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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HAYES CORPORATION
(Formerly, Access Beyond, Inc.)
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(Exact name of registrant as specified in its charter)
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5854 Peachtree Corners East
DELAWARE Norcross, Georgia 30092 52-1987873
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(State or other jurisdiction of (Address of principal executive offices) (I.R.S. Employer
incorporation or organization) Identification Number)
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1998 STOCK INCENTIVE PLAN OF
HAYES CORPORATION
HAYES CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plans)
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James A. Jones
Vice President and Chief Financial Officer
Hayes Corporation
5854 Peachtree Corners East
Norcross, Georgia 30092
(770) 840-9200
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(Name, address and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share(1) price(1) fee(1)
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Common Stock,
$.01 par value 3,000,000 shares $4.3125 $12,937,500 $3,817
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(1) Pursuant to Rule 457(c) and (h)(1), based on the last sales price of
the registrant's common stock on May 15, 1998, as reported on the
Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Hayes Corporation (formerly,
"Access Beyond, Inc.") (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended January 3, 1998, filed with the Commission on April 3, 1998;
(b) The description of the Company's common stock, $.01 par
value, contained in the Company's Registration Statement on Form 8-A/A,
filed with the Commission on May 15, 1998;
(c) The current report on Form 8-K dated April 24, 1998; and
(d) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the period referred to in (a),
above.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities offered hereby has been passed
upon by the firm of Womble Carlyle Sandridge & Rice, PLLC, counsel to the
Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the DGCL permits the indemnification of the
directors and officers of the Company. The Bylaws of the Company do not contain
any provisions or indemnification.
The Certificate of Incorporation provides for the
indemnification of directors and officers and employees of the Company, and
persons who serve or served at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
with respect to any action, suit or proceeding, if such person acted in good
faith and in a manner he reasonably believed to being or not opposed to the best
interest of the Company and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The indemnification
provisions set forth in the Certificate of Incorporation do not preclude the
indemnification of, and advancement of expenses to, any other person to whom the
Company has the power of obligation to indemnify under the provisions of the
DGCL, or otherwise. The right to indemnification conferred in the Certificate of
Incorporation is a contract right and shall include the right to have paid by
the Company the expenses incurred in defending any such proceeding in advance of
its final disposition. The Company maintains insurance, at its expense,
liability or loss, whether or not the Company would have the power or
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the obligation to indemnify such person against such expense, liability or loss
under state law or under the terms of the Certificate of Incorporation.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as a part of this
Registration Statement:
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Number Description
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4.1 Amended and Restated Certificate of Incorporation of the Company, which is incorporated
by reference to Exhibit 3.2 of the Company's Annual Report on Form 10-K for the fiscal
year ended January 3, 1998.
4.2 Amended and Restated Bylaws of the Company, which are incorporated by reference to
Exhibit 3.3 of the Company's Annual Report on Form 10-K for the fiscal year ended
January 3, 1998.
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as to the legality of the Common
Stock being registered.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC, which is contained in its opinion filed
as Exhibit 5.
23.2 Consent of Coopers & Lybrand LLP.
24 Power of Attorney (included in the signature page to this Registration Statement).
99.1 1998 Stock Incentive Plan of Hayes Corporation, which is incorporated by reference to
Exhibit 10.68 of the Company's Quarterly Report on Form 10-Q for the Quarter ended April
4, 1998.
99.2 Hayes Corporation Employee Stock Purchase Plan, which is incorporated by reference to
Exhibit 10.69 of the Company's Quarterly Report on Form 10-Q for the Quarter ended April
4, 1998.
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Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
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which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Hayes Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Norcross, State of Georgia, on this 15th day of
May, 1998.
HAYES CORPORATION
By: /s/ DENNIS HAYES
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Dennis Hayes
Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
on the signature pages to this Registration Statement hereby constitutes and
appoints Dennis C. Hayes and James A. Jones, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned, and in his name, place and stead, in any
and all capacities to sign any and all amendments, including post-effective
amendments, exhibits thereto and other documents in connection therewith, to
this Registration Statement, to make such changes in the Registration Statement
as such attorneys-in-fact deems appropriate, and to file the same, with all
exhibits thereto and other documents in connection therewith with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents and
each of them, full power and authority to do so and perform each and every act
and thing requisite and necessary to be done, as fully to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on May 15, 1998.
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/s/ P. K. CHAN /s/ DENNIS HAYES
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P. K. Chan Dennis Hayes
President, Chief Operating Officer and Director Chairman
/s/ BARBARA PERRIER DREYER /s/ RONALD HOWARD
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Barbara Perrier Dreyer Ronald Howard
Director Vice Chairman, Chief Executive
Officer and Director (principal executive officer)
/s/ CHIANG LAM /s/ S. P. QUEK
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Chiang Lam S. P. Quek
Director Director
/s/ M. C. TAM /s/ JAMES JONES
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M. C. Tam James Jones
Director Vice President and Chief Financial Officer
(principal financial and accounting officer)
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EXHIBIT INDEX
to
Registration Statement on Form S-8 of
Hayes Corporation
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Number Description
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4.1 Amended and Restated Certificate of Incorporation of the Company, which is
incorporated by reference to Exhibit 3.2 of the Company's Registration Statement
on Form S-1, as amended Commission File No. 333-1074 for the fiscal year ended
January 3, 1998.*
4.2 Amended and Restated Bylaws of the Company, which are incorporated by reference to
Exhibit 3.3 of the Company's Annual Report on Form 10-K for the fiscal year ended
January 3, 1998.*
5 Opinion of Womble Carlyle Sandridge & Rice, PLLC, as to the legality of the Common
Stock being registered.
23.1 Consent of Womble Carlyle Sandridge & Rice, PLLC, which is contained in its opinion filed
as Exhibit 5.
23.2 Consent of Coopers & Lybrand LLP.
24 Power of Attorney (included in the signature page to this Registration Statement).
99.1 1998 Stock Incentive Plan of Hayes Corporation, which is incorporated by reference to
Exhibit 10.68 of the Company's Quarterly Report on Form 10-Q for the Quarter ended April
4, 1998.*
99.2 Hayes Corporation Employee Stock Purchase Plan, which is incorporated by reference to
Exhibit 10.69 of the Company's Quarterly Report on Form 10-Q for the Quarter ended April
4, 1998.*
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* Incorporated by reference.
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EXHIBIT 5
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EXHIBIT 5
May 14, 1998
Hayes Corporation
5854 Peachtree Corners East
Norcross, Georgia 30092
Re: 1998 Stock Incentive Plan of Hayes Corporation and
Hayes Corporation Employee Stock Purchase Plan
Ladies and Gentlemen:
We have served as counsel for Hayes Corporation (the
"Company") in connection with its registration under the Securities Act of 1933,
as amended, of 3,000,000 shares of its common stock, $.01 par value (the
"Shares"), which are proposed to be offered and sold pursuant to the 1998 Stock
Incentive Plan of Hayes Corporation and Hayes Corporation Employee Stock
Purchase Plan (individually, a "Plan" and collectively, the "Plans"), and
pursuant to the Company's Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the
"Commission") with respect to the Shares.
In rendering this opinion, we have relied upon, among other
things, our examination of such records of the Company and certificates of its
officers, including that certain Officer's Certificate dated December 30, 1997,
and certificates of public officials as we have deemed necessary. We express no
opinion as to matters under or involving the laws of any jurisdiction other than
the corporate law of the State of Delaware, and, for the purposes of this
opinion, we have assumed that the laws of the State of Delaware are identical to
the laws of the State of Georgia.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that the Shares
have been duly authorized and, when issued and paid for in accordance with the
terms of the respective Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving this consent,
we do not admit that we are within the category of persons whose consent is
required by Section 7 of the Securities Act of 1933, as amended, or other rules
and regulations of the Commission thereunder.
WOMBLE CARLYLE SANDRIDGE & RICE
A Professional Limited Liability Company
/s/ WOMBLE CARLYLE SANDRIDGE & RICE
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EXHIBIT 23.2
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Hayes Corporation on Form S-8 (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, which report
is incorporated by reference herein.
/s/ COOPERS & LYBRAND L.L.P.
Coopers & Lybrand L.L.P.
Atlanta, Georgia
May 15, 1998
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