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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended March 31, 1996
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES ACT OF 1934
For the transition period from to
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Commission file number 0-27890
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MINDSPRING ENTERPRISES, INC.
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(Exact name of issuer as specified in its charter)
Delaware 58-2113290
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1430 West Peachtree St. NW, Suite 400, Atlanta, GA 30309
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (404) 815-0770
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes No X
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Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Outstanding at May 1, 1996
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Common Stock at $.01 par value 5,125,793 Shares
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PART II
OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS.
Exhibit
Number Exhibit Description
* 3(a) Amended and Restated Certificate of Incorporation of MindSpring
Enterprises, Inc.
3(b) Amended and Restated By-Laws of MindSpring Enterprises, Inc.
/#/10 Amendment No. 2 dated March 28, 1996 to the Internet Service
Provider Navigator(TM) Distribution Agreement dated June 21, 1995
between Netscape Communications Corporation and MindSpring
Enterprises, Inc.
* 11 Statement regarding Computation of Per Share Earnings.
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* Previously Filed
/#/ Confidential treatment has been requested. The copy filed as an
exhibit to this report omits the information subject to the
request for confidential treatment.
(b) REPORTS ON FORM 8-K.
No reports on Form 8-K have been filed by the Company during the
reporting period reflected by this Form 10-Q.
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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.
MINDSPRING ENTERPRISES, INC.
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(Registrant)
Date: August 29, 1996 By: /s/ Charles M. Brewer
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Charles M. Brewer
Chairman and Chief Executive Officer
Date: August 29, 1996 By: /s/ Michael G. Misikoff
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Michael G. Misikoff
Vice President and Chief
Financial Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Exhibit Description Page
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* 3(a) Amended and Restated Certificate of Incorporation of MindSpring Enterprises, Inc.
3(b) Amended and Restated By-Laws of MindSpring Enterprises, Inc.
/#/10 Amendment No. 2 dated March 28, 1996 to the Internet Service Provider Navigator(TM) Distribution
Agreement dated June 21, 1995 between Netscape Communications Corporation and MindSpring
Enterprises, Inc.
* 11 Statement regarding Computation of Per Share Earnings.
</TABLE>
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* Previously Filed
/#/ Confidential treatment has been requested. The copy filed as an
exhibit to this report omits the information subject to the
request for confidential treatment.
<PAGE> 1
EXHIBIT 3(b)
MINDSPRING ENTERPRISES, INC.
AMENDED AND RESTATED BYLAWS
ADOPTED
AS OF
MARCH 1, 1996
(ORIGINAL BYLAWS ADOPTED DECEMBER 22, 1995)
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TABLE OF CONTENTS
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1. OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.4. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5. Waivers of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.6. Business at Special Meetings . . . . . . . . . . . . . . . . . . . . . . 2
2.7. List of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.8. Quorum at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.9. Voting and Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.10. Required Vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.11. Action Without a Meeting . . . . . . . . . . . . . . . . . . . . . . . 4
3. DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2. Number and Election . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3. Nomination of Directors . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.5. Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.5.1. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
3.5.2. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . 5
3.5.3. Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . 5
3.5.4. Action Without Meeting . . . . . . . . . . . . . . . . . . . . 6
3.5.5. Waiver of Notice of Meeting . . . . . . . . . . . . . . . . . . 6
3.6. Quorum and Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . 6
3.7. Committees of Directors . . . . . . . . . . . . . . . . . . . . . . . . 6
3.8. Compensation of Directors . . . . . . . . . . . . . . . . . . . . . . . 7
4. OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1. Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2. Chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3. Chief Executive Officer . . . . . . . . . . . . . . . . . . . . . . . . 8
4.4. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.5. Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7. Assistant Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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4.8. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.9. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.10. Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.11. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.12. Fidelity Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5. CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1. Certificates of Stock; Uncertificated Shares . . . . . . . . . . . . . . 10
5.2. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.3. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.3.1. Actions by Stockholders . . . . . . . . . . . . . . . . . . . . 11
5.3.2. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.4. Stockholders of Record . . . . . . . . . . . . . . . . . . . . . . . . . 12
6. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.1. Authorization of Indemnification . . . . . . . . . . . . . . . . . . . . 12
6.2. Right of Claimant to Bring Action Against the Corporation . . . . . . . 13
6.3. Non-exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.4. Survival of Indemnification . . . . . . . . . . . . . . . . . . . . . . 14
6.5. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1. Inspection of Books and Records . . . . . . . . . . . . . . . . . . . . 15
7.2. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.3. Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.4. Execution of Instruments . . . . . . . . . . . . . . . . . . . . . . . . 15
7.5. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.6. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
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BYLAWS
OF
MINDSPRING ENTERPRISES, INC.
1. OFFICES
1.1. REGISTERED OFFICE
The initial registered office of the Corporation shall be in
Wilmington, Delaware, and the initial registered agent in charge thereof shall
be Corporation Service Company.
1.2. OTHER OFFICES
The Corporation may also have offices at such other places, both
within and without the State of Delaware, as the Board of Directors may from
time to time determine or as may be necessary or useful in connection with the
business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. PLACE OF MEETINGS
All meetings of the stockholders shall be held at such place as
may be fixed from time to time by the Board of Directors, the Chairperson or
the President.
2.2. ANNUAL MEETINGS
The Corporation shall hold annual meetings of stockholders,
commencing with the year 1996, on such date and at such time as shall be
designated from time to time by the Board of Directors, the Chairperson or the
President, at which stockholders shall elect a Board of Directors and transact
such other business as may properly be brought before the meeting.
2.3. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by the Board of
Directors, the Chairperson or the President.
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2.4. NOTICE OF MEETINGS
Notice of any meeting of stockholders, stating the place, date and
hour of the meeting, and (if it is a special meeting) the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting (except to the extent that such notice is waived or is not
required as provided in the General Corporation Law of the State of Delaware
(the "DELAWARE GENERAL CORPORATION LAW") or these Bylaws). Such notice shall
be given in accordance with, and shall be deemed effective as set forth in,
Section 222 (or any successor section) of the Delaware General Corporation Law.
2.5. WAIVERS OF NOTICE
Whenever the giving of any notice is required by statute, the
Certificate of Incorporation or these Bylaws, a waiver thereof, in writing and
delivered to the Corporation, signed by the person or persons entitled to said
notice, whether before or after the event as to which such notice is required,
shall be deemed equivalent to notice. Attendance of a stockholder at a
meeting shall constitute a waiver of notice (1) of such meeting, except when
the stockholder at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting, and (2) (if it is a special meeting) of
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the stockholder
objects to considering the matter at the beginning of the meeting.
2.6. BUSINESS AT SPECIAL MEETINGS
Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice (except to the extent that such
notice is waived or is not required as provided in the Delaware General
Corporation Law or these Bylaws).
2.7. LIST OF STOCKHOLDERS
After the record date for a meeting of stockholders has been
fixed, at least ten days before such meeting, the officer who has charge of the
stock ledger of the Corporation shall make a list of all stockholders entitled
to vote at the meeting, arranged in alphabetical order and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder for
any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place in the city
where the meeting is to be held, which place is to be specified in the notice
of the meeting, or at the place where the
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meeting is to be held. Such list shall also, for the duration of the meeting,
be produced and kept open to the examination of any stockholder who is present
at the time and place of the meeting.
2.8. QUORUM AT MEETINGS
Stockholders may take action on a matter at a meeting only if a
quorum exists with respect to that matter. Except as otherwise provided by
statute or by the Certificate of Incorporation, the holders of a majority of
the stock issued and outstanding and entitled to vote at the meeting, and who
are present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. Where a
separate vote by a class or classes is required, a majority of the outstanding
shares of such class or classes, present in person or represented by proxy,
shall constitute a quorum entitled to take action with respect to that vote on
that matter. Once a share is represented for any purpose at a meeting (other
than solely to object (1) to holding the meeting or transacting business at
the meeting, or (2) (if it is a special meeting) to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice), it is deemed present for quorum purposes for
the remainder of the meeting and for any adjournment of that meeting unless a
new record date is or must be set for the adjourned meeting. The holders of a
majority of the voting shares represented at a meeting, whether or not a
quorum is present, may adjourn such meeting from time to time.
2.9. VOTING AND PROXIES
Unless otherwise provided in the Delaware General Corporation Law
or in the Corporation's Certificate of Incorporation, and subject to the other
provisions of these Bylaws, each stockholder shall be entitled to one vote on
each matter, in person or by proxy, for each share of the Corporation's capital
stock that has voting power and that is held by such stockholder. No proxy
shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed appointment of proxy shall be
irrevocable if the appointment form states that it is irrevocable and if, and
only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power.
2.10. REQUIRED VOTE
When a quorum is present at any meeting of stockholders, all
matters shall be determined, adopted and approved by the affirmative vote
(which need not be by ballot) of the holders of a majority of the shares
present in person or represented by proxy at the meeting and entitled to vote
with respect to the matter, unless the proposed action is one upon which, by
express provision of statutes or of the Certificate of Incorporation, a
different vote is specified and required, in which
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case such express provision shall govern and control with respect to that vote
on that matter. Where a separate vote by a class or classes is required, the
affirmative vote of the holders of a majority of the shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class. Notwithstanding the foregoing, directors shall be elected
in the manner specified by the Certificate of Incorporation of the Corporation
or applicable law.
2.11. ACTION WITHOUT A MEETING
Any action required or permitted to be taken at a stockholders'
meeting may be taken without a meeting, without prior notice and without a
vote, if the action is taken by a unanimous vote of persons who would be
entitled to vote with respect to the action at a meeting. The action must be
evidenced by one or more written consents describing the action taken, signed
by all of the stockholders who would be entitled to vote with respect to the
action at a meeting, and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. No consent shall be effective to
take the corporate action specified unless the consents are delivered to the
Corporation within sixty days of the delivery of the earliest-dated consent.
3. DIRECTORS
3.1. POWERS
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things, subject to
any limitation set forth in the Certificate of Incorporation or as otherwise
may be provided in the Delaware General Corporation Law.
3.2. NUMBER AND ELECTION
The number of directors which shall constitute the whole board
shall not be fewer than three nor more than fifteen. The directors shall be
divided into three classes and elected or appointed in such manner as shall be
specified by the Certificate of Incorporation of the Corporation or applicable
law. The first board shall consist of four. Thereafter, within the limits
above specified, the number of directors shall be determined by resolution of
the Board of Directors.
3.3. NOMINATION OF DIRECTORS
The Board of Directors shall nominate candidates to stand for
election as directors; and other candidates also may be nominated by any
Corporation stockholder, provided such other nomination(s) are submitted in
writing to the
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Secretary of the Corporation no later than 90 days prior to the meeting of
stockholders at which such directors are to be elected, together with the
identity of the nominor and the number of shares of the Corporation's stock
owned, directly or indirectly, by the nominor. The directors shall be elected
at the annual meeting of the stockholders, except as provided in SECTION 3.4
hereof, and each director elected shall hold office until such director's
successor is elected and qualified or until the director's earlier death,
resignation or removal. Directors need not be stockholders.
3.4. VACANCIES
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors shall be filled in such manner
as shall be fixed by, or in the manner specified in, the Certificate of
Incorporation of the Corporation.
3.5. MEETINGS
3.5.1. REGULAR MEETINGS
Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board of Directors.
3.5.2. SPECIAL MEETINGS
Special meetings of the Board may be called by the Chairperson or
President on one day's notice to each director, either personally or by
telephone, express delivery service (so that the scheduled delivery date of the
notice is at least one day in advance of the meeting), telegram or facsimile
transmission, and on five days' notice by mail (effective upon deposit of such
notice in the mail). The notice need not describe the purpose of a special
meeting.
3.5.3. TELEPHONE MEETINGS
Members of the Board of Directors may participate in a meeting of
the board by any communication by means of which all participating directors
can simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
3.5.4. ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if the action is taken by all
members of the Board. The action must be evidenced by one or more written
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consents describing the action taken, signed by each director, and delivered to
the Corporation for inclusion in the minute book.
3.5.5. WAIVER OF NOTICE OF MEETING
A director may waive any notice required by statute, the
Certificate of Incorporation or these Bylaws before or after the date and time
stated in the notice. Except as set forth below, the waiver must be in
writing, signed by the director entitled to the notice, and delivered to the
Corporation for inclusion in the minute book. Notwithstanding the foregoing, a
director's attendance at or participation in a meeting waives any required
notice to the director of the meeting unless the director at the beginning of
the meeting objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to action taken at the
meeting.
3.6. QUORUM AND VOTE AT MEETINGS
At all meetings of the board, a quorum of the Board of Directors
consists of a majority of the total number of directors prescribed pursuant to
SECTION 3.2 of these Bylaws. The vote of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by
the Certificate of Incorporation or by these Bylaws.
3.7. COMMITTEES OF DIRECTORS
The Board of Directors may by resolution create one or more
committees and appoint members of the Board of Directors to serve on the
committees at the pleasure of the Board of Directors. The Board may designate
one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. If a member
of a committee shall be absent from any meeting, or disqualified from voting
thereat, the remaining member or members present and not disqualified from
voting, whether or not such member or members constitute a quorum, may, by
unanimous vote, appoint another member of the Board of Directors to act at the
meeting in the place of such absent or disqualified member. Any such committee,
to the extent provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to
amending the Certificate of Incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the issuance
of shares of stock adopted by the Board of Directors pursuant to Section 151(a)
of the Delaware General Corporation Law, fix the designations and any of the
preferences or rights of such shares
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relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation or fix the number of shares
of stock or authorize the increase or decrease of the shares of any series),
adopting an agreement of merger or consolidation pursuant to Sections 251 or
252 of the Delaware General Corporation Law, recommending to the stockholders
the sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amending the bylaws; and
unless the resolutions, these bylaws or the Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock, or to adopt a
certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the Board
of Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors, when required. Unless otherwise
specified in the Board resolution appointing the Committee, all provisions of
the Delaware General Corporation Law and these Bylaws relating to meetings,
action without meetings, notice (and waiver thereof), and quorum and voting
requirements of the Board of Directors apply, as well, to such committees and
their members.
3.8. COMPENSATION OF DIRECTORS
The Board of Directors shall have the authority to fix the
compensation of directors. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
4. OFFICERS
4.1. POSITIONS
The officers of the Corporation shall be a President, a Secretary
and a Treasurer, and such other officers as the Board of Directors (or an
officer authorized by the Board of Directors) from time to time may appoint,
including a Chairperson, a Chief Executive Officer, and one or more Vice
Chairmen, Executive Vice Presidents, Vice Presidents, Assistant Secretaries and
Assistant Treasurers. Each such officer shall exercise such powers and perform
such duties as shall be set forth below and such other powers and duties as
from time to time may be specified by the Board of Directors or by any
officer(s) authorized by the Board of Directors to prescribe the duties of such
other officers. Any number of offices may be held by the same person, except
that in no event shall the President and the Secretary be the same person.
Each of the Chairperson, Chief Executive Officer, President, and/or any Vice
President may execute bonds, mortgages and other documents
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under the seal of the Corporation, except where required or permitted by law to
be otherwise executed and except where the execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Corporation.
4.2. CHAIRPERSON
The Chairperson shall (when present) preside at all meetings of
the Board of Directors and stockholders, and shall ensure that all orders and
resolutions of the Board of Directors and stockholders are carried into effect.
The Chairperson may execute bonds, mortgages and other contracts, under the
seal of the Corporation, if required, except where required or permitted by law
to be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
4.3. CHIEF EXECUTIVE OFFICER
Subject to the authority of the Board of Directors, the Chief
Executive Officer shall direct and supervise the business, operations, and
affairs of the Corporation and perform such other duties as may be assigned him
from time to time by the Board of Directors. In the absence of the
Chairperson, or if no Chairperson shall have been appointed, the Chief
Executive Officer shall (when present) preside at all meetings of the Board of
Directors and stockholders, and shall ensure that all orders and resolutions of
the Board of Directors and stockholders are carried into effect. The Chief
Executive Officer may execute bonds, mortgages and other contracts, under the
seal of the Corporation, if required, except where required or permitted by law
to be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
4.4. PRESIDENT
The President shall have responsibility and authority for
management of the day-to-day operations of the Corporation, subject to the
authority of the Chief Executive Officer and the Board of Directors. The
President may execute bonds, mortgages and other contracts, under the seal of
the Corporation, if required, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
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<PAGE> 12
4.5. VICE PRESIDENT
In the absence of the President or in the event of the President's
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the President.
4.6. SECRETARY
The Secretary shall have responsibility for preparation of minutes
of meetings of the Board of Directors and of the stockholders and for
authenticating records of the Corporation. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the Board of Directors. The Secretary or an Assistant Secretary may also
attest all instruments signed by any other officer of the Corporation.
4.7. ASSISTANT SECRETARY
The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there shall have been no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary.
4.8. TREASURER
The Treasurer shall be the chief financial officer of the
Corporation and shall have responsibility for the custody of the corporate
funds and securities and shall see to it that full and accurate accounts of
receipts and disbursements are kept in books belonging to the Corporation. The
Treasurer shall render to the Chairperson, the President, and the Board of
Directors, upon request, an account of all financial transactions and of the
financial condition of the Corporation.
4.9. ASSISTANT TREASURER
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or if
there shall have been no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer.
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<PAGE> 13
4.10. TERM OF OFFICE
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or
removal. Any officer may resign at any time upon written notice to the
Corporation. Any officer elected or appointed by the Board of Directors may be
removed at any time, with or without cause, by the affirmative vote of a
majority of the Board of Directors.
4.11. COMPENSATION
The compensation of officers of the Corporation shall be fixed by
the Board of Directors or by any officer(s) authorized by the Board of
Directors to prescribe the compensation of such other officers.
4.12. FIDELITY BONDS
The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5. CAPITAL STOCK
5.1. CERTIFICATES OF STOCK; UNCERTIFICATED SHARES
The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution
that some or all of any or all classes or series of the Corporation's stock
shall be uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates, and upon request
every holder of uncertificated shares, shall be entitled to have a certificate
(representing the number of shares registered in certificate form) signed in
the name of the Corporation by the Chairperson, President or any Vice
President, and by the Treasurer, Secretary or any Assistant Treasurer or
Assistant Secretary of the Corporation. Any or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
whose signature or facsimile signature appears on a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
5.2. LOST CERTIFICATES
The Board of Directors, Chairperson, President or Secretary may
direct a new certificate of stock to be issued in place of any certificate
theretofore issued
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<PAGE> 14
by the Corporation and alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming that the certificate
of stock has been lost, stolen or destroyed. When authorizing such issuance of
a new certificate, the board or any such officer may, as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or such owner's legal representative, to advertise
the same in such manner as the board or such officer shall require and/or to
give the Corporation a bond or indemnity, in such sum or on such terms and
conditions as the board or such officer may direct, as indemnity against any
claim that may be made against the Corporation on account of the certificate
alleged to have been lost, stolen or destroyed or on account of the issuance of
such new certificate or uncertificated shares.
5.3. RECORD DATE
5.3.1. ACTIONS BY STOCKHOLDERS
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty days nor less
than ten days before the date of such meeting. If no record date is fixed by
the Board of Directors, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting, unless the Board of Directors fixes a new record
date for the adjourned meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which record date shall not be more than ten days after the
date upon which the resolution fixing the record date is adopted by the Board
of Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by the Delaware General Corporation Law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner prescribed
by Section 213(b) of the Delaware General Corporation Law. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by the Delaware General Corporation Law, the record
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<PAGE> 15
date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on which
the Board of Directors adopts the resolution taking such prior action.
5.3.2. PAYMENTS
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
5.4. STOCKHOLDERS OF RECORD
The Corporation shall be entitled to recognize the exclusive right
of a person registered on its books as the owner of shares to receive
dividends, to receive notifications, to vote as such owner, and to exercise all
the rights and powers of an owner. The Corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise may be provided by the Delaware General
Corporation Law.
6. INDEMNIFICATION
6.1 AUTHORIZATION OF INDEMNIFICATION
Each person who was or is a party or is threatened to be made a
party to or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and
whether by or in the right of the Corporation or otherwise (a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee,
partner (limited or general) or agent of another corporation or of a
partnership, joint venture, limited liability company, trust or other
enterprise, including service with respect to an employee benefit plan, shall
be (and shall be deemed to have a contractual right to be) indemnified and held
harmless by the Corporation (and any successor to the Corporation by merger or
otherwise) to the fullest extent authorized by, and subject to the conditions
and (except as provided herein) procedures set forth in the Delaware General
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<PAGE> 16
Corporation Law, as the same exists or may hereafter be amended (but any such
amendment shall not be deemed to limit or prohibit the rights of
indemnification hereunder for past acts or omissions of any such person insofar
as such amendment limits or prohibits the indemnification rights that said law
permitted the Corporation to provide prior to such amendment), against all
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
ERISA taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith;
provided, however, that the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person (except for a suit or action pursuant to Section 6.2 hereof) only
if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. Persons who are not directors or officers of the
Corporation may be similarly indemnified in respect of such service to the
extent authorized at any time by the Board of Directors of the Corporation. The
indemnification conferred in this Section 6.1 also shall include the right to
be paid by the Corporation (and such successor) the expenses (including
attorneys' fees) incurred in the defense of or other involvement in any such
proceeding in advance of its final disposition; provided, however, that, if and
to the extent the Delaware General Corporation Law requires, the payment of
such expenses (including attorneys' fees) incurred by a director or officer in
advance of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such director
or officer to repay all amounts so paid in advance if it shall ultimately be
determined that such director or officer is not entitled to be indemnified
under this Section 6.1 or otherwise; and provided further, that, such expenses
incurred by other employees and agents may be so paid in advance upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
6.2 RIGHT OF CLAIMANT TO BRING ACTION AGAINST THE CORPORATION
If a claim under Section 6.1 is not paid in full by the
Corporation within sixty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring an action against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such action. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in connection with
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed or is otherwise not entitled to indemnification
under Section 6.1, but the burden of proving such defense shall be on the
Corporation. The failure of the Corporation (in the manner provided under the
Delaware General Corporation Law) to have made a determination prior to or
after the commencement of such action that
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<PAGE> 17
indemnification of the claimant is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in the Delaware
General Corporation Law shall not be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
Unless otherwise specified in an agreement with the claimant, an actual
determination by the Corporation (in the manner provided under the Delaware
General Corporation Law) after the commencement of such action that the
claimant has not met such applicable standard of conduct shall not be a defense
to the action, but shall create a presumption that the claimant has not met the
applicable standard of conduct.
6.3. NON-EXCLUSIVITY
The rights to indemnification and advance payment of expenses
provided by Section 6.1 hereof shall not be deemed exclusive of any other
rights to which those seeking indemnification and advance payment of expenses
may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
6.4 SURVIVAL OF INDEMNIFICATION
The indemnification and advance payment of expenses and rights
thereto provided by, or granted pursuant to, Section 6.1 hereof shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee, partner or agent and shall inure to
the benefit of the personal representatives, heirs, executors and
administrators of such person.
6.5 INSURANCE
The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, partner (limited or general) or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust or other enterprise, against any liability asserted
against such person or incurred by such person in any such capacity, or arising
out of such person's status as such, and related expenses, whether or not the
Corporation would have the power to indemnify such person against such
liability under the provisions of the Delaware General Corporation Law.
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<PAGE> 18
7. GENERAL PROVISIONS
7.1 INSPECTION OF BOOKS AND RECORDS
Any stockholder, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders, and its other books and
records, and to make copies or extracts therefrom. A proper purpose shall mean
a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be
directed to the Corporation at its registered office or at its principal place
of business.
7.2. DIVIDENDS
The Board of Directors may declare dividends upon the capital
stock of the Corporation, subject to the provisions of the Certificate of
Incorporation and the laws of the State of Delaware.
7.3. RESERVES
The directors of the Corporation may set apart, out of the funds
of the Corporation available for dividends, a reserve or reserves for any
proper purpose and may abolish any such reserve.
7.4. EXECUTION OF INSTRUMENTS
All checks, drafts or other orders for the payment of money, and
promissory notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board of Directors may from time to time
designate.
7.5. FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of
the Board of Directors.
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<PAGE> 19
7.6. SEAL
The corporate seal shall be in such form as the Board of Directors
shall approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
* * * * *
The foregoing Bylaws were adopted by the Board of Directors on
March 1, 1996.
/s/ Michael G. Misikoff
-----------------------------------
Secretary
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<PAGE> 1
EXHIBIT 10
Portions of this exhibit for which confidential treatment has been requested
are marked by brackets [ ].
Amendment No. 2
to Netscape Communications Corporation
Internet Service Provider
Navigator Distribution Agreement
This Amendment No. 2 (the "Amendment") is entered into by and between Netscape
Communications Corporation, a Delaware corporation, with principal offices at
501 E. Middlefield Road, Mountain View, California 94043 ("Netscape") and
MindSpring Enterprises, Inc., a Delaware corporation with a usual place of
business at 1430 W. Peachtree Street, N.E., Suite 400, Atlanta, Georgia 30309
("ISP") and is effective as of the date of execution by Netscape ("Effective
Date").
WHEREAS, the parties have entered into a Internet Service Provider Navigator
Distribution Agreement effective June 19, 1995, as amended by Amendment No. 1
dated September 29, 1995 (the "Agreement"); and
WHEREAS, the parties wish to modify and supplement the provisions of such
Agreement:
NOW, THEREFORE, the parties, in consideration of the terms and conditions
herein, agree as follows:
1. Section 11, Term of Agreement, is amended to extend the term of
the Agreement until December 31, 1997.
2. Pricing for Navigator Products. Based on ISP's volume commitment of
[ ] copies during the term of the Agreement ("Committed
Quantity"), the license fee for each copy of Navigator product shall
be as follows:
Nonrefundable
Product Per Product Price Prepaid License Fee
------- ----------------- -------------------
Netscape Navigator 2.0 LAN/or [ ] [ ]
Personal Edition
* Includes version 3x
** Due and payable in accordance
with the following schedule:
[ ] due and payable on March 31, 1996
(net thirty (30))
[ ] due and payable by ISP (to be
received by Netscape) on or
before September 19, 1996
3. Upgrade. ISP shall have the right to upgrade its existing End Users of
Netscape Navigator 1.0 LAN to Netscape Navigator 2.0 LAN for an upgrade
fee of [ ] per End Users.
Pricing beyond the Committed Quantity shall be negotiated in good faith
between the parties.
4. Support. Fees for back-line support and Minor Updates for the Committed
Quantity through December 31, 1996 shall be [ ] Any
licenses in excess of the Committed Quantity will be charged at [ ]
of the Per Product Price stated above.
From January 1, 1997 through December 31, 1997, back-line support and
Minor Updates will be provided at [ ] per license.
MindSpring Enterprises, Inc.
Amendment
CONFIDENTIAL
1
<PAGE> 2
5. Capitalized terms defined in the Agreement shall have the same meaning
in this Amendment as in the Agreement.
6. Except as explicitly modified, all terms, conditions and provisions of
the Agreement shall continue in full force and effect.
7. In the event of any inconsistency or conflict between the Agreement and
this Amendment, the terms, conditions and provisions of this Amendment
shall govern and control.
8. This Amendment and the Agreement constitute the entire and exclusive
agreement between the parties with respect to this subject matter. All
previous discussions and agreements with respect to this subject matter
are superseded by the Agreement and this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized representatives, effective as of the
Effective Date.
NETSCAPE COMMUNICATIONS MINDSPRING ENTERPRISES, INC.
CORPORATION
By: /s/ CONWAY RUION-MILLER By: /s/ EDWARD J. DOUGLAS
-------------------------- ---------------------------
Name: CONWAY (TODD) RUION-MILLER Name: EDWARD J. DOUGLAS
-------------------------- ---------------------------
Title: VP, SALES Title: PRODUCT MANAGER
-------------------------- ---------------------------
Date: 3/28/96 Date: 3/21/96
-------------------------- ---------------------------
MindSpring Enterprises, Inc.
Amendment
CONFIDENTIAL
2
