transaction of such other business as may come before it.
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman, the Chief Executive Officer,
the President or at the request of Directors constituting one-third of the
number of Directors then in office, but not less than two Directors.
(e) The Secretary shall give notice to each Director of any
meeting of the Board of Directors by mailing the same at least two days
before the meeting or by telegraphing or delivering the same not later than
the day before the meeting. Such notice need not include a statement of the
business to be transacted at, or the purpose of, any such meeting. Any and
all business may be transacted at any meeting of the Board of Directors. No
notice of any adjourned meeting need be given. No notice to or waiver by any
Director shall be required with respect to any meeting at which the Director
is present.
SECTION 5. QUORUM AND ACTION. A majority of the entire Board of
Directors shall constitute a quorum for the transaction of business; but if
there shall be less than a quorum at any meeting of the Board, a majority of
those present may adjourn the meeting from time to time. Unless otherwise
provided by the laws of Delaware, the Certificate of Incorporation or these
Bylaws, the act of a majority of the Directors present at any meeting at which a
quorum is present shall be the act of the Board of Directors.
SECTION 6. PRESIDING OFFICER AND SECRETARY OF MEETING. The Chairman or,
in his absence, a member of the Board of Directors selected by the members
present, shall preside at meetings of the Board. The Secretary shall act as
secretary of the meeting, but in his absence the presiding officers shall
appoint a secretary of the meeting.
SECTION 7. ACTION BY CONSENT WITHOUT MEETING. Any action required or
permitted to be taken at any meeting of the
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<PAGE> 7
Board of Directors or of any committee thereof may be taken without a meeting if
all members of the Board or committee, as the case may be, consent thereto in
writing and the writing or writings are filed with the records of the Board or
committee.
SECTION 8. EXECUTIVE COMMITTEE. The Board of Directors may appoint from
among its members and from time to time may fill vacancies in an Executive
Committee to serve during the pleasure of the Board. The Executive Committee
shall consist of three members, or such greater number of members as the Board
of Directors may by resolution from time to time fix. One of such members shall
be the Chairman of the Board and another shall be the Vice Chairman of the
Board, who shall be the presiding officer of the Committee. During the intervals
between the meetings of the Board, the Executive Committee shall possess and may
exercise all of the powers of the Board in the management of the business and
affairs of the Corporation conferred by these Bylaws or otherwise. The Committee
shall keep a record of all its proceedings and report the same to the Board. A
majority of the members of the Committee shall constitute a quorum. The act of a
majority of the members of the Committee present at any meeting at which a
quorum is present shall be the act of the Committee.
SECTION 9. OTHER COMMITTEES. The Board of Directors may also appoint
from among its members such other committees of two or more Directors as it may
from time to time deem desirable, and may delegate to such committees such
powers of the Board as it may consider appropriate.
SECTION 10. COMPENSATION OF DIRECTORS. Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a fixed fee for attendance
at meetings, or both, with expenses, if any, as the Board of Directors may from
time to time determine. Nothing herein contained shall be construed to preclude
any Director from serving in any other capacity and receiving compensation
therefor.
SECTION 11. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 11 of Article II shall
constitute presence in person at such meeting.
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ARTICLE III
OFFICERS
SECTION 1. EXECUTIVE OFFICERS OF THE CORPORATION. The executive
officers of the Corporation shall be chosen by the Board of Directors and shall
be a Chairman, a Chief Executive Officer, President, a Chief Financial Officer,
a Secretary and a Treasurer. The Board of Directors also may appoint a Chairman
of the Board, a Vice Chairman of the Board, and one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any two offices except those of
Chairman of the Board and Vice Chairman of the Board, President and Vice
President, or President and Secretary may be filled by the same person. None of
the officers need be a member of the Board except the Chairman of the Board and
the Vice Chairman of the Board.
SECTION 2. CHOOSING OF EXECUTIVE OFFICERS. The Board of Directors at
its first meeting after each Annual Meeting of Stockholders shall choose a
Chairman, a Chief Executive Officer, a President, a Chief Financial Officer, a
Secretary and a Treasurer.
SECTION 3. ADDITIONAL OFFICERS. The Board of Directors may appoint such
other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
SECTION 4. SALARIES. The salaries of all officers and agents of the
Corporation specially appointed by the Board shall be fixed by the Board of
Directors.
SECTION 5. TERM, REMOVAL AND VACANCIES. The officers of the Corporation
shall hold office until their respective successors are chosen and qualify. Any
officer elected or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise shall be filled by the Board of Directors.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any,
shall preside at all meetings of the Board of Directors and of the stockholders.
He shall be the Chief Executive Officer of the Company, unless the Board has
designated a separate Chief Executive Officer. In the absence or disability of
the Chairman of the Board: (a) the Vice Chairman of the Board shall preside at
all meetings of the Board of Directors and of the stockholders, and (b) the
powers and duties of the Chairman of the Board shall be exercised jointly by the
Vice Chairman of the Board and the President until such authority is altered by
action of the Board of Directors. The Chairman of the Board shall present to the
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Annual Meeting of Stockholders a report of the business of the preceding fiscal
year.
SECTION 7. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board,
if any, shall have such powers and perform such duties as are provided in these
Bylaws or as may be delegated to him by the Chairman of the Board, and shall
perform such other duties as may from time to time be assigned to him by the
Board of Directors.
SECTION 8. CHAIRMAN. The Chairman shall serve as advisor to the Board
of Directors and shareholders in connection with the current and long term
operating and strategic planning and policy development for the Corporation, and
shall perform all such other duties as may be properly required of him by the
Board of Directors.
SECTION 9. PRESIDENT. The President shall have such powers and perform
such duties as are provided in these Bylaws or as may be delegated to him by the
Board of Directors or the Chairman of the Board. If there is no Chairman of the
Board or separate Chief Executive Officer, the President shall be the Chief
Executive Officer of the Corporation and shall have all the duties and
responsibilities previously enumerated for the Chairman of the Board. In the
absence of the Chairman of the Board and the Vice Chairman of the Board, the
President shall preside at all meetings of the stockholders.
SECTION 10. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER. The Chief
Executive Officer shall have general charge and supervision of the business of
the Company and shall exercise and perform all the duties incident to the office
of the Chief Executive Officer. He shall have direct supervision of the other
officers and shall also exercise and perform such powers and duties as may be
assigned to him by the Board of Directors.
SECTION 11. POWERS AND DUTIES OF VICE PRESIDENTS. Any Vice President
designated by the Board of Directors shall, in the absence, disability, or
inability to act of the President, perform all duties and exercise all the
powers of the President and shall perform such other duties as the Board may
from time to time prescribe. Each Vice President shall have such other powers
and shall perform such other duties as may be assigned to him by the Board.
SECTION 12. POWERS AND DUTIES OF TREASURER AND ASSISTANT
TREASURERS.
(a) The Treasurer shall have the care and custody of all the funds
and securities of the Corporation except as may be otherwise ordered by the
Board of Directors, and shall cause
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such funds to be deposited to the credit of the Corporation in such banks
or depositories as may be designated by the Board of Directors, the Chairman,
the President or the Treasurer, and shall cause such securities to be placed
in safekeeping in such manner as may be designated by the Board of Directors,
the Chairman, the President or the Treasurer.
(b) The Treasurer, or an Assistant Treasurer, or such other person
or persons as may be designated for such purpose by the Board of Directors,
the Chairman, the President or the Treasurer, may endorse in the name and on
behalf of the Corporation all instruments for the payment of money, bills of
lading, warehouse receipts, insurance policies and other commercial documents
requiring such endorsement.
(c) The Treasurer, or an Assistant Treasurer, or such other person
or persons as may be designated for such purpose by the Board of Directors,
the Chairman, the President or the Treasurer, may sign all receipts and
vouchers for payments made to the Corporation; he shall render a statement of
the cash account of the Corporation to the Board of Directors as often as it
shall require the same; he shall enter regularly in books to be kept by him
for that purpose full and accurate accounts of all moneys received and paid
by him on account of the Corporation and of all securities received and
delivered by the Corporation.
(d) Each Assistant Treasurer shall perform such duties as may from
time to time be assigned to him by the Treasurer or by the Board of
Directors. In the event of the absence of the Treasurer or his incapacity or
inability to act, then any Assistant Treasurer may perform any of the duties
and may exercise any of the powers of the Treasurer.
SECTION 13. POWERS AND DUTIES OF SECRETARY AND ASSISTANT
SECRETARIES.
(a) The Secretary shall attend all meetings of the Board, all
meetings of the stockholders, and shall keep the minutes of all proceedings
of the stockholders and the Board of Directors in proper books provided for
that purpose. The Secretary shall attend to the giving and serving of all
notices of the Corporation in accordance with the provisions of the Bylaws
and as required by the laws of Delaware. The Secretary may, with the
President, a Vice President or other authorized officer, sign all contracts
and other documents in the name of the Corporation. He shall perform such
other duties as may be prescribed in these Bylaws or assigned to him and all
other acts incident to the position of Secretary.
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(b) Each Assistant Secretary shall perform such duties as may from
time to time be assigned to him by the Secretary or by the Board of
Directors. In the event of the absence of the Secretary or his incapacity or
inability to act, then any Assistant Secretary may perform any of the duties
and may exercise any of the powers of the Secretary.
(c) In no case shall the Secretary or any Assistant Secretary,
without the express authorization and direction of the Board of Directors,
have any responsibility for, or any duty or authority with respect to, the
withholding or payment of any federal, state or local taxes of the
Corporation, or the preparation or filing of any tax return.
ARTICLE IV
CAPITAL STOCK
SECTION 1. STOCK CERTIFICATES.
(a) Every holder of stock in the Corporation shall be entitled to
have a certificate signed in the name of the Corporation by the Chairman or
the President or the Vice Chairman or a Vice President, and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary,
certifying the number of shares owned by him.
(b) If such a certificate is countersigned by a transfer agent
other than the Corporation or its employee, or by a registrar other than
the Corporation or its employee, the signatures of the officers of the
Corporation may be facsimiles and, if permitted by Delaware law, any other
signature on the certificate may be a facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
(d) Certificates of stock shall be issued in such form not inconsistent
with the Certificate of Incorporation as shall be approved by the Board of
Directors. They shall be numbered and registered in the order in which they
are issued. No certificate shall be issued until fully paid.
SECTION 2. RECORD OWNERSHIP. A record of the name and address of the
holder of each certificate, the number of shares represented thereby, and the
date of issue thereof shall be made on the Corporation's books. The Corporation
shall be entitled to treat the holder of record of any share of stock as the
holder in fact
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thereof, and accordingly shall not be bound to recognize any equitable or other
claim to or interest in any share on the part of any other person, whether or
not it shall have express or other notice thereof, except as required by the
laws of Delaware.
SECTION 3. TRANSFER OF RECORD OWNERSHIP. Transfers of stock shall be
made on the books of the Corporation only by direction of the person named in
the certificate or his attorney, lawfully constituted in writing, and only upon
the surrender of the certificate therefor and a written assignment of the shares
evidenced thereby. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and transferee request the Corporation to do so.
SECTION 4. LOST, STOLEN OR DESTROYED CERTIFICATES. Certificates
representing shares of the stock of the Corporation shall be issued in place of
any certificate alleged to have been lost, stolen or destroyed in such manner
and on such terms and conditions as the Board of Directors from time to time may
authorize.
SECTION 5. TRANSFER AGENT, REGISTRAR, RULES RESPECTING CERTIFICATES.
The Corporation shall maintain one or more transfer offices or agencies where
stock of the Corporation shall be transferable. The Corporation shall also
maintain one or more registry offices where such stock shall be registered. The
Board of Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
SECTION 6. FIXING RECORD DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. The Board of Directors may fix in advance a date as the record date for
the purpose of determining the stockholders entitled to notice of, or to vote
at, any meeting of the stockholders or any adjournment thereof, or the
stockholders entitled to receive payment of any dividend or other distribution
or the allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of the
stockholders for the purpose of any other lawful action. Such record date in any
case shall not be more than sixty (60) days nor less than ten (10) days before
the date of a meeting of the stockholders, nor more than sixty (60) days prior
to any other action requiring such determination of the stockholders. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
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ARTICLE V
SECURITIES HELD BY THE CORPORATION
SECTION 1. VOTING. Unless the Board of Directors shall otherwise order,
the Chairman, the Vice Chairman, the President, any Vice President or the
Treasurer shall have full power and authority on behalf of the Corporation to
attend, act and vote at any meeting of the stockholders of any corporation in
which the Corporation may hold stock and at such meeting to exercise any or all
rights and powers incident to the ownership of such stock, and to execute on
behalf of the Corporation a proxy or proxies empowering another or others to act
as aforesaid. The Board of Directors from time to time may confer like powers
upon any other person or persons.
SECTION 2. GENERAL AUTHORIZATION TO TRANSFER SECURITIES HELD BY THE
CORPORATION.
(a) Any of the following officers, to-wit: the Chairman, the Chief
Executive Officer, the President, any Vice President, the Treasurer or the
Secretary of the Corporation shall be and are hereby authorized and empowered
to transfer, convert, endorse, sell, assign, set over and deliver any and all
shares of stock, bonds, debentures, notes, subscription warrants, stock
purchase warrants, evidences of indebtedness, or other securities now or
hereafter standing in the name of or owned by the Corporation, and to make,
execute and deliver under the seal of the Corporation any and all written
instruments of assignment and transfer necessary or proper to effectuate the
authority hereby conferred.
(b) Whenever there shall be annexed to any instrument of
assignment and transfer executed, pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary or an Assistant
Secretary of the Corporation in office at the date of such certificate
setting forth the provisions hereof and stating that they are in full force
and effect and setting forth the names of persons who are then officers of
the Corporation, then all persons to whom such instrument and annexed
certificate shall thereafter come shall be entitled, without further inquiry
or investigation and regardless of the date of such certificate, to assume
and to act in reliance upon the assumption that the shares of stock or other
securities named in such instrument were theretofore duly and properly
transferred, endorsed, sold, assigned, set over and delivered by the
Corporation, and that with respect to such securities the authority of these
provisions of the Bylaws and of such officers is still in full force and
effect.
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ARTICLE VI
DIVIDENDS
SECTION 1. DECLARATION OF DIVIDENDS. Dividends upon the capital stock
of the Corporation may be declared by the Board of Directors at any regular or
special meeting, pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
SECTION 2. PAYMENT AND RESERVES. Before payment of any dividend, there
may be set aside out of any funds of the Corporation available for dividends
such sum or sums as the Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Directors shall think conducive to
the interest of the Corporation, and the directors may modify or abolish any
such reserves in the manner in which they were created.
SECTION 3. RECORD DATE. The Board of Directors may, to the extent
provided by law, prescribe a period, in no event in excess of sixty (60) days,
prior to the date for payment of any dividend, as a record date for the
determination of stockholders entitled to receive payment of any such dividend,
and in such case such stockholders and only such stockholders as shall be
stockholders of record on said date so fixed shall be entitled to receive
payment of such dividend, notwithstanding any transfer of any stock on the books
of the Corporation after any such record date fixed as aforesaid.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. SIGNATURES OF OFFICERS. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate. The signature of any officer upon any of the foregoing instruments
may be a facsimile whenever authorized by the Board.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 3. SEAL. Upon resolution of the Board of Directors, the
Corporation may elect to have a corporate seal. In such event, the corporate
seal shall have inscribed thereon the name of the Corporation, the year of its
incorporation and the
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words "Corporate Seal, Delaware". Said seal may be used for causing it or a
facsimile thereof to be impressed or affixed or reproduced
or otherwise.
ARTICLE VIII
NOTICES
SECTION 1. NOTICES. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telex, facsimile transmission or cable.
SECTION 2. WAIVERS OF NOTICE. Whenever any notice is required by law,
the Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or stockholder, a waiver thereof in writing, signed, by
the person or persons entitled to said notice, whether before or after the time
stated therein, or, for a meeting, actual attendance at the meeting in person,
or in the case of the stockholders, by his attorney-in-fact, shall be deemed
equivalent to the giving of such notice to such persons. No notice need be given
to any person with whom communication is made unlawful by any law of the United
States or any rule, regulation, proclamation or executive order issued under any
such law.
ARTICLE IX
AMENDMENT OF BYLAWS
These Bylaws, or any of them, may from time to time be supplemented,
amended or repealed by the Board of Directors, or by the vote of a majority in
interest of the stockholders represented and entitled to vote at any meeting at
which a quorum is present, except as otherwise provided in these Bylaws or in
the Certificate of Incorporation.
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EXHIBIT 5
January 20, 1998
Hayes Corporation
5854 Peachtree Corners East
Norcross, Georgia 30093
Re: Hayes Microcomputer Products, Inc. Stock Option
Plan, as amended
Ladies and Gentlemen:
We have served as counsel for Hayes Corporation (the
"Company") in connection with its registration under the Securities Act of
1933, as amended, of 5,426,256 shares of its common stock, $.01 par value (the
"Shares"), which are proposed to be offered and sold pursuant to the Hayes
Microcomputer Products, Inc. Stock Option Plan, as amended (the "Plan"), and
pursuant to the Company's Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the
"Commission") with respect to the Shares.
In rendering this opinion, we have relied upon, among other
things, our examination of such records of the Company and certificates of its
officers and of public officials as we have deemed necessary. We express no
opinion as to matters under or involving the laws of any jurisdiction other
than the corporate law of the State of Delaware.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that the
Shares have been duly authorized and, when issued and paid for in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement.
WOMBLE CARLYLE SANDRIDGE & RICE
A Professional Limited Liability Company
/s/ Womble Carlyle Sandridge & Rice
--------------------------------------------
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Hayes Corporation on Form S-8 of our report dated August 29, 1997 (November 12,
1997 as to Note 11), appearing in Amendment No. 3 to the Registration Statement
on Form S-4 (Registration Statement No. 333-37993) of Access Beyond, Inc. for
the year ended July 31, 1997.
/s/ DELOITTE & TOUCHE LLP
Washington,DC
January 21, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANT
We consent to the incorporation by reference in this Registration on Form S-8
of our report appearing in Amendment No. 3 to the Registration Statement on
Form S-4 (File No. 333-37993) dated April 30, 1997, except for Note 18 as to
which the date is November 12, 1997 on our audits of the consolidated financial
statements of Hayes Microcomputer Products, Inc.
/s/ COOPERS & LYBRAND L.L.P.
Atlanta, Georgia
January 22, 1998
<PAGE> 1
EXHIBIT 99.4
ACCESS BEYOND, INC.
1997 DECLARATION OF AMENDMENT TO
HAYES MICROCOMPUTER PRODUCTS, INC.
STOCK OPTION PLAN
THIS DECLARATION OF AMENDMENT, made this 30th day of December, 1997, by
ACCESS BEYOND, INC., a Delaware corporation (the "Corporation"), to the Hayes
Microcomputer Products, Inc. Stock Option Plan (the "Plan").
R E C I T A L S:
WHEREAS, Hayes Microcomputer Products, Inc. ("Hayes") maintains the
Plan, as adopted by the board of directors and shareholders of Hayes on June 4,
1996; and
WHEREAS, pursuant to certain transactions (the "Merger") contemplated
under the Agreement and Plan of Reorganization dated July 29, 1997, as amended
by the First Amendment to the Merger Agreement dated November 7, 1997, and the
Second Amendment to the Merger Agreement dated November 21, 1997 (as so amended,
the "Merger Agreement") by and between Hayes and the Corporation, Hayes will
become a wholly-owned subsidiary of the Corporation; and
WHEREAS, pursuant to Section 1.3.1 of the Merger Agreement, at the
effective time of the Merger, each outstanding option under the Plan shall be
assumed by the Corporation in accordance with the terms of such option and
converted into rights with respect to that number of shares of the Corporation's
common stock (the "Common Stock"), determined by multiplying that number of
shares of Hayes common stock subject to such option (on an as if exercised
basis) immediately prior to the effective time by the Merger Conversion Ratio,
and the exercise price per share for each such assumed option will equal the
exercise price of each such Hayes option immediately prior to the effective time
divided by the Merger Conversion Ratio (rounded up to the nearest whole cent);
and
WHEREAS, pursuant to Section 1.3.2 of the Merger Agreement, (i) the
Corporation will assume the Plans in a manner that complies with Rule 13b-3
promulgated under the Securities Exchange Act of 1934, as amended; (ii) the
terms of the outstanding options granted under the Plan will remain unchanged
except as provided in the Merger Agreement; and (iii) the Corporation will take
certain other actions in connection with the Plan and shares issuable
thereunder; and
WHEREAS, pursuant to Section 1.7 of the Merger Agreement,
contemporaneously with or immediately prior to Closing (as defined in the Merger
Agreement), the name of the corporation will be changed to "Hayes Corporation";
and
WHEREAS, pursuant to Section 13.1 of the Plan, the Board may terminate,
amend or modify the Plan, subject to the terms of the Plan; and
<PAGE> 2
WHEREAS, in connection with its assumption of awards under the Plan,
and subject to the consummation of the Merger, the Corporation has determined
that it would be in the best interest of the Corporation to make certain
amendments to the Plan in order to reflect the Corporation's assumption of the
Plan and to facilitate administration of the Plan by the Corporation.
NOW, THEREFORE, IT IS DECLARED, that, effective immediately following
the effective time of the Merger, and subject in all respects to consummation of
the Merger, the Plan shall be amended as follows:
1. All references in the Plan to the "Corporation," including but in no
way limited to the definition of the term contained in Section 1, shall
hereafter be deemed to be references to Hayes Corporation.
2. All references to the "Stock," including but not limited to the
definition of such term contained in Section 2, shall hereafter be deemed to be
references to the Common Stock of Hayes Corporation.
IN WITNESS WHEREOF, this Declaration of Amendment is executed on behalf
of Access Beyond, Inc. as of the day and year first above written.
ACCESS BEYOND, INC.
By: /s/ Ronald A. Howard
-----------------------------------------
Ronald A. Howard, Chairman, President and
Chief Executive Officer
ATTEST:
/s/ Pricilla Wise
- ------------------------
Pricilla Wise, Secretary
[Corporate Seal]
2
