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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
FORM 8-A
_______________
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
C|NET, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3696170
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
150 Chestnut Street
San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on
to be so registered which each class is to be registered
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None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $0.0001 par value
(title of class)
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Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
C|NET, Inc. (the "Company") is registering 2,000,000 shares of common
stock, $.0001 par value (the "Common Stock").. Upon the closing of this
offering, the authorized capital stock of the Company will consist of 25,000,000
shares of Common Stock, par value $.0001 per share, and 5,000,000 shares of
Preferred Stock, par value $.01 per share. As of June 6, 1996 (after giving
effect to the conversion of all Preferred Stock into Common Stock, which will
occur automatically upon completion of this offering), there were 10,654,668
shares of Common Stock issued and outstanding and held of record by 82
stockholders. In addition, (a) a total of 2,064,284 shares of Common Stock are
reserved for issuance upon exercise of options under the Stock Option Plan, of
which options to purchase a total of 1,522,310 shares of Common Stock have been
granted, (b) 641,700 shares of Common Stock are reserved for issuance upon
exercise of outstanding warrants and (c) 350,000 shares are reserved for
issuance upon exercise of options that may be granted pursuant to the Stock
Purchase Plan. See "Management -- Executive Compensation -- Stock Option Plan,"
"Management -- Employee Stock Purchase Plan" and Note 6 of Notes to Financial
Statements.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share for each share
held of record on any matter submitted to the holders of Common Stock for a
vote. All outstanding shares of Common Stock are, and the shares of Common
Stock offered hereby will be when issued, duly authorized, validly issued, fully
paid and nonassessable. Subject to the rights of the holders of any outstanding
shares of preferred stock and any restrictions that may be imposed by any lender
to the Company, holders of Common Stock are entitled to receive such dividends,
if any, as may be declared by the Board of Directors out of legally available
funds. In the event of the liquidation, dissolution or winding up of the
Company, holders of Common Stock are entitled to share equally and ratably,
based on the number of shares held, in the assets, if any, remaining after
payment of all of the Company's debts and liabilities and the liquidation
preference of any outstanding preferred stock. The shares of Common Stock are
neither redeemable nor convertible, and the holders thereof have no preemptive
rights to subscribe for or purchase any additional shares of capital stock
issued by the Company.
PREFERRED STOCK
Upon the closing of this offering, all outstanding shares of Preferred
Stock will be converted automatically into Common Stock. See Note 4 of Notes to
Financial Statements for a description of the Preferred Stock. The Company is
authorized to issue 5,000,000 shares of Preferred Stock in one or more series,
and to designate the rights, preferences, limitations and restrictions of and
upon shares of each series, including voting, redemption and conversion rights.
The Board of Directors also may designate dividend rights and preferences in
liquidation. It is not possible to state the actual effect of the authorization
and issuance of additional series of Preferred Stock upon the rights of holders
of Common Stock until the Board of Directors determines the specific terms,
rights and preferences of a series of Preferred Stock. Such effects, however,
might
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include, among other things, granting the holders of Preferred Stock priority
over the holders of Common Stock with respect to the payment of dividends;
diluting the voting power of the Common Stock; or granting the holders of
Preferred Stock preference with respect to liquidation rights. In addition,
under certain circumstances, the issuance of Preferred Stock may render more
difficult or tend to discourage a merger, tender offer or proxy contest, the
assumption of control by a holder of a large block of the Company's
securities or the removal of incumbent management.
WARRANTS
Upon completion of this offering, an aggregate of 641,700 shares of Common
Stock will be issuable upon exercise of outstanding warrants with a weighted
average exercise price of $3.08 per share. See "Certain Transactions." Under
the terms of its warrant agreement, USA Networks may have a preemptive right to
maintain its proportionate ownership percentage in the Company in connection
with any private offering of securities by the Company. Under these provisions,
USA Networks may elect to acquire approximately 16,000 shares of Common Stock,
at a price equal to 93% of the initial public offering price, as a result of the
sale of 600,000 shares to Intel simultaneously herewith. USA Networks has
acknowledged and agreed that it does not have any preemptive rights to
participate in this offering or in any subsequent public offering by the
Company.
REGISTRATION RIGHTS
The Intel Agreement will include registration rights provisions pursuant to
which Intel will be able to require the Company to effect one registration of
its Common Stock during the six-month period beginning 180 days after the date
of this Prospectus. Thereafter, Intel will be able to require the Company to
maintain an effective shelf registration statement covering its shares. Intel
will also be entitled to incidental registration rights with respect to any
offering of Common Stock by the Company. See "Simultaneous Offering to Intel
Corporation." In addition, upon completion of this offering, Vulcan and one
other existing stockholder of the Company will be entitled to certain
"piggyback" registration rights with respect to 2,809,100 shares of Common Stock
that they beneficially own. See "Certain Transactions."
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
The Company is subject to Section 203 of the Delaware General Corporation
Law ("Section 203"), which prohibits a Delaware corporation from engaging in a
"business combination" with certain persons ("Interested Stockholders") for
three years following the date any such person becomes an Interested
Stockholder. Interested Stockholders generally include: (i) persons who are the
beneficial owners of 15% or more of the outstanding voting stock of the
corporation; and (ii) persons who are affiliates or associates of the
corporation and who hold 15% or more of the corporation's outstanding voting
stock at any time within three years before the date on which such person's
status as an Interested Stockholder is determined. Subject to certain
exceptions, a business combination includes, among other things: (i) mergers or
consolidations; (ii) the sale, lease, exchange, mortgage, pledge, transfer or
other disposition of assets having an
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aggregate market value equal to 10% or more of either the aggregate market
value of all assets of the corporation determined on a consolidated basis or
the aggregate market value of all the outstanding stock of the corporation;
(iii) transactions that result in the issuance or transfer by the corporation
of any stock of the corporation to the Interested Stockholder, except
pursuant to a transaction that effects a pro rata distribution to all
stockholders of the corporation; (iv) any transaction involving the
corporation that has the effect of increasing the proportionate share of the
stock of any class or series, or securities convertible into the stock of any
class or series, of the corporation that is owned directly or indirectly by
the Interested Stockholder; or (v) any receipt by the Interested Stockholder
of the benefit (except proportionately as a stockholder) of any loans,
advances, guarantees pledges or other financial benefits provided by or
through the corporation.
Section 203 does not apply to a business combination if: (i) before a
person becomes an Interested Stockholder, the board of directors of the
corporation approves the transaction in which the Interested Stockholder became
an Interested Stockholder or approved the business combination; (ii) upon
consummation of the transaction that resulted in the Interested Stockholder
becoming an Interested Stockholder, the Interested Stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commences, other than certain excluded shares; or (iii) following a
transaction in which the person became an Interested Stockholder, the business
combination is (a) approved by the board of directors of the corporation, and
(b) authorized at a regular or special meeting of stockholders, and not by
written consent, by the affirmative vote of the holders of at least two-thirds
of the outstanding voting stock of the corporation not owned by the Interested
Stockholder.
CERTAIN PROVISIONS RELATING TO CHANGES IN CONTROL
Upon completion of this offering, the Company's Certificate of
Incorporation and Bylaws will contain several provisions that could have the
effect of delaying, deterring or preventing the acquisition of control of the
Company by means of tender offer, open market purchases, a proxy contest or
otherwise. Set forth below is a description of those provisions.
1. CLASSIFIED BOARD OF DIRECTORS
The Certificate of Incorporation divides the Board of Directors into three
classes, with one class having an initial term of one year, one class having an
initial term of two years and one class having an initial term of three years.
The three classes are required to be as nearly equal in number as possible. At
each annual meeting of stockholders, commencing with the annual meeting of
stockholders to be held in 1997, directors will be elected to succeed those
directors whose terms have expired, and each newly elected director will serve
for a three-year term. The Company believes that a classified Board of
Directors will help assure the continuity and stability of the Company's Board
of Directors and the Company's business strategies and policies. The classified
board provision could increase the likelihood that, in the event of a takeover
of the Company, incumbent directors will retain their positions. In addition,
the classified board provision will help ensure that the Company's board of
directors, if confronted with an unsolicited acquisition proposal from a third
party that has acquired a block of the voting stock of the Company, will have
sufficient
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time to review the proposal and appropriate alternatives and to seek the best
available result for all stockholders.
2. REMOVAL OF DIRECTORS; FILLING VACANCIES
The Bylaws provide that the Company's stockholders may remove directors
only "for cause" and only by the affirmative vote of a majority of the
stockholders entitled to vote. As defined in the Company's Bylaws, "for cause"
means: (i) commission of an act of fraud or embezzlement against the Company;
(ii) conviction of a felony or a crime involving moral turpitude; (iii) gross
negligence or willful misconduct in performing the director's duties to the
Company or its stockholders; or (iv) breach of fiduciary duty owed to the
Company. The Bylaws also provide that vacant directorships may be filled by the
Board of Directors.
3. SPECIAL MEETINGS OF STOCKHOLDERS
The Company's Bylaws provide that special meetings of stockholders may be
called only by the Chief Executive Officer, and shall be called by the Chief
Executive Officer or the Secretary at the written request of a majority of the
Board of Directors. Special meetings may not be called by the stockholders.
4. ADVANCE NOTICE REQUIREMENTS FOR STOCKHOLDER PROPOSALS AND DIRECTOR
NOMINATIONS
The Company's Bylaws establish advance notice procedures with regard to
stockholder proposals and the nomination, other than by or at the direction of
the Board of Directors or a committee thereof, of candidates for election as
directors. These procedures provide that the notice of stockholder proposals
and stockholder nominations for the election of directors at an annual meeting
must be in writing and received by the Secretary of the Company no later (a)
with respect to an annual meeting, 120 calendar days in advance of the Company's
proxy statement released to securityholders in connection with the previous
year's annual meeting of the securityholders or (b) with respect to a special
meeting, a reasonable time before the solicitation is made. The notice of
stockholder nominations must set forth certain information with respect to each
nominee who is not an incumbent director.
5. CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
Under the Certificate of Incorporation, there will be as of the closing of
this offering 8,6889,348 unissued and unreserved shares of Common Stock and
5,000,000 unissued and unreserved shares of Preferred Stock, after giving effect
to the sale of the shares offered hereby, the simultaneous sale of 600,000
shares to Intel, the reservation of 2,064,284 shares for issuance pursuant to
the Company's Stock Option Plan, the reservation of 641,700 shares for issuance
upon exercise of outstanding warrants and the reservation of 350,000 shares for
issuance pursuant to the Stock Purchase Plan. The unissued and unreserved
shares may be utilized for a variety of corporate purposes, including future
public offerings to raise additional capital and for facilitating
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corporate acquisitions. Except pursuant to certain employee benefit plans
described in this Prospectus, the Company does not currently have any plans
to issue additional shares of Common Stock or Preferred Stock. One of the
effects of unissued and unreserved shares of capital stock may be to enable
the Board of Directors to render more difficult or discourage an attempt to
obtain control of the Company by means of a merger, tender offer, proxy
contest or otherwise, and thereby to protect the continuity of the Company's
management. If, in the due exercise of its fiduciary obligations, for
example, the Board of Directors determines that a takeover proposal is not in
the Company's best interests, such shares could be issued by the Board of
Directors without stockholder approval in one or more private transactions or
other transactions that might prevent or render more difficult or costly the
completion of the takeover transaction by diluting the voting or other rights
of the proposed acquiror or insurgent stockholder group, by creating a
substantial voting block in institutional or other hands that might undertake
to support the position of the incumbent Board of Directors, by effecting an
acquisition that might complicate or preclude the takeover.
Item 2. EXHIBITS.
The following exhibits are filed with the Commission:
1.1 Specimen form of Common Stock certificate of the Registrant (filed as
Exhibit 4.1 to the Company's Registration Statement on Form SB-2,
Registration No. 333-4752-LA, and incorporated herein by this
reference).
2.1 Amended and Restated Certificate of Incorporation of the Registrant
(filed as Exhibit 3.1 to the Company's Registration Statement on Form
SB-2, Registration No. 333-4752-LA, and incorporated herein by this
reference).
2.2 Amended and Restated Bylaws of the Registrant (filed as Exhibit 3.2 to
the Company's Registration Statement on Form SB-2, Registration No.
333-4752-LA, and incorporated herein by this reference).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
Date: July 1, 1996
C|NET, INC.
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(Registrant)
By: /s/ Kevin Wendle
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Name: Kevin Wendle
Title: Executive Vice President
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