<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 31, 1998
REGISTRATION NO. 333-
================================================================================
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. 1996 Stock Option Plan
(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
1996 Stock Option Plan
<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) 300,000 Shares (1) N/A $1,542,307 $454.98
================== ================ =============== ============== ================
</TABLE>
(1) Represents 300,000 shares of Common Stock, authorized for issuance
under the HomeCom Communications, Inc. (the "Company") 1996 Stock Option Plan
(the "Stock Option Plan"). This Registration Statement also covers such
indeterminable additional number of shares as may be issuable under the Stock
Option Plan by reason of adjustments in the number of shares covered thereby as
described in the Prospectus.
<PAGE> 2
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.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
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.
0-29204), 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. and
subsidiaries as of December 31, 1997 and December 31, 1996, and for each of the
years in the three-year period ended December 31, 1997, have been incorporated
in this Registration Statement by reference in reliance upon the report, also
incorporated in this Registration Statement by reference, of
PricewaterhouseCoopers LLP, independent certified public accountants, and upon
the authority of said 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.
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
Not applicable.
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 recission,
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
<PAGE> 3
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 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
<PAGE> 4
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]
<PAGE> 5
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
July, 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 on July 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 /s/ Nat Stricklen
- ---------------------------- -----------------------------------
Harvey W. Sax, Director Nat Stricklen, 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 HomeCom Communications, Inc. 1996 Stock Option Plan
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
HOMECOM COMMUNICATIONS, INC.
1996 STOCK OPTION PLAN
SECTION 1.
PURPOSE
The purpose of this Plan is to promote the interests of the Company by
granting Options to purchase Shares to (i) Employees in order (a) to attract
and retain Employees, (b) to provide an additional incentive to each Employee
to work to increase the value of Shares, and (c) to provide each Employee with
a stake in the future of the Company which corresponds to the stake of each of
the Company's shareholders, and (ii) Key Persons who have rendered valuable
services to the Company, and to provide such Key Person with a stake in the
future of the Company which corresponds to each of the Company's shareholders.
SECTION 2.
DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of this Plan and, for purposes of such
definitions, the singular shall include the plural and the plural shall include
the singular.
2.1 "BOARD" means the Board of Directors of the Company.
2.2 "CODE" means the Internal Revenue Code of 1986, as amended.
2.3. "COMMITTEE" means the Compensation Committee of the Board.
2.4 "COMMON STOCK" means the common stock of the Company, par
value $.000l per share.
2.5 "COMPANY" means HomeCom Communications, Inc., a Delaware,
corporation, and any successor to such organization.
2.6 "EMPLOYEE" means an employee of the Company, a Subsidiary or
a Parent.
2.7 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
2.8 "EXERCISE PRICE" means the price which shall be paid to
purchase one (1) Share upon the exercise of an Option granted under this Plan.
2.9 "FAIR MARKET VALUE" means the price at which the Committee or
the Board acting in good faith determines through any reasonable valuation
method that a Share might change hands between a willing buyer and a willing
seller, neither being under any compulsion to buy or to sell and both having
reasonable knowledge of the relevant facts.
2.10 "ISO" means an option granted under this Plan to purchase
Shares which is intended by the Company to satisfy the requirements of Code
Section 422 as an incentive stock option.
<PAGE> 2
2.11 "KEY PERSON" means (i) a member of the Board who is not an
Employee, (ii) a consultant, distributor or other person who has rendered
valuable services to the Company, a Subsidiary or a Parent, (iii) a person who
has incurred, or is willing to incur, financial risk in the form of
guaranteeing or acting as co-obligor with respect to debts or other obligations
of the Company, or (iv) a person who has extended credit to the Company. Key
Persons are not limited to individuals and, subject to the preceding
definition, may include corporations, partnerships, associations and other
entities.
2.12 "NON-ISO" means an option granted under this Plan to purchase
Shares which is not intended by the Company to satisfy the requirements of Code
Section 422.
2.13 "OPTION" means an ISO or a Non-ISO.
2.14 "OPTIONEE" means grantee of an Option.
2.15 "PARENT" means any corporation which is a parent of the
Company (within the meaning of Code Section 424).
2.16 "PLAN" means the HomeCom Communications, Inc. 1996 Stock
Option Plan, as amended from time to time.
2.17 "SHARE" means a share of the Common Stock of the Company.
2.18 "STOCK OPTION GRANT" means the written agreement or
instrument which sets forth the terms of an Option granted to an Employee or
Key Person under this Plan.
2.19 "SUBSIDIARY" means any corporation which is a subsidiary of
the Company (within the meaning of Code Section 424(f)).
2.20 "SURRENDERED SHARES" means the Shares described in Section
11.2 which (in lieu of being purchased) are surrendered for cash or Shares, or
for a combination of cash and Shares, in accordance with Section 11.1.
2.21 "TEN PERCENT SHAREHOLDER" means a person who owns (after
taking into account the attribution rules of Code Section 424(d)) more than ten
percent (10%) of the total combined voting power of all classes of shares of
either the Company, a Subsidiary or a Parent.
SECTION 3.
SHARES SUBJECT TO OPTIONS
Three Hundred Thousand (300,000) Shares of Common Stock shall be
reserved for issuance under this Plan. Such Shares shall be reserved, to the
extent that the Company deems appropriate, from authorized but unissued Shares,
and from Shares which have been reacquired by the Company. Furthermore, any
Shares subject to an Option which remain after the cancellation, expiration or
exchange of such Option thereafter shall again become available for use under
this Plan, but any Surrendered Shares which remain after the surrender of an
Option under Section 11 shall not again become available for use under this
Plan.
<PAGE> 3
SECTION 4.
EFFECTIVE DATE
The effective date of this Plan shall be the date it is adopted by the
Board provided the shareholders of the Company approve this Plan within twelve
(12) months after such effective date. If such effective date comes before such
shareholder approval, any Options granted under this Plan before the date of
such approval automatically shall be granted subject to such approval.
SECTION 5.
COMMITTEE
This Plan shall be administered by the Committee. The Committee acting
in its absolute discretion shall exercise such powers and take such action as
expressly called for under this Plan and, further, the Committee shall have the
power to interpret this Plan and (subject to Section 16) to take such other
action in the administration and operation of this Plan as the Committee deems
equitable under the circumstances. The Committee's actions shall be binding on
the Company, on each affected Employee or Key Person, and on each other person
directly or indirectly affected by such actions. Notwithstanding anything else
to the contrary herein, the Board shall have the authority to assume the powers
and responsibilities outlined above with respect to the Committee, in whole or
in part.
SECTION 6.
ELIGIBILITY
Except as provided below, only Employees shall be eligible for the
grant of Options under this Plan, but no Employee shall have the right to be
granted an Option under this Plan merely as a result of his or her status as an
Employee. Key Persons may be eligible, subject to written approval by the
Board, for the grant of Options under this Plan, but only if the Key Person has
provided valuable services to the Company, a Subsidiary or a Parent and only if
the Option is a Non-ISO.
SECTION 7.
GRANT OF OPTIONS
The Committee, acting pursuant to the procedure established by the
Board, shall either grant Options under this Plan, or recommend to the Board
that Options be granted under this Plan. In accordance with the procedure
established by the Board, the Committee, or the Board, in its absolute
discretion, shall grant Options under this Plan from time to time to purchase
Shares and, further, shall have the right to grant new Options in exchange for
outstanding Options. Such Options shall be granted to Employees or Key Persons
selected by the Committee, acting in its discretion as set forth above, and
neither the Board nor the Committee shall be under any obligation whatsoever to
grant Options to all Employees or Key Persons, or to grant all Options subject
to the same terms and conditions. Each grant of an Option shall be evidenced by
a Stock Option Grant and each Stock Option Grant shall:
1. Specify whether the Option is an ISO or Non-ISO; and
2. incorporate such other terms and conditions as the Committee or the
Board, acting in its absolute discretion, deems consistent with the terms of
this Plan, including (without limitation) a restriction on the number of Shares
subject to the Option which first become exercisable or subject to surrender
during any calendar year.
<PAGE> 4
In determining Employee(s) or Key Person(s) to whom an Option shall be
granted and the number of Shares to be covered by such Option, the Committee or
the Board may take into account the recommendations of the President of the
Company and its other officers, the duties of the Employee or Key Person, the
present and potential contributions of the Employee or Key Person to the
success of the Company, the anticipated number of years of service remaining
before the attainment by the Employee of retirement age, and other factors
deemed relevant by the Committee or the Board, in its sole discretion, in
connection with accomplishing the purpose of this Plan. An Employee or Key
Person who has been granted an Option to purchase Shares of the Company,
whether under this Plan or otherwise, may be granted one or more additional
Options.
If the Committee or the Board grants an ISO and a Non-ISO to an
Employee on the same date, the right of the Employee to exercise or surrender
one such Option shall not be conditioned on his or her failure to exercise or
surrender the other such Option.
SECTION 8.
EXERCISE PRICE
If an Option is an ISO, the Exercise Price for each Share subject to
such Option shall be no less than the Fair Market Value of a Share on the date
such Option is granted or, if such Option is granted to a Ten Percent
Shareholder, the Exercise Price for each Share subject to such Option shall be
no less than 110% of the Fair Market Value of a Share on the date such Option
is granted. If an Option is a Non-ISO, the Exercise Price for each Share shall
be no less than the minimum price required by applicable state law, or by the
Company's governing instrument, or $0.01, whichever price is greater. The
Exercise Price shall be payable in full upon the exercise of any Option, and a
Stock Option Grant, at the discretion of the Committee or the Board, can
provide for the payment of the Exercise Price either in cash, or in Shares
acceptable to the Committee or the Board, or in any combination of cash and
Shares acceptable to the Committee or the Board. Any payment made in Shares
shall be treated as equal to the Fair Market Value of such Shares on the date
the properly endorsed certificate for such Shares is delivered to the
Commissioner of the Board.
Notwithstanding the above, and in the sole discretion of the Committee
or the Board, an Option may be exercised as to a portion or all (as determined
by the Committee or the Board) of the number of Shares specified in the Stock
Option Grant by delivery to the Company of a promissory note, such promissory
note to be executed by the Optionee and which shall include, with such other
terms and conditions as the Committee or the Board shall determine, provisions
in a form approved by the Committee or the Board under which (i) the balance of
the aggregate purchase price shall be payable in equal installments over such
period and shall bear interest at such rate (which shall not be less than the
prime bank loan rate as determined by the Committee or the Board) as the
Committee or the Board shall approve and (ii) the Optionee shall be personally
liable for payment of the unpaid principal balance and all accrued but unpaid
interest.
SECTION 9.
EXERCISE PERIOD
Each Option granted under this Plan shall be exercisable in whole or
in part at such time or times as set forth in the related Stock Option Grant,
but no Stock Option Grant shall:
1. make an Option exercisable before the date such Option is granted;
or
<PAGE> 5
2. make an Option exercisable after the earlier of the:
(a) the date such Option is exercised in full, or
(b) the date which is the tenth (10th) anniversary of the date such
Option is granted, if such Option is a Non-ISO or an ISO granted to a non-Ten
Percent Shareholder, or the date which is the fifth (5th) anniversary of the
date such Option is granted, if such Option is an ISO granted to a Ten Percent
Shareholder.
A Stock Option Grant may provide for the exercise of an Option after
the employment of an Employee has terminated for any reason whatsoever,
including death or disability.
SECTION 10.
NONTRANSFERABILITY
No Option granted under this Plan shall be transferable by an Employee
or Key Person other than by will or by the laws of descent and distribution,
and such Option shall be exercisable during an Employee's or Key Person's
lifetime only by the Employee or Key Person, as the case may be. The person or
persons to whom an Option is transferred by will or by the laws of descent and
distribution thereafter shall be treated as the Employee or Key Person.
SECTION 11.
SURRENDER OF OPTIONS
11.1 GENERAL RULE. The Committee or the Board, acting in its absolute
discretion may incorporate a provision in a Stock Option Grant to allow an
Employee or Key Person to surrender his or her Option in whole or in part in
lieu of the exercise in whole or in part of that Option on any date that:
1. the Fair Market Value of the Shares subject to such Option
exceeds the Exercise Price for such Shares, and
2. the Option to purchase such Shares is otherwise exercisable.
11.2 PROCEDURE. The surrender of an Option in whole or in part shall
be effected by the delivery of the Stock Option Grant to the Committee or the
Board, together with a statement signed by the Employee or Key Person which
specifies the number of Shares ("Surrendered Shares") as to which the Employee
or Key Person surrenders his or her Option and how he or she desires payment be
made for such Surrendered Shares.
11.3 PAYMENT. An Employee or Key Person in exchange for his or her
Surrendered Shares shall receive a payment in cash or in Shares, or in a
combination of cash and Shares, equal in amount on the date such surrender is
effected to the excess of the Fair Market Value of the Surrendered Shares on
such date over the Exercise Price for the Surrendered Shares. The Committee or
the Board, acting in its absolute discretion, can approve or disapprove an
Employee's or Key Person's request for payment in whole or in part in cash and
can make that payment in cash or in such combination of cash and Shares as the
Committee or the Board deems appropriate. A request for payment only in Shares
shall be approved and made in Shares to the extent payment can be made in whole
shares of Shares and (at the Committee's or the Board's discretion) in cash in
lieu of any fractional Shares.
11.4 RESTRICTIONS. Any Stock Option Grant which incorporates a
provision to allow an
<PAGE> 6
Employee or Key Person to surrender his or her Option in whole or in part also
shall incorporate such additional restrictions on the exercise or surrender of
such Option as the Committee or the Board deems necessary to satisfy the
conditions to the exemption under Rule 16b-3 (or any successor exemption) to
Section 16(b) of the Exchange Act.
SECTION 12.
SECURITIES REGISTRATION
Each Stock Option Grant may provide that, upon the receipt of Shares
as a result of the surrender or exercise of an Option, the Employee or Key
Person shall, if so requested by the Company, hold such Shares for investment
and not with a view of resale or distribution to the public and, if so
requested by the Company, shall deliver to the Company a written statement
satisfactory to the Company to that effect. Each Stock Option Grant may also
provide that, if so requested by the Company, the Employee or Key Person shall
make a written representation to the Company that he or she will not sell or
offer to sell any of such Shares unless a registration statement shall be in
effect with respect to such Shares under the Securities Act of 1933, as amended
("1933 Act"), and any applicable state securities law or, unless he or she
shall have famished to the Company an opinion, in form and substance
satisfactory to the Company, of legal counsel acceptable to the Company, that
such registration is not required. Certificates representing the Shares
transferred upon the exercise or surrender of an Option granted under this Plan
may at the discretion of the Company bear a legend to the effect that such
Shares have not been registered under the 1933 Act or any applicable state
securities law and that such Shares may not be sold or offered for sale in the
absence of an effective registration statement as to such Shares under the 1933
Act and any applicable state securities law or an opinion, in form and
substance satisfactory to the Company, of legal counsel acceptable to the
Company, that such registration is not required.
SECTION 13.
LIFE OF PLAN
No Option shall be granted under this Plan on or after the earlier of-
- the tenth (10th) anniversary of the effective date of this
Plan (as determined under Section 4 of this Plan), in which
event this Plan otherwise thereafter shall continue in effect
until all outstanding Options have been surrendered or
exercised in full or no longer are exercisable, or
- the date on which all of the Shares reserved under Section 3
of this Plan have (as a result of the surrender or exercise
of Options granted under this Plan) been issued or no longer
are available for use under this Plan, in which event this
Plan also shall terminate on such date.
<PAGE> 7
SECTION 14.
ADJUSTMENT
The number of Shares reserved under Section 3 of this Plan, and the
number of Shares subject to Options granted under this Plan, and the Exercise
Price of such Options shall be adjusted by the Committee in an equitable
manner to reflect any change in the capitalization of the Company, including,
but not limited to, such changes as stock dividends or stock splits.
Furthermore, the Committee or the Board shall have the right to adjust (in a
manner which satisfies the requirements of Code Section 424(a)) the number of
Shares reserved under Section 3 of this Plan, and the number of Shares
subject to Options granted under this Plan, and the Exercise Price of such
Options in the event of any corporate transaction described in Code Section
424(a) which provides for the substitution or assumption of such Options. If
any adjustment under this Section 14 creates a fractional Share or a right to
acquire a fractional Share, such fractional Share shall be disregarded, and
the number of Shares reserved under this Plan and the number subject to any
Options granted under this Plan shall be the next lower number of Shares,
rounding all fractions downward. An adjustment made under this Section 14 by
the Committee or the Board shall be conclusive and binding on all affected
persons and, further, shall not constitute an increase in the number of
Shares reserved under Section 3 of this Plan.
SECTION 15.
SALE OR MERGER OF THE COMPANY
If the Company agrees to sell substantially all of its assets for cash
or property, or for a combination of cash and property, or agrees to any
merger, consolidation, reorganization, division or other transaction in which
Shares are converted into another security or into the right to receive
securities or property and such agreement does not provide for the assumption
or substitution of the Options granted under this Plan, each Option at the
direction and discretion of the Committee or the Board, or as is otherwise
provided in the Stock Option Grants, may be canceled unilaterally by the
Company in exchange for the whole Shares (or, subject to satisfying the
conditions to the exemption under Rule 16b-3 or any successor exemption to
Section 16(b) of the Exchange Act, for the whole Shares and the cash in lieu
of a fractional Share) which each Employee or Key Person otherwise would
receive if he or she had the right to surrender his or her outstanding Option
in full under Section 11.1 of this Plan and he or she exercised that right
exclusively for Shares on a date fixed by the Committee or the Board which
comes before such sale or other corporate transaction.
SECTION 16.
AMENDMENT OR TERMINATION
This Plan may be amended by the Committee or the Board from time to
time to the extent that the Committee or the Board deems necessary or
appropriate; provided, however, no such amendment shall be made absent the
approval of the shareholders of the Company (1) to increase the number of
Shares reserved under Section 3 except as set forth in Section 14, (2) to
extend the maximum life of the Plan under Section 13 or the maximum exercise
period under Section 9, (3) to decrease the minimum Exercise Price under
Section 8, or (4) to change the designation of Employees or Key Persons
eligible for Options under Section 6. The Committee or the Board also may
suspend the granting of Options under this Plan at any time and may terminate
this Plan at any time; provided, however, the Company shall not have the
right to modify, amend or cancel any Option granted before such suspension or
termination unless (1) the Employee or Key Person consents in writing to such
modification, amendment or cancellation or (2) there is a dissolution or
liquidation of the Company or a transaction described in Section 14 or
Section 15 of this Plan.
<PAGE> 8
SECTION 17.
MISCELLANEOUS
18.1 SHAREHOLDER RIGHTS. No Employee or Key Person shall have any
rights as a shareholder of the Company as a result of the grant of an Option to
him or to her under this Plan or his or her exercise or surrender of such
Option pending the actual delivery of Shares subject to such Option to such
Employee or Key Person.
18.2 NO CONTRACT OF EMPLOYMENT. The grant of an Option to an Employee
or Key Person under this Plan shall not constitute a contract of employment and
shall not confer on an Employee any rights upon his or her termination of
employment in addition to those rights, if any, expressly set forth in the
Stock Option Grant which evidences his or her Option.
18.3 WITHHOLDING. The exercise or surrender of any Option granted
under this Plan shall constitute an Employee's or Key Person's full and
complete consent to whatever action the Committee or the Board directs to
satisfy the federal and state tax withholding requirements, if any, which the
Committee or the Board in its discretion deems applicable to such exercise or
surrender.
18.4 TRANSFER. The transfer of an Employee between or among the
Company, a Subsidiary or a Parent shall not be treated as a termination of his
or her employment under this Plan.
18.5 CONSTRUCTION. This Plan shall be construed under the laws of the
State of Georgia.
<PAGE> 1
EXHIBIT 5
July 31, 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 HomeCom
Communications, Inc. 1996 Stock Option Plan, (the
"Stock Option Plan")
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,
300,000 shares of the Company's common stock, par value $0.0001 per share, for
issuance pursuant to the Stock Option Plan 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 300,000 shares covered by the Registration Statement, upon the
exercise of stock options, at the prices described in the Registration
Statement, but not less than the par value thereof, and upon delivery of such
shares and payment therefor in accordance with the terms stated in the Stock
Option Plan 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/lb
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of HomeCom Communications, Inc. 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. We also consent to the
reference to our firm under Item 3 "Incorporation of Documents by Reference."
PricewaterhouseCoopers LLP
Atlanta, Georgia
July 31, 1998
