<PAGE> 1
As filed with the Securities and Exchange Commission on June 3, 1998
Registration No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FIRSTWAVE TECHNOLOGIES, INC.
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(Exact name of Registrant as specified in its charter)
GEORGIA 58-1588291
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2859 PACES FERRY ROAD, SUITE 1000, ATLANTA, GEORGIA 30339
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(Address of principal executive offices and zip code)
FIRSTWAVE TECHNOLOGIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
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R. DOUGLAS MACINTYRE
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
FIRSTWAVE TECHNOLOGIES, INC.
2859 PACES FERRY ROAD, SUITE 1000
ATLANTA, GEORGIA 30339
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(Name and address of agent for service)
(404) 431-1200
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(Telephone number, including area code, of agent for service)
Copy to:
G. WILLIAM SPEER, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
(404) 572-6600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock, no 20,000 $4.78(2) $95,600(3) $28.20(3)
par value shares(1)
- --------------------------------------------------------------------------------
</TABLE>
(1) Representing shares to be issued and sold by the Registrant upon the
exercise of options granted or to be granted under the Registrant's Firstwave
Technologies, Inc. Employee Stock Purchase Plan (the "Employee Purchase Plan").
This Registration Statement also covers such indeterminable number of additional
shares as may become issuable to prevent dilution in the event of a stock split,
stock dividend, reclassification or other similar transaction pursuant to the
terms of the Employee Purchase Plan.
(2) The average of the high and low prices of the Registrant's Common Stock
as reported by the NASDAQ National Market System for May 28, 1998.
(3) The aggregate offering price is calculated solely for the purpose of
determining the registration fee pursuant to Rule 457(h)(1) under the Securities
Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
employees of the Registrant as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997 (File No. 0-21202);
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998 (File No. 0-21202);
(3) The Registrant's Current Report on Form 8-K as filed with the
Commission on May 13, 1998 (File No. 0-21202);
(4) The Registrant's Current Report on Form 8-K as filed with the
Commission on January 13, 1998 (File No. 0-21202); and
(5) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement filed on Form 8-A pursuant to Section 12
of the Securities Exchange Act of 1934 (the "Exchange Act") (File No. 0-21202).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia, has rendered
an opinion regarding the legality of the shares of Common Stock registered
hereby.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14-2-850 et seq. of the Georgia Business Corporation Code sets
forth the extent to which the Registrant's directors and officers may be
indemnified by the Registrant against liability that they may incur while
serving in such capacity. These provisions generally provide that the directors
and officers of the Registrant will be indemnified by the Registrant against any
losses incurred in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Registrant) by reason of the
fact that he is or was a director or officer of the Registrant or served with
another corporation, partnership, joint venture, trust or other enterprise at
the request of the Registrant if such director or officer acted in a manner he
reasonably believed to be in or not opposed to the best interest of the
Registrant, and with respect to any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. Under these provisions, the Registrant may
provide advances for expenses incurred in defending any such action, suit or
proceeding, upon receipt of an undertaking by or on behalf of such officer or
director to repay such advances unless it is ultimately determined that he is
entitled to indemnification by the Registrant.
Article VII of the Registrant's Amended and Restated Articles of
Incorporation and Article 6 of its Amended and Restated Bylaws set forth the
extent to which the Registrant's directors and officers may be indemnified
against liabilities which they may incur while serving in such capacities. Such
indemnification will be provided to the full extent permitted and in the manner
required by the Georgia Business Corporation Code. Pursuant to these provisions,
the directors and officers of the Registrant will be indemnified against any
losses incurred in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer of the
Registrant or served with another corporation, partnership, joint venture, trust
or other enterprise at the request of the Registrant. The Registrant will
provide advances for expenses incurred in defending any such action, suit or
proceeding upon receipt of a written affirmation by the director or officer of
his or her good faith belief that he or she has met the applicable standard of
conduct required for indemnification and an undertaking by or on behalf of such
officer or director to repay such advances, if is ultimately determined that he
or she is not entitled to indemnification by the Registrant.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
The Registrant maintains an insurance policy insuring the Registrant
and its directors and officers against certain liabilities, including
liabilities under the Securities Act.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3(a) Amended and Restated Articles of Incorporation of the
Registrant. (Incorporated herein by reference to
Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 as filed on February 5, 1993
(Reg. No. 33-57984) and as thereafter amended.)
3(b) Amended and Restated Bylaws of the Registrant.
(Incorporated herein by reference to Exhibit 3(b) to
the Registrant's Registration Statement on Form S-8
as filed with the Commission on June 3, 1998.)
4(a) Form of Firstwave Technologies, Inc. Employee Stock
Purchase Plan.
4(b) First Amendment dated May 12, 1998 to the Firstwave
Technologies, Inc. Employee Stock Purchase Plan.
5 Opinion of Counsel, Powell, Goldstein, Frazer &
Murphy LLP with respect to the securities being
registered.
23(a) Consent of Powell, Goldstein, Frazer & Murphy LLP
(included in Exhibit 5).
23(b) Consent of Price Waterhouse, LLP
24 Power of Attorney (see signature page to this
Registration Statement).
</TABLE>
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:
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(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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;
(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 (a)(1)(i) and (a)(1)(ii) 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 Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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 Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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
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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 Securities Act and will be governed by the final adjudication
of such issue.
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<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
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 the 26th day of
May, 1998.
FIRSTWAVE TECHNOLOGIES, INC.
By: /s/ R. Douglas MacIntyre
------------------------------------------
R. Douglas MacIntyre
Chairman of the Board, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints R. Douglas MacIntyre as his true and
lawful attorney-in-fact and agent, 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 all exhibits thereto
and other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing required or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, could lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C> <C>
/s/ R. Douglas MacIntyre Chairman of the Board, Date: May 26, 1998
- ------------------------------ President and Chief -----------------
R. Douglas MacIntyre Executive Officer
/s/ Judith A. Vitale Director of Finance and Date: May 26, 1998
- ------------------------------ Administration -----------------
Judith A. Vitale (Principal Financial and
Accounting Officer)
/s/ Richard T. Brock Director Date: May 26, 1998
- ------------------------------ -----------------
Richard T. Brock
/s/ John F. Keane Director Date: May 27, 1998
- ------------------------------ -----------------
John F. Keane
/s/ James R. Porter Director Date: May 26, 1998
- ------------------------------ -----------------
James R. Porter
/s/ Michael T. McNeight Director Date: May 26, 1998
- ------------------------------ -----------------
Michael T. McNeight
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3(a) Amended and Restated Articles of Incorporation of the
Registrant. (Incorporated herein by reference to
Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 as filed on February 5, 1993
(Reg. No. 33-57984) and as thereafter amended.)
3(b) Amended and Restated Bylaws of the Registrant.
(Incorporated herein by reference to Exhibit 3(b) to
the Registrant's Registration Statement on Form S-8
as filed with the Commission on June 3, 1998.)
4(a) Form of Firstwave Technologies, Inc. Employee Stock
Purchase Plan.
4(b) First Amendment dated May 12, 1998 to the Firstwave
Technologies, Inc. Employee Stock Purchase Plan.
5 Opinion of Counsel, Powell, Goldstein, Frazer &
Murphy LLP with respect to the securities being
registered.
23(a) Consent of Powell, Goldstein, Frazer & Murphy LLP
(included in Exhibit 5).
23(b) Consent of Price Waterhouse, LLP
24 Power of Attorney (see signature page to this
Registration Statement).
</TABLE>
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<PAGE> 1
EXHIBIT 4(a)
BROCK CONTROL SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Brock Control Systems, Inc.
Employee Stock Purchase Plan (the "Plan") is to provide employees of Brock
Control Systems Incorporated (the "Company") and its subsidiary corporations
("Subsidiaries") within the meaning of Section 424(f) of the Internal Revenue
Code of 1986, as amended (the "Code") with an opportunity to be compensated
through the benefits of stock ownership and to acquire an interest in the
Company through the purchase of common stock of the Company ("Common Stock").
The Company intends the Plan to qualify as an employee stock purchase plan under
Code Section 423. Accordingly, the provisions of the Plan shall be construed so
as to extend and limit participation in a manner consistent with the
requirements of Code Section 423.
2. DEFINITIONS.
(a) "Compensation" means the regular compensation,
including overtime, paid to an Employee by the Company or, where
applicable, a designated Subsidiary with respect to an Offering Period
(defined below). Bonuses and commissions shall be treated as
Compensation pursuant to such rules as may be determined from time to
time by the Committee (as defined below).
(b) "Employee" means any person, including an officer,
who is customarily employed for more than 20 hours per week and for
more than five months during any calendar year, and is having payroll
taxes withheld from Compensation on a regular basis by the Company or
by any Subsidiary of the Company designated from time to time by the
Company's Board of Directors.
3. ELIGIBILITY.
(a) Any Employee who has been employed for more than six
consecutive months before the tenth day preceding the Beginning Date
(defined below) in an Offering Period shall be eligible to participate
in the Plan for that Offering Period.
(b) No Employee shall be granted an option:
(i) if, immediately after the grant that
Employee would own shares, or hold outstanding options to
purchase shares, or both, possessing five percent (5%) or more
of the total combined voting power or value of all classes of
shares of the Company or any Subsidiaries; or
(ii) which permits the Employee rights to
purchase shares under all employee stock purchase plans of the
Company and its Subsidiaries to accrue at a rate which exceeds
$25,000 of the fair market value of the shares (determined at
<PAGE> 2
the time the option is granted) for each calendar year in
which such option is outstanding at any time.
4. OFFERING PERIOD. Offering Periods shall mean successive
periods the first of which commences January 31, 1995 and ends March 31, 1995
and each three-month period thereafter until the Plan is otherwise amended or
terminated. Each Offering Period will begin on the first day of that period (the
"Beginning Date") and end on March 31, June 30, September 30 or December 31, as
applicable (the "Exercise Date"). The Company will send to each eligible
Employee on a quarterly basis an authorization notice (the "Authorization")
advising the Employee of his or her right to participate in the Plan for the
ensuing Offering Period.
5. PARTICIPATION. An eligible Employee may become a participant
for an Offering Period by completing the Authorization and delivering same to
the Committee 10 days prior to the appropriate Beginning Date (except, with
respect to the first Beginning Date, such later date as is administratively
feasible). All Employees granted options under the Plan shall have the same
rights and privileges, except that the amount of Common Stock which may be
purchased under such options may vary in a uniform manner according to
Compensation.
6. METHOD OF PAYMENT. A participant may contribute to the Plan
through payroll deductions, as follows:
(a) A participant shall elect on an Authorization to have
deductions made from the participant's Compensation for each payroll
period during the Offering Period at a rate which, expressed as a
percentage, shall be at least 2%, but not in excess of 10%, of the
participant's Compensation.
(b) All payroll deductions made for a participant shall
be credited to the participant's account under the Plan. No earnings
shall accrue on any payroll deductions credited to participant
accounts.
(c) Payroll deductions for a participant shall commence
on the first payday coinciding with or following the Beginning Date of
each Offering Period and shall end with the last payday preceding or
coinciding with the Exercise Date for that Offering Period, unless the
participant sooner withdraws as authorized under Paragraph 10 below.
(d) A participant may not alter the rate of payroll
deductions during the Offering Period.
7. GRANTING OF OPTION.
(a) For each Offering Period, a participant shall be
granted an option for a number of shares of Common Stock, subject to
the adjustments provided for in Paragraph 11(a) below, determined
according to the following procedure:
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Step 1 - Determine the amount elected by the
participant to be withheld for participation
in the Plan, based upon the participant's
annual rate of Compensation determined as of
the Beginning Date;
Step 2 - Determine the amount which represents 85% of
the lower of fair market value of a share of
Common Stock on the (1) Beginning Date, or
(II) Exercise Date; and
Step 3 - Divide the amount determined in Step 1 by
the amount determined in Step 2 and round
down the quotient to the nearest whole
number.
(b) For each Offering Period, the option price of shares
of Common Stock to be purchased with a participant's payroll deductions
shall be the lower of (i) 85% of the fair market value of the shares on
the Beginning Date, or (ii) 85 % of the fair market value of the shares
on the Exercise Date.
(c) For purposes of the immediately preceding
Subparagraph, the fair market value of a share of Common Stock on the
Beginning Date and the Exercise Date as of each such date, or the most
immediately preceding business day with respect to which the
information required in the following clauses is available, shall be
determined as follows: (i) if the Common Stock is traded on a national
securities exchange, the closing sale price on that date; (ii) if the
Common Stock is not traded on any such exchange, the closing sale price
as reported by the National Association of Securities Dealers, Inc.
Automated Quotation Systems ("NASDAQ"); (iii) if no such closing sale
price information is available, the average of the closing bid and
asked prices as reported by NASDAQ; or (iv) if there are no such
closing bid and asked prices, the average of the closing bid and asked
prices as reported by any other commercial service.
8. EXERCISE OF OPTION. Unless a timely withdrawal has been
effected pursuant to Paragraph 10 below, a participant's option for the purchase
of shares of Common Stock during an Offering Period will be automatically
exercised on the Exercise Date for that Offering Period for the purchase of the
maximum number of full shares which the sum of the payroll deductions credited
to the participant's account on that Exercise Date can purchase at the option
price.
9. DELIVERY. As soon as administratively feasible after each
Exercise Date, the Company shall deliver to each participant or, in the
alternative, to a custodian designated by the Committee, the shares of Common
Stock purchased upon the exercise of the option. In the event of the delivery of
a participant's shares of Common Stock to a custodian designated by the
Committee, the participant may elect at any time thereafter to have such shares
delivered to the participant or to an account established by the participant
with any brokerage firm. The disposition of any payroll deductions credited to a
participant's account during the Offering Period not used for the purchase of
shares (the "Cash Excess") shall be as follows:
(a) If the participant has elected to withdraw from the
Plan as of the end of the Offering Period, the Company shall deliver
the Cash Excess to the participant.
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<PAGE> 4
(b) If the participant has not elected to withdraw from
the Plan as of the end of the Offering Period, the Cash Excess shall be
applied to the purchase of shares of Common Stock in the immediately
succeeding Offering Period.
10. WITHDRAWAL.
(a) A participant will be deemed to have elected to
participate in each subsequent Offering Period following his or her
initial election to participate in the Plan, unless a written
withdrawal notice is filed with the Company at least ten days prior to
the Beginning Date for the Offering Period as of which the participant
desires to withdraw from the Plan.
(b) A participant may withdraw all, but not less than
all, payroll deductions credited to his account for an Offering Period
at any time during an Offering Period by delivering a written notice to
the Committee at least ten days prior to the Exercise Date; provided
further, that a participant who for any reason, including retirement,
termination of employment or death, ceases to be an Employee prior to
the Exercise Date during any Offering Period will be deemed to have
withdrawn from the Plan as of the date of retirement, termination of
employment or death.
(c) Upon the withdrawal of a participant from the Plan
under the terms of Subparagraph (b) above, the participant's
outstanding options under this Plan shall immediately terminate.
(d) In the event a participant withdraws from the Plan
for any reason, all payroll deductions credited to the participant's
account will be paid to the participant or, in the event of death, to
the person or persons entitled thereto under the terms of Paragraph 13,
as soon as administratively feasible after the date of the
participant's retirement or termination of employment or after receipt
by the Company of notification of the participant's death, as the case
may be. No further deductions will be made from the participant's pay.
(e) A participant who has elected to withdraw from the
Plan may resume participation in the same manner and pursuant to the
same rules as any eligible Employee making an initial election to
participate in the Plan; provided, however, that any participant who is
subject to the reporting requirements of Section 16 of the Securities
Exchange Act of 1934 (a "Reporting Person") and who withdraws from the
Plan for any reason shall not be permitted to resume participation any
earlier than the Beginning Date which is more than six (6) months after
the effective date of the participant's withdrawal; provided further,
however, that a Reporting Person may be allowed to resume participation
without regard to the six-month wait requirement if such a requirement
is then no longer necessary to qualify transactions under the Plan as
exempt within the meaning of Rule 16b-3, as promulgated under the
Securities Exchange Act of 1934.
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<PAGE> 5
11. Stock.
(a) The shares of Common Stock to be sold to participants
under the Plan may, at the election of the Company, be either treasury
shares or shares originally issued for such purpose. The maximum number
of shares made available for sale under the Plan shall be fifty
thousand (50,000) shares, subject to adjustment upon changes in
capitalization of the Company as provided in Paragraph 15 below. If the
total number of shares for which options are to be exercised in
accordance with Paragraph 8 exceeds the number of shares then available
under the Plan, the Company 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.
(b) A participant will have no interest in shares of
Common Stock covered by his or her option until such option has been
exercised.
(c) Shares to be delivered to a participant under the
Plan will be registered in the name of the participant, or, if the
participant so directs, by written notice to the Company prior to the
Exercise Date, in the names of the participant and one other person
designated by the participant, as joint tenants with rights of
survivorship, to the extent permitted by applicable law.
(d) Shares of Common Stock purchased under the terms of
the Plan by a participant who is a Reporting Person may not be sold
prior to the expiration of six (6) months from the Exercise Date upon
which such shares were purchased except in the event of the
participant's disability, as determined by the Committee, or death.
12. ADMINISTRATION. The Plan shall be administered by a committee
(the "Committee") which shall consist of not less than two members of the
Company's Board of Directors or may be comprised of the membership of any
standing committee of the Company's Board of Directors. The Board of Directors
of the Company shall determine the composition of the Committee and may at any
time and from time to time remove members from, or add members to, the
Committee, or to fill vacancies. The Committee shall be vested with full
authority to make, administer and interpret such rules and regulations as it
deems necessary to administer the Plan, and any determination or action of the
Committee in connection with the interpretation or administration of the Plan
shall be final and binding upon all participants and any and all persons
claiming under or through any participant.
13. DESIGNATION OF BENEFICIARY.
(a) A participant may file with the Committee a written
designation of a beneficiary who is to receive any cash to his or her
credit under the Plan in the event of the participant's death before an
Exercise Date, or any shares of Common Stock and cash to his or her
credit under the Plan in the event of the participant's death on or
after an Exercise Date but prior to the delivery of such shares and
cash. A beneficiary may be changed by the participant at any time by
notice in writing to the Committee.
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(b) Upon the death of a participant and upon receipt by
the Company of proof of the identity and existence at the time of the
participant's death of a beneficiary designated by the participant in
accordance with the immediately preceding Subparagraph, the Company
shall deliver such shares or cash, or both, to the beneficiary. In the
event a participant dies and is not survived by a then living or in
existence beneficiary designated by him in accordance with the
immediately preceding Subparagraph, the Company shall deliver such
shares or cash, or both, to the personal representative of the estate
of the deceased participant. If to the knowledge of the Company no
personal representative has been appointed within ninety (90) days
following the date of the participant's death, the Company, in its
discretion, may deliver such shares or cash, or both, to the surviving
spouse of the deceased participant, or to any one or more dependents or
relatives of the deceased participant, or if no spouse, dependent or
relative is known to the Company then to such other person as the
Company may designate.
(c) No designated beneficiary shall, prior to the death
of the participant by whom the beneficiary has been designated, acquire
any interest in the shares or cash credited to the participant under
the Plan.
14. TRANSFERABILITY. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way by the participant. Any attempted assignment,
transfer, pledge or other disposition shall be without effect, except that the
Company may treat such act as an election to withdraw funds in accordance with
Paragraph 10 above.
15. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event that
the outstanding shares of Common Stock of the Company are hereafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of a recapitalization,
reclassification, stock split, combination of shares or dividend payable in
shares of Common Stock, an appropriate adjustment shall be made by the Committee
to the number and kind of shares available for the granting of options, or as to
which outstanding options shall be exercisable, and to the option price. No
fractional shares shall be issued or optioned in making any such adjustments.
All adjustments made by the Committee under this paragraph shall be conclusive.
Subject to any required action by the shareholders, if the Company
shall be a party to any reorganization involving merger, consolidation,
acquisition of the stock or acquisition of the assets of the Company, the
Committee in its discretion (a) may declare the Plan's termination in the same
manner as if the Board of Directors had terminated the Plan pursuant to
Paragraph 16 below, or (b) may declare that any option granted hereunder shall
pertain to and apply with appropriate adjustment as determined by the Committee
to the securities of the resulting corporation to which a holder of the number
of shares of Common Stock subject to the option would have been entitled.
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Any issue by the Company of any class of preferred stock, or securities
convertible into shares of common or preferred stock of any class, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number or option price of shares of Common Stock subject to any option except as
specifically provided otherwise in this Paragraph 15. The grant of an option
pursuant to the Plan shall not affect in any way the right or power of the
Company to make adjustments, reclassifications, reorganizations or changes of
its capital or business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or transfer all or any part of its business or assets.
16. AMENDMENT OR TERMINATION.
(a) The Board of Directors of the Company may at any time
terminate or amend the Plan. The balances credited to participants'
accounts as of the date of any Plan terminated shall be refunded to
those participants as soon as administratively feasible following the
effective date of the Plan's termination.
(b) Prior approval of the shareholders of the Company
shall be required with respect to any amendment which would require the
sale of more shares than are authorized under Paragraph 11 of the Plan.
(c) If necessary under Rule 16b-3 or any successor
thereto promulgated under the Securities Exchange Act of 1934 or by the
Code, prior approval of the shareholders of the Company shall be
required with respect to any Plan amendment.
17. NOTICES. All notices or other communications by a participant
to the Committee under or in connection with the Plan shall be deemed to have
been duly given when received by the Secretary of the Company or when received
in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
18. NO CONTRACT. This Plan shall not be deemed to constitute a
contract between the Company or any Subsidiary and any eligible Employee or to
be a consideration or an inducement for the employment of any Employee. Nothing
contained in this Plan shall be deemed to give any Employee the right to be
retained in the service of the Company or any Subsidiary or to interfere with
the right of the Company or any Subsidiary to discharge any Employee at any time
regardless of the effect which such discharge shall have upon him or her or as a
participant of the Plan.
19. WAIVER. No liability whatever shall attach to or be incurred
by any past, present or future shareholders, officers or directors, as such, of
the Company or any Subsidiary, under or by reason of any of the terms,
conditions or agreements contained in this Plan or implied therefrom, and any
and all liabilities of, and any and all rights and claims against, the Company
or any Subsidiary, or any shareholder, officer or director as such, whether
arising at common law or in equity or created by statute or constitution or
otherwise, pertaining to this Plan, are hereby
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expressly waived and released by every eligible Employee as a part of the
consideration for any benefits by the Company under this Plan.
20. APPROVAL OF SHAREHOLDERS. The Plan shall be submitted to the
shareholders of the Company for their approval within twelve (12) months after
the adoption of the Plan by the Board of Directors of the Company. The Plan is
conditioned upon the approval of the shareholders of the Company, and failure to
receive their approval shall render the Plan and all outstanding options issued
thereunder void and of no effect.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed as
of this 30th day of December, 1994.
BROCK CONTROL SYSTEMS INCORPORATED
By:
-----------------------------------------
Richard T. Brock
Chairman, Chief Executive Officer
and President
[CORPORATE SEAL]
Attest:
- ------------------------
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EXHIBIT 4(b)
FIRST AMENDMENT TO THE
BROCK CONTROL SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
THIS FIRST AMENDMENT is made on this 12th day of May, 1998, by
FIRSTWAVE TECHNOLOGIES, INC. (the "Company"), a corporation duly organized and
existing under the laws of the State of Georgia.
W I T N E S S E T H:
WHEREAS, the Company maintains the Brock Control Systems, Inc. Employee
Stock Purchase Plan (the "Plan"); and
WHEREAS, the Company desires to amend the Plan to reflect changes in
the name of the Company; and to reflect an increase in the number of shares of
Company common stock reserved for issuance under the Plan.
NOW, THEREFORE, the Plan is hereby amended, effective immediately, as
follows:
1. By renaming the Plan as the Firstwave Technologies, Inc.
Employee Stock Purchase Plan.
2. By deleting the second sentence of the first paragraph of
Section 11 and by substituting therefor the following:
"The maximum number of shares made available for sale under the Plan
shall be seventy thousand (70,000) shares, subject to adjustment upon
changes in capitalization of the Company as provided in Paragraph 15
below."
Except as specifically amended hereby, the Plan shall remain in full
force and effect as prior to this First Amendment.
IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed on the day and year first above written.
FIRSTWAVE TECHNOLOGIES, INC.
By: /s/ R. Douglas MacIntyre
-----------------------------------------
R. Douglas MacIntyre
President and Chief Executive Officer
<PAGE> 1
EXHIBIT 5
June 3, 1998
Firstwave Technologies, Inc.
2859 Paces Ferry Road, Suite 1000
Atlanta, Georgia 30339
Re: Registration Statement on Form S-8
Firstwave Technologies, Inc. Employee Stock Purchase Plan
Ladies and Gentlemen:
We have served as counsel for Firstwave Technologies, Inc., a Georgia
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on Form
S-8 (the "Registration Statement"), of an aggregate of 20,000 shares (the
"Shares") of common stock, no par value of the Company, to be issued and sold by
the Company upon the exercise of options granted to certain directors and key
employees of the Company pursuant to the Firstwave Technologies, Inc. Employee
Stock Purchase Plan (the "Employee Purchase Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the authorization of the grants of stock options pursuant to the
Employee Purchase Plan as we have deemed necessary and advisable. In such
examinations, we have assumed the genuineness of all signatures on all originals
and copies of documents we have examined, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
certified, conformed or photostatic copies. As to questions of fact material and
relevant to our opinion, we have relied upon certificates or representations of
Company officials and of appropriate governmental officials.
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate law of the State of Georgia.
<PAGE> 2
Firstwave Technologies, Inc.
June 3, 1998
Page 2
Based upon and subject to the foregoing and having regard for such
legal considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares pursuant to the
exercise of options and payment therefor as provided in the
Employee Purchase Plan and as contemplated by the Registration
Statement, such Shares will be legally and validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 30, 1998, except
as to Note 15, which is as of March 16, 1998, appearing on page 18 of Firstwave
Technologies, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1997.
PRICE WATERHOUSE LLP
Atlanta, Georgia
June 3, 1998
