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As filed with the Securities and Exchange Commission on December 13, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MINDSPRING ENTERPRISES, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 58-2113290
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1430 WEST PEACHTREE, SUITE 400
ATLANTA, GEORGIA 30309
(Address of principal executive offices)
AMENDED AND RESTATED STOCK OPTION PLAN OF MINDSPRING ENTERPRISES, INC.
MINDSPRING ENTERPRISES, INC. DIRECTORS STOCK OPTION PLAN
(Full title of the plans)
CHARLES M. BREWER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
MINDSPRING ENTERPRISES, INC.
1430 WEST PEACHTREE, SUITE 400
ATLANTA, GEORGIA 30309
(404) 815-0770
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(Name, address and telephone number, including area code, of agent for service)
Copy to:
DAVID B.H. MARTIN, JR., ESQ.
NANCY J. KELLNER, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Proposed
maximum offering Proposed
Title of securities Amount to be price maximum aggregate Amount of
to be registered registered per share (2) offering price (2) registration fee (2)
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<S> <C> <C> <C> <C>
COMMON STOCK,
PAR VALUE $.01 686,668 (1) $4.81 $3,302,873 $1,001
=================================================================================================================================
</TABLE>
(1) 616,668 shares of MindSpring Enterprises, Inc. Common Stock, par value
$.01 per share ("Shares") are being registered pursuant to the Amended and
Restated Stock Option Plan of MindSpring Enterprises, Inc., and 70,000 Shares
are being registered pursuant to the MindSpring Enterprises, Inc. Directors
Stock Option Plan.
(2) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of the registration fee. The proposed maximum offering
price per share was determined by calculating the weighted average exercise
price of (i) 584,469 Shares being offered under outstanding options at a
weighted average exercise price of $4.58 and (ii) 102,199 Shares being offered
at an exercise price of $6.125 based on the average of the high and low prices
per share of the Shares, on December 6, 1996, as reported on The Nasdaq Stock
Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). In
accordance with the instructions to Part I of Form S-8, such documents will not
be filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
MindSpring Enterprises, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents filed by it with the Commission:
(a) The Registrant's final prospectus dated October 10,
1996 as filed with the Commission pursuant to Rule
424(b) of the Securities Act, which contains audited
financial statements for the fiscal year ended
December 31, 1995;
(b) All reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") since December 31, 1995;
and
(c) The description of the Registrant's Common Stock, par
value $.01 per share (the "Common Stock"), contained
in the Registrant's Registration Statement on Form
8-A filed with the Commission on March 1, 1996.
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, or 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be part hereof from the date of filing of
such documents or reports. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (The Common Stock is registered under Section
12 of the Exchange Act.)
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law
("DGCL"), a corporation may indemnify its directors, officers, employees and
agents and its former directors, officers, employees and agents and those who
serve, at the corporation's request, in such capacities with another
enterprise, against expenses (including attorneys' fees), as well as judgments,
fines and settlements in nonderivative lawsuits, actually and reasonably
incurred in connection with the defense of any action, suit or proceeding in
which they or any of them were or are made parties or are threatened to be made
parties by reason of their serving or having served in such capacity. The DGCL
provides, however, that such person must have acted in good faith and in a
manner such person reasonably believed to be in (or not opposed to) the best
interests of the corporation and, in the case of a criminal action, such person
must have had no reasonable cause to believe his or her conduct was unlawful.
In addition, the DGCL does not permit indemnification in any action or suit by
or in the right of the corporation, where such person has been adjudged liable
to the corporation, unless, and only to the extent that, a court determines
that such person fairly and reasonably is entitled to indemnity for costs the
court deems proper in light of liability adjudication. Indemnity is mandatory
to the extent a claim, issue or matter has been successfully defended.
The Amended and Restated Certificate of Incorporation of the
Registrant contains provisions that provide that no director of the Registrant
shall be liable for breach of fiduciary duty as a director except for (a) any
breach of the director's duty of loyalty to the Registrant or its stockholders;
(b) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of the law; (c) liability under Section 174 of the DGCL;
or (d) any transaction from which the director derived an improper personal
benefit. The Amended and Restated Certificate of Incorporation contains
provisions that further provide for the indemnification of directors and
officers to the fullest extent permitted by the DGCL. Under the Amended and
Restated Bylaws of the Registrant, the Registrant is required to advance
expenses incurred by an officer or director in defending any such action if the
director or officer undertakes to repay such amount if it is determined that
the director or officer is not entitled to indemnification. In addition, the
Registrant has entered into indemnity agreements with each of its directors
pursuant to which the Registrant has agreed to indemnify the directors as
permitted by the DGCL and has obtained directors and officers liability
insurance.
* * *
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit 3(a) to the
Registrant's Quarterly Report on Form 10-Q dated May 3, 1996 (File No. 0-27890), and
incorporated herein by reference).
4.2 Amended and Restated Bylaws of the Registrant (filed as Exhibit 3(b) to the Registrant's Quarterly
Report on Form 10-Q/A dated August 30, 1996 (File No. 0-27890), and incorporated herein by
reference).
4.3 Form of Common Stock Certificate of the Registrant (filed as Exhibit 4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-00108), and incorporated herein by reference).
4.4 Amended and Restated Stock Option Plan of MindSpring Enterprises, Inc. (filed as Exhibit 10(u) to
the Registrant's Registration Statement on Form S-1 (File No. 333-00108), and incorporated herein
by reference).
4.5 MindSpring Enterprises, Inc. Directors Stock Option Plan (filed as Exhibit 10(w) to the
Registrant's Registration Statement on Form S-1 (File No. 333-00108), and incorporated herein by
reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature pages).
</TABLE>
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or 15(d)
of the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undertaking concerning indemnification is as set
forth under the response to Item 6.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia on the 13th day of
December, 1996.
MINDSPRING ENTERPRISES, INC.
BY: /s/ Charles M. Brewer
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Charles M. Brewer
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles M. Brewer and Michael S.
McQuary, jointly and severally, each in his own capacity, as true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement (including post-effective amendments), and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming
all that said attorneys-in-fact, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE DATE TITLE
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<S> <C> <C>
/s/ Charles M. Brewer Chairman, Chief Executive Officer and December 13, 1996
-------------------------------------- Director (Principal executive officer)
Charles M. Brewer
/s/ Michael S. McQuary President, Chief Operating Officer and December 13, 1996
-------------------------------------- Director
Michael S. McQuary
/s/ Michael G. Misikoff Vice President, Chief Financial Officer, December 13, 1996
-------------------------------------- Secretary, Treasurer and Director
Michael G. Misikoff (Principal financial officer and
principal accounting officer)
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Campbell B. Lanier, III Director December 13, 1996
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Campbell B. Lanier, III
/s/ William H. Scott, III Director December 13, 1996
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William H. Scott, III
/s/ O. Gene Gabbard Director December 13, 1996
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O. Gene Gabbard
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
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<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant (filed *
as Exhibit 3(a) to the Registrant's Quarterly Report on Form
10-Q dated May 3, 1996 (File No. 0-27890), and incorporated herein by
reference).
4.2 Amended and Restated Bylaws of the Registrant (filed as Exhibit 3(b) to the *
Registrant's Quarterly Report on Form 10-Q/A dated August 30, 1996 (File No.
0-27890), and incorporated herein by reference).
4.3 Form of Common Stock Certificate of the Registrant (filed as Exhibit 4 to *
the Registrant's Registration Statement on Form S-1 (File No. 333-00108),
and incorporated herein by reference).
4.4 Amended and Restated Stock Option Plan of MindSpring Enterprises, Inc. *
(filed as Exhibit 10(u) to the Registrant's Registration Statement on Form
S-1 (File No. 333-00108), and incorporated herein by reference).
4.5 MindSpring Enterprises, Inc. Directors Stock Option Plan (filed as Exhibit *
10(w) to the Registrant's Registration Statement on Form S-1 (File No.
333-00108), and incorporated herein by reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities
being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as *
Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature pages). *
</TABLE>
* Incorporated by reference.
<PAGE> 1
EXHIBIT 5.1
[Hogan & Hartson L.L.P. Letterhead]
December 13, 1996
Board of Directors
MindSpring Enterprises, Inc.
1430 West Peachtree, Suite 400
Atlanta, Georgia 30309
Members of the Board of Directors:
This firm has acted as special counsel to MindSpring
Enterprises, Inc. (the "Company"), a Delaware corporation, in connection with
its registration, pursuant to a registration statement on Form S-8 filed on or
about the date hereof (the "Registration Statement"), of 686,668 shares of
common stock, par value $.01 per share, of the Company (the "Shares"), issuable
upon the exercise of options granted under the Amended and Restated Stock
Option Plan of MindSpring Enterprises, Inc. and the MindSpring Enterprises,
Inc. Directors Stock Option Plan (together, the "Stock Option Plans"). This
letter is furnished to you pursuant to the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with such
registration.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Stock Option Plans, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
3. The Amended and Restated Certificate of Incorporation
of the Company, as certified by the Secretary of
State of the State of Delaware on December 10, 1996
and by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
<PAGE> 2
Board of Directors
December 13, 1996
Page 2
4. The Amended and Restated Bylaws of the Company, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
5. Resolutions of the Board of Directors of the Company
adopted on February 21, 1995, April 5, 1995, December
19, 1995 and December 22, 1995, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
6. Resolutions of the shareholders of the Company
adopted on December 21, 1995 and December 22, 1995,
as certified by the Secretary of the Company on the
date hereof as then being complete, accurate and in
effect.
We have not, except as specifically identified above, made any
independent review or investigation of factual or other matters, including the
organization, existence, good standing, assets, business or affairs of the
Company or its subsidiaries. In our examination of the aforesaid certificates,
records, and documents, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity, accuracy and completeness
of all documents submitted to us as originals, and the authenticity, accuracy
and completeness and conformity with the original documents of all documents
submitted to us as certified, telecopied, photostatic, or reproduced copies.
We have assumed the authenticity and accuracy of the foregoing certifications
of corporate officers, on which we are relying, and have made no independent
investigations thereof. This opinion is given in the context of the foregoing.
This opinion letter is based as to matters of law solely on
the General Corporation Law of the State of Delaware. We express no opinion
herein as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to, and limited by the foregoing, we are
of the opinion that the Shares, when issued and delivered in the manner and on
the terms contemplated in the Registration Statement and the Stock Option Plans
(with the Company having received the consideration therefor, the form of which
is in accordance with applicable law), will be validly issued, fully paid and
non-assessable by the Company.
<PAGE> 3
Board of Directors
December 13, 1996
Page 3
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion
letter has been prepared solely for your use in connection with the filing of
the Registration Statement on the date of this letter, and should not be quoted
in whole or in part or otherwise be referred to, nor be filed with or furnished
to any governmental agency or other person or entity, without the prior written
consent of this firm.
We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are an "expert" within the meaning of the Securities Act
of 1933, as amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
---------------------------
HOGAN & HARTSON L.L.P.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
As independent public accountants, we hereby consent to the
incorporation by reference of our reports dated February 16, 1996 included in
MindSpring Enterprises, Inc.'s Registration Statement on Form S-1 (final
prospectus dated October 10, 1996) into this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
December 9, 1996
