<PAGE> 1
As filed with the Securities and Exchange Commission on January 3, 2000
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
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. 2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) SHARE(2) PRICE FEE
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, $.01 par value 50,000 $12.9375 $646,875.00 $170.78
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
- -----------------------------
(l) Consists of shares of common stock that the registrant may issue pursuant to
options granted under the HeadHunter.NET, Inc. 2000 Employee Stock Purchase
Plan.
(2) 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 December 29, 1999,
pursuant to Rule 457(c) and (h).
<PAGE> 2
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. 2000 Employee Stock
Purchase 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.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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.
II-2
<PAGE> 4
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 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.
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. 2000 Employee Stock Purchase Plan.
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-6).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
II-3
<PAGE> 5
(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
(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
II-4
<PAGE> 6
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
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 29th day of
December, 1999.
HeadHunter.NET, Inc.
By: /s/ ROBERT M. MONTGOMERY, JR.
------------------------------------------------
Robert M. Montgomery, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ MARK W. PARTIN
------------------------------------------------
Mark W. Partin
Chief Financial Officer and Assistant Secretary
(Principal Financial and Accounting Officer)
(Continued on next page)
II-5
<PAGE> 7
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:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM H. SCOTT, III
- ----------------------------------- Director December 29, 1999
William H. Scott, III
/s/ J. DOUGLAS COX
- ----------------------------------- Director December 29, 1999
J. Douglas Cox
/s/ ROBERT M. MONTGOMERY, JR.
- ----------------------------------- Director December 29, 1999
Robert M. Montgomery, Jr.
/s/ WARREN L. BARE
- ----------------------------------- Director December 29, 1999
Warren L. Bare
/s/ DONALD W. WEBER
- ----------------------------------- Director December 29, 1999
Donald W. Weber
/s/ BURTON B. GOLDSTEIN, JR.
- ----------------------------------- Director December 29, 1999
Burton B. Goldstein, Jr.
/s/ MICHAEL G. MISIKOFF
- ----------------------------------- Director December 29, 1999
Michael G. Misikoff
/s/ KIMBERLEY E. THOMPSON
- ----------------------------------- Director December 29, 1999
Kimberley E. Thompson
</TABLE>
II-6
<PAGE> 1
EXHIBIT 4.3
HEADHUNTER.NET, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
<PAGE> 2
HEADHUNTER.NET, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I - BACKGROUND...............................................................................1
1.1 Establishment of the Plan..............................................................1
1.2 Applicability of the Plan..............................................................1
1.3 Purpose................................................................................1
ARTICLE II - DEFINITIONS.............................................................................1
2.1 Administrator........................................................................1
2.2 Board................................................................................1
2.3 Code.................................................................................1
2.4 Committee............................................................................1
2.5 Common Stock.........................................................................2
2.6 Compensation.........................................................................2
2.7 Contribution Account.................................................................2
2.8 Corporation..........................................................................2
2.9 Direct Registration System...........................................................2
2.10 Effective Date........................................................................2
2.11 Eligible Employee.....................................................................2
2.12 Employee..............................................................................2
2.13 Employer..............................................................................2
2.14 Fair Market Value.....................................................................2
2.15 Offering Date.........................................................................3
2.16 Offering Period.......................................................................3
2.17 Option................................................................................3
2.18 Participant...........................................................................3
2.19 Plan..................................................................................3
2.20 Purchase Date.........................................................................3
2.21 Purchase Price........................................................................3
2.22 Request Form..........................................................................3
2.23 Stock Account.........................................................................3
2.24 Subsidiary............................................................................3
2.25 Trading Date..........................................................................3
ARTICLE III - ELIGIBILITY AND PARTICIPATION..........................................................4
3.1 Eligibility............................................................................4
3.2 Initial Participation..................................................................4
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
3.3 Leave of Absence.......................................................................4
ARTICLE IV - STOCK AVAILABLE.........................................................................5
4.1 In General.............................................................................5
4.2 Adjustment in Event of Changes in Capitalization.......................................5
4.3 Dissolution, Liquidation, or Merger....................................................5
ARTICLE V - OPTION PROVISIONS.......................................................................6
5.1 Purchase Price.........................................................................6
5.2 Calendar Year $25,000 Limit............................................................6
5.3 Offering Period Limit..................................................................6
ARTICLE VI - PURCHASING COMMON STOCK.................................................................6
6.1 Participant's Contribution Account.....................................................6
6.2 Payroll Deductions, Dividends..........................................................7
6.3 Discontinuance.........................................................................7
6.4 Leave of Absence; Transfer of Ineligible Status........................................7
6.5 Automatic Exercise.....................................................................8
6.6 Listing, Registration, and Qualification of Shares.....................................8
ARTICLE VII - WITHDRAWALS, DISTRIBUTIONS.............................................................8
7.1 Discontinuance of Deductions; Leave of Absence; Transfer to Ineligible Status..........8
7.2 In-Service Withdrawals.................................................................9
7.3 Termination of Employment for Reasons Other Than Death.................................9
7.4 Death..................................................................................9
7.5 Registration...........................................................................9
ARTICLE VIII - AMENDMENT AND TERMINATION.............................................................10
8.1 Amendment..............................................................................10
8.2 Termination............................................................................10
ARTICLE IX - MISCELLANEOUS...........................................................................11
9.1 Shareholder Approval...................................................................11
9.2 Employment Rights......................................................................11
9.3 Tax Withholding........................................................................11
9.4 Rights Not Transferable................................................................11
9.5 No Repurchase of Stock by Corporation..................................................11
9.6 Governing Law..........................................................................11
9.7 Shareholder Approval; Registration.....................................................11
</TABLE>
-ii-
<PAGE> 4
HEADHUNTER.NET, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
BACKGROUND
1.1 ESTABLISHMENT OF THE PLAN. HeadHunter.NET, Inc. (the "Corporation")
hereby establishes a stock purchase plan to be known as the "HeadHunter.NET,
Inc. 2000 Employee Stock Purchase Plan" (the "Plan"), as set forth in this
document. The Plan is intended to be a qualified employee stock purchase plan
within the meaning of Section 423 of the Internal Revenue Code of 1986, as
amended, and the regulations and rulings thereunder.
1.2 APPLICABILITY OF THE PLAN. The provisions of this Plan are
applicable only to certain individuals who, on or after January 1, 2000, are
employees of the Corporation and its subsidiaries participating in the Plan. The
Committee shall indicate from time to time which of its subsidiaries, if any,
are participating in the Plan.
1.3 PURPOSE. The purpose of the Plan is to enhance the proprietary
interest among the employees of the Corporation and its participating
subsidiaries through ownership of Common Stock of the Corporation.
ARTICLE II
DEFINITIONS
Whenever capitalized in this document, the following terms shall have
the respective meanings set forth below.
2.1 ADMINISTRATOR. Administrator shall mean the person or persons (who
may be officers or employees of the Corporation) selected by the Committee to
operate the Plan, perform day-to-day administration of the Plan, and maintain
records of the Plan.
2.2 BOARD. Board shall mean the Board of Directors of the Corporation.
2.3 CODE. Code shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations thereunder.
2.4 COMMITTEE. Committee shall mean a committee which consists of
members of the Board and which has been designated by the Board to have the
general responsibility for the administration of the Plan. Unless otherwise
designated by the Board, the Committee of the Board of Directors of the
Corporation shall serve as the Committee administering the Plan. Subject to the
express provisions of the Plan, the Committee shall have plenary authority in
its sole and absolute discretion to interpret and
<PAGE> 5
construe any and all provisions of the Plan, to adopt rules and regulations for
administering the Plan, and to make all other determinations necessary or
advisable for administering the Plan. The Committee's determinations on the
foregoing matters shall be conclusive and binding upon all persons.
2.5 COMMON STOCK. Common Stock shall mean the common stock, par value
$.01, of the Corporation.
2.6 COMPENSATION. Compensation shall mean, for any Participant, for
any Offering Period, the Participant's gross wages for the respective period,
subject to appropriate adjustments that would exclude items such as non-cash
compensation and reimbursement of moving, travel, trade or business expenses.
2.7 CONTRIBUTION ACCOUNT. Contribution Account shall mean the
bookkeeping account established by the Administrator on behalf of each
Participant, which shall be credited with the amounts deducted from the
Participant's Compensation pursuant to Article VI. The Administrator shall
establish a separate Contribution Account for each Participant for each Offering
Period.
2.8 CORPORATION. Corporation shall mean HeadHunter.NET, Inc., an
Alabama corporation.
2.9 DIRECT REGISTRATION SYSTEM. Direct Registration System shall mean
a direct registration system approved by the Securities and Exchange Commission
and by the New York Stock Exchange, Inc. or any securities exchange on which the
Common Stock is then listed, whereby shares of Common Stock may be registered in
the holder's name in book-entry form on the books of the Corporation.
2.10 EFFECTIVE DATE. Effective Date shall mean the effective date of
the Plan, which shall be the effective date of the Corporation's registration
statement on Form S-8 filed under the Securities Act of 1933, as amended,
covering the shares to be issued under the Plan.
2.11 ELIGIBLE EMPLOYEE. An Employee eligible to participate in the Plan
pursuant to Section 3.1.
2.12 EMPLOYEE. Employee shall mean an individual employed by an
Employer who meets the employment relationship described in Treasury Regulation
Sections 1.423-2(b) and Section 1.421-7(h).
2.13 EMPLOYER. Employer shall mean the Corporation and any Subsidiary
designated by the Committee as an employer participating in the Plan.
2.14 FAIR MARKET VALUE. Fair Market Value of a share of Common Stock,
as of any designated date, shall mean the closing sales price of the Common
Stock on the
-2-
<PAGE> 6
Nasdaq National Market on such date or on the last previous date on
which such stock was traded.
2.15 OFFERING DATE. Offering Date shall mean the first Trading Date of
each Offering Period.
2.16 OFFERING PERIOD. Offering Period shall mean the quarterly periods
beginning January 1, April 1, July 1 and October 1, respectively, of each year
during which offers to purchase Common Stock are outstanding under the Plan;
provided, however, that the initial Offering Period shall be the period
beginning on the Effective Date and ending on June 30, 2000. No payroll
deductions shall be taken until the Effective Date.
2.17 OPTION. Option shall mean the option to purchase Common Stock
granted under the Plan on each Offering Date.
2.18 PARTICIPANT. Participant shall mean any Eligible Employee who has
elected to participate in the Plan under Section 3.2.
2.19 PLAN. Plan shall mean the HeadHunter.NET, Inc. 2000 Employee Stock
Purchase Plan, as amended and in effect from time to time.
2.20 PURCHASE DATE. Purchase Date shall mean the last Trading Date of
each Offering Period.
2.21 PURCHASE PRICE. Purchase Price shall mean the purchase price of
Common Stock determined under Section 5.1.
2.22 REQUEST FORM. Request Form shall mean an Employee's authorization
either in writing on a form approved by the Administrator or through electronic
communication approved by the Administrator which specifies the Employee's
payroll deduction in accordance with Section 6.2, and contains such other terms
and provisions as may be required by the Administrator.
2.23 STOCK ACCOUNT. Stock Account shall mean the account established by
the Administrator on behalf of each Participant, which shall be credited with
shares of Common Stock purchased pursuant to the Plan and dividends thereon
until distributed in accordance with the terms of the Plan.
2.24 SUBSIDIARY. Subsidiary shall mean any present or future
corporation which is a "subsidiary corporation" of the Corporation as defined in
Code Section 424(f).
2.25 TRADING DATE. Trading Date shall mean a date on which shares of
Common Stock are traded on a national securities exchange (such as the New York
Stock Exchange), the Nasdaq National Market or in the over-the-counter market.
-3-
<PAGE> 7
Except when otherwise indicated by the context, the definition of any
term herein in the singular may also include the plural.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY. Each Employee who is an Employee regularly scheduled
to work at least 20 hours each week and at least five months each calendar year
shall be eligible to participate in the Plan as of the later of:
(a) the Offering Date immediately following the Employee's last date of
hire by an Employer; or
(b) the Effective Date.
On each Offering Date, Options will automatically be granted to all
Employees then eligible to participate in the Plan; provided, however, that no
Employee shall be granted an Option for an Offering Period if, immediately after
the grant, the Employee would own stock, and/or hold outstanding options to
purchase stock, possessing five percent or more of the total combined voting
power or value of all classes of stock of the Corporation or any Subsidiary. For
purposes of this Section, the attribution rules of Code Section 424(d) shall
apply in determining stock ownership of any Employee. If an Employee is granted
an Option for an Offering Period and such Employee does not participate in the
Plan for such Offering Period, such Option will be deemed never to have been
granted for purposes of applying the $25,000 annual limitation described in
Section 5.2.
3.2 INITIAL PARTICIPATION. An Eligible Employee having been granted an
Option under Section 3.1 may submit a Request Form to the Administrator to
participate in the Plan for an Offering Period. The Request Form shall authorize
a regular payroll deduction from the Employee's Compensation for the Offering
Period, subject to the limits and procedures described in Article VI. A
Participant's Request Form authorizing a regular payroll deduction shall remain
effective from Offering Period to Offering Period until amended or canceled
under Section 6.3.
3.3 LEAVE OF ABSENCE. For purposes of Section 3.1, an individual on a
leave of absence from an Employer shall be deemed to be an Employee for the
first 90 days of such leave. For purposes of this Plan, such individual's
employment with the Employer shall be deemed to terminate at the close of
business on the 90th day of the leave, unless the individual has returned to
regular employment with an Employer before the close of business on such 90th
day. Termination of any individual's leave of absence by an Employer, other than
on account of a return to employment with an Employer, shall be deemed to
terminate an individual's employment with the Employer for all purposes of the
Plan.
-4-
<PAGE> 8
ARTICLE IV
STOCK AVAILABLE
4.1 IN GENERAL. Subject to the adjustments in Sections 4.2 and 4.3, an
aggregate of 50,000 shares of Common Stock shall be available for purchase by
Participants pursuant to the provisions of the Plan. These shares may be
authorized and unissued shares or may be shares issued and subsequently acquired
by the Corporation. If an Option under the Plan expires or terminates for any
reason without having been exercised in whole or part, the shares subject to
such Option that are not purchased shall again be available for subsequent
Option grants under the Plan. If the total number of shares of Common Stock for
which Options are exercised on any Purchase Date exceeds the maximum number of
shares then available under the Plan, the Committee shall make a pro rata
allocation of the shares available in as nearly a uniform manner as shall be
practicable and as it shall determine to be equitable; and the balance of the
cash credited to Participants' Contribution Accounts shall be distributed to the
Participants as soon as practicable.
4.2 ADJUSTMENT IN EVENT OF CHANGES IN CAPITALIZATION. In the event of a
stock dividend, stock split or combination of shares, recapitalization or other
change in the Corporation's capitalization, or other distribution with respect
to holders of the Corporation's Common Stock other than normal cash dividends,
an automatic adjustment shall be made in the number and kind of shares as to
which outstanding Options or portions thereof then unexercised shall be
exercisable and in the available shares set forth in Section 4.1, so that the
proportionate interest of the Participants shall be maintained as before the
occurrence of such event. This adjustment in outstanding Options shall be made
without change in the total price applicable to the unexercised portion of such
Options and with a corresponding adjustment in the Purchase Price per share;
provided, however, that in no event shall any adjustment be made that would
cause any Option to fail to qualify as an option pursuant to an employee stock
purchase plan within the meaning of Section 423 of the Code.
4.3 DISSOLUTION, LIQUIDATION, OR MERGER. Upon the dissolution or
liquidation of the Corporation, or upon a reorganization, merger, or
consolidation of the Corporation with one or more corporations in which the
Corporation is not the surviving corporation, or upon a sale of substantially
all of the property or stock of the Corporation to another corporation, the
holder of each Option then outstanding under the Plan shall be entitled to
receive at the next Purchase Date upon the exercise of such Option for each
share as to which such Option shall be exercised, as nearly as reasonably may be
determined, the cash, securities, or property which a holder of one share of the
Common Stock was entitled to receive upon and at the time of such transaction.
The Committee shall take such steps in connection with these transactions as the
Committee deems necessary or appropriate to assure that the provisions of this
Section shall thereafter be applicable, as nearly as reasonably may be
determined, in relation to the cash, securities,
-5-
<PAGE> 9
or property which the holder of the Option may thereafter be entitled to
receive. In lieu of the foregoing, the Committee may terminate the Plan in
accordance with Section 8.2.
ARTICLE V
OPTION PROVISIONS
5.1 PURCHASE PRICE. The Purchase Price of a share of Common Stock
purchased for a Participant pursuant to each exercise of an Option shall be 85
percent of the Fair Market Value of a share of Common Stock on the Purchase
Date.
5.2 CALENDAR YEAR $25,000 LIMIT. Notwithstanding anything else
contained herein, no Employee may be granted an Option for any Offering Period
which permits such Employee's rights to purchase Common Stock under this Plan
and any other qualified employee stock purchase plan (within the meaning of Code
Section 423) of the Corporation and its Subsidiaries to accrue at a rate which
exceeds $25,000 of Fair Market Value of such Common Stock for each calendar year
in which an Option is outstanding at any time. For purposes of this Section,
Fair Market Value shall be determined as of the Offering Date.
5.3 OFFERING PERIOD LIMIT. Notwithstanding anything else contained
herein, the maximum number of shares of Common Stock that an Eligible Employee
may purchase in any Offering Period is 1,000 shares.
ARTICLE VI
PURCHASING COMMON STOCK
6.1 PARTICIPANT'S CONTRIBUTION ACCOUNT. The Administrator shall
establish a book account in the name of each Participant for each Offering
Period. As discussed in Section 6.2 below, a Participant's payroll deductions
shall be credited to the Participant's Contribution Account, without interest,
until such cash is withdrawn, distributed, or used to purchase Common Stock as
described below.
During such time, if any, as the Corporation participates in a Direct
Registration System, shares of Common Stock acquired upon exercise of an Option
shall be directly registered in the name of the Participant. If the Corporation
does not participate in a Direct Registration System, then until distribution is
requested by a Participant pursuant to Article VII, stock certificates
evidencing the Participant's shares of Common Stock acquired upon exercise of an
Option shall be held by the Corporation as the nominee for the Participant.
These shares shall be credited to the Participant's Stock Account. Certificates
shall be held by the Corporation as nominee for Participants solely as a matter
of convenience. A Participant shall have all ownership rights as to the shares
credited to his or her Stock Account, and the Corporation shall have no
ownership or other rights of any kind with respect to any such certificates or
the shares represented thereby.
-6-
<PAGE> 10
All cash received or held by the Corporation under the Plan may be used
by the Corporation for any corporate purpose. The Corporation shall not be
obligated to segregate any assets held under the Plan.
6.2 PAYROLL DEDUCTIONS; DIVIDENDS.
(a) Payroll Deductions. By submitting a Request Form at any time before
an Offering Period in accordance with rules adopted by the Committee, an
Eligible Employee may authorize a payroll deduction to purchase Common Stock
under the Plan for the Offering Period. The payroll deduction shall be effective
on the first pay period during the Offering Period commencing after receipt of
the Request Form by the Administrator. The payroll deduction shall be in any
whole percentage up to a maximum of ten percent (10%) of such Employee's
Compensation payable each pay period, and at any other time an element of
Compensation is payable. A Participant's payroll deduction shall not be less
than one percent (1%) of such Employee's Compensation payable each payroll
period.
(b) Dividends. Cash dividends paid on Common Stock which is credited to
a Participant's Stock Account as of the dividend payment date shall be credited
to the Participant's Stock Account and paid to the Participant as soon as
practicable.
6.3 DISCONTINUANCE. A Participant may discontinue his or her payroll
deductions for an Offering Period by filing a new Request Form with the
Administrator. This discontinuance shall be effective on the first pay period
commencing at least 30 days after receipt of the Request Form by the
Administrator. A Participant who discontinues his or her payroll deductions for
an Offering Period may not resume participation in the Plan until the following
Offering Period.
Any amount held in the Participant's Contribution Account for an
Offering Period after the effective date of the discontinuance of his or her
payroll deductions will either be refunded or used to purchase Common Stock in
accordance with Section 7.1.
6.4 LEAVE OF ABSENCE; TRANSFER TO INELIGIBLE STATUS. If a Participant
either begins a leave of absence, is transferred to employment with a Subsidiary
not participating in the Plan, or remains employed with an Employer but is no
longer eligible to participate in the Plan, the Participant shall cease to be
eligible for payroll deductions to his or her Contribution Account pursuant to
Section 6.2. The cash standing to the credit of the Participant's Contribution
Account shall become subject to the provisions of Section 7.1.
If the Participant returns from the leave of absence before being
deemed to have ceased employment with the Employer under Section 3.3, or again
becomes eligible to participate in the Plan, the Request Form, if any, in effect
immediately before the leave of absence or disqualifying change in employment
status shall be deemed void and the Participant must again complete a new
Request Form to resume participation in the Plan.
-7-
<PAGE> 11
6.5 AUTOMATIC EXERCISE. Unless the cash credited to a Participant's
Contribution Account is withdrawn or distributed as provided in Article VII, his
or her Option shall be deemed to have been exercised automatically on each
Purchase Date, for the purchase of the number of full shares of Common Stock
which the cash credited to his or her Contribution Account at that time will
purchase at the Purchase Price. If there is a cash balance remaining in the
Participant's Contribution Account at the end of an Offering Period representing
the exercise price for a fractional share of Common Stock, such balance may be
retained in the Participant's Contribution Account for the next Offering Period,
unless the Participant requests that it be refunded, without interest. Any other
cash balance remaining in the Participant's Contribution Account at the end of
an Offering Period shall be refunded to the Participant, without interest. The
amount of cash that may be used to purchase shares of Common Stock may not
exceed the Compensation restrictions set forth in Section 6.2.
Except as provided in the preceding paragraph, if the cash credited to
a Participant's Contribution Account on the Purchase Date exceeds the applicable
Compensation restrictions of Section 6.2 or exceeds the amount necessary to
purchase the maximum number of shares of Common Stock available during the
Offering Period, such excess cash shall be refunded to the Participant. Except
as provided in the preceding paragraph, the excess cash may not be used to
purchase shares of Common Stock nor retained in the Participant's Contribution
Account for a future Offering Period.
Each Participant shall receive a statement on an annual basis
indicating the number of shares credited to his or her Stock Account, if any,
under the Plan.
6.6 LISTING, REGISTRATION, AND QUALIFICATION OF SHARES. The granting of
Options for, and the sale and delivery of, Common Stock under the Plan shall be
subject to the effecting by the Corporation of any listing, registration, or
qualification of the shares subject to that Option upon any securities exchange
or under any federal or state law, or the obtaining of the consent or approval
of any governmental regulatory body deemed necessary or desirable for the
issuance or purchase of the shares covered.
ARTICLE VII
WITHDRAWALS; DISTRIBUTIONS
7.1 DISCONTINUANCE OF DEDUCTIONS; LEAVE OF ABSENCE; TRANSFER TO
INELIGIBLE STATUS. In the event of a Participant's complete discontinuance of
payroll deductions under Section 6.3 or a Participant's leave of absence or
transfer to an ineligible status under Section 6.4, the cash balance then
standing to the credit of the Participant's Contribution Account shall be--
(a) returned to the Participant, in cash, without interest, as soon as
practicable, upon the Participant's written request received by the
Administrator at least 30 days before the next Purchase Date; or
-8-
<PAGE> 12
(b) held under the Plan and used to purchase Common Stock for the
Participant under the automatic exercise provisions of Section 6.5.
7.2 IN-SERVICE WITHDRAWALS. During such time, if any, as the
Corporation participates in a Direct Registration System, shares of Common Stock
acquired upon exercise of an Option shall be directly registered in the name of
the Participant and the Participant may withdraw certificates in accordance with
the applicable terms and conditions of such Direct Registration System. If the
Corporation does not participate in a Direct Registration System, (i) a
Participant may, while an Employee of the Corporation or any Subsidiary,
withdraw certificates for some or all of the shares of Common Stock credited to
his or her Stock Account at any time, upon 30 days' written notice to the
Administrator, and (ii) each Participant shall be permitted only one withdrawal
under this Section during each Offering Period. If a Participant requests a
distribution of only a portion of the shares of Common Stock credited to his or
her Stock Account, the Administrator will distribute the oldest securities held
in the Participant's Stock Account first, using a first in-first out
methodology. The Administrator may at any time distribute certificates for some
or all of the shares of Common Stock credited to a Participant's Stock Account,
whether or not the Participant so requests.
7.3 TERMINATION OF EMPLOYMENT FOR REASONS OTHER THAN DEATH. If a
Participant terminates employment with the Corporation and the Subsidiaries for
reasons other than death, the cash balance in the Participant's Contribution
Account shall be returned to the Participant in cash, without interest, as soon
as practicable. Certificates for the shares of Common Stock credited to his or
her Stock Account shall be distributed to the Participant as soon as
practicable, unless the Corporation then participates in a Direct Registration
System, in which case, the Participant shall be entitled to evidence of
ownership of such shares in such form as the terms and conditions of such Direct
Registration System permit.
7.4 DEATH. In the event a Participant dies, the cash balance in his or
her Contribution Account shall be distributed to the Participant's estate, in
cash, without interest, as soon as practicable. Certificates for the shares of
Common Stock credited to the Participant's Stock Account shall be distributed to
the estate as soon as practicable, unless the Corporation then participates in a
Direct Registration System, in which case, the estate shall be entitled to
evidence of ownership of such shares in such form as the terms and conditions of
such Direct Registration System permit.
7.5 REGISTRATION. Whether represented in certificate form or by direct
registration pursuant to a Direct Registration System, shares of Common Stock
acquired upon exercise of an Option shall be directly registered in the name of
the Participant or, if the Participant so indicates on the Request Form, (a) in
the Participant's name jointly with a member of the Participant's family, with
the right of survivorship, (b) in the name of a custodian for the Participant
(in the event the Participant is under a legal disability to have stock issued
in the Participant's name), or (c) in a manner giving effect to the status
-9-
<PAGE> 13
of such shares as community property. No other names may be included in the
Common Stock registration. The Corporation shall pay all issue or transfer taxes
with respect to the issuance or transfer of shares of such Common Stock, as well
as all fees and expenses necessarily incurred by the Corporation in connection
with such issuance or transfer.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 AMENDMENT. The Committee shall have the right to amend or modify
the Plan, in full or in part, at any time and from time to time; provided,
however, that no amendment or modification shall:
(a) affect any right or obligation with respect to any grant previously
made, unless required by law, or
(b) unless previously approved by the stockholders of the Corporation,
where such approval is necessary to satisfy federal securities laws, the Code,
or rules of any stock exchange on which the Corporation's Common Stock is
listed:
(1) in any manner materially affect the eligibility
requirements set forth in Sections 3.1 and 3.3, or change the
definition of Employer as set forth in Section 2.13,
(2) increase the number of shares of Common Stock subject to
any options issued to Participants (except as provided in Sections 4.2
and 4.3), or
(3) materially increase the benefits to Participants under the
Plan.
8.2 TERMINATION. The Committee may terminate the Plan at any time in
its sole and absolute discretion. The Plan shall be terminated by the Committee
if at any time the number of shares of Common Stock authorized for purposes of
the Plan is not sufficient to meet all purchase requirements, except as
specified in Section 4.1.
Upon termination of the Plan, the Administrator shall give notice
thereof to Participants and shall terminate all payroll deductions. Cash
balances then credited to Participants' Contribution Accounts shall be
distributed as soon as practicable, without interest.
-10-
<PAGE> 14
ARTICLE IX
MISCELLANEOUS
9.1 SHAREHOLDER APPROVAL. The Plan shall be approved and ratified by
the stockholders of the Corporation, not later than 12 months after adoption of
the Plan by the Board of Directors of the Corporation, pursuant to Treasury
regulation Section 1.423-2(c). If for any reason such approval is not given by
such date, the Plan shall be null and void, and all payroll deductions to the
Plan shall cease. The cash balances and Common Stock credited to Participants'
accounts shall be promptly distributed to them; and any Common Stock
certificates issued and delivered to Participants prior to such date shall
remain the property of the Participants.
9.2 EMPLOYMENT RIGHTS. Neither the establishment of the Plan, nor the
grant of any Options thereunder, nor the exercise thereof shall be deemed to
give to any Employee the right to be retained in the employ of the Corporation
or any Subsidiary or to interfere with the right of the Corporation or any
Subsidiary to discharge any Employee or otherwise modify the employment
relationship at any time.
9.3 TAX WITHHOLDING. The Administrator may make appropriate provisions
for withholding of federal, state, and local income taxes, and any other taxes,
from a Participant's Compensation to the extent the Administrator deems such
withholding to be legally required.
9.4 RIGHTS NOT TRANSFERABLE. Rights and Options granted under this Plan
are not transferable by the Participant other than by will or by the laws of
descent and distribution and are exercisable only by the Participant during his
or her lifetime.
9.5 NO REPURCHASE OF STOCK BY CORPORATION. The Corporation is under no
obligation to repurchase from any Participant any shares of Common Stock
acquired under the Plan.
9.6 GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the laws of the State of Alabama except to the extent such laws
are preempted by the laws of the United States.
9.7 SHAREHOLDER APPROVAL; REGISTRATION. The Plan was adopted by the
Board of Directors of the Corporation on December 23, 1999 to be effective as of
the Effective Date, provided that no payroll deductions may begin until a
registration statement on Form S-8 filed under the Securities Act of 1933, as
amended, covering the shares to be issued under the Plan, has become effective.
The Plan is subject to approval by the stockholders of the Corporation within 12
months of approval by the Board of Directors.
* * * * * * * * * * * * * *
-11-
<PAGE> 1
EXHIBIT 5.1
[ALSTON & BIRD LLP LETTERHEAD]
December 30, 1999
HeadHunter.NET, Inc.
6410 Atlantic Boulevard, Suite 160
Norcross, Georgia 30071
Re: Registration Statement on Form S-8
2000 Employee Stock Purchase Plan
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 50,000 shares of the Company's
Common Stock, par value $.01 per share (the "Shares "), which may be issued by
the Company pursuant to the HeadHunter.NET, Inc. 2000 Employee Stock Purchase
Plan (the "Plan"). This opinion letter is rendered pursuant to Item 8 of Form
S-8 and Item 601(b)(5) of 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 of the Company deemed by us to be relevant to this opinion
letter, the Plan 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 by the Company or the Commission 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.
<PAGE> 2
Based upon the foregoing, it is our opinion that the Shares to be
issued by the Company under the Plan are duly authorized and, when issued by the
Company in accordance with the terms of the Plan, will be validly issued, fully
paid and nonassessable.
We consent to the filing of this opinion letter 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/ Laura G. Thatcher
---------------------------------
Laura G. Thatcher, Partner
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, 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
- -----------------------
Arthur Andersen LLP
Atlanta, GA
December 30, 1999
