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As filed with the Securities and Exchange Commission on September 3, 1999
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HEADHUNTER.NET, INC.
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
Georgia 58-2403177
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
6410 ATLANTIC BOULEVARD, SUITE 160
NORCROSS, GEORGIA 30071
(Address of Principal Executive Offices) (Zip Code)
HEADHUNTER.NET, INC. 1998 LONG-TERM INCENTIVE PLAN
HEADHUNTERS, L.L.C. EMPLOYEE COMMON UNIT OPTION PLAN OPTION AGREEMENTS
HEADHUNTER.NET, INC. NON-EMPLOYEE DIRECTOR NON-QUALIFIED STOCK OPTION AGREEMENTS
(Full title of the plans)
MARK W. PARTIN
HEADHUNTER.NET, INC.
6410 ATLANTIC BOULEVARD, SUITE 160
NORCROSS, GEORGIA 30071
(770) 300-9272
(Name, address, and telephone number, including area code, of agent for service)
COPY TO:
JOEL J. HUGHEY
ALSTON & BIRD LLP
ONE ATLANTIC CENTER, 1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common stock, $.01 par value 242,000 $ 0.40 $ 96,800(2) $ 27
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Common stock, $.01 par value 85,250 $ 1.40 $ 119,350(2) $ 34
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Common stock, $.01 par value 407,750 $ 1.50 $ 611,625(2) $ 171
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Common stock, $.01 par value 128,000 $ 2.00 $ 256,000(2) $ 72
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Common stock, $.01 par value 44,000 $ 10.80 $ 475,200(2) $ 133
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Common stock, $.01 par value 10,000 $ 11.19 $ 111,900(2) $ 32
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Common stock, $.01 par value 430,250 $ 12.16(3) $5,231,840(3) $1,455
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</TABLE>
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(1) Consists of shares of common stock that the registrant may issue pursuant to
options granted under the HeadHunter.NET, Inc. 1998 Long-Term Incentive Plan and
certain stock option agreements between the registrant and certain of its
employees, officers and directors.
(2) Determined for purposes of calculating the registration fee in accordance
with Rule 457(h) and based upon the exercise price at which such options may be
exercised.
(3) Based on the average of the high and low price of shares of the registrant's
common stock reported on the Nasdaq National Market System on August 27, 1999,
pursuant to Rule 457(c) and (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
We will provide the documents constituting Part I of this registration
statement to participants in the HeadHunter.NET, Inc. 1998 Long-Term Incentive
Plan and holders of outstanding stock options either granted under the
HeadHunters, L.L.C Employee Common Unit Option Plan or outside of an option
plan, as specified by Rule 428(b)(1) under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by us with the Securities and Exchange
Commission are incorporated by reference in this registration statement:
(a) Our latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934
or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, that
contains audited financial statements for our latest
fiscal year for which such statements have been
filed.
(b) All of our reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since
the end of the fiscal year covered by the document
referred to in (a) above.
(c) The description of our common stock contained in our
registration statement on Form 8-A filed with the
Commission on August 11, 1999 under the Securities
Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such
description.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934 prior to the filing
of a post-effective amendment, which indicates that all securities offered have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
of this registration statement from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our articles of incorporation eliminate the personal liability of our
directors to us or our shareholders for monetary damage for any breach of duty
as a director, provided that we cannot eliminate or limit the liability of a
director for:
- a breach of duty involving appropriation of a business
opportunity of ours;
- an act or omission which involves intentional misconduct or a
knowing violation of law;
- any transaction from which the director receives an improper
personal benefit; or
- unlawful corporate distributions.
In addition, if at any time the Georgia Business Corporation Code is
amended to authorize further elimination or limitation of the personal liability
of a director, then the liability of each of our directors shall be eliminated
or limited to the fullest extent permitted by such provisions, as so amended,
without further action by our shareholders, unless otherwise required.
Our bylaws require us to indemnify any director or officer who was or
is a party or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding whether civil, criminal, administrative or
investigative (including any action or suit by or in our right) because such
person is or was one of our directors or officers, against liability incurred by
the director or officer in such proceeding except for any liability incurred in
a proceeding in which the director or officer is adjudged liable to us or is
subjected to injunctive relief in our favor for:
- any appropriation, in violation of such director's or
officer's duties, of any business opportunity of ours;
- acts or omissions which involve intentional misconduct or a
knowing violation of law;
- unlawful corporate distributions; or
- any transaction from which such officer or director received
an improper personal benefit.
Our board of directors also has the authority to extend to employees
and agents the same indemnification rights held by directors. Indemnified
persons would also be entitled to have us advance expenses prior to the final
disposition of the proceeding. If it is ultimately determined that they are not
entitled to indemnification, however, such amounts would be repaid. Insofar as
indemnification for liability arising under the Securities Act of 1933 may be
permitted to our
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officers and directors pursuant to these provisions, the Commission has informed
us that in its opinion such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
We have entered into separate indemnity agreements with each of our
directors and some of our executive officers, under which we agree to indemnify
them and to advance them expenses in a manner and subject to terms and
conditions similar to those set forth in our articles of incorporation and
bylaws.
We maintain a standard form of officers' and directors' liability
insurance policy which provides coverage to our officers and directors for
liabilities, including liabilities which may arise out of this registration
statement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
4.1 Articles of Incorporation, as amended (incorporated by
reference from Exhibit 3.1 to our registration statement on Form S-1 (File No.
333-80915).
4.2 Bylaws, as amended, (incorporated by reference from Exhibit
3.2 to our registration statement on Form S-1 (File No. 333-80915)).
4.3 HeadHunter.NET, Inc. 1998 Long-Term Incentive Plan
(incorporated by reference from Exhibit 10.1 to our registration statement on
Form S-1 (File No. 333-80915)).
4.4 HeadHunters, L.L.C. Employee Common Unit Option Plan
(incorporated by reference from Exhibit 10.2 to our registration statement on
Form S-1 (File No. 333-80915)).
4.5 Form of Non-Employee Director Non-Qualified Stock Option
Agreement (incorporated by reference from Exhibit 10.12 to our registration
statement on Form S-1 (File No. 333-80915)).
5.1 Opinion of Alston & Bird LLP regarding the legality of the
securities being registered.
23.1 Consent of Alston & Bird LLP (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on the signature page contained on
page II-7).
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ITEM 9. UNDERTAKINGS.
(a) 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, represent a fundamental change in the information set forth in the
registration statement; and
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(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change in such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if 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 the Securities Exchange Act of 1934
that are incorporated by reference in this 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.
(b) The undersigned issuer 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 and 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the provisions described in Item 6 of this
Part II, or 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
that a claim for indemnification against such liabilities (other than the
payment 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.
(Signatures on the following page)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
HeadHunter.NET, Inc., 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 this 3rd day of
September, 1999.
HeadHunter.NET, Inc.
By: /s/ Robert M. Montgomery, Jr.
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Robert M. Montgomery, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Mark W. Partin
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Mark W. Partin
Chief Financial Officer and Assistant Secretary
(Principal Financial and Accounting Officer)
(Continued on next page)
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POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints Robert M. Montgomery, Jr., and Mark W. Partin, or
either of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution, and resubstitution, for him and in his 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 exhibits, and other related documents, with the Securities and Exchange
Commission, granting to such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
such attorneys-in-fact and agents, or any of them, or her/his or their
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated:
SIGNATURE TITLE DATE
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/s/ William H. Scott, III Director September 3, 1999
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William H. Scott, III
/s/ J. Douglas Cox Director September 3, 1999
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J. Douglas Cox
/s/ Robert M. Montgomery, Jr. Director September 3, 1999
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Robert M. Montgomery, Jr.
/s/ Warren L. Bare Director September 3, 1999
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Warren L. Bare
/s/ Donald W. Weber Director September 3, 1999
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Donald W. Weber
/s/ Burton B. Goldstein, Jr. Director September 3, 1999
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Burton B. Goldstein, Jr.
/s/ Michael G. Misikoff Director September 3, 1999
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Michael G. Misikoff
/s/ Kimberley E. Thompson Director September 3, 1999
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Kimberley E. Thompson
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EXHIBIT 5.1
Opinion of Alston & Bird LLP regarding the legality of
the securities being registered.
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[ON ALSTON & BIRD LLP LETTERHEAD]
JOEL J. HUGHEY DIRECT DIAL: 404-881-7490
September 3, 1999
HeadHunter.NET, Inc.
6410 Atlantic Blvd., Suite 160
Norcross, Georgia 30071
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to HeadHunter.NET, Inc., a Georgia corporation
("the Company"), in connection with the filing of the above-referenced
Registration Statement (the "Registration Statement"), with the Securities and
Exchange Commission (the "Commission") to register under the Securities Act of
1933, as amended (the "Securities Act"), up to 1,347,250 shares (the "Shares")
of the Company's Common Stock, par value $.01 per share (the "Common Stock"),
which may be issued by the Company upon the grant or exercise of (i) awards
pursuant to the HeadHunter.NET, Inc. 1998 Long-Term Incentive Plan (the "Plan"),
(ii) options assumed by HeadHunter.NET, Inc., which were granted under the
HeadHunters, L.L.C. Employee Common Unit Option Plan pursuant to option
agreements and (iii) non-employee director non-qualified options granted
pursuant to option agreements. This opinion letter is rendered pursuant to Item
8 of Form S-8 and Item 601(b)(5) of the Commission's Regulation S-K.
We have examined the Articles of Incorporation of the Company, as
amended, the Bylaws of the Company, as amended, records of proceedings of the
Board of Directors and shareholders of the Company deemed by us to be relevant
to this opinion letter, the Plan, option agreements and the Registration
Statement. We also have made such further legal and factual examinations and
investigations as we deemed necessary for purposes of expressing the opinion set
forth herein.
As to certain factual matters relevant to this opinion letter, we have
relied upon certificates and statements of officers of the Company and
certificates of public officials. Except to the extent expressly set forth
herein, we have made no independent investigations with regard thereto, and
accordingly, we do not express any opinion as to matters that might have been
disclosed by independent verification.
This opinion letter is provided to the Company and the Commission for
their use solely in connection with the transactions contemplated by the
Registration Statement and may not be used, circulated, quoted or otherwise
relied upon by any other person or for any other purpose without our express
written consent. The only opinion rendered by us consists of those matters set
forth in the sixth paragraph hereof, and no opinion may be implied or inferred
beyond those expressly stated.
Our opinion set forth below is limited to the laws of the State of
Georgia, and we do not express any opinion herein concerning any other laws.
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Based upon the foregoing, it is our opinion that the Shares to be
issued under the Plan or pursuant to the exercise of the aforementioned option
agreements are duly authorized and, when issued by the Company in accordance
with the terms of the Plan or the option agreements, as the case may be, will be
validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such 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 or the rules and regulations of the Commission thereunder.
ALSTON & BIRD LLP
By:/s/ Joel J. Hughey
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Joel J. Hughey, Partner
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accounts, we hereby consent to the incorporation
by reference in this registration statement on Form S-8 of our report dated
February 5, 1999 for the year ended December 31, 1998, included in
HeadHunter.NET, Inc.'s registration statement on Form S-1.
/s/ Arthur Andersen LLP
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Arthur Andersen LLP
Atlanta, GA
September 2, 1999
