SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(C) OF THE
SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
|_| Preliminary Information Statement
|_| Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
|X| Definitive Information Statement
@POS.COM, INC.
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(Name Of Registrant As Specified In Its Charter)
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@POS.COM, INC.
3051 NORTH FIRST STREET
SAN JOSE, CALIFORNIA 95134
INFORMATION STATEMENT
GENERAL INFORMATION FOR STOCKHOLDERS
This information statement is furnished in connection with the prior
receipt by @POS.com, Inc., a Delaware corporation (the "Company"), of written
consents of stockholders representing a sufficient number of shares of the
Company's outstanding capital stock to amend the Company's Bylaws to set the
quorum requirement for meetings of the Board of Directors at a majority of the
directors then in office but in no event less than one-third of the entire Board
of Directors and to provide that vacancies in the Board of Directors may be
filled solely by the Board of Directors. This information statement is first
being sent to stockholders on or about January 5, 2001. The Company anticipates
that no action will be taken under the amended provisions of the Bylaws until
January 25, 2001.
WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
AMENDMENTS TO THE BYLAWS
ARTICLE III, SECTION 10
The first sentence of Article III, Section 10 of the Company's Bylaws
was amended in its entirety to read as follows:
"At all meetings of the Board of Directors, a majority of the Directors
then in office, but in no event less than one third of the entire Board
of Directors, shall constitute a quorum for the transaction of business
at any meeting of the Board of Directors and, except as otherwise
expressly required by statute or the Certificate of Incorporation or
these Bylaws, the act of a majority of the Directors present thereat
may adjourn such meeting to another time and place."
Before the Amendment, the first sentence of Article III, Section 10
provided that a quorum of the Board of Directors was four, regardless of the
number of Directors in office.
ARTICLE III, SECTION 13
Article III, Section 13 was amended in its entirety to read as follows:
"Sole power to fill vacancies and newly created directorships resulting
from any increase in the authorized number of Directors shall be vested
in the Board of Directors through action by a majority of the Directors
then in office, though less than a quorum, or by a sole remaining
Director, and each Director so chosen shall hold office until the next
annual election at which the term of the class to which they have been
elected expires or until such Director's successor is duly elected and
qualified or until such Director's earlier resignation, removal from
office, death or incapacity, PROVIDED, HOWEVER, that whenever the
stockholders of any class or series are entitled to elect one or more
Directors pursuant to the Certificate of Incorporation, any vacancy in
the directorships of such class or series may be filled only by
majority vote of such class or series of stock at a regular or special
meeting or by written consent of a majority of the holders of such
class or series."
Before the amendment, Article III, Section 13 provided that vacancies
in the Board of Directors could only be filled by the stockholders.
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REASONS FOR THE AMENDMENTS
The Company lacked sufficient directors to conduct business or to call
the annual meeting of stockholders and therefore needed to amend the quorum
requirement provision in Article III, Section 10 and the director vacancies
provision in Article III, Section 13 to enable the Board of Directors to conduct
business. In addition, it is common among public companies that a quorum be
comprised of a majority of the directors then in office but not less than one
third of the entire board of directors.
VOTE REQUIRED AND OBTAINED
Section 228 of the Delaware General Corporation Law (the "Delaware
Law") provides that any action which may be taken by the stockholders at a
meeting may be taken without a meeting, without prior notice and without a vote,
if a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes which would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Similarly, Article II, Section 11 of the Company's Bylaws authorizes
stockholders to take action by written consent. Article VIII of the Company's
Bylaws provides that the Bylaws may be amended by the stockholders, and Article
II, Section 9 provides that, when a quorum is present at any meeting, the vote
of the holders of a majority of the voting power of the issued and outstanding
stock of the Company entitled to vote on the matter, present in person or by
proxy, shall decide any question brought before the meeting, unless a different
vote is required in a provision of the Bylaws or the Certificate of
Incorporation. Article II, Section 9 of the Bylaws also provides that if the
Company's Certificate of Incorporation grants to any class or series of stock
the right to vote on a matter as a separate class or series, all references in
the Bylaws to a vote of the stockholders shall refer to the requisite vote of a
particular class or series, voting separately as a class or series, required by
the Certificate of Incorporation in addition to the requisite vote of all of the
stockholders. Article Fourth, Section 6(ii) of the Company's Certificate of
Incorporation provides that amendments to the Company's Bylaws may not be
approved without the vote or written consent of the holders of not less than
two-thirds of the then outstanding shares of Series B Preferred and Series D
Preferred Stock, each voting separately as a series.
Pursuant to Section 228 of the Delaware Law, and the Company's
Certificate of Incorporation and Bylaws, the vote required, and in fact
obtained, for the amendments to the Bylaws was not less than two-thirds of the
outstanding Series B and Series D Preferred Stock (each voting as a separate
series) and a majority of the outstanding Common Stock and Series B and Series D
Preferred Stock (voting together as a single class, on an
as-if-converted-to-Common-Stock basis).
Each holder of Common Stock is entitled to one vote for each share
held. Each holder of Series B Preferred Stock is entitled to approximately 2.03
votes for each share held. Each holder of Series D Preferred Stock is entitled
to one vote for each share held. The record date for purposes of determining the
number of outstanding shares of Common Stock and Preferred Stock of the Company,
and for determining stockholders entitled to vote, is the close of business on
November 28, 2000 (the "Record Date"), the day on which the Company received
written consents signed by stockholders representing a sufficient number of
shares of the Company's outstanding capital stock to adopt these amendments to
the Bylaws. As of the Record Date, the Company had outstanding 4,580,125 shares
of Common Stock, no shares of Series A Preferred Stock, 460,047 shares of Series
B Preferred Stock, no shares of Series C Preferred Stock, and 1,273,149 shares
of Series D Preferred Stock.
Pursuant to section 228 of the Delaware Law, the Company is required to
provide prompt notice of the taking of the corporate action without a meeting to
the stockholders of record who have not consented in writing to such action.
This Information Statement is intended to provide such notice. No dissenters' or
appraisal rights under the Delaware Law are afforded to the Company's
stockholders as a result of these amendments to the Bylaws.
CERTAIN MATTERS RELATED TO THIS PROPOSAL
No action will be taken under the amended provisions of the Bylaws
until approximately twenty (20) days after this Information Statement has been
distributed to the Company's stockholders.
-2-
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of November 28,
2000 as to shares of the Common Stock and Preferred Stock beneficially owned by:
(i) each person who is known by the Company to own beneficially more than 5% of
the Common Stock and Preferred Stock, (ii) each of the Company's directors,
(iii) both of the individuals who served as Chief Executive Officer during the
last fiscal year and the Company's other most highly compensated executive
officers whose compensation during the last fiscal year exceeded $100,000 and
(iv) all directors and executive officers of the Company as a group. Ownership
information is based upon information furnished by the respective individuals or
entities, as the case may be.
<TABLE>
<CAPTION>
AMOUNT AND
NATURE OF
BENEFICIAL
OWNERSHIP PERCENT
TITLE OF CLASS NAME AND ADDRESS OF BENEFICIAL OWNER(1) (2)(3) OF CLASS
-------------------- ------------------------------------------------------------- ------------ ----------
<S> <C> <C> <C>
Common Stock Michael Dorsey (5) 150,985 3.3%
FORMER ACTING CHIEF EXECUTIVE OFFICER AND DIRECTOR (4)
Common Stock David M. Licurse, Sr. (6) 254,722 5.5
FORMER CHIEF BUSINESS OFFICER, ACTING CHIEF FINANCIAL
OFFICER AND VICE PRESIDENT OF OPERATIONS
Common Stock Llavanya Fernando (7) 326,747 6.9
CHIEF OPERATING OFFICER
Common Stock Edward M. Kolasinski (8) 0 *
DIRECTOR
Common Stock Aziz Valliani (9) 565,391 11.6
DIRECTOR AND FORMER PRESIDENT AND CHIEF EXECUTIVE OFFICER
Common Stock Wilmot Living Trust (10) 521,111 11.3
13333 La Cuesta Drive
Los Altos, CA 94022
Common Stock All directors and executive officers as a group (5 persons) (4) 897,694 17.8
Series B Life Investors Insurance Company of America 352,942 76.7
Preferred Stock 4333 Edgewood Road NE
Cedar Rapids, IA 52499
Series B Rainbow Technologies 90,993 19.8
Preferred Stock 50 Technology Drive
Irvine, CA 92718
Series D Welch Allyn, Inc. (8) 1,273,149 100.0
Preferred Stock 4619 Jordan Road
Skaneateles Falls, NY 13153
Preferred Stock All directors and executive officers as a group (1 person) 1,273,149 73.5
</TABLE>
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* Less than 1%.
(1) Unless otherwise indicated, the address for all persons is c/o @POS.com,
Inc., 3051 North First Street, San Jose, California 95134.
(2) The Company effected a reverse stock split in October 1996, converting each
share of Series B Preferred Stock into one-half share of Series B Preferred
Stock and increasing the conversion ratio of Series B Preferred Stock into
Common Stock from 1:1 to 1:2.0286.
(3) The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934, and the
information is not necessarily indicative of beneficial ownership for any
other purpose. Under such rule, beneficial ownership includes any shares as
to which the individual or entity has voting power or investment power and
any shares that the individual or entity has the right to acquire within 60
days of November 28, 2000 through the exercise of any stock option or other
right. Unless otherwise
3
<PAGE>
indicated in the footnotes, each person or entity has sole voting and
investment power (or shares such powers with his or her spouse) with
respect to the shares shown as beneficially owned.
(4) As stated in Amendment No. 2 to the Company's Annual Report on Form 10-KSB,
certain individuals served as directors and/or officers of the Company
during its fiscal year ended June 30, 2000. The Company determined that
these individuals had not been elected and/or appointed in accordance with
the provisions of the Company's Bylaws. The Company has initiated action to
elect and/or appoint individuals to the appropriate positions.
(5) Includes 31,874 shares subject to currently exercisable options or options
exercisable within 60 days of November 28, 2000.
(6) Includes 92,294 shares subject to currently exercisable options or options
exercisable within 60 days of November 28, 2000.
(7) Consists of 179,049 shares held by the Llavanya X. Fernando Trust for which
Mr. Fernando has voting and investment control, and 147,698 shares subject
to currently exercisable options or options exercisable within 60 days of
November 28, 2000.
(8) Edward M. Kolasinski, Vice President, Finance and Chief Financial Officer
of Welch Allyn Protocol, Inc., a wholly owned subsidiary of Welch Allyn,
Inc. and a director of the Company, disclaims beneficial ownership of these
shares except to the extent of his pecuniary interest therein. Mr.
Kolasinski has dispositive and voting power of the 1,273,149 shares held by
Welch Allyn, Inc.
(9) Includes 311,458 shares subject to currently exercisable options or options
exercisable within 60 days of November 28, 2000.
(10) Includes 15,000 shares subject to currently available options or options
exercisable within 60 days of November 28, 2000 granted to Robb Wilmot. Dr.
Wilmot is a trustee of the Wilmot Living Trust, a former consultant to the
Company and a former director (see Note (4)).
January 5, 2001
