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As filed with the Securities and Exchange Commission on January 16, 1997
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MINDSPRING ENTERPRISES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 58-2113290
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
1430 West Peachtree, Suite 400
Atlanta, Georgia 30309
(Address of Principal Executive Offices) (Zip Code)
MindSpring Enterprises, Inc. 401(k) Plan
(Full Title of the Plan)
Charles M. Brewer
Chairman and Chief Executive Officer
Mindspring Enterprises, Inc.
1430 West Peachtree, Suite 400
Atlanta, Georgia 30309
(Name and Address of Agent for Service)
(404) 815-0770
(Telephone Number, Including Area Code, of Agent for Service)
Copies of Communications to:
Charles M. Brewer Steven G. Schaffer, Esq.
Chairman of the Board and Powell, Goldstein, Frazer & Murphy LLP
Chief Executive Officer Sixteenth Floor
Mindspring Enterprises, Inc. 191 Peachtree Street, N.E.
1430 West Peachtree, Suite 400 Atlanta, Georgia 30303
Atlanta, Georgia 30309 (404) 572-6830
(404) 815-0770
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Aggregate Offering Amount of
To Be Registered Registered(1) Per Share(2) Price(2) Registration Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 100,000 $29.00 $2,900,000 $855.50
$.01 per share
====================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefits plan described herein.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) under the Securities Act.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (File No. 000-27890);
(2) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1997 (File No. 000-27890);
(3) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1997 (File No. 000-27890);
(4) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1997 (File No. 000-27890);
(5) The Registrant's Current Report on Form 8-K filed with the
Commission on March 3, 1997 (File No. 0-27890); and
(6) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as filed with the
Commission on March 1, 1996.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934, as
amended, prior to filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof from the date of filing such
documents.
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
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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.
ITEM 8. EXHIBITS.
The following items are filed as exhibits to this Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation
of the Registrant (1)
4.2 Amended and Restated Bylaws of the Registrant (2)
4.3 Form of Stock Certificate of the Registrant (3)
</TABLE>
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<TABLE>
<S> <C>
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Powell, Goldstein, Frazer & Murphy LLP
(contained in its exhibit filed as Exhibit 5.1)
24.0 Power of Attorney (included in the signature page in Part
II of the Registration Statement)
</TABLE>
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(1) Incorporated by reference to Exhibit 3(a) to the Registrant's Quarterly
Report on Form 10-Q dated May 3, 1996 (File No. 000-27890).
(2) Incorporated by reference to Exhibit 3(b) of the Registrant's Quarterly
Report on Form 10-Q/A dated August 30, 1996 (File No. 000-27890).
(3) Incorporated by reference to Exhibit 4 of the Registrant's Registration
Statement on Form S-1 (File No. 333-00108).
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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the law or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
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.
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's Annual Report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(h) 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 Securities and
Exchange 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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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, hereunto
duly authorized, in the City of Atlanta, State of Georgia, on this 31st day of
December, 1997.
MINDSPRING ENTERPRISES, INC.
By: /s/ Charles M. Brewer
---------------------------------------
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, or any
of them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities to sign any or all amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each of said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully as to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Charles M. Brewer Chairman of the Board, Chief Executive December 31, 1997
- --------------------------------- Officer and Director (Principal
Charles M. Brewer Executive Officer)
/s/ Michael S. McQuary President, Chief Operating Officer and December 31, 1997
- --------------------------------- Director
Michael S. McQuary
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Michael G. Misikoff Vice President, Chief Financial Officer, December 31, 1997
- ---------------------------------- Secretary, Treasurer and Director
Michael G. Misikoff (Principal financial officer and
principal accounting officer)
/s/ Campbell B. Lanier, III Director December 31, 1997
- ---------------------------------
Campbell B. Lanier, III
/s/ William H. Scott, III Director December 31, 1997
- ---------------------------------
William H. Scott, III
/s/ O. Gene Gabbard Director December 31, 1997
- ---------------------------------
O. Gene Gabbard
</TABLE>
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Pursuant to the requirements of the Securities Act, the trustees (or
other persons who administer the employee benefits plan) have duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Atlanta, State of Georgia, on this 16th day of
January, 1998.
MINDSPRING ENTERPRISES, INC. 401(k) PLAN
By: /s/ John A. Bushfield
-------------------------------------------
Name: John A. Bushfield
------------------------------------------
Title: Vice President, Human Resources
-----------------------------------------
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation
of the Registrant (1)
4.2 Amended and Restated Bylaws of the Registrant (2)
4.3 Form of Stock Certificate of the Registrant (3)
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Powell, Goldstein, Frazer & Murphy LLP
(contained in its exhibit filed as Exhibit 5.1)
24.0 Power of Attorney (included in the signature page in
Part II of the Registration Statement)
</TABLE>
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(1) Incorporated by reference to Exhibit 3(a) to the Registrant's Quarterly
Report on Form 10-Q dated May 3, 1996 (File No. 000-27890).
(2) Incorporated by reference to Exhibit 3(b) of the Registrant's Quarterly
Report on Form 10-Q/A dated August 30, 1996 (File No. 000-27890).
(3) Incorporated by reference to Exhibit 4 of the Registrant's Registration
Statement on Form S-1 (File No. 333-00108).
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EXHIBIT 5.1
January 15, 1998
MindSpring Enterprises, Inc.
1430 West Peachtree Street
Suite 400
Atlanta, Georgia 30309
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are furnishing this opinion in connection with the preparation and
filing by MindSpring Enterprises, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") relating to the issuance by
the Company of 100,000 shares of its common stock, par value $.01 per share (the
"Common Stock"), to the MindSpring Enterprises, Inc. 401(k) Plan (the "Plan").
We have examined the Plan, copies of the Amended and Restated Certificate
of Incorporation and Bylaws of the Company, the Registration Statement, and such
other corporate records and documents as we deemed necessary to form the basis
of this opinion hereinafter expressed.
In our examination of such material, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
and the conformity of original documents of all copies submitted to us. As to
questions of fact material to such opinion, we have relied upon statements of
officers and/or representatives of the Company and others.
Based on the foregoing, it is our opinion that the shares of Common Stock
being registered will, when issued in accordance with the Plan, be validly
issued, fully paid and nonassessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Powell, Goldstein, Frazer & Murphy LLP
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated March 26, 1997 included in MindSpring
Enterprises, Inc.'s Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 into this Registration Statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
January 7, 1998
