-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WTtKV7agzwAO2Kkc7ad6bDYzcGClQQCCBiMq3wY3WQYBZQkcRH0s0axFnWCQtm0y anJebtVrScPUwTSO0cnShQ== 0001050502-04-000365.txt : 20040615 0001050502-04-000365.hdr.sgml : 20040615 20040615172110 ACCESSION NUMBER: 0001050502-04-000365 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 11 CONFORMED PERIOD OF REPORT: 20040531 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20040615 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HOMECOM COMMUNICATIONS INC CENTRAL INDEX KEY: 0001021226 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 582153309 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-29204 FILM NUMBER: 04864764 BUSINESS ADDRESS: STREET 1: 3535 PIEDMONT RD CITY: ATLANTA STATE: GA ZIP: 30305 BUSINESS PHONE: 4042374646 MAIL ADDRESS: STREET 1: 3535 PIEDMONT ROAD STREET 2: SUITE 100 CITY: ATLANTA STATE: GA ZIP: 30305 8-K 1 globalmat8k.txt 8-K U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------- FORM 8-K ------------- PURSUANT TO 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of Earliest Event): May 31, 2004 Commission File Number 0-29204 GLOBAL MATRECHS, INC. --------------------- (Exact name of small business issuer as specified in its charter) DELAWARE 58-2153309 -------- ---------- (State or other jurisdiction of (I.R.S. Employer Identification Number) incorporation or organization) 90 Grove Street Suite 202 Ridgefield, Connecticut 06877 ----------------------------- (Address of principal executive offices) (203) 431-8120 -------------- (Issuer's Telephone Number) HOMECOM COMMUNICATIONS, INC. ---------------------------- (Former Name, if changed since last report) 3495 Piedmont Road Building 12, Suite 110 Atlanta, Georgia 30305 ---------------------- (Former Address, if changed since last report) Item 2. Acquisition or Disposition of Assets Global Matrechs, Inc., a Delaware corporation formerly known as HomeCom Communications, Inc. (the "Company," "we," or "us"), has completed the sale of substantially all of the assets of its hosting and website maintenance business to Tulix Systems, Inc., a Georgia corporation ("Tulix"), effective as of May 31, 2004 (the "Asset Sale"). Gia Bokuchava, Nino Doijashvili and Timothy R. Robinson, who were officers, directors and stockholders of the Company immediately prior to the closing of the Asset Sale, each had a material interest in the Asset Sale. Mr. Bokuchava is the President and Chief Executive Officer of Tulix, Ms. Doijashvili is the Vice President, Secretary, and Treasurer of Tulix, and Mr. Bokuchava, Ms. Doijshvili and Mr. Robinson are the directors of Tulix and own all of the outstanding stock of Tulix (other than the Tulix stock issued to the Company in the Asset Sale). The assets transferred to Tulix consist of intellectual property, equipment, contracts, certain accounts receivable in an aggregate amount of approximately $256,000 and cash of $37,000. As consideration for these assets, Tulix: o issued to us shares of Tulix common stock that represent 15% of the outstanding shares of Tulix; and, o issued to us a secured promissory note (the "Note") for a principal amount of $70,000 that bears interest at an annual rate of 7% and will mature on May 31, 2005. The assets to be included in the Asset Sale and the consideration to be paid by Tulix were determined by negotiations between the parties. Because Mr. Bokuchava, Ms. Doijashvili and Mr. Robinson were officers and directors of the Company during the negotiations, the transaction was negotiated on behalf of the Company by the Company's independent directors, including Michael Sheppard, who is also a vice president of our Licensed Technologies Division. Generally speaking, the Company valued the assets being transferred: (i) with respect to the equipment, at the Company's estimate of its fair value, which the Company determined to be approximately $75,000 to $100,000, and (ii) with respect to the cash and accounts receivable, at face value. In addition to the transferred assets, Mr. Bokuchava and Mr. Robinson agreed to cancel their employment agreements, which would have required the Company to pay them $146,250 collectively if the Company terminated them. The Company used these values to determine the adequacy of the consideration received from Tulix. The amount of accounts receivable assigned to Tulix was increased at closing from $70,000 to $256,000 in accordance with the formula provided in the Asset Purchase Agreement, dated March 27, 2003, between the Company and Tulix (the "Sale Agreement"). The formula provided that, if the sum of the cash and accounts receivable of the Company (as determined in accordance with GAAP in a manner consistent with the Company's past practices) on the closing date was more than $325,053 (as adjusted), the excess would be divided evenly between the Company and Tulix. This $325,053 benchmark amount was adjusted, in accordance with the Sale Agreement, by the actual amount of certain agreed upon expenditures made by the Company between the signing date and the closing date, including accounting fees, legal fees, vendor bills, local taxes and other expenditures. The total amount of these agreed-upon expenditures was approximately $328,000, leaving the Company with an adjusted benchmark amount of approximately ($3,000). As of the closing date, the aggregate amount of the Company's cash and accounts receivable was $347,000, so the Company and Tulix divided between them the $350,000 excess of the actual amount over the adjusted benchmark amount. In addition, given that the Company had less than $50,000 in cash available on the closing date even though the Sale Agreement provided that the Company would transfer $50,000 to Tulix, the parties agreed that the Company would transfer $37,000 to Tulix in cash and would assign an additional $13,000 worth of accounts receivable to Tulix. The Note is secured by the intellectual property, contracts, accounts receivable and equipment (including computer hardware, computer software, office furniture and fixtures) transferred to Tulix in the Asset Sale. The aggregate value of the assets that secure the Note is estimated to be approximately $356,000. Of course, the protection that this security affords the Company could be lessened over time if the value of the collateral decreases. In connection with the closing, Mr. Bokuchava and Ms. Doijashvili resigned from their positions as officers and directors of the Company as of the closing date, and Mr. Robinson resigned from his position as an officer of the Company as of the closing date, although he remains on the Board of Directors. Mr. Bokuchava, Ms. Doijashvili and Mr. Robinson, on one hand, and the Company, on the other hand, have agreed to release one another from certain employment-related claims in connection with the closing. In connection with the Asset Sale, we entered into a Shareholders' Agreement with Tulix, Mr. Robinson, Mr. Bokuchava and Ms. Doijashvili. The Shareholders' Agreement gives the Company certain rights as a holder of Tulix stock for a period of five years. These rights include rights of co-sale, rights of first refusal, anti-dilution rights and rights to inspect the books and records of Tulix. The co-sale rights will give us (and the other Tulix shareholders) the right to participate in any sales, subject to certain exclusions, of Tulix stock by other Tulix shareholders. The rights of first refusal granted to us in the Shareholders' Agreement will require that Tulix give us (and the other Tulix shareholders) the right to purchase any securities, subject to certain exclusions, that it intends to offer to third parties before it offers those securities to third parties. The anti-dilution rights contained in the Shareholders' Agreement require Tulix to grant us additional shares of common stock any time, subject to certain exclusions, it issues shares of common stock to other persons so that our aggregate ownership interest in Tulix is generally not diluted. Finally, the Shareholders' Agreement gives us the right to inspect the books and records of Tulix, subject to the specific terms of the Shareholders' Agreement. In connection with the closing, the Company's landlord for its principal offices as 3495 Piedmont Road canceled its lease with the Company and entered into a new lease for the same space with Tulix. In addition, the largest client of our hosting and website maintenance business, Roadrunner, agreed to transfer its business from the Company to Tulix in connection with the closing. The Asset Sale was approved by the Company's stockholders at a special meeting held on March 22, 2004. Item 5. Other Events On June 14, 2004, the Company filed the following amendments to its Certificate of Incorporation: o To change the name of the Company to "Global Matrechs, Inc." o To increase the number of shares of common stock that the Company is authorized to issue from 15,000,000 to 300,000,000. o To permit stockholder action to be taken without a meeting by the holders of not less than the number of shares that would be required to take such action at a meeting of the stockholders at which all the stockholders entitled to vote on a matter were present and voted (previously, stockholder action could be taken without a meeting only if the consent of all of the stockholders entitled to vote was obtained). The Company has also filed amendments to the Certificates of Designations, Preferences and Rights of its Series B, Series C, Series D and Series E Preferred Stock to delete the mandatory conversion provisions of those series. These amendments were also approved by the Company's stockholders at the March 22, 2004 special meeting. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits a. Not applicable. b. The Company intends to file the pro forma financial information required by Item 7(b) of Form 8-K within the required time periods. 2 c. Exhibits Exhibit Number Description -------------- ----------- 2.1 Asset Purchase Agreement, dated March 27, 2003, by and between HomeCom Communications, Inc. and Tulix Systems, Inc. and, for purposes of Section 9(b) thereof, Gia Bokuchava, Nino Doijashvili and Timothy R. Robinson. (Incorporated by reference to Exhibit 2.3 of the Company's Annual Report on Form 10-K for the year ended December 31, 2002, as filed with the Commission on April 15, 2003). 3.1 Certificate of Amendment of Amended and Restated Certificate of Incorporation of HomeCom Communications, Inc., as filed with the Secretary of State of Delaware on June 14, 2004. 3.2 Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series B Convertible Preferred Stock of HomeCom Communications, Inc. 3.3 Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of HomeCom Communications, Inc. 3.4 Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series D Convertible Preferred Stock of HomeCom Communications, Inc. 3.5 Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock of HomeCom Communications, Inc. 10.1 Secured Promissory Note, dated May 31, 2004, by Tulix Systems, Inc. in favor of HomeCom Communications, Inc. 10.2 Security Agreement, dated May 31, 2004, by and between HomeCom Communications, Inc. and Tulix Systems, Inc. 10.3 Shareholders' Agreement, dated May 31, 2004, by and among HomeCom Communications, Inc., Tulix Systems, Inc., Gia Bokuchava, Nino Doijashvili and Timothy R. Robinson. 10.4 Indemnification Agreement, dated May 31, 2004, by and between HomeCom Communications, Inc. and Tulix Systems, Inc. 99.1 Press release, dated June 15, 2004. 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. GLOBAL MATRECHS, INC. By: /s/ Michael Sheppard ------------------------ Name: Michael Sheppard Title: Vice President, Licensed Technologies Division Date: June 15, 2004 4 EXHIBIT INDEX Exhibit Number Description - ------ ----------- 2.1 Asset Purchase Agreement, dated March 27, 2003, by and between HomeCom Communications, Inc. and Tulix Systems, Inc. and, for purposes of Section 9(b) thereof, Gia Bokuchava, Nino Doijashvili and Timothy R. Robinson. (Incorporated by reference to Exhibit 2.3 of the Company's Annual Report on Form 10-K for the year ended December 31, 2002, as filed with the Commission on April 15, 2003). 3.1 Certificate of Amendment of Amended and Restated Certificate of Incorporation of HomeCom Communications, Inc., as filed with the Secretary of State of Delaware on June 14, 2004. 3.2 Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series B Convertible Preferred Stock of HomeCom Communications, Inc. 3.3 Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of HomeCom Communications, Inc. 3.4 Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series D Convertible Preferred Stock of HomeCom Communications, Inc. 3.5 Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock of HomeCom Communications, Inc. 10.1 Secured Promissory Note, dated May 31, 2004, by Tulix Systems, Inc. in favor of HomeCom Communications, Inc. 10.2 Security Agreement, dated May 31, 2004, by and between HomeCom Communications, Inc. and Tulix Systems, Inc. 10.3 Shareholders' Agreement, dated May 31, 2004, by and among HomeCom Communications, Inc., Tulix Systems, Inc., Gia Bokuchava, Nino Doijashvili and Timothy R. Robinson. 10.4 Indemnification Agreement, dated May 31, 2004, by and between HomeCom Communications, Inc. and Tulix Systems, Inc. 99.1 Press release, dated June 15, 2004. EX-3.1 2 homecom3-1.txt CERTIFICATE OF AMENDMENT Exhibit 3.1 CERTIFICATE OF AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF HOMECOM COMMUNICATIONS, INC. HomeCom Communications, Inc. (the "Corporation"), organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Law"), does hereby certify, pursuant to Section 242 of the Law, that: ARTICLE I The name of the Corporation is HomeCom Communications, Inc. ARTICLE II The Amended and Restated Certificate of Incorporation of the Corporation shall be amended by deleting Article I in its entirety and substituting in lieu thereof the following: "I The name of the Corporation is Global Matrechs, Inc." ARTICLE III The Amended and Restated Certificate of Incorporation of the Corporation shall be amended by amending Article IV as follows: "IV The total number of shares of capital stock which the Corporation is authorized to issue is Three Hundred and One Million (301,000,000) divided into two classes as follows: (1) Three Hundred Million (300,000,000) shares of common stock, $.0001 par value per share ("Common Stock"); and (2) One Million (1,000,000) shares of preferred stock, $.01 par value per share (Preferred Stock")." The remainder of Article IV shall remain unchanged. ARTICLE IV The Amended and Restated Certificate of Incorporation of the Corporation shall be amended by deleting Article IX in its entirety and substituting in lieu thereof the following: "IX Action required to be taken or which may be taken at any Annual Meeting or Special Meeting of the Stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, to its principal place of business or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded." 1 ARTICLE V All other provisions of the Amended and Restated Certificate of Incorporation of the Corporation shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, said Corporation hereby executes this Certificate of Amendment of Amended and Restated Certificate of Incorporation this 1st day of June, 2004. HOMECOM COMMUNICATIONS, INC. By: /s/ Michael Sheppard ---------------------------------- Name: Michael Sheppard Title: Vice President 2 EX-3.2 3 homecom3-2.txt CERTIFICATE OF AMENDMENT Exhibit 3.2 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES B CONVERTIBLE PREFERRED STOCK OF HOMECOM COMMUNICATIONS, INC. HomeCom Communications, Inc. (the "Corporation"), organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Law"), does hereby certify, pursuant to Section 242 of the Law, that: ARTICLE I The name of the Corporation is HomeCom Communications, Inc. ARTICLE II The Certificate of Designations, Preferences and Rights of Series B Convertible Preferred Stock of the Corporation (the "Certificate of Designations") shall be amended by deleting Section 2(f) in its entirety and substituting in lieu thereof the following: "2(f) Intentionally omitted." ARTICLE III All other provisions of the Certificate of Designations shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, said Corporation hereby executes this Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series B Convertible Preferred Stock this 7th day of June, 2004. HOMECOM COMMUNICATIONS, INC. By: /s/ Michael Sheppard ------------------------ Name: Michael Sheppard Title: Vice President EX-3.3 4 homecom3-3.txt CERTIFICATE OF AMENDMENT Exhibit 3.3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES C CONVERTIBLE PREFERRED STOCK OF HOMECOM COMMUNICATIONS, INC. HomeCom Communications, Inc. (the "Corporation"), organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Law"), does hereby certify, pursuant to Section 242 of the Law, that: ARTICLE I The name of the Corporation is HomeCom Communications, Inc. ARTICLE II The Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock of the Corporation (the "Certificate of Designations") shall be amended by deleting Section 2(f) in its entirety and substituting in lieu thereof the following: "2(f) Intentionally omitted." ARTICLE III All other provisions of the Certificate of Designations shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, said Corporation hereby executes this Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series C Convertible Preferred Stock this 7th day of June, 2004. HOMECOM COMMUNICATIONS, INC. By: /s/ Michael Sheppard ------------------------ Name: Michael Sheppard Title: Vice President EX-3.4 5 homecom3-4.txt CERTIFICATE OF AMENDMENT Exhibit 3.4 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES D CONVERTIBLE PREFERRED STOCK OF HOMECOM COMMUNICATIONS, INC. HomeCom Communications, Inc. (the "Corporation"), organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Law"), does hereby certify, pursuant to Section 242 of the Law, that: ARTICLE I The name of the Corporation is HomeCom Communications, Inc. ARTICLE II The Certificate of Designations, Preferences and Rights of Series D Convertible Preferred Stock of the Corporation (the "Certificate of Designations") shall be amended by deleting Section 2(f) in its entirety and substituting in lieu thereof the following: "2(f) Intentionally omitted." ARTICLE III All other provisions of the Certificate of Designations shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, said Corporation hereby executes this Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series D Convertible Preferred Stock this 7th day of June, 2004. HOMECOM COMMUNICATIONS, INC. By: /s/ Michael Sheppard ------------------------ Name: Michael Sheppard Title: Vice President EX-3.5 6 homecom3-5.txt CERTIFICATE OF AMENDMENT Exhibit 3.5 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES E CONVERTIBLE PREFERRED STOCK OF HOMECOM COMMUNICATIONS, INC. HomeCom Communications, Inc. (the "Corporation"), organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "Law"), does hereby certify, pursuant to Section 242 of the Law, that: ARTICLE I The name of the Corporation is HomeCom Communications, Inc. ARTICLE II The Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock of the Corporation (the "Certificate of Designations") shall be amended by deleting Section 2(f) in its entirety and substituting in lieu thereof the following: "2(f) Intentionally omitted." ARTICLE III All other provisions of the Certificate of Designations shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, said Corporation hereby executes this Certificate of Amendment of Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock this 7th day of June, 2004. HOMECOM COMMUNICATIONS, INC. By: /s/ Michael Sheppard ------------------------ Name: Michael Sheppard Title: Vice President EX-10.1 7 homecom10-1.txt PROMISSORY NOTE Exhibit 10.1 SECURED PROMISSORY NOTE $70,000.00 May 31, 2004 FOR VALUE RECEIVED, the undersigned, Tulix Systems, Inc., a Georgia corporation ("Maker"), promises to pay to the order of HomeCom Communications, Inc., a Delaware corporation ("Payee"; Payee and any subsequent holder[s] hereof are hereinafter referred to collectively as "Holder"), at the office of Payee at 90 Grove Street, Suite 202, Ridgefield, Connecticut 06877, or at such other place as Holder may designate to Maker in writing from time to time, the principal sum of SEVENTY THOUSAND AND NO/100THS DOLLARS ($70,000.00). The principal amount hereof shall be due and payable on May 31, 2005 (the "Maturity Date"). Interest on the outstanding unpaid principal amount hereof shall accrue at the rate of seven percent (7.0%) per annum (computed on the basis of a 360-day year), beginning on the date hereof, and shall be due and payable on the Maturity Date. The indebtedness evidenced hereby may be prepaid in whole or in part, at any time and from time to time, without premium or penalty. Any such prepayments shall be credited first to any accrued and unpaid interest and then to the outstanding principal balance hereof. Time is of the essence of this Note. This Note is secured pursuant to the terms of that certain Security Agreement, of even date herewith, between Maker and Payee, as amended, supplemented or restated from time to time (the "Security Agreement"). It is hereby expressly agreed that in the event that any Event of Default shall occur under and as defined in the Security Agreement, which Event of Default is not cured following the giving of any applicable notice and within any applicable cure period set forth in the Security Agreement, then, and in such event, the entire outstanding principal balance of the indebtedness evidenced hereby, together with any other sums advanced hereunder, under the Security Agreement and/or under any other instrument or document now or hereafter evidencing, securing or in any way relating to the indebtedness evidenced hereby, together with all unpaid interest accrued thereon, shall, at the option of Holder and without notice to Maker, at once become due and payable and may be collected forthwith, regardless of the stipulated date of maturity. Upon the occurrence of any Event of Default as set forth herein and during any period that Maker shall have failed to make payment of any principal or interest due hereunder, at the option of Holder and without notice to Maker, all accrued and unpaid interest, if any, shall be added to the outstanding principal balance hereof, and the entire outstanding principal balance, as so adjusted, shall bear interest thereafter until paid at an annual rate (the "Default Rate") equal to the lesser of (i) the rate that is seven percentage points (7.0%) in excess of the above-specified interest rate, or (ii) the maximum rate of interest allowed to be charged under applicable law (the "Maximum Rate"), regardless of whether or not there has been an acceleration of the payment of principal as set forth herein. All such interest shall be paid at the time of and as a condition precedent to the curing of any such Event of Default. In the event this Note is placed in the hands of an attorney for collection, or if Holder incurs any costs incident to the collection of the indebtedness evidenced hereby, Maker and any endorsers hereof agree to pay to Holder an amount equal to all such costs, including without limitation all reasonable attorneys' fees and all court costs. Presentment for payment, demand, protest and notice of demand, protest and nonpayment are hereby waived by Maker and all other parties hereto. No failure to accelerate the indebtedness evidenced hereby by reason of an Event of Default hereunder, acceptance of a past-due installment or other indulgences granted from time to time, shall be construed as a novation of this Note or as a waiver of such right of acceleration or of the right of Holder thereafter to insist upon strict compliance with the terms of this Note or to prevent the exercise of such right of acceleration or any other right granted hereunder or by applicable law. No extension of the time for payment of the indebtedness evidenced hereby or any installment due hereunder, made by agreement with any person now or hereafter liable for payment of the indebtedness evidenced hereby, shall operate to release, discharge, modify, change or affect the original liability of Maker hereunder or that of any other person now or hereafter liable for payment of the indebtedness evidenced hereby, either in whole or in part, unless Holder agrees otherwise in writing. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought. The indebtedness and other obligations evidenced by this Note are further evidenced by (i) that certain Asset Purchase Agreement, dated as of March 27, 2003, by and between Maker and Payee and, for purposes of Section 9(b) thereof, Gia Bokuchava, Nino Doijashvili and Timothy R. Robinson, (ii) the Security Agreement and (iii) certain other instruments and documents, as may be required to protect and preserve the rights of Maker and Payee, as more specifically described in the Security Agreement. All agreements herein made are expressly limited so that in no event whatsoever, whether by reason of advancement of proceeds hereof, acceleration of maturity of the unpaid balance hereof or otherwise, shall the amount paid or agreed to be paid to Holder for the use of the money advanced or to be advanced hereunder exceed the Maximum Rate. If, from any circumstances whatsoever, the fulfillment of any provision of this Note or any other agreement or instrument now or hereafter evidencing, securing or in any way relating to the indebtedness evidenced hereby shall involve the payment of interest in excess of the Maximum Rate, then, ipso facto, the obligation to pay interest hereunder shall be reduced to the Maximum Rate; and if from any circumstance whatsoever, Holder shall ever receive interest, the amount of which would exceed the amount collectible at the Maximum Rate, such amount as would be excessive interest shall be applied to the reduction of the principal balance remaining unpaid hereunder and not to the payment of interest. This provision shall control every other provision in any and all other agreements and instruments existing or hereafter arising between Maker and Holder with respect to the indebtedness evidenced hereby. 2 This Note is intended as a contract under and shall be construed and enforceable in accordance with the laws of the State of Delaware, except to the extent that federal law may be applicable to the determination of the Maximum Rate. Whenever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note. Maker hereby irrevocably consents to the jurisdiction of the United States District Court and of all state courts sitting in New Castle County, Delaware, for the purpose of any litigation to which Holder may be a party and which concerns this Note or the indebtedness evidenced hereby. It is further agreed that venue for any such action shall lie exclusively with courts sitting in New Castle County, Delaware, unless Holder agrees to the contrary in writing. HOLDER AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COUNSEL WAIVE TRIAL BY JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR COUNTERCLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. As used herein, the terms "Maker" and "Holder" shall be deemed to include their respective successors, legal representatives and assigns, whether by voluntary action of the parties or by operation of law. (Signature page follows.) 3 IN WITNESS WHEREOF, Maker, on the day and year first above written, has caused this Note to be executed under seal. MAKER: ------ TULIX SYSTEMS, INC., a Georgia corporation By: /s/ Gia Bokuchava --------------------- Name: Gia Bokuchava Title: President and Chief Executive Officer [CORPORATE SEAL] 4 EX-10.2 8 homecom10-2.txt SECURITY AGREEMENT Exhibit 10.2 SECURITY AGREEMENT THIS SECURITY AGREEMENT (this "Agreement") is dated as of May 31, 2004, between Tulix Systems, Inc., a Georgia corporation ("Debtor"), and HomeCom Communications, Inc., a Delaware corporation ("HomeCom"). SECTION 1. Definitions 1.1 Certain Defined Terms. Terms defined in the APA (as defined below) and not otherwise defined herein shall have the respective meanings provided for in the APA. The following terms shall have the respective meanings provided for in the UCC (as defined below): "Accounts," "Chattel Paper," "Commercial Tort Claim," "Documents," "General Intangibles," "Goods," "Instruments," "Inventory," "Letter of Credit Rights," "Proceeds," and "Supporting Obligations." The following terms, as used herein, shall have the meanings set forth below: "APA" means that certain Asset Purchase Agreement, dated as of March 27, 2003, between Debtor and HomeCom, and, for purposes of Section 9(b) thereof, Gia Bokuchava, Nino Doijashvili and Timothy R. Robinson, as the same may be amended from time to time, and any document required by the APA to be delivered by Debtor in connection with the APA or the closing of the transactions contemplated therein. "Business" means Seller's business of developing and hosting Internet applications, products and services to commercial customers, the assets of which business are being transferred to Debtor pursuant to the APA. "Event of Default" means (a) the Debtor fails to timely perform any of its duties or obligations as specified in this Agreement or the Note in accordance with their respective terms, (b) the breach of any representation or warranty made by Debtor in this Agreement or the Note, (c) the breach of or failure to perform or observe any covenant or agreement contained in this Agreement or the Note, (d) the existence of any default under this Agreement or the Note, (e) the Debtor shall generally not pay its debts as such debts become due, or admit in writing its inability to pay its debts generally, or make a general assignment for the benefit of creditors, (f) any proceeding is instituted by or against the Debtor seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debt under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or for any substantial part of its property, or (g) the Debtor is liquidated or dissolved. "Note" means one or more Secured Promissory Note(s), in the aggregated principal amount of $70,000, dated on or after the date hereof, by Debtor in favor of HomeCom, referencing this Agreement, and all amendments and supplements thereto, restatements thereof and renewals, extensions, restructurings and refinancings thereof. "Person" means and includes natural persons, corporations, limited partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivisions thereof. 1 "Security Interests" means the security interests granted pursuant to Section 2, as well as all other security interests created or assigned as additional security for the Secured Obligations pursuant to the provisions of this Agreement. "Secured Party" means HomeCom and its successors and assigns. "UCC" means the Uniform Commercial Code as in effect on the date hereof in the State of Georgia and Delaware, provided that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the Security Interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect on or after the date hereof in any other jurisdiction, "UCC" means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy. 1.2 Other Definition Provisions. Any of the terms defined in Subsection 1.1 may, unless the context otherwise requires, be used in the singular or the plural depending on the reference. All references to statutes and related regulations shall include (unless otherwise specifically provided herein) any amendments of same and any successor statutes and regulations. Capitalized terms used herein which are not specifically defined shall have the meaning given such terms in the Note (as defined below). SECTION 2. Grant of Security Interests In order to secure the payment and performance of the Secured Obligations (as defined below) in accordance with the terms thereof, Debtor hereby grants to Secured Party a continuing security interest in and to all right, title and interest of Debtor in the following property, whether now owned or existing or hereafter acquired or arising and regardless of where located (all being collectively referred to as the "Collateral"): (a) the intellectual property identified on Schedule 1(a) (the "Intellectual Property"); (b) the contracts identified on Schedule 1(b) (the "Contracts"), including any Accounts, General Intangibles, Chattel Paper, Documents, Instruments, Commercial Tort Claims, Letter-of-Credit Rights, and Supporting Obligations ancillary to, arising in any way in connection with, or otherwise relating to any of the Contracts, and including all Inventory or other Goods (including retained or repossessed Inventory or Goods), if any, sold to customers pursuant to the Contracts, and all insurance contracts with respect thereto; (c) the accounts receivable identified on Schedule 1(c) (the "Accounts Receivable"); 2 (d) the equipment being used as of the date hereof to service and maintain the Contracts and operate the Business and, in addition, the equipment identified on Schedule 1(d) (the "Equipment"); (e) any Documents, Instruments or other receipts covering, evidencing or representing any of the assets identified in subparts (a) through (d) above; (f) all books, records, ledger cards, files, correspondence, computer programs, tapes, disks and related data processing software that at any time evidence or contain information relating to any of the property described in subparts (a) - (e) above or are otherwise necessary or helpful in the collection thereof or realization thereon; and (g) Proceeds of all or any of the property described in subparts (a) - (f) above. SECTION 3. Security for Obligations This Agreement secures the payment and performance of the Note, and all renewals, extensions, amendments, restructurings and refinancings thereof (the "Secured Obligations"). SECTION 4. Debtor Remains Liable Anything herein to the contrary notwithstanding: (a) Debtor shall remain liable under the contracts and agreements included in the Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed; (b) the exercise by Secured Party of any of the rights hereunder shall not release Debtor from any of its duties or obligations under the contracts and agreements included in the Collateral; and (c) Secured Party shall not have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Agreement, nor shall Secured Party be obligated to perform any of the obligations or duties of Debtor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. SECTION 5. Representations, Warranties and Covenants Debtor represents, warrants and covenants as follows: 5.1 Corporate Existence and Authority. The Debtor is duly organized, validly existing and in good standing in the State of Georgia and in every other state in which the nature of its business in such state requires it to be so qualified. It is duly authorized to execute and deliver this Agreement. None of the provisions of this Agreement violate or are in conflict with any provisions of the Debtor's Articles of Incorporation, as amended, Bylaws, as amended, or any existing agreement, court order or consent decree to which the Debtor is a party or may be bound. The Debtor has taken all necessary action to authorize the granting of the security interest pursuant to this Agreement and the delivery of any instruments as may be required under this Agreement. 3 5.2 Binding Obligation. This Agreement is the legally valid and binding obligation of Debtor, enforceable against Debtor in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws or equitable principles relating to or limiting creditor's rights generally. 5.3 Payment of Indebtedness. The Debtor will pay or perform the Secured Obligations as and when they become due, payable and performable in accordance with the terms of such indebtedness and this Agreement. 5.4 Place of Business. Except as permitted with the prior consent of the Secured Parties, the Collateral will be kept at 3495 Piedmont Road, Suite 110, Atlanta, Georgia 30305 (the "Premises"). The Debtor will not remove the Collateral from the Premises (other than the removal of such Collateral in the ordinary course of the Debtor's business) without the prior consent of the Secured Parties. The Debtor will immediately give written notice to Secured Party of any change in its chief executive office or principal place of business. Debtor does not do business under any corporate name, trade name or fictitious business name except for Debtor's corporate name on the date hereof. Debtor will notify Secured Party promptly in writing at least 30 days prior to (a) any change in Debtor's name, identity, mailing address, jurisdiction of organization or corporate structure and (b) Debtor's commencing the use of any trade name, assumed name or fictitious name. 5.5 No Liens or Financing Statements. The Debtor has, or will acquire, full and clear right, title and interest to the Collateral and will at all times keep the Collateral free from any adverse lien, security interest or encumbrance other than Permitted Liens. No financing statements covering all or any portion of the Collateral is on file in any public office, except with respect to Permitted Liens. For purposes of this Agreement, "Permitted Liens" shall mean those liens, encumbrances or security interests that are specified on Exhibit A. 5.6 Perfection. This Agreement, together with the UCC filings referenced herein, create to secure the Secured Obligations a valid, perfected and first priority security interest in the Collateral and all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken. 5.7 Restrictions. The Debtor will deliver or cause to be delivered such documents as the Secured Parties may reasonably request to secure the indebtedness, obligations and liabilities referred to in this Agreement including, without limitation, any continuation statements, a copy of the source code listing for the complete and current version of Debtor's program code for each of Debtor's software products included in the Collateral for the purpose of complying with U.S. Copyright Office deposit requirements in connection with registering (i) Debtor's claims of copyright ownership in and to each such software product with the U.S. Copyright Office and (ii) security interest in and to each software related product copyright rights and copyright registration related to the Collateral. 5.8 No Transfer of Collateral. The Debtor will not sell or offer to sell or otherwise transfer all or any part of the Collateral (other than sales in the ordinary course of business) without the prior consent of the Secured Party. 4 5.9 Books and Records; Inspection Rights. The Debtor will at all times maintain accurate and complete books and records with respect to the Collateral. A representative of Secured Party may inspect, audit and make copies of those books and records and any other data relating to the Collateral, at such reasonable times and places as such representative shall determine. In addition, a representative of Secured Party may inspect the Collateral at such times and places as such representative shall determine, and for that purpose may enter upon or into the Premises. 5.10 Accurate Information. All information heretofore, herein or hereafter supplied to Secured Party by or on behalf of Debtor with respect to the Collateral is and will be accurate and complete in all material respects. SECTION 6. Further Assurances 6.1 Other Documents and Actions. Debtor will, from time to time, at Secured Party's expense, promptly execute and deliver all further instruments and documents and take all further action that may be necessary or desirable, or that Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, Debtor will execute and file such financing or continuation statements, or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as Secured Party may reasonably request, in order to perfect and preserve the security interests granted or purported to be granted hereby. 6.2 Secured Party Authorized. Debtor hereby authorizes Secured Party at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (a) indicate the Collateral, and (b) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including whether Debtor is an organization, the type of organization and any organizational identification number issued to Debtor. Debtor agrees to furnish any such information to Secured Party promptly upon request. Debtor also ratifies its authorization for Secured Party to have filed in any Uniform Commercial Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof. SECTION 7. Remedies (a) If any Event of Default shall have occurred and be continuing, Secured Party may exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral). 5 (b) Assembly of Collateral. Upon the occurrence of and during the continuance of an Event of Default, the Secured Party may require Debtor, at Debtor's expense, to promptly assemble all or part of the Collateral and make it available to the Secured Party at a place to be designated by the Secured Party that is reasonably convenient to all parties. Upon the occurrence of and during the continuance of an Event of Default, the Secured Party may occupy any premises owned or leased by Debtor where the Collateral or any part thereof is assembled for a reasonable period in order to effectuate its rights and remedies hereunder or under law, without obligation to Debtor in respect of such occupation. (c) Sale of Collateral. Upon the occurrence of an Event of Default, the Secured Party may sell all or part of the Collateral at public or private sale, at any of Debtor's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Secured Party may deem commercially reasonable. Debtor agrees that to the extent permitted by law such sales may be made without notice. If notice is required by law, Debtor hereby deems 20-days advance notice of the time and place of any public sale or the time after which any private sale is to be made reasonable notification, recognizing that if the Collateral threatens to decline speedily in value or is of a type customarily sold on a recognized market, shorter notice may be reasonable. The Secured Party shall not be obligated to make any sale of Collateral pursuant to this Section regardless of notice of sale having been given. The Secured Party may adjourn any public or private sale from time-to-time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. (d) Contract Rights. Upon the occurrence of and during the continuance of an Event of Default, the Secured Party may exercise any rights and remedies of Debtor under or in connection with the instruments, chattel paper or contracts which represent the Contracts, the Accounts Receivable, the Intellectual Property or otherwise relate to the Collateral, including, without limitation, any rights of Debtor to demand or otherwise require payment of any amount under, or performance of any provisions of, the instruments, chattel paper or contracts which represent the Contracts, Accounts Receivable or the Intellectual Property. (e) Upon the occurrence of and during the continuance of an Event of Default, the Secured Party may, or may direct Debtor to, take any action the Secured Party deems necessary or advisable to enforce collection of the Accounts Receivable, including, without limitation, notifying the account debtors or obligors under any Accounts Receivable of the assignment of such Accounts Receivable to the Secured Party and directing such account debtors or obligors to make payment of all amounts due or to become due directly to the Secured Party. Upon such notification and direction, and at the expense of Debtor, the Secured Party may enforce collection of any such Accounts Receivable, and adjust, settle or compromise the amount or payment thereof in the same manner and to the same extent as Debtor might have done. (f) After receipt by Debtor of the notice referred to in subsection (e) above, in accordance with the terms thereof and so long as an Event of Default has occurred and is continuing, all amounts and proceeds (including instruments) received by Debtor in respect of the Accounts Receivable shall be received in trust for the benefit of the Secured Party hereunder, shall be segregated from other funds of Debtor, and shall promptly be paid over to the Secured Party in the same form as so received (with any necessary endorsement) to be held as Collateral. Debtor shall not adjust, settle or compromise the amount or payment of any receivable, or release wholly or partly any account debtor or obligor thereof, or allow any credit or discount thereon. 6 SECTION 8. Limitation on Duty of Secured Party with Respect to Collateral Beyond the safe custody thereof, Secured Party shall have no duty with respect to any Collateral in its possession or control (or in the possession or control of any Secured Party or bailee) or with respect to any income thereon or the preservation of rights against prior parties or any other rights pertaining thereto. Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property. Secured Party shall not be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehouseman, carrier, forwarding agency, consignee or other agent or bailee selected by Secured Party in good faith. SECTION 9. Application of Proceeds Upon the occurrence and during the continuation of an Event of Default, the proceeds of any sale of, or other realization upon, all or any part of the Collateral shall be applied: first, to all fees, costs and expenses incurred by Secured Party with respect to the Note or with respect to the Collateral; and second, to the Secured Obligations. Secured Party shall pay over to Debtor any surplus and Debtor shall remain liable for any deficiency. SECTION 10. Continuing Security Interest; Transfer of Interest This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect until the Secured Obligations have been paid in full (the "Termination Date"), provided, however, that the security interest in the Collateral created by this Agreement shall continue after the Termination Date with respect to any Secured Obligations that arose prior to the Termination Date, (b) be binding upon Debtor and its permitted successors and assigns and (c) inure, together with the rights and remedies of the Secured Party hereunder, to the benefit of the Secured Party and its respective successors, transferees and assigns. Upon any termination of the security interests granted hereby, all rights to the Collateral shall revert to Debtor to the extent such Collateral shall not have been sold or otherwise applied pursuant to the terms hereof and the Secured Party will, at Debtor's expense, execute and deliver to Debtor such documents as Debtor shall reasonably request and take any other actions reasonably requested to evidence or effect such termination. SECTION 11. Notices Any notice, request, demand, waiver, consent, approval or other communication which is required or permitted hereunder shall be in writing and shall be deemed given only if delivered personally or sent by facsimile, air courier, telegram or by registered or certified mail, postage prepaid, as follows: 7 If to Company: Tulix Systems, Inc. 3495 Piedmont Road Suite 110 Atlanta, GA 30305 (404) 237-4646 (404) 233-1977 (facsimile) Attn: Timothy R. Robinson If to HomeCom HomeCom Communications, Inc. 90 Grove Street, Suite 202 Ridgefield, CT 06877 Attn: President (203) 431-8120 (203) 431-8304 (facsimile) With a copy, which shall not constitute notice, to: Sutherland Asbill & Brennan LLP First Union Plaza, Suite 2300 999 Peachtree Street, N.E. Atlanta, GA 30309-3996 Attn: Wade H. Stribling, Esq. (404) 853-8000 (404) 853-8806 (facsimile) or to such other address as the addressee may have specified on the signature page hereto or in a notice duly given to the sender as provided herein. Such notice, request, demand, waiver, consent, approval or other communication will be deemed to have been given as of the date so delivered, transmitted by facsimile, telegraphed, sent via air courier, or mailed, as the case may be. SECTION 12. Waivers, Non-Exclusive Remedies, Severability No failure on the part of Secured Party to exercise, and no delay in exercising and no course of dealing with respect to, any power, right or privilege under the Note or this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise by Secured Party of any such power, right or privilege under the Note or this Agreement preclude any other or further exercise thereof or the exercise of any other power, right or privilege. The rights in this Agreement and the Note are cumulative and are not exclusive of any other remedies provided by law. 8 The invalidity, illegality or unenforceability of any provision in or obligation under this Agreement shall not affect or impair the validity, legality or enforceability of the remaining provisions or obligations under this Agreement. SECTION 13. Successors and Assigns This Agreement is for the benefit of HomeCom and its successors and assigns, and in the event of an assignment of all or any of the Secured Obligations, the rights hereunder, to the extent applicable to the Secured Obligations so assigned, may be transferred with such Secured Obligations. This Agreement shall be binding on Debtor and its successors and assigns, provided that Debtor shall not assign this Agreement without Secured Party's prior written consent. SECTION 14. Changes in Writing No amendment, modification, termination or waiver of any provision of this Agreement or consent to any departure by Debtor therefrom, shall in any event be effective without the written concurrence of Secured Party and Debtor. SECTION 15. Applicable Law This Agreement shall be governed by the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Except as otherwise provided, the obligations of the Parties hereunder shall be binding upon their heirs, personal representatives, executors, administrators, successors and assigns. Each of the parties consents to the exclusive jurisdiction of the federal or state courts in the State of Delaware in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of any such proceeding in such jurisdiction. Each party hereto waives its right to trial by jury in any such proceeding. SECTION 16. Expenses Debtor shall pay all costs, fees and expenses of protecting, storing, warehousing, appraising, insuring, handling, maintaining and shipping the Collateral, all costs, fees and expenses of enforcing the Security Interests, and any and all excise, property, sales and use taxes imposed by any federal, state, local or foreign authority on any of the Collateral, or with respect to periodic appraisals and inspections of the Collateral, or with respect to the sale or other disposition thereof. All sums so paid or incurred by Secured Party for any of the foregoing, any and all other sums for which Debtor may become liable hereunder and all fees, costs and expenses (including attorneys' fees, legal expenses and court costs) incurred by Secured Party in enforcing or protecting the Security Interests or any of their rights or remedies under this Agreement shall be payable on demand, shall constitute Secured Obligations, shall bear interest until paid at the highest rate provided in the Note and shall be secured by the Collateral. 9 SECTION 17. Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. For the purposes of executing this Agreement, (a) a document signed and transmitted by facsimile or telecopier shall be treated as an original document; (b) the signature of any party on such document shall be considered as an original signature; (c) the document transmitted shall have the same effect as a counterpart thereof containing original signatures; and (d) at the request of Secured Party, Borrower, who executed this Agreement and transmitted the signature by facsimile or telecopier, shall provide such original signature to Secured Party. No party may raise as a defense to the enforcement of this Agreement that a facsimile or telecopier was used to transmit any signature of a party to the Note. SECTION 18. Severability It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the law and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, in the event that any provision of this Agreement would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. (Signatures on following page.) 10 Witness the due execution hereof by the respective duly authorized officers of the undersigned as of the day first above written. DEBTOR: TULIX SYSTEMS, INC. By: /s/ Gia Bokuchava ------------------------------------ Name: Gia Bokuchava Title: President and Chief Executive Officer HOMECOM COMMUNICATIONS, INC.: By: /s/ Michael Sheppard ------------------------------------ Name: Michael Sheppard Title: Vice President 11 SCHEDULE 1 (a) Intellectual Property All right, title and interest in the "Post on the Fly", "Intelligent Advisor", "Harvey", Time Warner Road Runner Personal Home Page Application, "Community", "On line Forum" and "Work Order System" software applications, including but not limited to the following to the extent related thereto: (a) all source code, specifications, technical documentation and similar information; (b) all trademarks, service marks, trade names, logos, and domain names, together with all goodwill associated therewith; all patents; all copyright and copyrightable works; all intellectual property registrations and applications and renewals therefore; and all other intellectual property rights of any kind or nature whatsoever; and (c) all records and marketing materials relating to the foregoing. SCHEDULE 1 (b) Contracts As of 05/21/04 Client Description Period Expiration ------ ----------- ------ ---------- Bend Cable Monthly Hosting Services Monthly 01/31/05 Belle Chambre Monthly Hosting Services Monthly Month to Month Bituminous Fire Monthly Hosting Services Monthly 08/31/04 T.C. Fields Monthly Hosting Services Monthly Month to Month Road Runner Monthly Hosting Services Monthly Month to Month SCHEDULE 1 (c) Accounts Receivable As of 05/21/04 Client Amount ------ ------ Road Runner 256,000.00 ---------- Total 256,000.00 ========== SCHEDULE 1 (d) Equipment EQUIPMENT / MODEL # SERIAL # ------------------- -------- OFFICE EQUIPMENT Toshiba 2530 CDS 49634310A Dell Dimension 183BQ Sony Multiscan w7000 2000353 Dell Trinitron 7047788 Viewsonic G810 ACI PIII P.C. 97001419 HP Deskjet 895CSE / C6410B SG9611W0R3 Brother Electronic Typewriter GX8250 B8D857536 Dell Trinitron Ultrascan 1000 / D1025tm 8471538 Dell Dimension T450 11LQR Viewsonic G810 Q190775179 HP Laserjet 2100 USGX066422 ACI PIII P.C. 97200545 Viewsonic G810 QV01445958 Unisys Aquatam /DMS/6 49609557 Dell Ultrascan 20TX / D2026t-HS 2024784 Toshiba Tecra 730CDT / PA1228U 10614039 HP Laserjet 4M Plus C2039A JPGK235556 ACI PIII P.C. 97001421 Viewsonic G810 QV01344797 Dell Monitor M780 5322DE22KJ59 HP Laserjet 3100 C3948A USBG021007 Gateway 2000 P5-120 4224926 Lexmark Optra T612 QMS Magic Color Printer / QMS-MCCX21 Q0225680 Gateway 2000 Vivitron 15 / CPD15F23 8443375 HP Scanjet 4C / C2520B SG719230CV Viewsonic G810 QV01445960 Gateway 2000 G6 6003513 ACI PIII P.C. 97200544 MAC XB0211BHHSF Dell Monitor M780 3872E808 HP Officejet 520 / C3801A US75MA21M2 Gateway 2000 / CPD-GF200 7025149 HP Pavilion 4455 / D7394A US91168277 Gateway 2000 Vivitron 15 / CPD15F23 8632172 Gateway 2000 G6 -200 6003511 Viewsonic G810 QV01445756 HP Deskjet 895CSE / C6410B SG91Q1V05G ACI PIII P.C. 97200546 Macintosh Power PC 8500/120 XB5490QL3FT Dell Monitor M780 5322DA03BH Gateway 2000 Crystal Scan / YE0711-01 MH54H4017645 Toshiba Satelite 2530CDS / PAS253U 49629218A Infocus / LP435Z 3EW91400111 Infocus Lite Pro 580 2AB0601787 KDS Flat Screen Monitor KLT1513A 1540SBB36004376 KDS Flat Screen Monitor KLT1711A 1763BBB34006041 KDS Flat Screen Monitor KLT1711A 1763BBB34006142 KDS Rad 5 Flat Screen 5003944900267 KDS Rad 5 Flat Screen 5003944900174 Dell Dimension CPU 4400 8S4WG11 Dell Dimension CPU 4400 5S4WG11 Nicon Collpix 5000 178-74515-1762 I-Book 700 Mhz Small Screen N/A HP Laserjet Fax/Prtr/Scanner NOC EQUIPMENT Dell Power Vault 130T Robotic DLT UXCXM Seagate External DDS3 Tape Drive / STD62400N GT00MSM Dell Power Edge 6350 6J8I0 Raid Web 500 Gigs External Raid No Serial# Dell Power Edge 6350 Dual Xeon 550mhz 6J8EZ Dell Power Edge 6350 4Xeon 550mhz 6L80I Artecon 200 Gig External Raid 24514570296 Artecon 200 Gig External Raid 24514570320 Artecon 200 Gig External Raid 24514570326 Artecon 200 Gig External Raid 24515330067 ATL Power Store L200 DLT Auto Loader No Serial# TeleNet Server Pentium Pro 200 TSS97060017 Dell Power Edge 2400 Dual Pentium3 550mhz 4JEDB TeleNet Server Pentium2 333mhz TSS98040035 TeleNet Server Pentium2 300mhz TSS98040027 TeleNet Server Pentium2 266mhz TSS98050001 TeleNet Server Pentium2 266mhz TSS98030058 TeleNet Server Pentium2 400mhz TSS98030057 TeleNet Server Dual Pentium2 300mhz TSS98070082 TeleNet Server Pentium2 300mhz TSS98030005 3Com SuperStack2 Switch 7WKR101215 Gateway 2000 Pentium Pro 200mhz 7248477 Belkin OmniView No Serial# 3Com SuperStack2 Switch SWKR096596 ADC Kentrox Data-Smart T3/E3 IDSU DDM1UZPBRA Cisco 7200 72602314 Cisco 7200 72602346 Superstack II Dual Hub 500-0801 72BV200F84F Cisco Catalyst 1900 00902B49C540 Cisco 3524 Catalyst 000196348D00 Sun Ultra 5 FW01950150 Dell Pentium Dimension XPS Pro 200mhz 92CW1 Dell Pentium Dimension XPS P266 FN77S Cisco 3620 Frame Relay 362088634 96 Port Patch Panel No Serial# Centercom 3024tr (Hub) PT3F7080E Centercom 3024tr (Hub) F03N611BD Prime 133mhz No Serial# Generic Pentium Pro 200mhz H1VHGD Quantex Pentium 120mhz 5001410090 Quantex Pentium 120mhz 5001417346 Digital Link DL3100 Digital Service Multiplexer 3096030917 Digital Link T1 DSU/CSU Gateway 2000 PentiumII 266mhz 7252411 Power Mac 7100/80 FC5080UR44H Gateway Pentium 100mhz 5232643 ACI Pentium III 450mhz 97001420 Belkin OmniView 6 Port No Serial# Gateway Pentium Pro 200mhz 4224929 Gateway Pentium 120mhz 6425691 Unisys Pentium Pro 180mhz 4907791 ACI Pentium 100mhz No Serial# Belkin OmniView 6 Port No Serial# 3Com SuperStack2 Switch 7YDB025314 3Com SuperStack2 Switch 7WKR101189 Mag Innovision MI58HA022364 Belkin OmniView 6 Port No Serial# Mag Innovision MI58HB033662 ACI P.C. 97001422 Belkin Omniview Pro 8 Port No Serial# Dell M780 Monitor 5322DA0727 Telnet Server TSS98030051 Dell Poweredge 4300 01V8E Dell Dimension XPS D266 No Serial# Dell VC5 Monitor 15001106 Sun Netra Ultra Spark Drive 618F1905 Sun Ultra Enterprise 450 024H2F8C Mag Innovision / MagDX1795 018C1358 Telenet Server TSS98040034 Telenet Server TSS98070014 DLT Tape Drive External 2625 Sun 012H26ED CT US82321776 Gateway 2000 G6200 6986892 Gateway 2000 G6200 7248475 ACI PC 97200548 Gateway 2000 G6200 MI58HA022363 Belkin Omni View 6Port No Serial# 3Com SuperStack2 Switch 7A8F000301 3Com SuperStack2 Switch 7WKR106693 Power PC FC6012TV3FV Telenet Server TSS98030059 Telenet Server TSS98030060 Telenet Server TSS98070013 Gateway 2000 Vivitron / CPD-GF200 7050359 Belkin Omniview 6 Port No Serial# Sun Ultra 1 Creator 607F04E1 Sun Ultra 1 Creator 651F0EEE Sun Enterprise 220R 012H3098 Sparc Station 10 251F5398 Power PC XB5310L03FT Arena II Disk Array 10180 3Com Baseline Switch 0200/7A8F004256 Monarch MCS Server w/ AMD Athlon 15370 Dell PowerEdge 4600 3VK4M11 APC Smartcell XR EP9707162693 APC Smartcell XR EP9707162695 Automated tape Backup 2 - KRI Rackmount Drive Bays 2 - Cheetah Seagate SCSI 73.4 GB Drives MYLEX ExtremeRAID w/ 8GB Switch Matrox X4 Video Driver 250 GBG External Drive 8 - Cheetah Seagate SCSI 73.4 GB Drives Toshiba P-4 LapTop Computer IBM P-4 LapTop Computer Proliant 8 CPU Server PHONE SYSTEM Samsung DCS 50si Package w/ 6 Loop Misc. 1 for CID, 8 Station inter (6X16) system) SVMi-4 4 Port Voicemail Card 2 - single line ports 1 - 28 button Display Speaker Phones Falcon 28D 10 - 18 Button Display Speaker Phones Falcon 18D UPS / BACK-UP POWER Honda Generator (3KW) Honda Generator (3KW) EXHIBIT A Permitted Liens None. EX-10.3 9 homecom10-3.txt AGREEMENT Exhibit 10.3 TULIX SYSTEMS, INC. SHAREHOLDERS' AGREEMENT This Shareholders' Agreement (the "Agreement") is made as of May 31, 2004 by and among Tulix Systems, Inc., a Georgia corporation (the "Company"), HomeCom Communications, Inc., a Delaware corporation ("HomeCom"), and the holders of the Company's Common Stock, $.01 par value (the "Common Stock"), listed on Schedule 1 attached hereto (the "Founding Shareholders"). RECITALS A. HomeCom and the Company, and for purposes of Section 9(b) thereof, the Founding Shareholders, are parties to that certain Asset Purchase Agreement, dated as of March 27, 2003 (the "Asset Purchase Agreement"), pursuant to which HomeCom has sold to the Company, and the Company has purchased from HomeCom, substantially all of the assets used in the operation of HomeCom's hosting and website maintenance business in exchange for consideration that includes, among other things, fifteen percent (15%) of the outstanding shares of Common Stock. NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows: 1. Certain Defined Terms. As used in this Agreement, the following terms shall have the following respective meanings: (a) "HomeCom Holder" shall mean HomeCom and those direct and indirect transferees, assignees and successors of HomeCom that own shares of Common Stock of record at the relevant time. The transferees, assignees and successors of HomeCom that shall be considered "HomeCom Holders" for purposes of this Agreement shall be limited to the first five (5) direct or indirect transferees, assignees and successors of HomeCom. (b) "Initial Public Offering" shall mean the closing of the sale of the Company's Common Stock in a firm commitment, underwritten public offering registered under the Securities Act of 1933, as amended, (other than a registration relating solely to a transaction under Rule 145 under such Act or any successor thereto or to an employee benefit plan of the Company). (c) "Securities" shall mean and include all shares of capital stock of the Company, any shares of capital stock of the Company or another entity that may be issued in exchange for or in respect of shares of capital stock of the Company (whether pursuant to stock split, stock dividend, combination, reclassification, reorganization, or any other means), and any right or instrument that contains any feature, conditional or otherwise, whereby any shares of such capital stock of the Company may be obtained. (d) "Shareholders" shall mean the HomeCom Holders and the Founding Shareholders. (e) "Shareholder's Pro Rata Percentage" shall mean, at any time, that percentage calculated by dividing the number of shares of Common Stock held by a Shareholder by the aggregate number of shares of Common Stock held by all Shareholders at such time. (f) "Shares" shall mean and include all Securities now owned or hereafter acquired by the Shareholders. 2. Right of First Offer. (a) General. Subject to the terms and conditions specified in this Section 2, the Company hereby grants to the Shareholders a right of first offer with respect to future sales by the Company of its Securities ("Later Securities"). A Shareholder who chooses to exercise the right of first offer may designate as purchasers under such right itself or its affiliates in such proportions as it deems appropriate. (b) Mechanics. Each time the Company proposes to offer any Later Securities, the Company shall first make an offering of such Later Securities to the Shareholders in accordance with the following provisions: (i) The Company shall give written notice ("Offer Notice") to each Shareholder stating (A) its bona fide intention to offer such Later Securities, (B) the number of such Later Securities to be offered, (C) the price and terms, if any, upon which it proposes to offer such Later Securities, and (D) such Shareholder's respective Shareholder's Pro Rata Percentage. (ii) Within twenty (20) calendar days after receipt of the Offer Notice, each Shareholder may elect, by written notice to the Company (the "Reply Notice"), to purchase or obtain, at the price and on the terms specified in the Offer Notice, up to that number of such Later Securities determined by multiplying such Shareholder's Pro Rata Percentage by the total number of Later Securities specified in the Offer Notice. The Company shall sell to each Shareholder the number of Later Securities specified in each Shareholder's Reply Notice promptly following receipt of such Reply Notice. (iii) In the event that some Shareholders do not elect to fully subscribe for any Later Securities during the period specified in Section 2(b)(ii) above, the Company shall deliver, promptly upon the expiration of the period specified in Section 2(b)(ii) above, a notice (the "Second Offer Notice") to the Shareholders who have elected to purchase Later Securities in accordance with the provisions of Section 2(b)(ii) (the "Subscribing Shareholders"), which Second Offer Notice shall state (A) the number of unsubscribed Later Securities and (B) the number of such unsubscribed Later Securities that each Subscribing Shareholder is entitled to purchase, which number shall be calculated for each Subscribing Shareholder by multiplying the number of unsubscribed Later 2 Securities by a fraction, the numerator of which is the number of Later Securities for which such Subscribing Shareholder subscribed pursuant to Section 2(b)(ii) above and the denominator of which is the total number of Later Securities for which all Subscribing Shareholders subscribed pursuant to Section 2(b)(ii) above. Within ten (10) calendar days after receipt of the Second Offer Notice, each Subscribing Shareholder shall give written notice to the Company specifying the number of unsubscribed Later Securities that such Subscribing Shareholder elects to purchase, and the Company shall sell such number of Later Securities to such Subscribing Shareholder promptly after receipt of such notice. (c) The Company may, during the ninety (90) calendar day period following the expiration of both of the periods referenced in subsections 2(b)(ii) and 2(b)(iii) hereof, offer the remaining unsubscribed portion of the Later Securities to any person or persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the Later Securities within such period, or if such agreement is not consummated within ninety (90) calendar days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Later Securities shall not be offered unless first reoffered to the Shareholders in accordance herewith. (d) The right of first offer granted pursuant to this Section 2 shall not apply to the issuance of any Exempt Securities, as that term is defined in Section 4(b) below. 3. Right of Co-Sale. (a) The Shareholders shall not sell, assign, transfer, pledge, hypothecate, mortgage, encumber or dispose of all or any of their Shares except to the other Shareholders, to the Company or as expressly provided in this Agreement. (b) Notwithstanding the foregoing paragraph (a), each Shareholder may transfer all or any of its Shares on one or more occasions (i) by way of gift to any member(s) of his family or to any trust or custodianship for the benefit of any such family member(s) or the Shareholder, provided that any such transferee shall agree in writing with the Company and the Shareholders, as a condition to such transfer, to be bound by all of the provisions of this Agreement to the same extent as if such transferee were a Shareholder (unless such transferee is a transferee of HomeCom not entitled to rights as a HomeCom Holder pursuant to Section 1(a)), (ii) by will or the laws of descent and distribution, in which event each such transferee shall be bound by all of the provisions of this Agreement to the same extent as if such transferee were a Shareholder (unless such transferee is a transferee of HomeCom not entitled to rights as a HomeCom Holder pursuant to Section 1(a)), or (iii) by pledge of the Shares to any lender or creditor, provided that the restrictions set forth in Section 3 hereof shall apply in connection with any sale of such Shares upon foreclosure or acceptance of such Shares in lieu of foreclosure, or (iv) if the transferring Shareholder is a HomeCom Holder, by transfer of any or all of such HomeCom Holder's Shares on one or more occasions to a person that is, or upon completion of such transfer will be, a HomeCom Holder, provided that each HomeCom Holder shall be bound by all the provisions of this Agreement. As used herein, the word "family" shall include any spouse, lineal ancestor or descendant (natural or adopted), brother or sister, or their spouses. (c) If at any time a Shareholder (a "Selling Shareholder") desires to sell all or any part of the Shares owned by him (the "Selling Shareholder Shares") to any person or entity other than one or more of the other Shareholders (the "Purchaser") and other than pursuant to Section 3(b) above (an 3 "Offer"), such Selling Shareholder shall give written notice of such proposed sale or transfer to all of the Shareholders (the "Co-Sale Notice"), which Co-Sale Notice shall identify the Purchaser and specify the number of Selling Shareholder Shares, the price and the payment terms of the proposed sale. Each of the other Shareholders shall have the right to sell to the Purchaser, as a condition to such sale by the Selling Shareholder, at the same price per share and on the same terms and conditions as involved in such sale by the Selling Shareholder, a number of Shares calculated by multiplying (i) the total number of Selling Shareholder Shares by (ii) such Shareholder's respective Shareholder's Pro Rata Percentage. (d) Each Shareholder wishing to so participate in any sale under this Section 3 (a "Participating Shareholder") shall notify the Selling Shareholder in writing of such intention as soon as practicable after such Shareholder's receipt of the Co-Sale Notice delivered pursuant to Section 3(c), and in any event within twenty (20) calendar days after the date of receipt of such Co-Sale Notice from the Selling Shareholder, with such Participating Shareholder's notice to specify the number of Shares to be sold by the Participating Shareholder. (e) In the event that some Shareholders do not elect to fully participate in the Offer during the period specified in Section 3(d) above, the Selling Shareholder shall deliver a notice (the "Second Co-Sale Notice") to the Participating Shareholders, which Second Co-Sale Notice shall state (A) the aggregate number of Shares that the Shareholders were eligible to sell pursuant to Section 3(c) but did not elect to sell (the "Unsold Shares") and (B) the number of Unsold Shares that each Participating Holder is entitled to sell to Purchaser, which number shall be calculated by multiplying the number of Unsold Shares by a fraction, the numerator of which is the number of Shares that each Participating Shareholder elected to sell to Purchaser pursuant to Section 3(d) above and the denominator of which is the aggregate number of Shares that all Participating Shareholders elected to sell to Purchaser pursuant to Section 3(d) above. Within ten (10) calendar days after receipt of the Second Co-Sale Notice, each Participating Shareholder shall give written notice to the Company specifying the number of Unsold Shares that such Participating Shareholder elects to sell to Purchaser. (f) Following the expiration of both of the periods referred to in Section 3(d) and Section 3(e), or at such earlier time as the Selling Shareholder, the Participating Shareholders and the Purchaser may agree upon, the Selling Shareholder and each Participating Shareholder shall sell to the Purchaser all or, at the option of the Purchaser, any part of the Shares proposed to be sold by them at not less than the price and upon other terms and conditions, if any, not more favorable to the Purchaser than those in the Offer provided by the Selling Shareholder under Section 3 above; provided, however, that any purchase of less than all of such Shares by the Purchaser shall be made from the Selling Shareholder and each Participating Shareholder pro rata based upon the relative amount of the Shares that the Selling Shareholder and each Participating Shareholder had decided to sell after complying with Section 3(c), Section 3(d) and Section 3(e). (g) Any Shares sold by a Shareholder to a Purchaser pursuant to this Section 3, other than Shares transferred pursuant to Section 3(b), shall no longer be subject to the restrictions imposed by this Agreement and shall no longer be entitled to the benefits conferred by this Agreement. 4 4. Anti-Dilution Protection. (a) In the event that the Company shall, at any time or from time to time after the date hereof, sell or issue any Securities (any sale or issuance of Securities other than pursuant to clauses (i) or (ii) below being referred to herein as a "Subsequent Issuance") other than issuances (i) of Exempt Securities as defined in subsection (b) immediately below, or (ii) to Shareholders pursuant to rights of first offer granted pursuant to Section 2 hereof, unless, in such instance, the only Securities being issued pursuant to Section 2 are being issued to Founding Shareholders, in which case the issuance of such Securities shall be considered a Subsequent Issuance, then, upon each Subsequent Issuance, the Company shall issue to the HomeCom Holders additional shares of Common Stock such that the aggregate ownership interest of the HomeCom Holders shall remain at fifteen percent (15.0%) of the outstanding shares of Common Stock, on a fully-diluted basis. In such instances, the Company will issue to each HomeCom Holder a number of shares of Common Stock calculated by multiplying the total number of shares to be issued by the Company to all the HomeCom Holders by a fraction, the numerator of which is the number of Shares held by such HomeCom Holder and the denominator of which is the number of Shares held by all HomeCom Holders at such time. For purposes of this Agreement, the term "fully-diluted" shall mean the number of shares of Common Stock outstanding plus the number of shares of Common Stock then issuable upon conversion or exercise of all outstanding Securities. (b) Exempt Securities. The following issuances of Securities ("Exempt Securities") shall not be a considered Subsequent Issuances for purposes of Section 4(a) above or issuances of Later Securities for purposes of Section 2 above: (i) the issuance or sale of Securities (and options, warrants or other rights therefor) to employees, consultants, advisors and directors, pursuant to plans or agreements approved by the board of directors for the primary purpose of soliciting or retaining their services or compensating them for their services; (ii) the issuance of Securities (and options, warrants or other rights therefor) to customers, business partners, financial institutions or lessors in connection with bona fide commercial credit arrangements, equipment financings, or similar transactions for primarily other than equity financing purposes, provided, however, that the aggregate amount of Exempted Securities issuable pursuant to the exemptions provided by subsections (i) and (ii) above shall not exceed the number of shares equal to eight percent (8%) of the number of shares of Common Stock that are outstanding on the date hereof; (iii) the issuance or sale of Securities pursuant to the consummation of an Initial Public Offering; (iv) the issuance of Securities in connection with a bona fide business acquisition by the Company of another business entity or technologies or pursuant to a strategic partnership or other business transaction, combination or relationship; (v) the issuance of securities in connection with a negotiated "equity financing" in which the Company agrees to sell Securities to an equity investor or a group of equity investors for cash consideration, provided, however, that this exclusion shall not apply if a majority of Securities to be purchased by the group of equity investors would be purchased by Founding Shareholders; or, (vi) the issuance of Securities in connection with any stock split, stock dividend, recapitalization, or similar transaction by the Company. 5. Financial Information and Inspection Rights. For so long as HomeCom Holders continue to own at least twenty-five percent (25%) of the shares of Common Stock issued to the HomeCom Holders on the date hereof, the Company shall permit the HomeCom Holders, at the HomeCom Holders' expense, to visit and 5 inspect the Company's properties, to examine its books of account and records and to discuss the Company's affairs, finances and accounts with its officers, all at such reasonable times as may be requested by the HomeCom Holders; provided, however, that the Company shall not be obligated pursuant to this Section 5 to provide access to any information which it reasonably considers to be a trade secret or similar confidential information and provided, further, that the HomeCom Holders shall not be entitled to exercise the inspection rights granted pursuant to this Section 5 more than two times per year. In addition, the Company shall provide to the HomeCom Holders, upon the written request of any HomeCom Holder, with copies of the Company's unaudited financial statements, including a balance sheet, an income statement, and a statement of cash flows (the "Financial Statements"); provided, however, that the Company shall be obligated to provide the Financial Statements to the HomeCom Holders not more than two times per year. 6. Term. This Agreement shall terminate (a) upon the mutual agreement of the HomeCom Holders and the Founding Shareholders or (b) the fifth anniversary of the date of this Agreement, whichever occurs first. 7. Specific Enforcement. The parties expressly agree that the HomeCom Holders will be irreparably damaged if this Agreement is not specifically enforced. Upon a breach or threatened breach of the terms, covenants and/or conditions of this Agreement by the Company or any Shareholder, the HomeCom Holders shall, in addition to all other remedies, be entitled to a temporary or permanent injunction, without showing any actual damage, and/or a decree for specific performance, in accordance with the provisions hereof. 8. Legend. Each certificate evidencing the Shares of the Shareholders shall bear a legend substantially as follows: "The shares represented by this certificate are subject to restrictions on transfer and may not be sold, exchanged, transferred, pledged, hypothecated or otherwise disposed of except in accordance with and subject to all the terms and conditions of a certain Shareholders' Agreement dated as of May 31, 2004, a copy of which the Company will furnish to the holder of this certificate upon request and without charge." 9. Notices. Any notice, request, demand, waiver, consent, approval or other communication which is required or permitted hereunder shall be in writing and shall be deemed given only if delivered personally or sent by facsimile, air courier, telegram or by registered or certified mail, postage prepaid, as follows: If to the Company: Tulix Systems, Inc. 3495 Piedmont Road Suite 110 Atlanta, GA 30305 (404) 237-4646 (404) 233-1977 (facsimile) Attn: Timothy R. Robinson 6 If to HomeCom: HomeCom Communications, Inc. 3495 Piedmont Road, Suite 110 Atlanta, GA 30305 Attn: President (404) 237-4646 (404) 233-1977 (facsimile) With a copy, which shall not constitute notice, to: Sutherland Asbill & Brennan LLP First Union Plaza, Suite 2300 999 Peachtree Street, N.E. Atlanta, GA 30309-3996 Attn: Wade H. Stribling, Esq. (404) 853-8000 (404) 853-8806 (facsimile) or to such other address as the addressee may have specified on the signature pages hereto or in a notice duly given to the sender as provided herein. Such notice, request, demand, waiver, consent, approval or other communication will be deemed to have been given as of the date so delivered, transmitted by facsimile, telegraphed, sent via air courier, or mailed, as the case may be. 10. Entire Agreement and Amendments. This Agreement and the Asset Purchase Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and neither this Agreement nor any provision hereof may be waived, modified, amended or terminated except by a written agreement signed by the parties hereto; provided, however, that HomeCom Holders owning more than 50% of the shares then owned by all HomeCom Holders may effect any such waiver, modification, amendment or termination on behalf of all of the HomeCom Holders. 11. Governing Law; Successors and Assigns. This Agreement shall be governed by the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Except as otherwise provided herein, the obligations of the Shareholders hereunder shall be binding upon their heirs, personal representatives, executors, administrators, successors and assigns. This Agreement shall inure to the benefit of and be binding upon the HomeCom Holders, and any transferee thereof who is identified to the Company as a partner, shareholder or affiliate of a HomeCom Holder. Each of the parties consents to the exclusive jurisdiction of the federal or state courts in the State of Delaware in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of any such proceeding in such jurisdiction. Each party hereto waives its right to trial by jury in any such proceeding. 7 12. Waivers. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. 13. Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and this Agreement shall be carried out as if any such illegal, invalid or unenforceable provision were not contained herein. 14. Captions. Captions are for convenience only and are not deemed to be part of this Agreement. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. [The remainder of this page has been left blank intentionally.] 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. TULIX SYSTEMS, INC., a Georgia corporation By: /s/ Gia Bokuchava - --------------------- Gia Bokuchava, President and Chief Executive Officer HOMECOM COMMUNICATIONS, INC., a Delaware corporation By: /s/ Michael Sheppard - ------------------------ Name: Michael Sheppard Title: Vice President, Licensed Technologies Division FOUNDING SHAREHOLDERS: /s/ Gia Bokuchava - ----------------- Gia Bokuchava Address: 630 W. Northway Lane Atlanta, Georgia 30342 /s/ Nino Doijashvili - -------------------- Nino Doijashvili Address: 630 W. Northway Lane Atlanta, Georgia 30342 /s/ Timothy R. Robinson - ----------------------- Timothy R. Robinson Address: 2796 Ridgemore Road Atlanta, Georgia 30318 9 Schedule I Founding Shareholders Name of Shareholder Number of Shares Owned by Shareholder - ------------------- ------------------------------------- Gia Bokuchava 2,833.33 Nino Doijashvili 2,833.33 Timothy R. Robinson 2,833.34 EX-10.4 10 homecom10-4.txt AGREEMENT Exhibit 10.4 INDEMNIFICATION AGREEMENT This INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into as of this 31st day of May, 2004, by HomeCom Communications, Inc., a Delaware corporation ("HomeCom"), and Tulix Systems, Inc., a Georgia corporation ("Tulix"). HomeCom and Tulix are referred to herein collectively as the "Parties." W I T N E S S E T H: WHEREAS, HomeCom and Tulix are parties to that certain Asset Purchase Agreement, dated as of March 27, 2003 (the "Asset Purchase Agreement"), pursuant to which HomeCom has sold to Tulix, and Tulix has purchased from HomeCom, substantially all of the assets used in the operation of HomeCom's hosting and website maintenance business (the "Asset Sale"); WHEREAS, as part of the Asset Sale, HomeCom intends to transfer, and Tulix intends to assume, the business currently performed by HomeCom for Roadrunner (the "Roadrunner Business"), although there is no written agreement between HomeCom and Roadrunner regarding the Roadrunner Business; WHEREAS, as part of the Asset Sale, HomeCom intends to transfer, and Tulix intends to assume, the business currently performed by HomeCom for Bend Cable, Belle Chambre, Bituminous Fire and T.C. Fields (the "Other Business"); NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Asset Purchase Agreement. 2. Indemnification. (a) Indemnification by Tulix. Subject to Section 10 of the Asset Purchase Agreement, Tulix, on behalf of itself, its affiliates and the representatives, agents, attorneys, insurers, employees, officers, directors, predecessors, successors and assigns of all of them (collectively, the "Tulix Parties"), hereby agrees to indemnify, defend and hold harmless HomeCom, its affiliates, and the representatives, agents, attorneys, insurers, employees, officers, directors, predecessors, successors and assigns of all of them (collectively, the "HomeCom Parties"), from and against any and all direct or indirect claims and manner of actions, suits, proceedings, matters, disputes, differences or causes of action, at law or in equity, and all direct or indirect debts, damages, losses, demands, liabilities, obligations, fees, costs and expenses (including attorneys' fees) of any kind whatsoever, whether foreseen or unforeseen, known or unknown, accrued or not accrued, actual or potential (collectively, "Losses"), which arise or have arisen, directly or indirectly, in connection with (i) the breach by Tulix of any representation or warranty in the Asset Purchase Agreement or in the other agreements entered into by the Parties in connection therewith (the "Other Transaction Documents"), or the failure by Tulix to perform any covenant, obligation or agreement in the Asset Purchase Agreement or the Other Transaction Documents, (ii) the Roadrunner Business, or (iii) the Other Business. (b) Indemnification by HomeCom. Subject to Section 10 of the Asset Purchase Agreement, HomeCom, on behalf of itself and the other HomeCom Parties, hereby agrees to indemnify, defend and hold harmless the Tulix Parties from and against any and all Losses which arise or have arisen, directly or indirectly, in connection with the breach by HomeCom of any representation or warranty in the Asset Purchase Agreement or the Other Transaction Documents, or the failure by HomeCom to perform any covenant, obligation or agreement in the Asset Purchase Agreement or the Other Transaction Documents. 3. Notices. All notices, requests, instructions, claims, demands, consents and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given on the date delivered by hand or by courier service such as Federal Express, or by other messenger (or, if delivery is refused, upon presentment) or upon electronic confirmation of a facsimile transmission, or upon delivery by United States first class mail (postage prepaid) to the parties at the following addresses: (a) If to HomeCom: HomeCom Communications, Inc. 90 Grove Street Suite 202 Ridgefield, Connecticut 02677 Attention: Michael Sheppard Tel: (203) 431-8120 Fax: (203) 431-8304 (b) If to Tulix: Tulix Systems, Inc. 3495 Piedmont Road Building 12, Suite 110 Atlanta, GA 30305 Attention: Gia Bokuchava Telephone: (404) 869-0345, ext. ____ Facsimile: (404) 231-2029 or to such other persons or addresses as the person to whom notice is given may have previously furnished to the other in writing in the manner set forth above (provided that notice of any change of address shall be effective only upon receipt thereof). 4. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of HomeCom, Tulix and their respective successors and assigns. 5. Entire Agreement; Amendment; Benefit of Provisions. This Agreement, together with the Asset Purchase Agreement and the Other Transaction Documents, embodies the entire agreement of the parties hereto with respect to the subject matter hereof. This Agreement may be amended or modified only by written instrument signed by HomeCom and Tulix. 2 6. Counterparts. This Agreement may be executed in one or more identical counterparts, each of which will be deemed to be an original and all of which when taken together will be deemed to constitute one and the same agreement. 7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. 8. Severability. In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect in any jurisdiction, such provision or provisions shall be ineffective only to the extent of such invalidity, illegality or unenforceability in such jurisdiction, without invalidating the remainder of such provision or provisions or the remaining provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions in such jurisdiction had never been contained herein, unless such a construction would be unreasonable. 9. No Third Party Beneficiaries, etc. This Agreement is for the sole benefit of HomeCom, Tulix, their successors and assigns, and nothing herein is intended to or shall give or be construed to give to any other person or entity, other than the parties, any legal or other rights or benefits hereunder, whether as third party beneficiaries or otherwise. Wherever the words "include", "including" or any derivation thereof are used, such words shall be deemed to mean without limitation by reason of enumeration or otherwise. (Signatures on following page.) 3 IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed by its respective officers thereunto duly authorized as of the day and year first above written. TULIX: TULIX SYSTEMS, INC. By: /s/ Gia Bokuchava ------------------------------------ Name: Gia Bokuchava Title: President and Chief Executive Officer HOMECOM: HOMECOM COMMUNICATIONS, INC. By: /s/ Michael Sheppard ------------------------------------ Name: Michael Sheppard Title: Vice President, Licensed Technologies Division EX-99.1 11 homecom99-1.txt PRESS RELEASE Exhibit 99.1 HOMECOM COMMUNICATIONS CHANGES NAME TO "GLOBAL MATRECHS, INC."AND COMPLETES ASSET SALE RIDGEFIELD, CT., June 15, 2004 (BUSINESS WIRE) -- HomeCom Communications, Inc. (OTCBB: HCOM) today announced that it has changed its name to Global Matrechs, Inc. and completed the sale of substantially all of the assets of its hosting and website maintenance business to Tulix Systems, Inc. The closing of the sale of assets to Tulix was effective as of May 31, 2004. Michael Sheppard, a Vice President of the Company, said "these actions mark the Company's new direction and will allow us to focus exclusively on our licensed technologies business." The Company also filed amendments to its Certificate of Incorporation to increase the number of shares of common stock that the Company is authorized to issue from 15,000,000 to 300,000,000 and to allow the Company's stockholders to take action without a stockholder meeting if the Company obtains the written consent of the holders of a number of shares not less than the number of shares that would be required to take action at a stockholder meeting at which all the stockholders entitled to vote on a matter were present and voted. The Company also filed amendments to the Certificates of Designations, Preferences and Rights of the Company's Series B, Series C, Series D and Series E preferred stock to delete the mandatory conversion provisions of those series. In connection with the closing of the Tulix transaction, Gia Bokuchava and Nino Doijashvili have resigned from their positions as officers and directors of the Company, and Timothy R. Robinson has resigned from his position as an officer of the Company, although he has agreed to remain on the Board of Directors. The Company expects to be issued a new ticker symbol in connection with the change of its name and intends to release that information when it is available. About the Company: Following the sale of substantially all of the assets of the Company's hosting and website maintenance business to Tulix, Global Matrechs operates one business, its licensed technologies business. Through its licensed technologies business, Global Matrechs seeks to convert the licenses it has acquired in emerging technologies in the nuclear energy, environmental and chemical industries into manufactured products primarily through sub-licenses of those technologies to manufacturers. "Forward-Looking Statements" Investors are cautioned that certain statements contained in this document as well as some statements in periodic press releases and some oral statements of Global Matrechs, Inc. officials during presentations are "forward-looking" statements within the meaning of the Private Securities Litigation Reform Act of 1995 (the "Act"). Forward-looking statements include statements which are predictive in nature, which depend upon or refer to future events or conditions, or which include words such as "expects", "anticipates", "intends", "plans", "believes", "estimates", "hopes," "seeks," or similar expressions. In addition, any statements concerning future financial performance (including future revenues, earnings or growth rates), ongoing business strategies or prospects, and possible future actions, which may be provided by management, are also forward-looking statements as defined by the Act. Some of the factors that could significantly impact these forward-looking statements in this press release include, but are not limited to: insufficient cash flow to continue to fund the development and marketing of Global Matrechs' products and technologies; the failure of Global Matrechs' products and technologies to become commercially marketable; our ability or inability to obtain financing; the loss of key personnel; changes in financial markets and general economic conditions; and, disputes as to Global Matrechs' intellectual property rights, including Global Matrechs' rights to the technologies that it licenses. Forward-looking statements are based upon current expectations and projections about future events and are subject to risks, uncertainties, and assumptions about Global Matrechs, its licenses, products, economic and market factors and the sectors in which Global Matrechs does business, among other things. These statements are not guarantees of future performance and Global Matrechs has no specific intention to update these statements. More detailed information about those factors is contained in the Company's filings with the Securities and Exchange Commission. Contact: Global Matrechs, Inc. Michael Sheppard 1.203.431.8120 -----END PRIVACY-ENHANCED MESSAGE-----