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As filed with the Securities and Exchange Commission on May 18, 1998
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HAYES CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 52-1987873
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
<TABLE>
<S> <C>
James A. Jones
Chief Financial Officer
5854 Peachtree Corners East 5854 Peachtree Corners East
Norcross, Georgia 30092 Norcross, Georgia 30092
(770) 840-9200 (770) 840-9200
(Address, including Zip Code, and Telephone Number, Including (Address, including Zip Code, and Telephone Number, Including Area
Area Code, of Registrant's Principal Executive Offices) Code, of Agent for Service)
</TABLE>
Copy to:
G. Donald Johnson, Esq.
Elizabeth O. Derrick, Esq.
Womble Carlyle Sandridge & Rice, PLLC
1275 Peachtree Street, Suite 700
Atlanta, Georgia 30309
(404) 872-7000
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Approximate Date of Commencement of Proposed Sale to the Public: From
time to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered (1) Offering Price Per Share (2) Aggregate Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 617,190 $ 4.3125 $ 2,661,632 $ 786
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(1) Represents 617,190 shares of Common Stock issuable pursuant to the
exercise of certain warrants issued by the Company. Pursuant to Rule
416, this Registration Statement also covers an indeterminable number
of additional shares of Common Stock issuable as a result of any future
adjustments resulting from stock splits, stock dividends or similar
transactions in accordance with the terms of such warrants.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as
amended, and constitutes the last reported sale of the Common Stock as
reported on the NASDAQ National Market on May 11, 1998.
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The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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Subject to Completion, Dated May 18, 1998
PROSPECTUS
617,190 SHARES
HAYES CORPORATION
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
This Prospectus relates to 617,190 shares (the "Shares") of common
stock, $.01 par value per share (the "Common Stock), of Hayes Corporation, a
Delaware corporation formerly known as Access Beyond, Inc. (the "Company"), that
may be offered and sold from time to time by the selling stockholders named
herein (the "Selling Stockholders"). The shares are issuable upon the exercise
of warrants (the "Warrants") issued to the Selling Stockholders pursuant to the
Board Incentive Warrant Plan of Hayes Microcomputer Products, Inc., a
predecessor of the Company. The Warrants currently entitle the Selling
Stockholders to purchase up to the aggregate number of shares set forth above at
an exercise price of $0.463 per share, subject to certain adjustments, at any
time or times prior to December 31, 2002, the expiration date of the Warrants.
This Prospectus also relates to the offer and sale by the Selling
Stockholders of any and all additional shares of Common Stock issuable as a
result of any future adjustments resulting from stock splits, stock dividends or
similar transactions in accordance with the terms of the Warrants.
The Company will not receive any proceeds from the sale of the Shares
by the Selling Stockholders. To the extent the Company receives proceeds from
the exercise of Warrants, the Company will apply such proceeds to general
corporate purposes.
Pursuant to the Prospectus, the Shares may be sold by the Selling
Stockholders, from time to time while the Registration Statement to which this
Prospectus relates is effective, on the NASDAQ National Market System
("NASDAQ/NMS") or otherwise at prices and terms prevailing at the time of sale,
at prices and terms related to such prevailing prices and terms, in negotiated
transactions or at fixed prices. Although none of the Selling Stockholders has
advised the Company of the manner in which it currently intends to sell the
Shares pursuant to this Registration Statement, the Selling Stockholders may
choose to sell all or a portion of such Shares from time to time in any manner
described herein. See "Plan of Distribution."
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" COMMENCING
ON PAGE 5 HEREOF.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY SUCH STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Common Stock of the Company is quoted on NASDAQ/NMS under the
symbol "HAYZ." On May 11, 1998, the reported closing sales price of the Common
Stock on NASDAQ/NMS was $4.0625 per share.
THE DATE OF THIS PROSPECTUS IS MAY ___, 1998.
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The Company will bear all expenses (other than underwriting discounts
and selling commissions, state and local transfer taxes, and fees and expenses
of counsel or other advisers to the Selling Stockholders) in connection with the
registration of the Shares, which are estimated to be $8,500.
All dealers effecting transactions in the securities offered hereby may
be required to deliver a copy of this Prospectus. The names of any agent or
dealer and applicable commissions or discounts and other information with
respect to a particular offer may be required to be set forth in an accompanying
Prospectus Supplement.
Neither delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that there has been no change in
the affairs of the Company since the date hereof.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copies may be obtained at
the public reference facilities maintained by the Commission at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, as well as at the Regional Offices
of the Commission at Suite 1400, Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York
10048. Copies of such information may also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. The Commission maintains a web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The Commission's web
site can be accessed at http://www.sec.gov. Any such reports, proxy statements
and other information filed or to be filed by the Company may also be inspected
at the offices of the National Association of Securities Dealers, Inc., Market
Listing Section, 1735 K Street, N.W., Washington, D.C. 20006. The Common Stock
is traded on NASDAQ/NMS, and the Company's reports (and proxy and information
statements when filed) may be inspected at the offices of The NASDAQ Stock
Market, Inc., located at 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a registration statement on
Form S-3 and amendments thereto (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Shares offered hereby. This Prospectus, which constitutes a part of the
Registration Statement, omits certain information contained in the Registration
Statement and reference is made to such Registration Statement and the exhibits
and schedules thereto for further information with respect to the Company and
the securities offered hereby. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to herein are not
necessarily complete. In each instance, for a more complete description of the
matter involved, reference is made to such contract, agreement or other document
filed as an exhibit to the Registration Statement, and the Registration
Statement shall be deemed qualified in its entirety by such reference.
INCORPORATION OF DOCUMENTS BY REFERENCE
The documents listed below are incorporated by reference in this
Registration Statement, and all documents concurrently and subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which de-registers all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
document.
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(1) The Company's Annual Report on Form 10-K for the fiscal year ended
January 3, 1998;
(2) The Company's Current Report on Form 8-K, as filed with the
Commission on January 9, 1998;
(3) The Company's Current Report on Form 8-K, as filed with the
Commission on January 23, 1998;
(4) The Company's Current Report on Form 8-K, as filed with the
Commission on January 23, 1998;
(5) The Company's Current Report on Form 8-K, as filed with the
Commission on April 24, 1998;
(6) The description of the Company's Common Stock contained in the
Company's Form 8-A/A dated May 15, 1998.
For purposes of this Registration Statement, any statement contained in
a document incorporated by or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute part of this Registration Statement.
The Company shall furnish without charge to each person, to whom a copy
of this Prospectus is delivered, upon the written or oral request of such
person, a copy of any or all of the documents which are incorporated by
reference herein (other than exhibits to such documents, unless such exhibits
are specifically incorporated by reference into such documents). Written or
telephone requests for such documents should be directed to James A. Jones,
Chief Financial Officer, Hayes Corporation, P.O. Box 105203, Atlanta, Georgia
30348, and the phone number at that address is (770) 840-9200.
THE COMPANY
The Company, directly and through its subsidiaries, is in the business
of designing, manufacturing, marketing and supporting computer communications
products for business, government, small office, professional and individual
consumers worldwide through the sales of modem, network access and broadband
products. On December 30, 1997 (the "Effective Time"), the Company, then known
as Access Beyond, Inc. ("ACCB"), effected a merger (the "Merger") pursuant to
which Hayes Microcomputer Products, Inc. (with its subsidiaries, "Hayes
Microcomputer") became a wholly-owned subsidiary of the Company, the Company
changed its name to Hayes Corporation and the shareholders of Hayes
Microcomputer became the owners of approximately 79% of the outstanding equity
securities of the Company.
The Company's principal executive offices are located at 5854 Peachtree
Corners East, Norcross, Georgia 30092, telephone (770) 840-9200.
RISK FACTORS
Investors should be aware that ownership of the Common Stock of the
Company involves certain risks, including those described below, which could
adversely affect the value of their holdings of Common Stock. The Company does
not make, nor has it authorized any other person to make, any representation
about the future market value of the Company's Common Stock. Portions of this
Prospectus and the documents incorporated or deemed to be incorporated herein by
reference contain certain "forward looking" statements which involve risks
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and uncertainties. The Company's actual results may differ significantly from
the results discussed in the forward looking statements. Factors that might
cause such a difference include, but are not limited to, market acceptance of
the Company's products and services, other factors discussed in the Prospectus
or the documents incorporated or deemed to be incorporated herein by reference
herein as well as factors discussed in other filings made with the Securities
and Exchange Commission. Although the Company believes that the assumptions
underlying the forward looking statements are reasonable, any of the assumptions
could prove inaccurate, and therefore, there can be no assurance that the
forward looking statements will prove to be accurate. In addition to the other
information contained in this Prospectus or the documents incorporated or deemed
to be incorporated herein by reference herein, the following factors should be
considered carefully in evaluating an investment in the Shares offered hereby.
ABSENCE OF PROFITABLE OPERATIONS
The Company has not been profitable since its fiscal year ending
September 30, 1993. On November 15, 1994, Hayes Microcomputer filed a petition
for relief under Chapter 11 of the United States Bankruptcy Code due to its
inability to pay its debts on a current basis. Although Hayes Microcomputer
consummated a court approved Reorganization Plan on April 16, 1996 and closed
the bankruptcy on October 9, 1997, it had accumulated losses of approximately
$103.3 million from April 16, 1996 through January 3, 1998.
The Company has financed its losses from operations primarily through
private sales of equity securities, borrowings under credit facilities and sale
of assets. There can be no assurance that the Company will achieve
profitability, or that the Company will be able to increase sales of its
products to an amount which will generate adequate cash for operational and
capital needs.
LIMITED TRADING HISTORY OF THE COMMON STOCK
The Common Stock has a limited history as a publicly traded security.
The price for the Common Stock is determined in the market place and may be
influenced by many factors, including the operating performance of the Company,
the depth and liquidity of the market for the Common Stock, investor perception
of the Company and general economic and market conditions. There can be no
assurance that an orderly market for the Common Stock will be sustained, and the
prices at which the Common Stock is traded may fluctuate significantly.
DEPENDENCE ON KEY MANAGEMENT
If the Company is to be successful, its success will be due in large
part to the performance of Messrs. Dennis Hayes, Ronald Howard and P.K. Chan,
and, to a lesser extent, other key management personnel. Although the Company
has employment agreements with Messrs. Hayes, Howard and Chan which provide for
their continued employment, no assurance can be given that the Company will be
able to retain their services or the services of any other key management
personnel. The loss of the services of one or more of the Company's senior
management could have a material adverse effect upon the Company's business,
operating results and financial condition.
RISKS RELATING TO THE INTEGRATION OF THE BUSINESSES
There can be no assurance that the economies which the Company expects
to realize as a result of the combination of the businesses of ACCB and Hayes
Microcomputer in the Merger will be achieved, or that the personnel from the two
companies will be successfully integrated.
In order for such integration to be successful, the general and
administrative operations, research and development operations and sales and
marketing operations of Hayes Microcomputer and ACCB must be combined. There can
be no assurance that the Company will be successful in integrating such
operations. There
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is no assurance that the Company will not encounter unforeseen expenses, as well
as difficulties and complications in integrating expanded operations without
disruption to overall operations. In addition, the combination may adversely
affect the Company's operating results because of many factors, including the
diversion of management time and resources and required operating adjustments.
There can be no assurance that the Company will successfully integrate or
achieve the anticipated benefits of its expanded operations.
TECHNOLOGICAL CHANGES
The market for networking and modem products is subject to rapid
technological change, evolving industry standards and frequent new product
introductions and, therefore, requires a high level of expenditures for research
and development. The Company may be required to incur significant expenditures
to develop new integrated product offerings. There can be no assurance that
customer demand for products integrating network connectivity and remote access
technologies will grow at the rate expected by the Company, that the Company
will be successful in developing, manufacturing and marketing new products or
product enhancements that respond to these customer demands or to evolving
industry standards and technological change, that the Company will not
experience difficulties that could delay or prevent the successful development,
introduction, manufacture and marketing of these products (especially in light
of the increasing design and manufacturing complexities associated with the
integration of technologies), or that its new products and product enhancements
will adequately meet the requirements of the marketplace and achieve market
acceptance. The Company's business, operating results and financial condition
may be materially and adversely affected if the Company encounters delays in
developing or introducing new products or product enhancements or if such
product enhancements do not gain market acceptance. In order to maintain a
competitive position, the Company must also continue to enhance its existing
products and there is no assurance that it will be able to do so. The Company
will be required to continue to make significant investment in research and
development to refine its products and to continue to develop additional
products. A major portion of future revenues is expected to come from new
products and services. The Company cannot determine the ultimate effect that new
products will have on its revenues or earnings. The rapid technological change
and short life span of networking and modem products subject the Company to the
risk of inventory obsolescence, customer product returns and unfavorable
manufacturing costs as a result of disruption to manufacturing schedules.
In 1997, the modem industry introduced modems that provide a throughput
capacity of 56kbs compared to the industry standard of 33.6kbs. Until February
1998 the industry had not determined a standard for 56kbs modems and there were
two competing 56kbs technologies. Hayes Microcomputer introduced 56kbs products
in early 1997 and sold products using either K56 Flex or X2 technologies. Demand
for 56kbs products has been slow to develop and a substantial portion of the
Company's revenues continue to be for 33.6kbs products. The Company's modem
revenues could be adversely impacted by obsolescence charges, channel inventory
returns and unfavorable manufacturing variances if there was a sudden change in
demand for 56kbs vs 33.6kbs products.
COMPETITION
The computer communications industry is highly competitive and
competition is expected to intensify. There are numerous companies competing in
various segments of the network management and remote access markets.
Competitors include Ascend Communications, Shiva Corporation, Cisco Systems,
Inc., 3 Com Corporation ("3Com"), Microcom, Inc. ("Microcom") and Bay Networks,
Inc., among others.
The Company's modem products compete with those of 3Com, AT&T Corp.,
Multi Tech Corp., Motorola, Inc. and others. 3Com is one of HMP's most
significant competitors in the retail modem market. Other competitors of HMP in
the retail modem market include Golden Video Corporation ("GVC"), Boca Research,
Inc. ("Boca"), Zoom Telephonics, Inc. ("Zoom"), Diamond Multimedia Systems, Inc.
("Diamond") and others.
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There are many other companies engaged in the research, development and
commercialization of products similar to the Company's modem, network access and
broadband products. Some of the Company's competitors and potential competitors
possess significantly greater capital, marketing, technical and other
competitive resources than the Company. As a result, they may be able to adapt
more quickly to new or emerging technologies and changes in customer
requirements, to devote greater resources to the promotion and sale of their
products, or to devote greater resources to the development of new products than
can the Company.
The Company's products are subject to significant price competition,
and management expects that it will face increasing pricing pressures from
competitors. Accordingly, there can be no assurance that the Company will be
able to provide products that compare favorably with the products of the
Company's competitors or that competitive pressures will not require the Company
to reduce its prices. Any material reduction in the price of the Company's
products would negatively affect net margins as a percentage of net revenues and
would require the Company to increase sales to maintain or increase net income.
IMPORTANT CONSIDERATIONS RELATED TO FORWARD-LOOKING STATEMENTS
This Prospectus contains or incorporates by reference certain forward
looking statements within the meaning of Section 27A of the Securities Act, and
Section 21E of the Securities Exchange Act of 1934, as amended (the"Exchange
Act"), which are intended to be covered by the safe harbors created thereby.
Investors are cautioned that all forward looking statements involve risks and
uncertainty including, without limitation, the ability of the Company to
implement its strategy and identify new market and product opportunities,
product development costs, future return rates of the Company's products, the
dependence of the Company on certain customers and manufacturers, as well as
general market conditions, competition and pricing. Although the Company
believes that the assumptions underlying the forward looking statements are
reasonable, any of the assumptions could be inaccurate, and therefore, there can
be no assurance that the forward looking statements will prove to be accurate.
In light of the significant uncertainties inherent in the forward looking
statements contained in this Prospectus or the documents incorporated or deemed
to be incorporated herein by reference, the inclusion of such information should
not be regarded as a representation by the Company or any other person that the
objectives and plans of the Company will be achieved.
OPTION PLANS - SHARES ELIGIBLE FOR FUTURE SALE AND DILUTION
In March 1997, the stockholders of the Company, at a special meeting,
approved and ratified two stock option plans of the Company - the Amended and
Restated 1996 Incentive Stock Option Plan (the "Incentive Plan") and the Amended
and Restated 1996 Non-employee Directors' Stock Option Plan (the "Directors'
Plan"). The Company is authorized to issue options to purchase up to an
aggregate of 666,667 shares of Common Stock under the Incentive Plan and options
to purchase an aggregate of 83,333 shares of Common Stock under the Directors'
Plan. As of May 1, 1998, the Company had outstanding options to purchase an
aggregate of 458,632 shares under the Incentive Plan and options to purchase an
aggregate of 33,333 shares under the Directors' Plan. Holders of Common Stock
could experience dilution in possible future earnings per share in the event
that a large number of options are exercised. Furthermore, in October 1997, the
Company registered the resale of the shares of Common Stock issuable upon the
exercise of options granted under the Incentive Plan and the Directors' Plan,
which registration allows such shares to be freely tradeable in the public
market immediately following exercise of such options, subject to certain volume
limitations for options exercised by directors and executive officers of the
Company.
In addition, in connection with the Merger, each outstanding option to
purchase Hayes Microcomputer Common Stock (the "Hayes Microcomputer Options")
granted under the Hayes Stock Option Plan, adopted on June 4, 1996, as amended
effective October 22, 1996 (the "Hayes Microcomputer Option Plan") and each
Warrant held by the Selling Stockholders were assumed by the Company in
accordance with the terms of such option or Warrant, and converted into rights
to purchase shares of the Company's securities. As of May 1, 1998, Hayes
Microcomputer Options to purchase 1,470,985 shares of Company Common Stock
shares of Company Common Stock are exercisable. The Warrants are all currently
exercisable. Holders of Common Stock could experience
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dilution in possible future earnings per share in the event that a large number
of Hayes Microcomputer Options or Warrants are exercised. The Company has
registered the resale of the shares of Common Stock issuable upon the exercise
of the Hayes Microcomputer Options, which registration allows such shares to be
freely tradeable in the public market immediately following exercise of such
Hayes Microcomputer Options.
OTHER ISSUANCES - SHARES ELIGIBLE FOR FUTURE SALE AND DILUTION
The Company may use shares of its Common Stock to acquire assets,
technology, license rights and/or other companies to develop and expand its
product lines. Future issuances of Common Stock in connection with such
acquisitions could, individually or in the aggregate, adversely affect the
market price of the Common Stock.
The Company entered into a Preferred Stock Investment Agreement dated
November 12, 1997 (the "Preferred Stock Investment Agreement") pursuant to which
the Company had sold 44,999 shares of its 6% Cumulative Convertible Preferred
Stock (the "6% Preferred Stock") for $45.0 million.
Pursuant to the Preferred Stock Investment Agreement, the Company's 6%
Convertible Stock is convertible into shares of Common Stock at a conversion
price equal to the lesser of $24.00 per share or 85% of the average closing bid
price of Common Stock on the NASDAQ/NMS (or other market) for the five
consecutive trading days prior to the date of the notice of conversion, subject
to adjustment in certain circumstances. Accordingly, conversion of the 6%
Convertible Stock will be below the market price of the Common Stock, will be
dilutive and could individually or in the aggregate, adversely affect the market
price of the Common Stock.
REGISTRATION AND LISTING OBLIGATIONS
The Registration Rights Agreement entered into in connection with the
Preferred Stock Investment Agreement required the Company to promptly register
and cause to be listed the common shares underlying the 6% Convertible Stock and
underlying any warrants which are issued and to maintain such registration
statement and listing. If (i) the Company fails to effect such registration and
listing within the applicable time periods or (ii) an investor's ability to sell
registered shares is suspended for various reasons, including failure of the
Company to maintain the effectiveness of such registration statement or listing
for more than a specified number of days or (iii) the Company fails to comply
with a conversion notice and such event continues for more than a specified
number of days, then the Company is required to make payments to the investors
in an amount equal to 2% per month of the liquidation preference for each month
(or portion thereof) during which such failure continues and, under certain
circumstances, the Company may be required to (i) purchase the 6% Convertible
Stock for an amount equal to the liquidation preference divided by 85%, and
issue warrants and (ii) purchase shares of Common Stock issued upon conversion
of the 6% Convertible Stock and upon exercise of warrants for a purchase price
equal to the closing bid price as of the time of the issuance of such underlying
shares.
PRODUCT PROTECTION AND INTELLECTUAL PROPERTY
The Company, like many other companies in the network access, modem and
broadband industry, anticipates that it will rely upon rights granted through
licenses from third parties for a substantial amount of proprietary information
used to develop its products; however, some companies may decide not to grant
such licenses and may seek to protect their proprietary rights in such
technological information. Accordingly, there can be no assurance that the
Company will be able to continue obtaining additional rights to utilize
proprietary technological information necessary to develop its products. Because
of the existence of a large number of patents in the computer communications
field and the rapid rate of issuance of new patents, it is not economically
practical to determine in advance whether a product or any of its components
infringe patent rights of others. In the event of any infringement, the Company
believes that, based upon industry practice, necessary licenses or rights under
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such patents may be obtained on terms that should not have a material adverse
effect on the Company's consolidated financial position or results of
operations. However, there can be no assurance in this regard.
The Company relies on a combination of patent, trade secret, copyright
and trademark laws, nondisclosure and other contractual provisions and technical
measures to protect its proprietary and intellectual property rights in its
products. The Company has received from time to time and may receive in the
future, communications from third parties asserting intellectual property rights
relating to its products and technologies. There can be no assurance that these
protections will be adequate to protect the Company's proprietary rights or that
the Company's competitors will not independently develop products that are
substantially equivalent or superior to the Company's products. There can be no
assurance that third parties will not assert infringement claims against the
Company. The loss of proprietary technology or a successful claim against the
Company could have a material adverse effect on the Company's financial
condition or results of operations.
To the extent that the Company increases sales in international
markets, its exposure in countries with less protection of intellectual property
laws is increased.
CERTAIN ANTI-TAKEOVER EFFECTS
The Company's Certificate of Incorporation includes certain provisions
that are intended to prevent or delay the acquisition of the Company by means of
a tender offer, proxy contest or otherwise. Specifically, the Certificate of
Incorporation provides for a classified board of directors, classified into
three classes with terms of three years each. In addition, the Certificate of
Incorporation authorizes the Company Board to issue preferred stock without
further stockholder approval, which could have dividend, redemption,
liquidation, conversion, voting or other rights that could adversely affect the
voting power or other rights of the holders of Common Stock. Finally, the
Company is subject to Section 203 of the Delaware General Corporation Law (the
"DGCL") which limits transactions between a publicly held company and
"interested stockholders" (generally those stockholders who, together with their
affiliates and associates, own 15% or more of a company's outstanding capital
stock). Any one of, or a combination of, the above anti-takeover provisions
could discourage a third party from attempting to acquire control of the
Company. The Incentive Plan and the Directors' Plan provide for acceleration of
stock options upon a change in control of the Company, which may have the effect
of making an acquisition of control of the Company more expensive. These plans
may also inhibit a change in control of the Company. In addition, certain
Company officers have severance compensation agreements with the Company that
provide for substantial cash payments and acceleration of other benefits in the
event of specified corporate changes related to the Company, including a change
in control of the Company.
DIVIDENDS
The Company does not anticipate paying dividends on its Common Stock in
the foreseeable future. The holders of 6% Convertible Stock are entitled to
receive cumulative dividends at the rate of six percent per annum on the
liquidation preference, payable annually on December 31 of each year, in cash,
Common Stock or by adding the amount thereof to the liquidation preference.
Holders of the Company's Series A Preferred Stock, $.01 purchase per share (the
"Series A Preferred Stock") will be entitled to receive, as and when declared by
the Company Board, cumulative compounding dividends at the rate of 10% per annum
of the original issue price per share of the Series A Preferred Stock. No
dividends may be paid on the Common Stock unless all accrued and unpaid
dividends on the Series A Preferred Stock and the 6% Convertible Stock are paid.
Pursuant to a loan and security agreement dated February 20, 1998, the
Company may not declare or pay any dividends, except dividends payable solely in
shares of capital stock, or make any other payments on its capital stock,
without the consent of the lender.
9
<PAGE> 10
INTERNATIONAL BUSINESS
In fiscal 1997, international sales of the Company's products accounted
for approximately 38% of net sales. These sales were primarily to customers in
Europe and the Asia Pacific region. The Company anticipates that international
sales will continue to account for a significant portion of the Company's net
sales in the foreseeable future. As a result, the Company's operating results
will be subject to risks inherent in international sales, including tariffs or
other barriers, difficulties in staffing and managing international operations,
fluctuations in foreign currency exchange rates, compliance with international
regulations, approval and market requirements, and volatility of international
economic conditions. One or more of these factors may have a material adverse
effect on the Company's future international sales and, consequently, on the
Company's operating results.
The Company procures products from offshore vendors primarily in U.S.
dollars and to a lesser extent, British Sterling and Hong Kong dollars. Although
the Company has not experienced material gains or losses from foreign currency
fluctuations, if its international procurement activities increases it could be
subject to increased risk due to such fluctuations. The Company anticipates it
will adopt hedging strategies if the risks associated with foreign currency
fluctuations materially increase.
PRODUCT RETURNS, PRICE PROTECTION AND WARRANTY CLAIMS
Like other manufacturers of computer products, the Company is exposed
to the risk of product returns from wholesale distributors, resellers and
retailers, either through contractual stock rotation privileges or as a result
of the Company's interest in assisting customers in balancing inventories.
Although the Company attempts to monitor and manage the volume of sales to
wholesale distributors and retailers, large shipments in anticipation of sales
by wholesale distributors and retailers could lead to substantial overstocking
by their wholesale distributors and lead to higher than normal returns.
Moreover, the risk of product returns may increase if demand for the Company's
products declines. When the Company reduces its prices, the Company credits its
respective wholesale distributors and retailers for the difference between the
purchase price of products remaining in their inventory and the reduced price
for such products on terms negotiated with the Company, which could have a
material adverse effect on the operating results of the Company if such credits
were in excess of reserves established by the Company.
The Company's standard two-year warranty permits customers to return
product for repair or replacement if the product does not perform as warranted.
In the U.S. and Canada only, the Company also offers its customers the option of
an additional three-year warranty upon completion of a registration card within
90 days of purchase. The Company to date has not encountered material warranty
claims or liabilities. The Company has established reserves for product returns,
price protection and warranty claims which management believes are adequate.
There can be no assurance that product returns, price protection and warranty
claims will not have a material adverse effect on future operating results of
the Company.
DEPENDENCE ON SUPPLIERS
Material and components for the Company's products are purchased from
outside suppliers. While most components are available from several suppliers, a
few are provided from sole-source vendors. The Company believes that in most
cases alternative sources of supply could be obtained within a reasonable time
period; however, an interruption in the supply of such components could have a
temporary adverse effect on the Company's operations. In addition, although
readily interchangeable items are available from several suppliers, many of the
components that are incorporated in the Company's products, such as integrated
circuits and discrete components, are in limited supply and are allocated
throughout the industry. Like others in the computer industry, the Company has,
from time to time, experienced difficulty in obtaining certain components. While
the Company has entered into supply arrangements with certain suppliers,
including Lucent Technologies, Inc. and Rockwell
10
<PAGE> 11
International Corporation ("Rockwell") regarding a supply of components, there
can be no assurance that these suppliers will continue to meet the Company's
requirements. There can be no assurance that severe shortages of components will
not occur in the future which could increase the cost or delay the shipment of
products and have a material adverse effect on the Company's operating results.
SALES CHANNEL RISKS
The Company sells its products primarily through national, regional and
international wholesale distributors, national corporate resellers, computer
superstores and mail order. Sales to wholesale distributors accounted for a
significant share of the Company net sales in fiscal 1997. The personal computer
distribution industry has been characterized by rapid change, including
consolidations and financial difficulties of wholesale distributors and the
emergence of alternative distribution channels. the Company is dependent upon
the continued viability and financial stability of its wholesale distributors.
The loss or ineffectiveness of any of the Company's largest wholesale
distributors or a number of its smaller wholesale distributors could have a
material adverse effect on the Company's operating results. In addition, an
increasing number of vendors are competing for access to wholesale distributors
which could adversely affect the Company's ability to maintain the Company's
existing relationships with its wholesale distributors or could negatively
impact sales to such distributors.
The Company is dependent on the continued viability and financial
stability of its national resellers. The loss or ineffectiveness of any of the
Company's largest national resellers or a number of its smaller national
resellers could have a material adverse effect on the Company's operating
results.
Due to increased competition for limited shelf space, retailers are
increasingly in a better position to negotiate favorable terms of sale,
including price discounts and product return policies. There can be no assurance
that the Company will be able to sustain or increase its sales to retailers,
which could have a material adverse effect on the Company's operating results.
The OEM modem market has grown to approximately 50% of the overall
modem market. The Company has not participated substantially in the OEM modem
market for the last two years and the Company can give no assurance that it will
be able to successfully penetrate this market.
IMPLEMENTATION OF NEW INFORMATION SYSTEM
The Company is currently involved in the replacement of its information
systems with software, which is Year 2000 compliant, from Oracle Corporation.
The implementation of a new information system could cause disruption to work
efficiency. There can be no assurance that the project will be completed within
the budgeted time schedule or costs. To the extent that the project is not
completed timely or within the budgeted costs, the Company's business and
financial condition could be adversely affected.
ELECTION OF DIRECTORS AND OTHER STOCKHOLDER MATTERS
As a result of the Shareholder's Agreement among each of the former
shareholders of Hayes Microcomputer and Mr. Ronald Howard, the Company's
Vice-Chairman and Chief Executive Officer, certain shareholders, who own
substantially more than 50% of the Common Stock, without regard to the
conversion of the 6% Convertible Stock, will control the election of a
majority of the directors. These shareholders consist of Mr. Howard, Rinzai
Limited, Dennis C. Hayes and Chestnut Capital Limited Partnership, a limited
partnership controlled by Dennis C. Hayes. Such agreement will remain effective
for so long as certain shareholders own at least ten (10%) percent of the
outstanding shares of the Company. Such persons will also be able to control the
taking of action which requires approval by stockholders, since they will own
more than a majority of the outstanding shares of the Company.
11
<PAGE> 12
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares.
To the extent the Warrants are exercised, the Company will apply the proceeds
thereof to its general corporate purposes.
SELLING STOCKHOLDERS
The Selling Stockholders are Sui Mei Jone and Chiang Lam, each of whom
beneficially owns a Warrant to Purchase 308,595 shares of Common Stock or
approximately 1.5% of the number of shares of the Company's Common Stock
calculated in accordance with Section 13(a) of the Securities Exchange Act of
1934. The shares may be purchased by exercise of the Warrants at exercise price
of $0.463 per share, subject to certain adjustments. The Warrants were issued
prior to the Merger in 1996 pursuant to the Hayes Microcomputer Board Incentive
Warrant Plan. All of the shares of Common Stock beneficially owned by the
Selling Stockholders may be offered and sold pursuant to this Prospectus.
Mr. Sui Mei Jone purchased the Warrant to purchase 308,595 shares of
Common Stock from Mina Hayes. Ms. Hayes was a director of Hayes Microcomputer
from April 1996 to December 1997.
Mr. Lam has been a director of the Company since the Effective Date of
the Merger and a director of Hayes Microcomputer from 1996 to the present.
PLAN OF DISTRIBUTION
Pursuant to the Prospectus, the Shares may be sold by the Selling
Stockholders, from time to time while the Registration Statement to which this
Prospectus relates is effective, on the NASDAQ/NMS or otherwise at prices and
terms prevailing at the time of sale, at prices and terms related to such
prevailing prices and terms, in negotiated transactions or at fixed prices.
Although none of the Selling Stockholders has advised the Company of the manner
in which it currently intends to sell the Shares pursuant to this Registration
Statement, the Selling Stockholders may choose to sell all or a portion of such
Shares from time to time in any manner described herein. The methods by which
the Shares may be sold by the Selling Stockholders include, without limitation:
(i) ordinary brokerage transactions, which may include long or short sales, (ii)
transactions which involve crosses or block trades or any other transactions
permitted by the NASDAQ/NMS, (iii) purchases by a broker or dealer as principal
and resale by such broker or dealer for its account pursuant to this Prospectus,
(iv) "at the market" to or through market makers or into an existing market for
the Common Stock, (v) in other ways not involving market makers or established
trading markets, including direct sales to purchasers or sales effected through
agents, (vi) through transactions in options or swaps or other derivatives
(whether exchange-listed or otherwise), or (vii) any combination of any such
methods of sale. In effecting sales, brokers and dealers engaged by any of the
Selling Stockholders may arrange for other brokers or dealers to participate.
Brokers or dealers may receive commissions or discounts from the Selling
Stockholders to sell a specified number of shares at a stipulated price per
share, and, to the extent such a broker or dealer is unable to do so acting as
agent for the Selling Stockholders, may purchase as principal any unsold shares
at the price required to fulfill such broker or dealer commitment to the Selling
Stockholders. Brokers or dealers who acquire shares as principals may thereafter
resell such shares from time to time in transactions (which may involve crosses
and block transactions and which may involve sales to and through other brokers
or dealers, including transactions of the nature described above) in the
over-the-counter market, in
12
<PAGE> 13
negotiated transactions or otherwise, at market prices and terms prevailing at
the time of sale, at prices and terms related to such prevailing prices and
terms, in negotiated transactions or at fixed prices and in connection with the
methods as described above. The Shares may be sold directly by the Selling
Stockholders or by pledgees, donees, transferees or other successors in
interest.
The Company will maintain the effectiveness of the registration of the
Shares offered hereby until the earlier of (i) December 30, 2002 or (ii) the
date on which the Shares offered hereby, in the opinion of counsel, may be sold
by the Selling Stockholders pursuant to Rule 144 of the Securities Act. Any
Shares which qualify for sale pursuant to Rule 144 under the Securities Act may
be sold under that Rule rather than pursuant to this Prospectus. There can be no
assurance that the Selling Stockholders will sell any or all of the Shares
offered hereby.
The Company is bearing all of the costs relating to the registration of
the Shares other than commissions, discounts or other fees payable to a broker,
dealer, underwriter, agent or market maker in connection with the sale of any of
the Shares, state and local transfer taxes, and fees and expenses of counsel or
other advisers to the Selling Stockholders, all of which will be borne by the
Selling Stockholders. The Company will not receive any of the proceeds from this
offering.
Pursuant to the terms of the Warrants and a Shareholders' Agreement
dated July 29, 1997, the Company has agreed to indemnify the Selling
Stockholders, any person who controls a Selling Stockholder, and any
underwriters for the Selling Stockholders, against certain liabilities and
expenses arising out of or based upon the information set forth in this
Prospectus, and the Registration Statement of which this Prospectus is a part,
including liabilities under the Securities Act, and if such indemnification is
held by a court to be unavailable, to contribute to the amount of such
liabilities and expenses.
The Selling Stockholders and any brokers participating in such sales
may be deemed to be underwriters within the meaning of Section 2(11) of the
Securities Act. Any commissions paid or any discounts or concessions allowed to
any broker, dealer, underwriter, agent or market maker and, if any such broker,
dealer, underwriter, agent or market maker purchases any of the Shares as
principal, any profits received on the resale of such Shares, may be deemed to
be underwriting commissions or discounts under the Securities Act.
Because the Selling Stockholders may be deemed to be underwriters, the
Selling Stockholders will be subject to prospectus delivery requirements under
the Securities Act. Furthermore, in the event the Selling Stockholders are
deemed underwriters and a sale of shares is deemed to be a "distribution" or
part of a distribution of the Shares, such Selling Stockholders, any selling
broker or dealer and any "affiliated purchasers" may be subject to Regulation M
under the Exchange Act, which prohibits, with certain exceptions, any such
person from bidding for or purchasing any security which is the subject of such
distribution until his participation in that distribution is completed. In
addition, Regulation M prohibits, with certain exceptions, any "stabilizing bid"
or "stabilizing purchase" for the purpose of pegging, fixing or stabilizing the
price of Common Stock in connection with this offering.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon by
Womble Carlyle Sandridge & Rice, PLLC, outside legal counsel to the Company.
13
<PAGE> 14
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries as of December 31, 1995 and 1996 and January 3, 1998 and for the
years ended September 30, 1994 and 1995, the three months ended December 31,
1995 and the years ended December 31, 1996 and January 3, 1998 incorporated in
this Prospectus by reference have been audited by Coopers & Lybrand LLP,
independent accountants, as stated in their reports, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing. For accounting purposes, the
Merger has been treated as the acquisition of ACCB by Hayes Microcomputer with
Hayes Microcomputer as the acquiror. The historical financial statements of the
Company prior to December 30, 1997 are those of Hayes Microcomputer.
14
<PAGE> 15
===============================================================================
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized by the Company. This Prospectus does
not constitute an offer to sell or a solicitation of any offer to buy any
security other than the securities offered hereby, nor does it constitute an
offer to sell or a solicitation of an offer to buy the securities by anyone in
any jurisdiction in which such offer or solicitation is not authorized, or in
which the person making such offer or solicitation is not qualified to do so, or
to any person to whom it is unlawful to make such offer or solicitation. Neither
the delivery of this Prospectus nor any offer or sale made hereunder shall,
under any circumstances, create any implication that there has been no change in
the affairs of the Company since the date hereof.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
AVAILABLE INFORMATION...................................................3
INCORPORATION OF DOCUMENTS BY REFERENCE.................................3
THE COMPANY.............................................................4
RISK FACTORS............................................................4
USE OF PROCEEDS........................................................12
SELLING STOCKHOLDERS...................................................12
PLAN OF DISTRIBUTION...................................................12
LEGAL MATTERS..........................................................13
INDEPENDENT ACCOUNTANTS................................................13
EXPERTS................................................................14
</TABLE>
===============================================================================
617,190 SHARES
COMMON STOCK
HAYES CORPORATION
-----------------
PROSPECTUS
MAY ____, 1998
-----------------
15
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
SEC Registration Fee...................................................$ 740
Legal Fees and Expenses................................................$5,000
Accountants' Fees and Expenses.........................................$2,000
Printing and Engraving Fees............................................$ 500
Miscellaneous..........................................................$ 260
TOTAL.........................................................$8,500
======
</TABLE>
- ----------------
* All amounts are estimated other than the SEC Registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Delaware General Corporation Law, a corporation may indemnify
any director, officer, employee or agent against expense (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
specified actions, suits or proceedings, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation to
procure a judgment in its favor -- a "derivative action") if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal proceeding, had no reasonable cause to believe that his or her conduct
was unlawful.
The Company's Certificate of Incorporation provides, among other
things, that the Company shall indemnify any person who is or was a director or
officer of the Company who is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Company), by reason of the fact that he (i) is or was a
director or officer of the Company, or (ii) is or was serving at the request of
the Company as director, officer, employee, 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 by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company or, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 Restated Certificate of Incorporation of the Company, incorporated
by reference as Exhibit 3.1 from the Company's Registration
Statement on the Form S-1, as amended (Commission File Number
333-1074).
</TABLE>
II-1
<PAGE> 17
<TABLE>
<S> <C>
4.2 Restated Bylaws of the Company, incorporated by reference from
Exhibit 3.2 of the Company's Annual Report on the Form 10-K for the
fiscal year ended January 3, 1998.
5.1 Opinion of Womble Carlyle Sandridge & Rice, PLLC regarding
legality.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC (contained in
Exhibit 5.1 hereto).
23.2 Consent of Coopers & Lybrand L.L.P.
24.1 Power of Attorney (included on the signature page to this
Registration Statement).
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant 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 of 1933;
(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. Notwithstanding the
foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value
of securities offered would not exceed that which
was registered) and any deviation from the low or
high and of the estimated maximum offering range
may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price
represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective 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 report filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
II-2
<PAGE> 18
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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 registrant 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 Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 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 May 14, 1998.
HAYES CORPORATION
By: /s/ Dennis Hayes
-------------------------------------
Dennis Hayes
Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dennis C. Hayes and Ronald A. Howard and
each of them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and any subsequent registration statements
pursuant to Rule 462 under the Securities Act, 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 and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
against, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Dennis Hayes Chairman and Director May 14, 1998
- ----------------------------------
Dennis Hayes
/s/ Ronald Howard Chief Executive Officer May 14, 1998
- ---------------------------------- (Principal Executive Officer),
Ronald Howard Vice Chairman and Director
/s/ James Jones Senior Vice President and Chief Financial Officer May 14, 1998
- ---------------------------------- (Principal Financial Officer)
James Jones
/s/ P.K. Chan President, Chief Operating May 14, 1998
- ---------------------------------- Officer and Director
P.K. Chan
/s/ Barbara Perrier Dreyer Director May 14, 1998
- ----------------------------------
Barbara Perrier Dreyer
/s/ Chiang Lam Director May 14, 1998
- ----------------------------------
Chiang Lam
/s/ S.P. Quek Director May 14, 1998
- ----------------------------------
S.P. Quek
/s/ M.C. Tam Director May 14, 1998
- ----------------------------------
M.C. Tam
</TABLE>
II-4
<PAGE> 1
EXHIBIT 5.1
Womble Carlyle Sandridge & Rice, PLLC
1275 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 872-7000
Facsimile: (404) 888-7490
May 14, 1998
Hayes Corporation
5854 Peachtree Corners East
Norcross, Georgia 30092
Re: Hayes Corporation Amendment Registration Statement on Form S-3
Gentlemen:
We are acting as counsel to Hayes Corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1922, as amended (the "Act") of 617,190 shares (the "Shares") of the Company's
common stock, $.01 par value ("Common Stock") for offer and sale by certain
stockholders of the Company (the "Selling Stockholders"). Registration Statement
on Form S-3 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Act. We
are providing this opinion pursuant to the requirements of Item 16 of Form S-3
and Item 601(b)(5) of Regulation S-K under the Act.
We have reviewed and are familiar with the Registration Statement, the
records relating to the organization of the Company, including its certificate
of incorporation and bylaws and all amendments thereto and all records of all
proceedings taken by the Board of Directors and shareholders of the Company
pertinent to the rendering of this opinion.
Based on the foregoing, it is our opinion that the Shares of that may
be offered and sold by the Selling Stockholders have been validly issued and are
fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement and to the use of our name in the
Registration Statement under the caption "Legal Matters" in the Prospectus
included as a part thereof. In giving this consent, we do not thereby admit that
we come within the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
Womble Carlyle Sandridge & Rice
A Professional Limited Liability Company
By: /s/ G. Donald Johnson
-------------------------------------
G. Donald Johnson
II-5
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANT
We consent to the incorporation by reference in this registration statement of
Hayes Corporation on form S-3 (File No. ) of our report dated February 25,
1998, on our audits of the consolidated financial statements of Hayes
Corporation and Subsidiaries as of December 31, 1996 and January 3, 1998, and
for the year ended September 30, 1995, the three months ended December 31,
1995, and the years ended December 31, 1996 and January 3, 1998 and of our
report 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 Corporation and Subsidiaries as of December 31, 1995 and 1996, and for
the years ended September 30, 1994 and 1995, the three months ended December
31, 1995, and the year ended December 31, 1996, which reports are incorporated
by reference herein. We also consent to the reference to our firm under the
caption "Experts".
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Atlanta, Georgia
May 15, 1998
II-6
