<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. Employee Stock Purchase 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
Employee Stock Purchase Plan
<TABLE>
<CAPTION>
Title of
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(2) Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock
($0.0001 Par Value) 150,000 Shares(1) $3 7/32 $482,813 $142.43
=================== ================= ======= ======== =======
</TABLE>
(1) Represents 150,000 shares authorized for issuance under the Company's
Employee Stock Purchase Plan (the "Stock Purchase Plan"). This
Registration Statement also covers such indeterminable additional
number of shares as may be issuable under the Stock Purchase Plan by
reason of adjustments in the number of shares covered thereby as
described in the Prospectus.
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(2) For the purpose of computing the registration fee only, the price shown
is based upon the price of $3 7/32 per share, the average of the high
and low prices of the registrant's common stock on the Nasdaq Stock
Market Small Cap Market on July 28, 1998, in accordance with Rule
457(h).
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
<PAGE> 3
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 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
<PAGE> 4
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 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
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EXHIBIT INDEX
The following exhibits are filed as a part of the Registration
Statement:
Exhibit 3 HomeCom Communications, Inc. Employee Stock Purchase 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 3
HOMECOM COMMUNICATIONS, INC.
EMPLOYEE STOCK PURCHASE PLAN
SECTION 1.
PURPOSE
The Purpose of the HOMECOM COMMUNICATIONS, INC. EMPLOYEE STOCK PURCHASE
PLAN (the "Plan") is to promote the interests of the Company by providing the
Opportunity to purchase Shares to Employee in order to attract and retain
Employees by providing an incentive to work to increase the value of Shares and
a stake in the future of the Company which corresponds to the stake of each of
the Company's shareholders, The Plan is intended to be an "employee stock
purchase plan" as defined in Section 423 of the Internal Revenue Code of 1986,
as amended ("Code"). The provisions of the Plan shall, accordingly, be construed
so as to comply with the requirements of Section 423 of the Code whenever
Possible.
SECTION 2.
DEFINITIONS
2.1 "BASE PAY" means regular straight-time and overtime earnings
received from the Company, excluding payments for incentive compensation,
bonuses and other special payments.
2.2 "BOARD" means the Board of Directors of HomeCom
Communications, Inc.
2.3 "COMMITTEE" means the Compensation Committee of the Board.
2.4 "COMPANY" means HomeCom Communications, Inc., a Delaware
corporation, and any successor to such organization.
2.5 "CUSTODIAN" means American Stock Transfer and Trust Company,
whose address is 40 Wall Street, New York, New York 10005, or such other person
as the Committee shall designate from time to time.
2.6 "EFFECTIVE DATE" means the date set by the Board for the Plan
to become effective, which date shall be March 31, 1996. The Effective Date
shall be subject to the terms of Section 7(c) and to shareholder approval
pursuant to Section 17.
2.7 "EXERCISE DATE" means the last day of a Purchase Period (as
such term is defined in Section 4(b) hereof), on which date all Participants'
outstanding Purchase Rights will automatically be exercised.
2.8 "FAIR MARKET VALUE" of each share on any date means the price
determined below on the last business day immediately preceding the date of
valuation:
(a) The closing sales price per Share, regular way, or in the
absence thereof the mean of the last reported bid and asked quotation, on such
date on the exchange having the greatest volume of trading in the Shares during
the thirty day period preceding such date (or if such exchange was not open for
trading on such date, the next preceding date on which it was open); or
(b) If there is no price as specified in (a), the final reported
sales price per Share, or if not reported, the average of the closing high bid
and low asked prices in the over-the-counter market for the Shares as reported
by the National Quotation Bureau Incorporated, or if such organization is not in
existence,
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by an organization providing similar services, on such date (or if such date is
not a date for which such system or organization generally provides reports,
then on the next preceding date for which it does so); or
(c) If there also is no price as specified in (b), the price per
Share determined by the Board by reference to bid-and-asked quotations for the
Shares provided by members of an association of brokers and dealers registered
pursuant to Subsection 15(b) of the Exchange Act, which members make a market in
the Shares, for such recent dates as the Board shall determine to be appropriate
for fairly determining current market value; or
(d) If there also is no price as specified in (c), an amount per
Share determined in good faith by the Board based on such relevant facts, which
may include opinions of independent experts, as may be available to the Board.
2.9 "PARTICIPANT" means an employee of the Company or of a parent
or subsidiary of the Company who has enrolled in the Plan by completing a
Participation Form (as such term is defined in Section 5 hereof) with the Plan
Administrator. The terms parent and subsidiary have the meanings set forth in
Code Sections 424(c) and (f), respectively.
2.10 "PLAN ADMINISTRATOR" means the Chief Financial Officer of the
Company, or any such other person so designated by the Board.
2.11 "PURCHASE PERIOD" means a calendar quarter period as defined
in Section 4(b) hereof.
2.12 "PURCHASE RIGHT" means a Participant's option to purchase
shares of Common Stock that is deemed to be granted to a Participant during a
Purchase Period pursuant to Section 7.
2.13 "SECTION 16(B) INSIDER" means those persons subject to the
requirements of Section 16(b) of the Securities Exchange Art of 1934, as
amended.
2.14 "SHARES" means the common stock par value $.0001 per share, of
HomeCom Communications, Inc., and any other stock or securities (including any
other share or securities of an entity other than HomeCom Communications, Inc.)
for or into which the outstanding shares of such common stock are hereinafter
exchanged or changed.
2.15 "TRADING DAY" refers to a day during which the Nasdaq National
Market is available for trading the Shares.
SECTION 3.
ELIGIBILITY
(a) Participation in the Plan is voluntary. All full-time
employees of the Company, including officers and directors who are full-time
employees but who are not members of the Committee, who have completed at least
six (6) months of continuous service with the Company are eligible to
participate in the Plan. The employee's entry date in the Plan shall be the
first day of the Purchase Period immediately following the date the employee has
satisfied the eligibility provisions. Full-time employees mean those employees
who work at least twenty (20) hours per week and for more than five (5) months
in any calendar year.
(b) Notwithstanding any provision of the Plan to the contrary, no
employee may participate in the Plan if prior to the grant of Purchase Rights or
if following a grant of Purchase Rights under the Plan, the employee would own,
directly or by attribution, stock, Purchase Rights or other stock options to
purchase stock representing five percent (5%) or more of the total combined
voting power or value of
<PAGE> 3
all classes of the stock of the Company, or any parent or subsidiary (as defined
in Code Section 424(c) and (f), respectively) as referenced in Code Section
423(b)(3).
(c) Subject to committee approval, any employees of a company or
an entity which is purchased by or merged into the Company and becomes a
subsidiary of the Company (as such term is defined in Code Section 424(f)) may,
for purposes of eligibility to participate in the plan, be granted past service
credit for employment with such company or entity
SECTION 4.
SECURITIES SUBJECT TO THE PLAN AND PURCHASE PERIODS
(a) The maximum number of Shares which may be granted and
purchased under the plan may not exceed One Hundred and Fifty Thousand (150,000)
Shares (subject to adjustment as provided in Section 15), which may be
authorized but unissued shares, re-acquired shares or shares bought on the open
market. If any Purchase Right granted shall expire or terminate for any reason
without having been exercised in full, the unpurchased Shares shall again become
available for purposes of the Plan, unless the Plan has been terminated.
(b) Purchase Period means each three mouth calendar quarter
period, beginning on January 1, April 1, July 1, and October 1, with the first
such Purchase Period (the "Initial Purchase Period" beginning concurrently with
the Effective Date of the Plan.
SECTION 5.
PARTICIPATION
Eligible employees become Participants in the Plan by authorizing
payroll deductions or other contributions to the Plan through the execution of a
"Participation Form" filed with the Plan Administrator no later than fifteen
(15) days prior to the start date of a Purchase Period.
SECTION 6.
PAYROLL DEDUCTIONS/CONTRIBUTIONS
(a) In order to purchase Shares each Participant must elect and
indicate on the Participation Form the amount he/she wishes to authorize the
Company to deduct at regular payroll intervals during the Purchase Period,
expressed either as (1) an integral percentage amount of such Participant's Base
Pay for the applicable payroll period, with a minimum deduction of $10.00 per
payday and a maximum percentage to be set by the Committee, or (2) a dollar
amount to be deducted pro rata at regular payroll intervals during the Purchase
Period, with a minimum deduction of $10.00 per payday and a maximum dollar
amount per payday to be set by the Committee. The Committee shall determine from
time to time whether method (1) or (2), or both, shall be utilized. The
Participation Form will include authorization for the Company to make payroll
deductions from the Participant's Base Pay. In addition to the foregoing, with
respect to the Initial Purchase Period, each Participant may indicate on the
Participation Form an amount he/she wishes to contribute to his/her account for
the exercise of his/her Purchase Rights with respect to such Initial Purchase
Period, subject to the limitation of Section 6(b). The Participant shall forward
with the Participation Form a cash payment equal to such amount.
(b) Purchase Rights granted to a Participant Under the Plan for
any calendar Year may not represent Shares with a value in excess Of Twenty Five
Thousand Dollars ($25,000.00). The Twenty Five
<PAGE> 4
Thousand Dollar ($25,000) limit is determined based upon the Fair Market Value
of the Shares subject to a Purchase Right as of the first day (or the grant
date, if different) of the Purchase Period during which such Purchase Rights are
granted. Participants will be notified if this limitation becomes applicable to
them.
(c) The amounts deducted from the Participants Base pay or
otherwise contributed by the Participant shall be credited to a bookkeeping
account established in the Participant's name under the Plan, but no actual
separate account will be established by the Company to hold such amounts. There
will be no interest paid on the balance credited to a Participant's account.
Amounts deducted from the Participant's Base Pay or otherwise contributed may be
Commingled with the general assets of the Company and may be used for its
general corporate purposes prior to the purchase of Shares during a Purchase
Period.
(d) Payroll deductions shall begin on the first payday of each
Purchase Period, and shall end on the last payday of each Purchase Period.
Eligible employees may participate in the Plan and. except with respect to the
Initial Purchase Period, may purchase Shares only through payroll deductions.
Notwithstanding the above, a Participant on an approved leave of absence may
continue participating in the Plan by making cash payments to the Company within
a normal pay period equal to the amount of the normal payroll deduction had the
leave of absence not occurred. The right of a Participant on an approved leave
of absence to continue participating in the Plan shall terminate upon the
expiration of twelve (12) weeks of leave, unless the Participant's right to
re-employment by the Company after a longer leave is guaranteed by statute or
contract, in which case termination of the right to participate will occur upon
the expiration of such extended period.
(e) So long as a Participant remains an employee of the Company,
payroll deductions will continue in effect from Purchase Period to Purchase
Period, unless at least fifteen (15) calendar days prior to the first day of the
next succeeding Purchase Period the Participant:
(i) elects a different rate by filing a new Participation
Form with the Plan Administrator; or
(ii) withdraws from the Plan in accordance with Section 9
hereof.
(f) Notwithstanding the above, and subject to Committee approval,
the Plan Administrator may provide for a special election period for
participation in the Plan following the acquisition of a company or entity by
the Company by a purchase or merger whereby such company or entity becomes a
subsidiary of the Company (as such term is defined in Code Section 424(f)). All
employees of the Company and its subsidiaries shall be eligible to participate
in such special election.
SECTION 7.
GRANT OF PURCHASE RIGHT
(a) Subject to Section 7(d) and Section 7(e) hereof and the
effective date provisions of Section 17, at 5:01 p.m. Eastern Standard Time, on
the last day of each Purchase Period (the Exercise Date), each Participant who
has not withdrawn from the Plan pursuant to Section 9 shall be deemed to have
been granted a Purchase Right as of the first day of the Purchase Period to
purchase as many whole Shares as can be purchased with the balance credited to
such Participant's account as of the Exercise Date. The balance remaining in
each Participant's account, if any, will be held for the purchase of Shares in
the next succeeding Purchase Period or otherwise applied in accordance with the
terms hereof.
(b) The price at which each Purchase Right to purchase shares
shall be exercised is the lower of:
(i) 85% of the Fair Market Value, of the Shares on the
first day of a Purchase
<PAGE> 5
Period; provided, however, that if during any Purchase Period a registration
statement is declared effective by the Securities and Exchange Commission with
respect to an initial public offering of the Shares, the price shall be 95% of
the price to the public in such offering; or
(ii) 95% of the Fair Market Value of the Shares on the
last Trading Day of such Purchase Period.
(c) The Committee has the power, exercisable at any time prior to
the start of a Purchase Period, to set a maximum dollar value Purchase Right for
that Purchase Period, subject to the limitations in Section 6(b). The maximum
dollar value will continue in effect from Purchase Period to Purchase Period
until the Committee once again exercises its power to adjust the limitation.
(d) Notwithstanding anything to the contrary contained herein,
each Participant who has not withdrawn from the Plan pursuant to Section 9
during the Initial Purchase Period, shall be deemed to have been granted a
Purchase, Right with respect to the Initial Purchase Period as of the first day
of the trading of the Shares on the Nasdaq National Market.
(e) Notwithstanding anything to the contrary contained herein, no
Participant shall be, entitled to exercise any Purchase Right unless and until a
registration statement has been filed and declared effective by the Securities
and Exchange Commission with respect to an initial public offering of the
Shares.
SECTION 8
EXERCISE OF PURCHASE RIGHT
(a) Subject to Section 7(c) and the effective date provisions of
Section 17, each outstanding Purchase Right shall be deemed automatically
exercised as of 5:01 p.m. of the Exercise Date (the last day of the Purchase
Period). The exercise of the Purchase Right is accomplished by applying the
balance credited to each Participant's account as of the Exercise Date to the
purchase an the Exercise Date as many whole Shares as can be purchased at the
purchase price in effect for the Purchase Period. The balance remaining in each
Participant's account if any, will be held for the purchase of Shares in the
next succeeding Purchase Period or otherwise applied in accordance with the
terms hereof.
(b) If a Participant purchases the maximum share amount determined
in accordance with the terms of Section 7(c), any amount not applied to the
purchase of Shares for that Purchase Period will be held for the purchase of
Shares in the next Purchase Period.
(c) If the number of Shares for which Purchase Rights are
exercised exceeds the number of Shares available in any Purchase Period under
the Plan, the Shares available for exercise will be allocated by the Plan
Administrator pro rata among the Participants in such Purchase Period in
proportion to the relative amounts credited to their accounts. Any amounts not
thereby applied to the purchase of Shares under the Plan will be refunded to the
Participants after the end of the Purchase Period.
<PAGE> 6
SECTION 9
WITHDRAWAL AND TERMINATION OF PURCHASE RIGHTS
(a) A Participant may withdraw from the Plan during a Purchase
Period by Providing written notice to the Plan Administrator on or before 5:00
P.M. of the last business day of such Purchase Period. Such withdrawal will
become effective upon receipt by the Plan Administrator of such notice, payroll
deductions will cease as soon as is administratively feasible from the date of
such notice, and no additional payroll deductions will be made on behalf of such
Participant during the Purchase Period. Such notice shall be on a form (the
"Withdrawal Form") provided by the Plan Administrator for that purpose. The
Withdrawal Form will permit a Participant to elect to receive all accumulated
payroll deductions and any other contributions made by the Participant as a
refund without penalty or to exercise such Participant's outstanding Purchase
Rights to purchase Shares on the following Exercise Date in the amount of 411
payroll deductions withheld during the Purchase Period or other contributions
made to the Participant's account prior to the Participant's withdrawal.
(b) Any Participant who withdraws from the Plan pursuant to
Section 9(a) will not be eligible to rejoin the Plan until the second (2nd)
Purchase Period following the Purchase Period of withdrawal. A Participant
wishing to resume participation may re-enroll in the Plan by completing and
filing a new Participation Form for a subsequent Purchase Period by following
the applicable enrollment procedures.
(c) If a Participant ceases to be an employee of the Company or a
parent or subsidiary of the Company for any reason during such Purchase Period,
his or her outstanding Purchase Right will immediately terminate, and all sums
previously collected from such Participant during such Purchase Period under the
terminated Purchase Right will be refunded to the Participant.
SECTION 1O.
RIGHTS AS SHAREHOLDER
(a) A Participant is not a shareholder with respect to Shares to
be purchased during a Purchase Period until the Purchase Right is exercised on
the Exercise Date. Thus, a Participant will not have a right to any dividend or
distribution made prior to the Exercise Date on Shares purchased during the
Purchase Period.
(b) Upon a written request made to the Custodian the Participant
will be entitled to receive, as soon as practicable after the Exercise Date, a
stock certificate for the number of purchased Shares. The Custodian may impose
upon, or pass through to, the Participant a reasonable fee for the transfer of
Shares in the form of stock certificates from the Custodian to the Participant.
It is the responsibility of each Participant to keep his or her address current
with the Company through the Plan Administrator and with the Custodian.
<PAGE> 7
SECTION 11.
SALE OF SHARES ACQUIRED UNDER THE PLAN
(a) Participants may sell the Shares they acquire under the Plan
only in compliance with the restriction set forth below restrictions set forth
below.
(i) Section 16(b) Insiders may be subject to certain
restrictions in connection with their transactions under the Plan and with
respect to the sale of Shares obtained under the Plan, including, but not
limited to, the Company's Insider Trading Policy, as the same may exist from
time to time.
(ii) Shares obtained under the Plan by a Participant must comply
with the Company's Insider Trading Policy, as the same may exist from time to
time.
(iii) No Participant purchasing Shares under the Plan shall be
entitled to sell such Shares until the latest to occur of (A) the date which is
one hundred eighty (180) days after the Effective Date; or (B) the first day of
the second (2nd) Purchase Period immediately following the Purchase Period in
which the Shares were obtained. For purposes of this restriction, the Company
may, at its option. include the following legend on any certificates
representing the Shares so purchased:
"The shares represented by this Certificate are subject to certain
restrictions on sale and disposition contained in the HomeCom
Communications, Inc. Employee Stock Purchase Plan, a copy of which is
on file with the Corporation."
(b) In order to insure compliance with the restrictions and
requirements herein, the Company may issue appropriate "stop transfer"
instructions to its transfer agent if any, and, if the Company transfers its own
securities, it may make appropriate notations to the same effect in its own
records. By executing the Participation Form, each Participant acknowledges and
agrees to the Company's rights described in this Section 11(b).
(c) A Participant shall immediately inform the Plan Administrator
in writing if the Participant transfers any Shares purchased through the Plan
within two (2) years from the date of grant of the related Purchase Right. Such
transfer shall include disposition by sale, gift or other manner. The
Participant may be requested to disclose the manner of the transfer, the date of
the transfer, the number of Shares involved and the transfer price. By executing
the Participation Form, each Participant obligates himself or herself to provide
such information to the Plan Administrator.
(d) The Company is authorized to withhold from any payment to be
made to a Participant, including any payroll and other payments not related to
the Plan, amounts of withholding and other taxes due in connection with any
transaction under the Plan, and a Participant's enrollment in the Plan will be
deemed to constitute his or her consent to such withholding.
SECTION 12.
PLAN ADMINISTRATION
(a) The Plan shall be administered by the Committee. No member of
the Board will be eligible to participate in the Plan during his or her period
of Committee service.
(b) The Committee shall have the plenary power, subject to and
within the limited of the express provisions of the Plan:
<PAGE> 8
(i) to determine the commencement and termination date of
the offering of Shares under the Plan; and
(ii) to interpret the terms of the Plan, establish and
revoke rules for the administration of the Plan and correct or reconcile any
defect or inconsistency in the Plan.
(c) The Committee may delegate all or part of its authority to
administer the Plan to the Plan Administrator, who may in turn delegate the
day-to-day operations of the Plan to the Custodian. The Custodian will establish
and maintain, as agent for the Participants, accounts for the purpose of holding
the Shares and/or cash contributions as may be necessary or desirable for the
administration of the Plan.
(d) The Board may waive or modify any requirement that A notice or
election be made or filed under the Plan a specified period in advance in an
individual case or by adoption of a rule or regulation under the Plan, without
the necessity of an amendment to the Plan.
SECTION 13.
TRANSFERABILITY
(a) Any account maintained by the Custodian for the benefit of a
Participant with respect to Shares acquired pursuant to the Plan may only be in
the name of the Participant, provided, however, that the Participant may elect
to maintain such account with right of joint ownership with such Participant's
spouse. Such election may only be made on a form (the "Joint Account Form")
provided by the company.
(b) Neither payroll deductions or other contributions credited to
a Participant's account nor any Purchase Rights or other rights to acquire
Shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of by Participants other than by will or the laws of descent and
distribution and, during the lifetime of a Participant, Purchase Rights may be
exercised only by the Participant.
SECTION 14.
MERGER OR LIQUIDATION OF THE COMPANY
In the event the Company merges with another corporation and the
company is not the surviving entity, or in the event all or substantially all of
the stock or assets of the Company is acquired by another company, or in the
event of certain other similar transactions, the Committee may, in its sole
discretion and in connection with such transaction, cancel each outstanding
Purchase Right and refund all sums previously collected from Participants under
the canceled outstanding Purchase Rights, or, in its discretion, cause each
Participant with outstanding Purchase Rights to have his or her outstanding
Purchase Right exercised immediately prior to such transaction and thereby have
the balance of his or her account applied to the purchase of whole and
fractional Shares (subject to the maximum dollar limitation, if any, of Section
7(c)) at the purchase price in effect for the Purchase Period, which would be
treated as ending with the effective date of such transaction. The balance of
the account not so applied will be refunded to the Participant. In the event of
a merger in which the Company is the Purchasing entity, each Participant is
entitled to receive, for each Share as to which such Participant's outstanding
Purchase Rights are exercised, as nearly as reasonably may be determined by the
Committee, in its sole discretion, the securities or property that a holder of
one Share was entitled to receive upon the merger.
<PAGE> 9
SECTION 15.
ADJUSTMENT FOR CHANGES IN CAPITALIZATION
To prevent dilution or enlargement of the rights of Participants under
the Plan, appropriate adjustments may be made in the event any change is made to
the Company's outstanding common stock by reason of any stock dividend, stock
split, combination of shares, exchange of shares or other change in the Shares
effected without the Company's receipt of consideration. Adjustments may be made
to the maximum number and class of securities issuable under the Plan, the
maximum number and class of securities purchasable per outstanding Purchase
Right and the number and class of securities and price per share in affect under
each outstanding Purchase Right. Any such adjustments may be made retroactively
effective to the beginning of the Purchase Period in which the change in
capitalization occurs, and any such adjustment will be made by the Committee in
its sole discretion.
SECTION 16.
AMENDMENT AND TERMINATION
The Committee may terminate or amend the Plan at any time, subject to
the following restrictions. First, the provisions of Sections 4, 5, 6, 7 and 9
which govern the formula for the automatic grant of Purchase Rights under the
Plan may not be amended more than once in any six (6) month period. Second, any
termination or amendment made to the Plan may not effect or change Purchase
Rights previously granted under the Plan without the consent of the affected
Participant, and any amendment that materially increases the benefits or number
of Shares under the Plan (except for certain allowable adjustments in the event
of changes to the Company's capital structure or for changes authorized by the
Plan to be made by the Committee or the Plan Administrator) or materially
modifies the eligibility requirements of the Plan shall be subject to
shareholder approval. If not sooner terminated by the Committee, the Plan shall
terminate at the time Purchase Rights have been exercised with respect to all
shares reserved for grant under the Plan.
SECTION 17.
SHAREHOLDER APPROVAL AND EFFECTIVE DATE
The Plan is subject to the approval of shareholders of the Company
holding a majority of the shares of the Common Stock.
The Plan shall be deemed to have been adopted as of the effective Date
upon the date of its approval by the shareholders of the Company. Until the Plan
is approved by the shareholders, no Purchase Rights shall be deemed granted or
exercised under Sections 7 and 8. Upon approval of the Plan by the Company's
shareholders, Purchase Rights shall be deemed granted and exercised as of the
appropriate dates in the Plan as of the Effective Date, and Shares purchased
shall be deemed purchased as of the applicable Exercise Date. In the event the
Plan is not approved by the shareholders on or before December 31, 1998, the
Plan shall be deemed not to have been adopted, and all payroll deduction amounts
withheld on behalf of Participants pursuant to Section 6 shall be refunded to
such Participants.
<PAGE> 10
SECTION 18.
NO EMPLOYMENT RIGHTS
Participation in the Plan will not impose any obligations upon the
Company to continue the employment of the Participant for any specific period
and will not affect the right of the Company to terminate such person's
employment at any time, with or without cause.
SECTION 19.
COSTS
Except as set forth in Section 10(b), costs and expenses incurred in
the administration of the Plan and the maintenance of accounts with the
Custodian may be shared by the Participant and the Company, to the extent
provided in this Section 19. Any brokerage fees and commissions for the purchase
of Shares under the Plan (including Shares purchased upon reinvestment of
dividends and distributions will be shared equally by the Participant and the
Company, but any brokerage fees and commissions for the sale of Shares under the
Plan by a Participant will be borne by such Participant.
SECTION 20.
REPORTS
After the close of each Purchase Period, each Participant in the Plan
will receive a report from the Custodian indicating the amount of the
Participant's contributions to the Plan during the Purchase Period, the amount
of the contributions applied to the purchase of Shares for the Purchase Period,
the purchase price per share in affect for the Purchase Period and the amount of
the contributions (if any) carried over to the next Purchase Period.
SECTION 21.
GOVERNING LAW
The validity, construction and effect of the Plan and any rules and
regulations relating to the Plan will be determined in accordance with lawn of
the State of Georgia, without giving effect to principles of conflicts of laws,
and applicable Federal law.
SECTION 22.
COMPLIANCE WITH LEGAL AND OTHER REQUIREMENTS
The Plan, the granting and exercising of Purchase Rights hereunder, and
the other obligations of the Company, the Plan Administrator and the Custodian
under the Plan will be subject to all applicable federal and state laws, rules,
and regulations, and to such approvals by any regulatory or governmental agency
as may be required. The Company may, in its discretion, postpone the issuance or
delivery of Shares upon exercise of Purchase Rights until completion of such
registration or qualification of such Shares or other required action under any
federal or state law, rule, or regulation, listing or other require action with
respect
<PAGE> 11
to any automated quotation system or stock exchange upon which the Shares or
other Company securities are designated or listed. or compliance with any other
contractual obligation of the Company, as the Company may consider appropriate,
and may require any Participant to make, such representations and finish such
information as it may consider appropriate in connection with the issuance or
delivery of Shares in compliance with applicable laws, rules, and regulations,
designation or listing requirements, or other contractual obligations.
SECTION 23.
EFFECT OF PLAN
The provisions of the Plan shall, in accordance with its terms, be
binding upon and inure to the benefit of, all successors of each employee
participating in the Plan, including, without limitation, such employee's estate
and the executors, administrators or trustees thereof, heirs and legatees, and
any receiver, trustee in bankruptcy or representative of creditors of such
employee.
<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. Employee Stock Purchase Plan (the "Stock
Purchase 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, 150,000
shares of the Company's Common Stock, par value $0.0001 per share, for issuance
pursuant to the Stock Purchase 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 150,000 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 Purchase 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.
Sincerely,
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, GA
July 31, 1998
