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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF
THE SECURITIES EXCHANGE ACT OF l934
HYBRID NETWORKS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 77-02520931
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
10161 BUBB ROAD
CUPERTINO, CA 95014
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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 Act registration statement file number to which this form relates:
333-36001
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Securities to be registered pursuant to Section 12(b) of the Act:
NONE
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Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $0.001 PAR VALUE
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The description of the Common Stock of Registrant set forth under the
caption "Description of Capital Stock" in Registrant's Registration Statement
on Form S-1 (File No. 333-36001) as originally filed with the Securities and
Exchange Commission on September 19, 1997, as amended October 22, 1997, or as
subsequently amended (the "REGISTRATION STATEMENT"), and in the Prospectus
included in the Registration Statement, is hereby incorporated by reference
in response to this item.
ITEM 2. EXHIBITS.
The following exhibits are filed herewith or incorporated herein by
reference:
Exhibit
Number Exhibit Title or Description
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3.01 Registrant's currently effective Amended and Restated
Certificate of Incorporation (incorporated by reference to
Exhibit 3.01 to the Registration Statement).
3.02 Form of Registrant's Amended and Restated Certificate of
Incorporation effecting stock split (incorporated by
reference to Exhibit 3.02 to the Registration Statement).
3.03 Form of Registrant's Amended and Restated Certificate of
Incorporation to be filed immediately following the offering
(incorporated by reference to Exhibit 3.03 to the
Registration Statement).
3.04 Registrant's Bylaws (incorporated by reference to Exhibit
3.04 to the Registration Statement).
3.05 Form of Registrant's Amended and Restated Bylaws to be
effective immediately following the offering (incorporated
by reference to Exhibit 3.05 to the Registration Statement).
4.01 Form of Specimen Certificate for Registrant's Common Stock
(incorporated by reference to Exhibit 4.01 to the
Registration Statement).
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4.02 Amended and Restated Investors Rights Agreement dated as of
September 18, 1997, between Registrant and certain
investors, as amended October 13, 1997 (incorporated by
reference to Exhibit 10.01 to the Registration Statement).
4.03 Senior Secured Convertible $5.5 Million Debenture Purchase
Agreement between Registrant and London Pacific Life &
Annuity Company dated April 30, 1997 and related Senior
Secured Convertible $5.5 Million Debenture Due 2002 and
Security Agreement and Senior Secured Convertible $5.5
Million Debenture Due 2002 transferred to BG Services
Limited (incorporated by reference to Exhibit 10.12 to the
Registration Statement).
4.04 Convertible Subordinated Promissory Note Purchase Agreement
among Registrant and certain investors dated September 18,
1997, form of Subordinated Convertible Promissory Note and
form of Common Stock Purchase Warrants (incorporated by
reference to Exhibit 10.13 to the Registration Statement).
99.01 The description of Registrant's Common Stock set forth under
the caption "Description of Capital Stock" on pages 62
through 64 of the Prospectus included in the Registration
Statement.
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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 registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Dated: October __, 1997 Hybrid Networks, Inc.
By: /s/ CARL S. LEDBETTER
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Carl S. Ledbetter
President and Chief Executive Officer
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INDEX TO EXHIBITS
Exhibit
Number Exhibit Title or Description
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3.01 Registrant's currently effective Amended and Restated
Certificate of Incorporation (incorporated by reference to
Exhibit 3.01 to the Registration Statement).
3.02 Form of Registrant's Amended and Restated Certificate of
Incorporation effecting stock split (incorporated by
reference to Exhibit 3.02 to the Registration Statement).
3.03 Form of Registrant's Amended and Restated Certificate of
Incorporation to be filed immediately following the offering
(incorporated by reference to Exhibit 3.03 to the
Registration Statement).
3.04 Registrant's Bylaws (incorporated by reference to Exhibit
3.04 to the Registration Statement).
3.05 Form of Registrant's Amended and Restated Bylaws to be
effective immediately following the offering (incorporated by
reference to Exhibit 3.05 to the Registration Statement).
4.01 Form of Specimen Certificate for Registrant's Common Stock
(incorporated by reference to Exhibit 4.01 to the
Registration Statement).
4.02 Amended and Restated Investors Rights Agreement dated as of
September 18, 1997 between Registrant and certain investors,
as amended October 13, 1997 (incorporated by reference to
Exhibit 10.01 to the Registration Statement).
4.03 Senior Secured Convertible $5.5 Million Debenture Purchase
Agreement between Registrant and London Pacific Life &
Annuity Company dated April 30, 1997 and related Senior
Secured Convertible $5.5 Million Debenture Due 2002 and
Security Agreement and Senior Secured Convertible $5.5
Million Debenture Due 2002 transferred to BG Services Limited
(incorporated by reference to Exhibit 10.12 to the
Registration Statement).
4.04 Convertible Subordinated Promissory Note Purchase Agreement
among Registrant and certain investors dated September 18,
1997, form of Subordinated Convertible Promissory Note and
form of Common Stock Purchase Warrants (incorporated by
reference to Exhibit 10.13 to the Registration Statement).
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99.01 The description of Registrant's Common Stock set forth under
the caption "Description of Capital Stock" on pages 62
through 64 of the Prospectus included in the Registration
Statement.
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EXHIBIT 99.01
DESCRIPTION OF CAPITAL STOCK
Immediately following the closing of this offering, the authorized capital
stock of the Company will consist of 100,000,000 shares of Common Stock, $0.001
par value per share, and 5,000,000 shares of Preferred Stock, $0.001 par value
per share. As of September 30, 1997, and assuming the conversion of all
outstanding Preferred Stock into Common Stock immediately prior to the closing
of this offering, there were outstanding 7,273,311 shares of Common Stock held
of record by 161 stockholders, warrants to purchase 1,160,558 shares of Common
Stock, options to purchase 1,974,242 shares of Common Stock and a $5.5 Million
Debenture convertible into 513,423 shares of Common Stock.
COMMON STOCK
Subject to preferences that may apply to shares of Preferred Stock
outstanding at the time, the holders of outstanding shares of Common Stock are
entitled to receive dividends out of assets legally available therefor at such
times and in such amounts as the Board of Directors may from time to time
determine. Each stockholder is entitled to one vote for each share of Common
Stock held on all matters submitted to a vote of stockholders. Cumulative voting
for the election of directors is not provided for in the Company's Certificate
of Incorporation, which means that the holders of a majority of the shares voted
can elect all of the directors then standing for election. The Common Stock is
not entitled to preemptive rights and is not subject to conversion or
redemption. Upon a liquidation, dissolution or winding-up of the Company, the
assets legally available for distribution to stockholders are distributable
ratably among the holders of the Common Stock and any participating Preferred
Stock outstanding at that time after payment of liquidation preferences, if any,
on any outstanding Preferred Stock and payment of other claims of creditors.
Each outstanding share of Common Stock is, and all shares of Common Stock to be
outstanding upon completion of this offering will be, fully paid and
nonassessable.
PREFERRED STOCK
Upon the closing of this offering, all outstanding shares of Preferred Stock
(the "Convertible Preferred") will be converted into shares of Common Stock. See
Note 9 of Notes to Financial Statements for a description of the Convertible
Preferred. The Board of Directors is authorized, subject to limitations
prescribed by Delaware law, to provide for the issuance of additional shares of
Preferred Stock in one or more series, to establish from time to time the number
of shares to be included in each such series, to fix the powers, designations,
preferences and rights of the shares of each wholly unissued series and
designate any qualifications, limitations or restrictions thereon and to
increase or decrease the number of shares of any such series (but not below the
number of shares of such series then outstanding) without any further vote or
action by the stockholders. The issuance of Preferred Stock with voting or
conversion rights could adversely affect the voting power or other rights of the
holders of Common Stock and may have the effect of delaying, deferring or
preventing a change in control of the Company. The Company has no current plan
to issue any shares of Preferred Stock.
WARRANTS
As of September 30, 1997, the Company had outstanding exercisable warrants
to purchase 844,353 shares of Common Stock at $4.73 per share. Warrants to
purchase 835,887 and 8,466 of such shares expire in June 2001 and August 2005,
respectively. The Company also had outstanding warrants to purchase 63,824
shares at $10.34 per share. Warrants to purchase 58,022 and 5,802 of such shares
expire in July 2001 and August 2006, respectively. In addition, warrants to
purchase 252,381 shares of Common Stock (assuming that the Subordinated Notes
and all accrued interest thereon are repayed in full with the proceeds of this
offering) at $10.91 per share expire in September 2002 and a warrant to purchase
2,659 shares of Common Stock at $10.91 per share expires in October 2002.
CONVERTIBLE $5.5 MILLION DEBENTURE
The Company has outstanding a senior secured convertible debenture due 2002
in the principal amount of $5.5 million to London Pacific. The loan accrues
interest at a rate of 12% per annum, payable quarterly
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and its term ends in April 2002, at which time the full principal amount is due.
In August 1997, the $5.5 Million Debenture was transferred to BG Services
Limited. The $5.5 Million Debenture is convertible into 513,423 shares of Common
Stock, assuming a conversion price of approximately $10.71 per share, at the
option of the holder at any time and will automatically convert into that number
of shares if (i) the gross proceeds to the Company from this offering are at
least $15.0 million, (ii) the public offering price per share is at least equal
to the Minimum Price and (iii) the closing price of the Common Stock after this
offering is equal to or greater than the Minimum Price for any 90 consecutive
calendar day period after this offering or, alternatively, upon the acquisition
of the Company for at least $166.5 million in cash or fair market value of
freely tradeable securities from the acquiring company. The $5.5 Million
Debenture is collateralized by substantially all of the Company's assets, and as
long as the $5.5 Million Debenture is outstanding the Company is subject to
certain restrictive covenants, including limitations on the amount of capital
expenditures it may incur in any 12 month period, and may not declare dividends,
retire any subordinated debt other than in accordance with its terms, or
distribute its assets to any stockholder. See Note 6 to Notes to Financial
Statements.
SUBORDINATED NOTES
In September 1997, the Company entered into an agreement to issue
subordinated notes in the principal amount of approximately $6.9 million. The
Subordinated Notes bear interest which must be paid quarterly at the rate of 10%
per annum until the earlier of March 30, 1998 or the date on which the principal
amount is paid in full, and if such principal amount is not repaid as of March
30, 1998, the Subordinated Notes will bear interest at the rate of 18% per annum
beginning after such date. The Subordinated Notes shall become due and payable
upon the closing of this offering. The Subordinated Notes contain certain
restrictive covenants that limit the amount of capital expenditures the Company
may incur in any 12 month period and the borrowing of additional funds and
prohibit the Company from, among other things, declaring dividends and
distributing assets so long as the Subordinated Notes are oustanding. See Note 5
to Notes to Financial Statements.
ANTI-TAKEOVER PROVISIONS
DELAWARE LAW
Section 203 ("Section 203") of the Delaware General Corporation Law ("DGCL")
is applicable to corporate takeovers of Delaware corporations. Subject to
certain exceptions set forth therein, Section 203 provides that a corporation
shall not engage in any business combination with any "interested stockholder"
for a three-year period following the date that such stockholder becomes an
interested stockholder unless (a) prior to such date, the board of directors of
the corporation approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder, (b) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding certain shares) or (c) on or subsequent to such date, the
business combination is approved by the board of directors of the corporation
and by the affirmative votes of at least two-thirds of the outstanding voting
stock which is not owned by the interested stockholder. Except as specified in
Section 203, an interested stockholder is generally defined to include any
person that is the owner of 15% or more of the outstanding voting stock of the
corporation, or is an affiliate or associate of the corporation and was the
owner of 15% or more of the outstanding voting stock of the corporation, or is
an affiliate or associate of the corporation and was the owner of 15% or more of
the outstanding voting stock of the corporation any time within three years
immediately prior to the relevant date, and the affiliates and associates of
such person. Under certain circumstances, Section 203 makes it more difficult
for an interested stockholder to effect various business combinations with a
corporation for a three-year period, although the stockholders may, by adopting
an amendment to the corporation's certificate of incorporation or bylaws, elect
not to be governed by this section, effective 12 months after adoption. The
Company's certificate of incorporation and the bylaws do not exclude the Company
from the restrictions imposed under Section 203. It is anticipated that the
provisions of Section 203 may encourage companies interested in acquiring the
Company to negotiate in advance with the Board of Directors of the Company since
the stockholder
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approval requirement would be avoided if a majority of the directors then in
office approve either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder. These provisions may have
the effect of deterring hostile takeovers or delaying changes in control of the
Company, which could depress the market price of the Common Stock and which
could deprive the stockholders of opportunities to realize a premium on shares
of the Common Stock held by them.
CHARTER AND BYLAW PROVISIONS
The Company's certificate of incorporation and bylaws contain certain
provisions that could discourage potential takeover attempts and make more
difficult attempts by stockholders to change management. The certificate of
incorporation and the bylaws provide for a classified Board of Directors and
permit the Board to create new directorships and to elect new directors to serve
for the full term of the class of director in which the new directorship was
created. The terms of the directors are staggered to provide for the election of
approximately one-third of the Board members each year, with each director
serving a three-year term. The Board (or its remaining members, even though less
than a quorum) is also empowered to fill vacancies on the Board occurring for
any reason for the remainder of the term of the class of directors in which the
vacancy occurred. Stockholders may remove a director or the entire Board, and
such removal requires the affirmative vote of a majority of the outstanding
voting stock. The Company's certificate of incorporation provides that
stockholders may not take action by written consent but only at a stockholders'
meeting, and that special meetings of the stockholders of the Company may only
be called by the Chairman of the Board or a majority of the Board.
REGISTRATION RIGHTS
Beginning six months after the date of this offering, the holders of
6,257,827 shares of Common Stock, the holders of warrants to purchase 1,148,949
shares of Common Stock and the holders of the $5.5 Million Debenture convertible
into 513,423 shares of Common Stock (collectively, the "Registrable Securities")
will have certain rights with respect to the registration of those shares under
the Securities Act, assuming no exercise of the Underwriters' over-allotment
option. If the Company proposes to register any of its shares of Common Stock
under the Securities Act other than in connection with a Company employee
benefit plan or certain corporate acquisitions, mergers or reorganizations, the
holders of the Registrable Securities may require the Company to include all or
a portion of their shares in such registration, subject to certain rights of the
managing underwriter to limit the number of shares in any such offering.
Further, holders of Registrable Securities holding at least 30% of the
outstanding shares of Registrable Securities may require the Company to register
all or any portion of their Registrable Securities on Form S-3 when such form
becomes available to the Company, subject to certain conditions and limitations.
The Company may be required to effect up to one such registration per year. In
addition holders of a majority of the warrants issued in connection with the
Subordinated Notes and the Credit Facility and shares of Common Stock
exercisable thereunder may require the Company to register one time all or any
portion of the shares issuable upon exercise of such warrants on Form S-3
commencing one year after the offering and, subject to certain limitations, to
keep the Registration effective for no less than 180 days.
All expenses incurred in connection with such registrations (other than
underwriters' discounts and commissions) will be borne by the Company. The
registration rights expire six years after the closing of this offering. In
addition, no holder of Registrable Securities shall be entitled to registration
rights if and so long as such holder can sell the Registrable Securities in
compliance with Rule 144 of the Securities Act.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Company's Common Stock is Boston
EquiServe.
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