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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
(Amendment No. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HAYES CORPORATION (formerly Access Beyond, Inc.)
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(Exact name of registrant as specified in its charter)
Delaware 52-1987873
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(State of Incorporation or organization) (I.R.S. Employer Identification No.)
5854 Peachtree Corners East
Norcross, Georgia 30092
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [X]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
None
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock, $.01 par value
(Title of class)
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Item 1: Description of Registrant's Securities to be Registered
AUTHORIZED CAPITAL STOCK
The authorized capital stock of the Company consists of 50,000,000
shares of Common Stock and 3,280,000 shares of Preferred Stock, of which
1,217,930 shares are designated as Series A Preferred Stock and 45,000 shares
are designated 6% Cumulative Convertible Preferred Stock ("6% Convertible
Stock"). As of May 1, 1998 the Company has 19,986,754 shares of Common Stock
issued and outstanding, and 1,259,666 shares of Preferred Stock issued and
outstanding, of which 1,217,930 shares are designated as Series A Preferred
Stock and 41,736 shares are designated as 6% Convertible Stock.
The Common Stock is listed for trading on NASDAQ/NMS under the symbol
"HAYZ". The transfer agent and registrar for the Common Stock is Continental
Stock Transfer and Trust Company.
The Company effected a one-for-three reverse stock split of its Common Stock as
of February 25, 1998. All information contained herein has been adjusted to
reflect the reverse stock split.
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share
held of record on all matters submitted to the vote of stockholders, including
the election of directors. The holders of Common Stock do not have cumulative
voting rights. Subject to any preferential rights held by holders of the
Preferred Stock, the holders of Common Stock are entitled to receive ratably
such dividends as may be declared from time to time by the Company Board out of
funds legally available therefor. In the event of the liquidation, dissolution
or winding up of the Company, holders of Common Stock will be entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation
preference of outstanding Preferred Stock, if any. Holders of Common Stock do
not have preemptive, conversion or redemption rights. All the issued and
outstanding shares of Common Stock are duly authorized, validly issued, fully
paid and nonassessable.
PREFERRED STOCK
The Company Board, without further approval or action by the
stockholders, is authorized to issue shares of Preferred Stock in one or more
series and to fix as to any such series the dividend rate, redemption prices,
preferences on liquidation or dissolution, sinking fund terms, if any,
conversion rights, voting rights and any other preference or special rights and
qualifications. Issuances of Preferred Stock may adversely affect the rights of
holders of Common Stock. Holders of Preferred Stock might, for example, be
entitled to preference in distributions to be made to stockholders upon the
liquidation, dissolution or winding up of the Company. In addition, holders of
Preferred Stock might enjoy voting rights that limit, qualify or adversely
affect the voting rights of holders of Common Stock. Such rights of the holders
of one or more series of Preferred Stock might include the right to vote as a
class with respect to the election of directors, major corporate transactions or
otherwise, or the right to vote together with the holders of Common Stock with
respect to any such matter. The holders of Preferred Stock might be entitled to
cast multiple votes per share. The issuance of Preferred Stock could have the
effect of delaying, deferring or preventing a change in control of the Company
without further action by the stockholders.
SERIES A PREFERRED STOCK
Voting Rights. The holders of Series A Preferred Stock are entitled to
the number of votes equal to the number of whole shares of Common Stock into
which such shares of Series A Preferred Stock could be converted at the record
date for determination of the shareholders entitled to vote on such matters, or,
if no such record date is established, the date such vote is taken or any
written consent of shareholders is solicited. In general, the holders of Series
A Preferred Stock have full voting rights and powers equal to the voting rights
and powers of the holders of Common Stock and are entitled to vote together as a
class with the holders of Common Stock with respect to any question upon which
holders of Common Stock have a right to vote. For so long as the Series A
Preferred Stock remains outstanding, the
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Company may not, without first obtaining the approval of the holders of at least
a majority of the total number of shares of Series A Preferred Stock
outstanding: (i) alter or change the rights, preferences or privileges of the
Series A Preferred Stock; (ii) increase the aggregate number of authorized
shares of Series A Preferred Stock or decrease the aggregate number of
authorized shares of Series A Preferred Stock below the number of shares then
outstanding; (iii) authorize or issue, or obligate itself to issue, any other
equity security senior to or on a parity with the Series A Preferred Stock as to
dividends or assets in liquidation, or create or reclassify any obligation or
security convertible into or exchangeable for, or having any option rights to
purchase, any such security; (iv) with certain exceptions, take any action which
results in the redemption of, or payment of dividends or the distribution of
cash or any property with respect to, any shares of Common Stock; (v) with
certain exceptions, incur or guarantee any indebtedness unless it is in the
ordinary course of business or does not exceed $2,000,000 in the aggregate; or
(vi) approve or create any mortgage, pledge or security interest in all or
substantially all of the assets or property of the Company, except security
interests or liens arising under the Company's borrowings permitted under the
previous subsection (v).
Conversion Rights. Each share of Series A Preferred Stock is
convertible, at the option of the holder of such share, at any time after the
date of issuance of such share into one share of Common Stock, subject to
adjustment under certain circumstances, including to protect against dilution.
The Series A Preferred Stock is also subject to automatic conversion into Common
Stock upon (i) the consummation of a qualified public offering, generally
defined as an underwritten sale to the public of Common Stock pursuant to an
effective registration statement under the Securities Act in which the gross
proceeds to the Company from such sale are $25,000,000 or more, and the per
share offering price exceeds $21.39 per share or two times the then current
Series A Preferred Stock conversion price; (ii) registration of the Common Stock
pursuant to an underwritten public offering under the Securities Act; or (iii)
the affirmative vote of holders of at least a majority of the Series A Preferred
Stock. All unpaid and accrued dividends on the Series A Preferred Stock existing
immediately prior to the conversion of the Series A Preferred Stock will be
converted into fully paid an nonassessable shares of Common Stock.
Redemption. Upon 90 days prior written notice from the holders of more
than 50% of the Series A Preferred Stock delivered to the Company not earlier
than November 1, 1999, the Company will be required to redeem the Series A
Preferred Stock for a cash payment of $4.5159 per share plus accrued but unpaid
dividends (the "Redemption Price"). The Company has the right, at its sole
option and discretion, at any time at which it has funds legally available to do
so and upon 30 days prior written notice, to redeem all of the Series A
Preferred Stock for the Redemption Price on April 23, 2000. Less than all of the
Series A Preferred Stock may be redeemed on a pro rata basis with the consent of
a majority of the holders of the Series A Preferred Stock.
Dividends. Holders of Series A Preferred Stock will be entitled to
receive, as and when declared by the Company's Board, cumulative compounding
dividends at the dividend rate of 10% per year of the original issue price per
share of the Series A Preferred Stock. Dividends accumulated on the Series A
Preferred Stock are to be declared by the Company Board and paid in cash upon
the redemption of the Series A Preferred Stock or in shares of Common Stock upon
the conversion 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 are paid.
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, the holder of each
share of the Series A Preferred Stock then outstanding is entitled to receive
out of the remaining assets of the Company available for distribution to
stockholders, and before any payment or declaration and setting apart for
payment of any amount shall be made in respect of Common Stock, an amount equal
to U.S. $4.5159, subject to adjustment under certain circumstances, plus an
amount equal to any accrued but unpaid dividends through the date of such
liquidation, dissolution or winding up of the Company. A (i) merger,
consolidation or reorganization of the Company with or into any other
corporation(s) that results in the transfer of fifty percent (50%) or more of
the outstanding voting stock of the Company, (ii) a sale of all or substantially
all of the assets of the Company or (iii) a transaction or series of related
transactions in which the Company issues shares representing more than fifty
percent (50%) of the voting power of the Company immediately after giving effect
to the transaction, will be treated as a liquidation, dissolution or winding up.
6% CUMULATIVE CONVERTIBLE PREFERRED STOCK
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Voting Rights. The 6% Convertible Stock is nonvoting, except that 85%
in interest of the outstanding 6% Convertible Stock is necessary for (i) any
amendment to the Certificate of Designations relating to the 6% Convertible
Stock, (ii) any amendment to the Certificate of Incorporation or By-Laws of the
Company that may amend or change or adversely affect any of the rights,
preferences, or privileges of the 6% Convertible Stock, (iii) any waiver of a
default in payment of dividends on the 6% Convertible Stock, and (iv) any
reorganization or reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into any other corporation or
corporations, or any sale of all or substantially all of the assets of the
Company, that, in any such case, would have an adverse effect on any of the
rights, preferences, or privileges of the 6% Convertible Stock. Holders of 6%
Convertible Stock who are affiliates of the Company may not participate in such
vote and the shares of 6% Convertible Stock of such holders are deemed not to be
outstanding for purposes of such vote.
Conversion Rights. The 6% Convertible Stock is convertible at any time
into shares of Common Stock at a conversion price (the "Conversion Price") equal
to the lesser of (i) $24.00 per share (the "Fixed Conversion Price") or (ii) 85%
of the average closing bid price of Common Stock for the five consecutive
trading days prior to the date of any conversion notice (the "Market Value"),
subject to adjustment under certain circumstances, including to protect against
dilution. If, however, the Company's Common Stock is trading at a price which
would result in a Conversion Price of less than $15.00 per share then the number
of shares of 6% Convertible Stock which may be converted in any 30 day period is
limited to such number of shares of 6% Convertible Stock as have a liquidation
preference of not more than 10% of the amount paid for the 6% Convertible Stock
($1,000,000 prior the second closing and $4,500,000 thereafter). If the
conversion price is below $15.00 per share, then (i) the first 81.25% of the 6%
Convertible Stock for which conversion notices are received from an investor
during a 30 day period will be convertible at a Conversion Price equal to 85% of
the Market Value and the remaining 18.75% will be convertible at a conversion
price equal to 92.5% of the Market Value and (ii) the Company may redeem the 6%
Convertible Stock submitted for conversion for cash equal to the liquidation
preference divided by 85%. In addition, if the Conversion Price is below $15.00
for more than 5 trading days in any 30 day period, then for the balance of such
30 day period and for the next 30 day period, Market Value will be determined on
the basis of the lowest 5 consecutive trading day average closing price during
the 15 trading days preceding the conversion notice.
Redemption. The Company has the right to redeem the 6% Convertible
Stock in whole or in part, at any time, and from time to time, by paying an
amount equal to the liquidation preference per share divided by 85%. If the
Company exercises such redemption option, then it is required to issue to the
investors warrants with a strike price equal to the higher of the Fixed
Conversion Price or the average closing bid price of the Common Stock during the
five trading day period which ends three days before the redemption date. The
number of warrants so issued will be equal to 50% of the liquidation preference
of the shares of 6% Convertible Stock which are redeemed, divided by such strike
price. All shares of 6% Convertible Stock which have not been converted by
November 12, 2002, the fourth anniversary of the Preferred Stock Investment
Agreement, are required to then be converted, subject to extension of such date
under certain circumstances.
Dividends. The shares of 6% Convertible Stock are entitled to receive
cumulative dividends at the rate of 6% per annum, payable in cash, or in Common
Stock, or by adding the amount of any dividend to the liquidation preference. No
distribution, whether by way of dividend or otherwise, may be declared or paid
upon or set apart for any class of security of the Company which is junior to
the 6% Convertible Stock if, at such time, any dividends on the 6% Convertible
Stock have not been paid or declared and set apart for payment with respect to
all preceding periods.
Liquidation rights. In the event of any liquidation, dissolution or
winding up of the company, whether voluntary or involuntary, the holders of the
6% Preferred Stock then outstanding will be entitled to receive, prior to any
distribution of any assets to the holders of the Common Stock or any other
securities ranking junior to the 6% Preferred Stock, the amount of $1,000 per
share, plus accrued and unpaid dividends in and certain default payments that
may be owed pursuant to a registration rights of agreement dated November 12,
1997.
ANTI-TAKEOVER PROVISIONS
The Certificate of Incorporation and the By-laws of the Company (i)
provide for three classes of directors on the Company Board from which directors
may only be removed by Stockholders for cause; (ii) generally provide that
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only a majority of the Company Board shall have the authority to fill vacancies
on the Company Board; (iii) restrict the right to amend certain provisions of
the Certificate of Incorporation and By-laws; (iv) restrict the right of
stockholders to call special meetings; (v) establish an advance notice procedure
regarding the nomination of directors by stockholders and stockholder proposals
to be brought before an annual meeting; and (vi) authorize the Company Board to
issue preferred stock without further stockholder approval. These provisions are
designed to encourage any person who desires to take control of and/or acquire
the company to enter into negotiations with the Company Board, thereby making
more difficult the acquisition of the Company by means of a tender offer, a
proxy contest or other non-negotiated means. In addition to encouraging any
person intending to attempt a takeover of the Company to negotiate with the
Company Board, these provisions also curtail such person's use of a dominant
equity interest to control any negotiations with the Company Board. Under such
circumstances, the Company Board may be better able to make and implement
reasoned business decisions and protect the interests of all of the Company's
stockholders.
Classified Board. The Certificate of Incorporation provides for the
Company Board to be divided into three classes serving staggered terms with one
class of directors elected each year for a three-year term. The classes will be
as nearly equal in number as possible. The classification of directors makes it
more difficult for a significant stockholder to change the composition of the
Company Board in a relatively short period of time and, accordingly, provides
the Company Board and stockholders time to review any nomination that a
significant stockholder may make and to pursue alternative courses of action
which it believes are fair to all the stockholders of the Company.
Removal of and Filling Vacancies on the Company Board. The Certificate
of Incorporation provides that, subject to any rights of the holders of any
class or series of the capital stock of the Company entitled to vote generally
in the election of directors, only a majority vote of the members of the Company
Board then in office, although less than a quorum, shall have the authority to
fill any vacancies on the Company Board, including vacancies created by an
increase in the authorized number of directors. Moreover, because the
Certificate of Incorporation provides for a classified board, Delaware law
provides that the stockholders may remove a member of the Company Board only for
cause and the Certificate of Incorporation requires the affirmative vote of the
holders of at least 80% of the voting power of all the then-outstanding shares
of the voting stock of the Company, voting together as a single class, to remove
a member of the Company Board. These provisions relating to removal and filling
of vacancies on the Company Board of the Company preclude stockholders from
enlarging the Company Board or removing incumbent directors and filling
vacancies with their own nominees.
Amendment of the Certificate of Incorporation and Company By-Laws. The
Certificate of Incorporation contains provisions requiring the affirmative vote
of the holders of at least 80% of the voting power of the Common Stock entitled
to vote generally in the election of directors to amend certain provisions of
the Certificate of Incorporation and Company By-laws (including certain of the
provisions discussed above). These provisions make it more difficult for
stockholders to make changes in the Certificate of Incorporation or Company
By-laws, including changes designed to facilitate the exercise of control over
the Company.
Special Meetings. The Company By-laws provide that special meetings of
stockholders can be called only by the Chairman of the Board, the Vice Chairman
of the Board, the President or any Vice President, the Secretary or by the
Company Board. Stockholders are not permitted to call a special meeting but may,
upon a written request by stockholders owning a majority in amount of the entire
capital stock of the Company issued and outstanding and entitled to vote,
require that any of the foregoing call a special meeting of stockholders. These
provisions prohibit a significant stockholder from authorizing stockholder
action without a meeting at which all stockholders would be entitled to
participate.
Nominations of Directors and Stockholder Proposals. The Company By-laws
establish an advance notice procedure with regard to the nomination other than
by, or at the direction of, the Company Board of candidates for election as
directors (the "Nomination Procedure") and with regard to stockholder proposals
to be brought before an annual meeting of stockholders (the "Business
Procedure"). The Nomination Procedure provides that only persons who are
nominated by, or at the direction of, the Company Board, by any committee or
persons appointed by the Company Board or by a stockholder of the Company
entitled to vote for the election of directors who has given timely written
notice to the Secretary of the Company prior to the meeting at which directors
are to be elected, are eligible for election as directors of the Company. The
Business Procedure provides that to be properly brought before an annual
meeting, business must be specified in the notice of the annual meeting given by
or at the direction of the Company Board or
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brought before the meeting by, or at the direction of, the Company Board or by a
stockholder who has given timely written notice to the Secretary of the Company
of such stockholder's intention to bring such business before such meeting. To
be timely, notice for nominations or stockholder proposals must be received by
the Company not less than 60 days prior to the annual meeting; provided,
however, that in the event that less than 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 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. In addition to the foregoing requirements, the proxy rules under
the Securities Exchange Act of 1934, as amended, set forth certain requirements,
including stockholder eligibility, timing and attendance requirements, which
must be satisfied in order for a stockholder proposal to be included in the
Company's proxy statement and form of proxy. These requirements under the
Exchange Act may differ from those set forth under the Nomination Procedure or
the Business Procedure.
Under the Nomination Procedure, notice to the Company from a
stockholder who proposes to nominate a person at an annual meeting for election
as a director must contain certain information about that person so nominated,
including age, business and residence addresses, principal occupation, the class
and number of shares of Common Stock beneficially owned, and such other
information as would be required to be included in a proxy statement soliciting
proxies for the election of the proposed nominee, and certain information about
the stockholder proposing to nominate that person. Under the Business Procedure,
notice relating to a stockholder proposal must contain certain information about
such proposal and about the stockholder who proposes to bring the proposal
before the meeting, including the class and number of shares of Common stock
beneficially owned by such stockholder. If the officer of the Company presiding
at the meeting determines that a person was not nominated in accordance with the
Nomination Procedure, or that other business was not brought before the meeting
in accordance with the Business Procedure, such person is not eligible for
election as a director, or such business is not to be conducted as such meeting,
as the case may be.
The purpose of the Nomination Procedure is, by requiring advance notice
of nomination by stockholders, to afford the Company Board a meaningful
opportunity to consider the qualifications of the proposed nominees and, to the
extent deemed necessary or desirable by the Company Board, to inform
stockholders about such qualifications. The purpose of the Business Procedures
is, by requiring advance notice of stockholder proposals, to provide a more
orderly procedure for conducting annual meetings of stockholders and, to the
extent deemed necessary or desirable by the Company Board, to provide the
Company Board with a meaningful opportunity to inform stockholders, prior to
such meetings, of any proposal to be introduced at such meetings, together with
any recommendation as to the Company Board's position or belief as to action to
be taken with respect to such proposal, so as to enable stockholders better to
determine whether they desire to attend such meeting or grant a proxy to the
Company Board as to the disposition of any such proposal. Although the Company
By-laws do not give the Company Board any power to approve or disapprove
stockholder nominations for the election of directors or any other proposal
submitted by stockholders, the Company By-laws may have the effect of precluding
a nomination for the election of directors or precluding the conducting of
business at a particular stockholder meeting if the proper procedures are not
followed, and may discourage or deter a third party from conducting a
solicitation of proxies to elect its own slate of directors or otherwise
attempting to obtain control of the Company, even if the conduct of such
solicitation or such attempt might be beneficial to the Company and its
stockholders.
Issuance of Preferred Stock. 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
and other rights of holders of Common Stock. The ability of the Company Board to
issue preferred stock could have the effect of delaying, deferring or preventing
a change in control of the Company without further action by the stockholders.
Item 2: Exhibits
The following documents are being filed as exhibits to the registration
statement:
<TABLE>
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3.1* Amended and Restated Certificate of Incorporation of the
Company (filed as Exhibit 3.2 to the Company's Form 10-K for
the year ended January 3, 1998).
</TABLE>
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<TABLE>
<S> <C>
3.2* Amended and Restated Bylaws of the Company (filed as Exhibit
3.3 to the Company's Form 10-K for the year ended January 3,
1998).
4.1* Specimen Common Stock Certificate (filed as Exhibit 4.6.1 to
the Company's Registration Statement on Form S-4, as amended
(Commission File Number 333-37993)).
4.2* Specimen Series A Stock Certificate (filed as Exhibit 4.6.2 to
the Company's Registration Statement on Form S-4, as amended
(Commission File Number 333-37993)).
</TABLE>
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* Incorporated by reference
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Amendment to the registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Date: May 14, 1998 HAYES CORPORATION
BY: /s/ Dennis C. Hayes
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Dennis C. Hayes
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(Print Name & Title)
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