<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOMECOM COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 58-2153309
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
14 Piedmont Center, Suite 100
3535 Piedmont Road
Atlanta, GA 30305
HomeCom Communications, Inc. Consultant Warrant Agreement
(Full Title of the Plan)
Norm Smith, 14 Piedmont Center, Suite 100, 3535 Piedmont Rd., Atlanta, GA 30305
(Name and address of agent for service)
Copies of Communications to:
Norm Smith
14 Piedmont Center, Suite 100
3535 Piedmont Rd.
Atlanta, GA 30305
(404) 237-4646
CALCULATION OF REGISTRATION FEE
Consultant Warrant Agreement
<TABLE>
<CAPTION>
Title of
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock
($0.0001 Par Value) 11,810 Shares(1) $5.37 $64,419 $17.63
========================================================================================
</TABLE>
(1) Represents 11,810 of shares of Common Stock, authorized for issuance by
the Company to its outside counsel, Sims Moss Kline & Davis LLP, pursuant to
that certain Warrant Agreement, dated as of November 13, 1998 (the "Warrant
Agreement"). This Registration Statement also covers such indeterminable
additional number of shares as may be issuable under the Warrant Agreement by
reason of adjustments in the number of shares covered thereby as described in
the Prospectus.
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, computed on
the basis of $0.01 per share, representing the price at which the securities may
be acquired pursuant to the Warrant Agreement.The last sale as reported by
NASDAQ on November 24, 1998 was $5.37.
Pursuant to Rule 416(a) of the General Rules and Regulations under the
Securities Act of 1933, this Registration Statement shall cover such additional
securities as may be offered or issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
<PAGE> 2
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Plan Information
This registration statement relates to the offer and sale of common stock,
$0.0001 per share (the "Common Stock"), of HomeCom Communications, Inc. (the
"Company") to its outside legal counsel, Sims Moss Kline & Davis LLP (the
"Consultant"), representing payment by the Company to Consultants for a portion
of the legal fees incurred by the Company for legal services from March through
November, 1998. In connection therewith, the Consultants are being offered the
opportunity to purchase up to 11,810 shares of Common Stock of the Company
pursuant to that certain warrant Agreement, dated as of November 13, 1998. This
summary should be read in connection with the Warrant Agreement, which is
incorporated herewith as an exhibit hereto.
Item 2. Registrant Information and Employee Plan Information
The Consultants have been provided with copies of the documents
incorporated herein by reference in Part II, Item 3, and have been advised by
the Company in writing that such documents will be available to the consultant
without charge upon Consultant's request to the Company's offices at 14 Piedmont
Center, Suite 100, 3535 Piedmont Road, Atlanta, GA 30305, telephone (404)
237-4646.
Item 3. Incorporation of Documents by Reference
The Company's Annual Report on Form 10-K for the year ended December 31,
1997, which has been filed by the Company with the Commission (File No.
000-29204), is incorporated herein by reference. All other reports filed by the
Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), since the end of the fiscal year covered
by the foregoing Annual Report on Form 10-K are incorporated herein by
reference. All other reports or documents filed by the Company pursuant to the
requirements of Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such reports or documents. Any statements contained in a document
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is incorporated herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
The financial statements of HomeCom Communications, Inc. as of December 31,
1997 and December 31, 1996, and for each of the three years in the period ended
December 31, 1997, incorporated by reference in this Registration Statement,
have been incorporated herein in reliance on the report, which includes an
explanatory paragraph relating to the uncertainty of the Company's ability to
continue as a going concern, of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
The description of the Company's Common Stock, the class of securities
offered pursuant to this Registration Statement, is contained in the Company's
Registration Statement filed pursuant to Section 12 of the Exchange Act, and is
incorporated herein by reference, including any subsequent amendments or reports
filed for the purpose of updating that description.
<PAGE> 3
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
Since March 1998, the Consultant has acted as legal counsel to the Company.
The shares of Common Stock subject to issuance pursuant to the Warrant Agreement
are being issued by the Company as partial payment for outstanding legal fees
owed to the Consultant for legal services rendered to the Company from March
1998 through November 1998.
Item 6. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation provides, as permitted
by Delaware law, that its directors shall have no personal liability for certain
breaches of their fiduciary duties to the Company, other than liability for a
breach of the duty of loyalty, acts or omissions not in good faith that
constitute a breach of the director's duty to the Company, acts that involve
intentional misconduct or a knowing violation of the law, transactions in which
the director receives an improper benefit and acts or omissions for which
liability is provided by an applicable statute. While the Restated Certificate
of Incorporation provides directors with protection from awards for monetary
damages for breach of duties to the Company, it does not eliminate those duties.
Accordingly, the Restated Certificate of Incorporation should not affect the
availability of equitable remedies, such as injunction or recision, based on a
director's breach of the duty of care. However, equitable remedies may not
provide stockholders adequate monetary compensation for damages caused by breach
of duties to the Company. The Company's Restated Bylaws provide for mandatory
indemnification of directors and officers, and persons serving at the request of
the Company as a director or officer of another corporation, to the fullest
extent permitted by Delaware General Corporation Law. These limitations on
personal liability do not apply to liabilities under federal securities laws.
However, these provisions may reduce the likelihood of derivative litigation
against directors and may discourage stockholders from bringing a lawsuit
against directors for a breach of their fiduciary duties.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Reference is made to the Exhibit Index.
Item 9. Undertakings
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, represents 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 (1)(i) and (1)(ii) do not apply if the registration
statement is on Form
<PAGE> 4
S-3, Form S-8, or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of 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.
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 Section 15(d) of the
Securities Exchange 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions 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 a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Atlanta, State of Georgia, on the 24th day of
November, 1998.
HOMECOM COMMUNICATIONS, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Harvey W. Sax and Norm Smith, and each of them,
his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing required and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his or her substitute, 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 below as of November 24, 1998, by the
following persons in the capacities indicated.
By /s/ Harvey W. Sax
---------------------
Harvey W. Sax, President and
Chief Executive Officer
/s/ Harvey W. Sax
-------------------------
Harvey W. Sax, Director
/s/ Kris Puri /s/ Roger Nebel
------------------------- ---------------------------------
Kris Puri, Director Roger Nebel, Director
/s/ Gia Bokuchava /s/ Claude Thomas
------------------------- ---------------------------------
Gia Bokuchava, Director Claude Thomas, Director
/s/ Gregory Abowd /s/ Norm Smith
------------------------- ---------------------------------
Gregory Abowd, Director Norm Smith, Chief Financial Officer
<PAGE> 6
EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
Exhibit 4 Consultant Warrant Agreement
Exhibit 5 Opinion of Sims Moss Kline & Davis LLP
Exhibit 23.1 Consent of PricewaterhouseCoopers LLP
Exhibit 23.2 Consent of Sims Moss Kline & Davis LLP (included in Exhibit 5)
Exhibit 24 Power of Attorney (included on signature page)
<PAGE> 1
EXHIBIT 4
FORM OF WARRANT
THESE SECURITIES AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE "ACT"), OR ANY
STATE SECURITIES LAWS, INCLUDING IN PARTICULAR, SECTION 10-5-9(13) OF THE
GEORGIA SECURITIES ACT OF 1973, AS AMENDED AND NEITHER SUCH SECURITIES NOR ANY
INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER
CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
APPLICABLE STATE SECURITIES LAWS.
HOMECOM COMMUNICATIONS, INC.
WARRANT TO PURCHASE COMMON STOCK
Warrant No. ______ Issued to Sims Moss Kline & Davis LLP Number of Shares:
11,810 Date of Issuance: November 13, 1998
HomeCom Communications, Inc., a Delaware corporation (the "COMPANY"),
hereby certifies that, for value received, Sims Moss Kline & Davis LLP (the
"HOLDER"), the registered holder hereof or its permitted assigns, is entitled,
subject to the terms set forth below, to purchase from the Company upon
surrender of this Warrant, at any time or times on or after the date hereof, but
not after 5:00 P.M. Eastern Standard Time on the Expiration Date (as defined
herein), November 13, 2003, fully paid nonassessable shares of Common Stock (as
defined herein) of the Company (the "WARRANT SHARES") at the purchase price per
share provided in Section 1(b) below (the "WARRANT EXERCISE PRICE").
Section 1. General Provisions.
(a) Definitions. The following words and terms as used in this Warrant
shall have the following meanings:
<PAGE> 2
"COMMON STOCK" means (i) the Company's common stock, par value $0.0001
per share, and (ii) any capital stock into which such Common Stock shall have
been changed or any capital stock resulting from a reclassification of such
Common Stock.
"EXPIRATION DATE" means the date five (5) years from the date of this
Warrant or, if such date falls on a Saturday, Sunday or other day on which banks
are required or authorized to be closed in the City of Atlanta or the State of
Georgia (a "HOLIDAY"), the next preceding date that is not a Holiday.
"PERSON" means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"WARRANT" shall mean this Warrant and all Warrants issued in exchange,
transfer or replacement of any thereof.
"WARRANT EXERCISE PRICE" shall be equal to $0.01 per share prior to and,
subject to adjustment as hereinafter provided.
(b) Other Definitional Provisions.
(i) Except as otherwise specified herein, all references herein (A) to
the Company shall be deemed to include the Company's successors, and (B) to
any applicable law defined or referred to herein, shall be deemed
references to such applicable law as the same may have been or may be
amended or supplemented from time to time.
(ii) When used in this Warrant, the words "HEREIN," "HEREOF," and
"HEREUNDER," and words of similar import, shall refer to this Warrant as a
whole and not to any provision of this Warrant, and the words "SECTION,"
"SCHEDULE," and "EXHIBIT" shall refer to Sections of, and Schedules and
Exhibits to, this Warrant unless otherwise specified.
(iii) Whenever the context so requires, the neuter gender includes the
masculine or feminine, and the singular number includes the plural, and
vice versa.
Section 2. Exercise of Warrant.
(a) Subject to the terms and conditions hereof, this Warrant may be
exercised by the holder hereof then registered on the books of the Company, in
whole or in part, at any time during normal business hours on any business day
on or after the opening of business on the
<PAGE> 3
date hereof and prior to 5:00 P.M. Eastern Standard Time on the Expiration Date
by (i) delivery of a written notice, in the form of the subscription notice
attached as Exhibit A hereto, of such holder's election to exercise this
Warrant, which notice shall specify the number of Warrant Shares to be
purchased, (ii) payment to the Company of an amount equal to the Warrant
Exercise Price multiplied by the number of Warrant Shares as to which the
Warrant is being exercised (plus any applicable issue or transfer taxes (the
"AGGREGATE EXERCISE PRICE") in cash or by check or wire transfer, and (iii) the
surrender of this Warrant, at the principal office of the Company; provided,
that if such Warrant Shares are to be issued in any name other than that of the
registered holder of this Warrant, such issuance shall be deemed a transfer and
the provisions of Section 7 shall be applicable.
(b) In the event of any exercise of the rights represented by this Warrant
in compliance with Section 2(a), a certificate or certificates for the Warrant
Shares so purchased, in such denominations as may be requested by the holder
hereof and registered in the name of, or as directed by, the holder, shall be
delivered at the Company's expense to, or as directed by, such holder as soon as
practicable after such rights shall have been so exercised.
(c) Unless the rights represented by this Warrant shall have expired or
shall have been fully exercised, the Company shall, as soon as practicable and
at its own expense, issue a new Warrant identical in all respects to the Warrant
exercised except (i) it shall represent rights to purchase the number of Warrant
Shares purchasable immediately prior to such exercise under the Warrant
exercised, less the number of Warrant Shares with respect to which such Warrant
is exercised, and (ii) the holder thereof shall be deemed for all corporate
purposes to have become the holder of record of such Warrant Shares immediately
prior to the close of business on the date on which the Warrant is surrendered
and payment of the amount due in respect of such exercise and all applicable
taxes is made, irrespective of the date of delivery of certificates evidencing
such Warrant Shares, except that, if the date of such surrender and payment is a
date when the stock transfer books of the Company are properly closed, such
person shall be deemed to have become the holder of such Warrant Shares at the
opening of business on the next succeeding date on which the stock transfer
books are open.
(d) No fractional shares of Common Stock are to be issued upon the exercise
of this Warrant, but rather the number of shares of Common Stock issued upon
exercise of this Warrant shall be rounded up or down to the nearest whole
number.
Section 3. Covenants as to Common Stock. The Company hereby covenants and agrees
as follows:
(a) This Warrant is, and any Warrants issued in substitution for or
replacement of this Warrant will upon issuance be, duly authorized and validly
issued.
<PAGE> 4
(b) All Warrant Shares which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable and free from all taxes, liens and charges with respect to the
issue thereof.
(c) During the period within which the rights represented by this Warrant
may be exercised, the Company will at all times have authorized and reserved a
sufficient number of the number of shares of Common Stock needed to provide for
the exercise of the rights then represented by this Warrant and the par value of
said shares will at all times be less than or equal to the applicable Warrant
Exercise Price.
(d) The Company shall promptly secure the listing of the shares of Common
Stock issuable upon exercise of this Warrant upon each national securities
exchange or automated quotation system, if any, upon which shares of Common
Stock are then listed (subject to official notice of issuance upon exercise of
this Warrant) and shall maintain, so long as any other shares of Common Stock
shall be so listed, such listing of all shares of Common Stock from time to time
issuable upon the exercise of this Warrant; and the Company shall so list on
each national securities exchange or automated quotation system, as the case may
be, and shall maintain such listing of, any other shares of capital stock of the
Company issuable upon the exercise of this Warrant if and so long as any shares
of the same class shall be listed on such national securities exchange or
automated quotation system.
(e) The Company will not, by amendment of its Certificate of Incorporation
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities, or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms to be
observed or performed by it hereunder, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in the
taking of all such action as may reasonably be requested by the holder of this
Warrant in order to protect the exercise privilege of the holder of this Warrant
against impairment, consistent with the tenor and purpose of this Warrant.
Without limiting the generality of the foregoing, the Company (i) will not
increase the par value of any shares of Common Stock receivable upon the
exercise of this Warrant above the Exercise Price then in effect, and (ii) will
take all such actions as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares of
Common Stock upon the exercise of this Warrant.
(f) This Warrant will be binding upon any entity succeeding to the Company
by merger, consolidation or acquisition of all or substantially all of the
Company's assets.
Section 4. Taxes. The Company shall not be required to pay any tax or taxes
attributable to the initial issuance of the Warrant Shares or any permitted
transfer involved in the issue or delivery of any certificates for Warrant
Shares in a name other than that of the registered holder hereof or upon any
permitted transfer of this Warrant.
<PAGE> 5
Section 5. Warrant Holder Not Deemed a Stockholder. Except as otherwise
specifically provided herein, no holder, as such, of this Warrant shall be
entitled to vote or receive dividends or be deemed the holder of shares of the
Company for any purpose, nor shall anything contained in this Warrant be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote, give or withhold consent to any
corporate action (whether any reorganization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise), receive notice of
meetings, receive dividends or subscription rights, or otherwise, prior to the
issuance to the holder of this Warrant of the Warrant Shares which he or she is
then entitled to receive upon the due exercise of this Warrant. In addition,
nothing contained in this Warrant shall be construed as imposing any liabilities
on such holder to purchase any securities or as a stockholder of the Company,
whether such liabilities are asserted by the Company or by creditors of the
Company. Notwithstanding this Section 5, the Company will provide the holder of
this Warrant with copies of the same notices and other information given to the
stockholders of the Company generally, contemporaneously with the giving thereof
to the stockholders.
Section 6. Representations of Holder. The holder of this Warrant, by the
acceptance hereof, represents that it is acquiring this Warrant and the Warrant
Shares for its own account for investment.
Section 7. Ownership and Transfer.
(a) The Company shall maintain at its principal executive offices (or such
other office or agency of the Company as it may designate by notice to the
holder hereof), a register for this Warrant, in which the Company shall record
the name and address of the person in whose name this Warrant has been issued,
as well as the name and address of each transferred. The Company may treat the
person in whose name any Warrant is registered on the register as the owner and
holder thereof for all purposes, notwithstanding any notice to the contrary, but
in all events recognizing any transfers made in accordance with the terms of
this Warrant.
(b) This Warrant and the rights granted to the holder hereof are
transferable, in whole or in part, upon surrender of this Warrant, together with
a properly executed warrant power in the form of Exhibit B attached hereof;
provided, however, that any transfer or assignment shall be subject to the
conditions set forth in Section 7(c) below. The rights of the holder of this
Warrant to transfer this Warrant and the rights granted to the holder as
provided for herein shall include, but not be limited to, the right to make such
a transfer to a family member or corporation, partnership, trust or other entity
which is owned or controlled by, or under common control with, the holder of
this Warrant.
(c) The holder of this Warrant understands that this Warrant has not been
and is not expected to be, registered under the Securities Act or any state
securities laws, and may not be offered for sale, sold, assigned or transferred
unless (a) subsequently registered
<PAGE> 6
thereunder, or (b) such holder shall have delivered to the Company an opinion of
counsel, reasonably satisfactory in form, scope and substance to the Company, to
the effect that the securities to be sold, assigned or transferred may be sold,
assigned or transferred pursuant to an exemption from such registration; (i) any
sale of such securities made in reliance on Rule 144 promulgated under the
Securities Act may be made only in accordance with the terms of said Rule and
further, if said Rule is not applicable, any resale of such securities under
circumstances in which the seller (or the person through whom the sale is made)
may be deemed to be an underwriter (as that term is defined in the Securities
Act) may require compliance with some other exemption under the Securities Act
or the rules and regulations of the Securities and Exchange Commission
thereunder.
(d) The Holder shall be entitled to piggy-back registration rights for the
Warrant Shares and will have the right four times per each calendar year to have
the Warrant Shares which may be issued by the Company from time to time
registered by the Company as freely tradeable shares pursuant to Form S-8.
Section 8. Adjustment of Warrant Exercise Price and Number of Shares. In order
to prevent dilution of the rights granted under this Warrant, the Warrant
Exercise Price and the number of shares of Common Stock issuable upon exercise
of this Warrant shall be adjusted form time to time as follows:
(a) Adjustment of Warrant Exercise Price upon Subdivision or Combination of
Common Stock. If the Company at any time subdivides (by any stock split, stock
dividend, recapitalization or otherwise) one or more classes of its outstanding
shares of Common Stock into a greater number of shares, the Warrant Exercise
Price in effect immediately prior to such subdivision will be proportionately
reduced and the number of shares of Common Stock obtainable upon exercise of
this Warrant will be proportionately increased. If the Company at any time
combines (by combination, reverse stock split or otherwise) one or more classes
of its outstanding shares of Common Stock into a smaller number of shares, the
Warrant Exercise Price in effect immediately prior to such combination will be
proportionately increased and the number of shares of Common Stock obtainable
upon exercise of this Warrant will be proportionately decreased.
(b) Reorganization, Reclassification, Consolidation, Merger or Sale. Any
recapitalization, reorganization, reclassification, consolidation, merger, sale
of all or substantially all of the Company's assets to another Person (as
defined below) or other transaction which is effected in such a way that holders
of Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Common Stock is referred to herein as "ORGANIC CHANGE." Prior to the
consummation of any Organic Change, the Company will make appropriate provision
to insure that each holder of Warrants will thereafter have the right to acquire
and receive in lieu of or in addition to (as the case may be) the shares of
Common Stock immediately theretofore acquirable and receivable upon the exercise
of such holder's Warrants, such
<PAGE> 7
shares of stock, securities or assets as may be issued or payable with respect
to or in exchange for the number of shares of Common Stock immediately
theretofore acquirable and receivable upon the exercise of such holder's
Warrants had such Organic Change not taken place. In any such case, the Company
will make appropriate provision of such Warrants with respect to such holders'
rights and interests to insure that the provisions of this Section 8 and Section
9 below will thereafter be applicable to the Warrants. The Company will not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof, the successor entity (if other than the company) resulting from
consolidation or merger or the entity purchasing such assets assumes, by written
instrument (in form and substance satisfactory to the holders of Warrants
representing a majority of shares of Common Stock issuable upon exercise of the
Warrants then outstanding), the obligation to delivery to each holder of
Warrants such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to acquire.
(c) Notices.
(i) Immediately upon any adjustment of the Warrant Exercise Price, the
Company will give written notice thereof to the holder of this Warrant,
setting forth in reasonable detail and certifying the calculation of such
adjustment.
(ii) The Company will give written notice to the holder of this
Warrant at least twenty (20) days prior to the date on which the Company
closes its books or takes a record (A) with respect to any dividend or
distribution upon the Common Stock, (B) with respect to any pro rata
subscription offer to holders of Common Stock, or (C) for determining
rights to vote with respect to any Organic Change, dissolution or
liquidation, except that in no event shall such notice be provided to such
holder prior to such information being made known to the public.
(iii) The Company will also give written notice to the holder of this
Warrant at least twenty (20) days prior to the date on which any Organic
Change, dissolution or liquidation will take place.
Section 9. Purchase Rights. In addition to any adjustments pursuant to Section 8
above, if at any time the Company grants, issues or sells any Options,
Convertible Securities or rights to purchase stock, warrants, securities or
other property pro rata to the record holders of any class of Common Stock (the
"PURCHASE RIGHTS"), then the holder of this Warrant will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights
which such holder could have acquired if such holder had held the number of
shares of Common Stock acquirable upon complete exercise of this Warrant
immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the ate as of
which the record holders of Common Stock are to be determined for the grant,
issue or sale of such Purchase Rights.
<PAGE> 8
Section 10. Lost, Stolen, Mutilated or Destroyed Warrant. If this Warrant is
lost, stolen, mutilated or destroyed, the Company shall, on receipt of an
indemnification undertaking, issue a new Warrant of like denomination and tenor
as the Warrant so lost, stolen, mutilated or destroyed.
Section 11. Notice. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Warrant must be in
writing and will be deemed to have been delivered (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile, provided a copy
is mailed by U.S. certified mail, return receipt requested; (iii) three (3) days
after being sent by U.S. certified mail, return receipt requested; or (iv) one
(1) day after deposit with a nationally recognized overnight delivery service,
in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:
If to the Company: HomeCom Communications, Inc.
Fourteen Piedmont Center, Suite 100
3535 Piedmont Road
Atlanta, Georgia 30305
Attn: Harvey Sax
Facsimile: (404) 237-3060
If to a holder of this Warrant, to it at the address set forth below such
holder's signature on the signature page hereof.
Each party shall provide five (5) days' prior written notice to the other
party of any change in address or facsimile number.
Section 12. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party or holder hereof against which enforcement of such change, waiver,
discharge or termination is sought. The headings in this Warrant are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. This Warrant shall be governed by and interpreted under the laws
of the State of Delaware.
Section 13. Date. The date of this Warrant is November 13, 1998. This Warrant,
in all events, shall be wholly void and of no effect after the close of business
on the Expiration Date, except that notwithstanding any other provisions hereof,
the provisions of Section 7 shall continue in full force and effect after such
date as to any Warrant Shares or other securities issued upon the exercise of
this Warrant.
* * * *
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be
executed as of the day and year first above written.
"THE HOLDER"
SIMS MOSS KLINE & DAVIS LLP
a Georgia limited liability partnership
By: /s/ Raymond L. Moss
--------------------------------
Title: /s/ Partner
--------------------------------
"THE COMPANY"
HOMECOM COMMUNICATIONS, INC
a Delaware corporation
By: /s/ Harvey Sax
--------------------------------
Title: /s/ President
--------------------------------
<PAGE> 10
EXHIBIT A TO WARRANT
EXERCISE FORM
(to be signed only upon exercise of Warrant)
To: HOMECOM COMMUNICATIONS, INC.
The undersigned, the holder of the attached Warrant, hereby irrevocably elects
to exercise the purchase right represented by that Warrant for, and to purchase
under the Warrant, ______ shares of Common Stock of HOMECOM COMMUNICATIONS, INC.
(the "Company") and herewith:
_____ makes payments of $___________ for those shares,
and requests that the certificates for those shares be issued in its name, and
delivered to the following address:___________________________________________.
Dated: ________________, 19__.
____________________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant.)
____________________________________
Address
____________________________________
<PAGE> 11
EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
__________________________, Federal Identification No. _____________, a warrant
to purchase ___________ shares of the capital stock of HOMECOM COMMUNICATIONS,
INC., a Delaware corporation, represented by warrant certificate No. ______,
standing in the name of the undersigned on the books of said corporation. The
undersigned does hereby irrevocably constitute and appoint
___________________________, attorney to transfer the warrants of said
corporation, with full power of substitution in the premises.
Dated:______________________
____________________________________
By:_________________________________
Its:_________________________________
<PAGE> 1
EXHIBIT 5
December 1, 1998
HomeCom Communications, Inc.
14 Piedmont Center, Suite 100
3535 Piedmont Rd.
Atlanta, GA 30305
Re: Registration Statement on Form S-8 Relating to the issuance of Common
Stock of HomeCom Communications, Inc. pursuant to that certain Warrant
Agreement, dated as of November 24, 1998, (the "Warrant Agreement")
Gentlemen:
With respect to the Registration Statement on Form S-8 (the "Registration
Statement"), filed by HomeCom Communications, Inc., a Delaware corporation (the
"Company"), with the Securities and Exchange Commission for the purpose of
registering under the Securities Act of 1933, as amended,up to 11,810 shares of
the Company's common stock, par value $0.0001 per share, for issuance pursuant
to the Warrant Agreement, we have examined such documents and questions of law
we consider necessary or appropriate for the purpose of giving this opinion. On
the basis of such evaluation, we advise you that in our opinion the 11,820
shares covered by the Registration Statement, upon the exercise of delivery of
such shares and payment therefor in accordance with the terms stated in the
Warrant Agreement and the Registration Statement, will be duly and legally
authorized, issued and outstanding and will be fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission relating thereto.
Very truly yours,
Sims Moss Kline & Davis LLP
By: Raymond L. Moss, Partner
RLM/lkb
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
HomeCom Communications, Inc. on Form S-8 of our report, which includes an
explanatory paragraph relating to the uncertainty of the Company's ability to
continue as a going concern, dated March 13, 1998, on our audits of the
financial statements of HomeCom Communications, Inc. as of December 31, 1997 and
1996, and for the three years in the period ended December 31, 1997, which
report is included in the Company's Annual Report on Form 10-K. We also consent
to the reference to our firm under Item 3 "Incorporation of Documents by
Reference."
/s/ PricewaterhouseCoopers LLP
Atlanta, Georgia
December 1, 1998
