<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 19, 1996.
REGISTRATION NO. 333-15781
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------
EARTHLINK NETWORK, INC.
(Exact Name of Issuer as specified in its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 4825 95-4481766
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) No.)
</TABLE>
3100 NEW YORK DRIVE, PASADENA, CALIFORNIA 91107
(818) 296-2400
(Address and Telephone Number of Principal Executive Offices)
--------------------------
BARRY W. HALL, CHIEF FINANCIAL OFFICER
EARTHLINK NETWORK, INC.
3100 NEW YORK DRIVE
PASADENA, CALIFORNIA 91107
(818) 296-2400
(Name, address and telephone number of agent for service)
--------------------------
COPIES TO:
<TABLE>
<S> <C>
Scott M. Hobby, Esq. Alan Singer, Esq.
J. Stephen Hufford, Esq. Morgan, Lewis & Bockius LLP
W. Tinley Anderson, III, Esq. 2000 One Logan Square
Hunton & Williams Philadelphia, Pennsylvania 19103
NationsBank Plaza, Suite 4100 (215) 963-5000
600 Peachtree Street, NE
Atlanta, Georgia 30308
(404) 888-4000
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
--------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF OFFERING REGISTRATION
SECURITIES TO BE REGISTERED PRICE(1) FEE
<S> <C> <C>
Common Stock, $.01 par value................................. $34,500,000 $10,454.55
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses, other than underwriting discounts
and commissions, to be borne by the Company in connection with the issuance and
distribution of the Common Stock being registered:
<TABLE>
<CAPTION>
ITEM AMOUNT
- ---------------------------------------------------------------------------- --------------
<S> <C>
Securities and Exchange Commission registration fee......................... $ 10,454.55
NASD filing fee............................................................. 3,950
Nasdaq National Market listing fee.......................................... *
Blue Sky fees and expenses.................................................. 15,000
Printing and engraving expenses............................................. *
Legal fees and expenses..................................................... *
Accounting fees and expenses................................................ *
Transfer Agent and Registrar fee............................................ *
Miscellaneous............................................................... *
--------------
Total................................................................... $ *
--------------
--------------
</TABLE>
- ------------
* To be completed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of the State of Delaware,
as amended, the Company has the power to indemnify directors and officers under
certain prescribed circumstances and subject to certain limitations against
certain costs and expenses, including attorneys' fees actually and reasonably
incurred in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which any of them is a party by
reason of his or her being a director or officer of the Company if it is
determined that he acted in accordance with the applicable standard of conduct
set forth in such statutory provision.
Article XII of the Company's By-laws generally permits indemnification of
directors and officers to the fullest extent authorized by the General
Corporation Law of the State of Delaware.
The Company intends to purchase directors' and officers' liability
insurance.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since its inception in May 1994, the Company has issued and sold
unregistered securities in the transitions described below. All of the following
share and per share amounts have been restated to give effect to all of the
Company's stock splits. See Note 12 to Notes to Financial Statements.
Shares of Common Stock
1. On May 27, 1994, the Company issued 3,000,000 shares of Common Stock to
Mr. Dayton as founder's stock for an aggregate price of $1,000.
2. On June 10, 1994, the Company sold 1,000,000 shares of Common Stock to
each of Messrs. Slatkin and O'Donnell, directors of the Company, at a purchase
price of $0.05 per share.
3. On October 17, 1994, the Company sold 441,180 shares of Common Stock to
each of Messrs. Slatkin and O'Donnell, directors of the Company, at a purchase
price of $0.09 per share.
II-1
<PAGE>
4. On March 30, 1995, the Company sold 122,340 shares of Common Stock, to
each of Messrs. Slatkin and O'Donnell, directors of the Company, and 489,630
shares of Common Stock to Robert London, at a purchase price of $0.41 per share.
5. On June 19, 1995, the Company sold 1,654,170 shares of Common Stock to
20 investors, including Messrs. Slatkin, O'Donnell, directors of the Company,
and to Mr. Sidney Azeez, a director of the Company, at a purchase price of $0.91
per share.
6. On October 31, 1995, the Company sold 1,843,490 shares of Common Stock
to 19 investors, including Messrs. Slatkin and O'Donnell, directors of the
Company, and to Mr. Azeez, a director of the Company, at a purchase price of
$2.42 per share.
7. On January 18, 1996, the Company sold 90,970 shares of Common Stock to
Messrs. Linwood Lacy, Jr. and Robert Kavner, directors of the Company, at a
purchase price of $2.42 per share.
8. On March 20, 1996, the Company sold 50,000 shares of Common Stock to Mr.
Charles G. Betty, a director of the Company and the Company's President and
Chief Operating Officer, at a purchase price of $2.42 per share.
9. On May 6, 1996, the Company sold 10,245 shares of Common Stock to a
sub-contractor at a purchase price of $4.88 per share, which purchase price was
paid by performance of certain services.
10. On May 6, 1996, the Company sold 1,704,920 shares of Common Stock to 34
investors (primarily existing stockholders of the Company), including Messrs.
Azeez, Slatkin and O'Donnell, directors of the Company, at a purchase price of
$4.88 per share.
11. On September 8, 1996, the Company issued 75,000 shares of Common Stock
to a consultant in consideration of the cancellation of the consulting agreement
between the consultant and the Company.
Shares of Series A Convertible Preferred Stock
12. On September 10, 1996, the Company issued 2,727,273 shares of Series A
Convertible Preferred Stock to certain investors, including Messrs. Azeez,
Betty, Slatkin, O'Donnell and Lacy, directors of the Company, at a purchase
price of $5.50 per share which shares will be automatically converted into
shares of Common Stock upon consummation of this offering. In connection with
this transaction, certain of these investors were also granted warrants to
purchase 200,000 shares of Common Stock having an exercise price of $5.50 per
share.
Warrants to Purchase Common Stock
13. In December 1994 the Company agreed to grant, and on June 18, 1995, the
Company granted, Warrants to purchase 150,000 shares of Common Stock at an
exercise price of $0.91 per share to each of Messrs. Slatkin and O'Donnell in
connection with their provision of a $400,000 credit line to the Company.
14. On August 31, 1995, the Company granted Warrants to purchase 100,000
shares of Common Stock at an exercise price of $0.91 per share to Mr. Slatkin in
connection with his acting as lessee, with the Company, under a $500,000
equipment lease. Mr. Slatkin subsequently transferred one-half of these warrants
to Mr. O'Donnell as consideration for his agreement to indemnify Mr. Slatkin for
certain liability arising in connection with the lease.
15. On October 31, 1995, the Company granted Warrants to purchase 20,661
shares of Common Stock at an exercise price of $2.42 per share to David
Beckemeyer as partial consideration for the sale of certain of the assets of
Beckemeyer Consulting.
16. On December 1, 1995, the Company granted Warrants to purchase 100,000
shares of Common Stock at an exercise price of $2.42 per share to Mr. Slatkin in
connection with their provision of a $250,000 line
II-2
<PAGE>
of credit as security for the lease of the Company's Pasadena, California
facility. Mr. Slatkin subsequently transferred one-half of these warrants to Mr.
O'Donnell in consideration for his agreement to indemnify Mr. Slatkin for
certain liability arising in connection with the line of credit.
17. Effective January 11, 1996, the Company granted Warrants to purchase
200,000 shares of Common Stock at an exercise price of $2.42 per share to Mr.
Slatkin in connection with his acting as lessee, with the Company, under a
$1,500,000 equipment lease. Mr. Slatkin subsequently transferred one-half of
these warrants to Mr. O'Donnell as consideration for his agreement to indemnify
Mr. Slatkin for certain liability arising in connection with the lease.
18. On January 12, 1996, the Company granted warrants to purchase 100,000
shares of Common Stock at an exercise price of $2.42 per share to each of
Messrs. Lacy and Kavner as consideration for their agreeing to serve on the
Company's Board of Directors.
19. On January 18, 1996, the Company granted warrants to purchase 100,000
shares of Common Stock at an exercise price of $2.42 per share to LINC Capital
Partners, Inc. ("LINC") in connection with LINC's provision of a $2,000,000
equipment lease credit line.
20. On February 15, 1996, the Company granted warrants to purchase 10,000
shares of Common Stock at an exercise price of $4.88 per share to Boston
Financial & Equity Corporation ("BFE") in connection with BFE's provision of a
$700,000 equipment lease credit line.
21. On May 6, 1996, the Company agreed to issue warrants to purchase up to
100,000 shares of Common Stock at an exercise price of $4.88 per share in
connection with the production of commercials on behalf of the Company. In
addition, the Company agreed to issue additional warrants to purchase up to a
maximum of 600,000 shares of Common Stock based upon the number of subscribers
obtained through the commercials. Through December 31, 1997, the exercise price
will be $4.88 per share; thereafter, the price will be set at the fair market
value of the Common Stock of the Company.
22. On May 10, 1996, the Company issued warrants to purchase 90,957 shares
of Common Stock at an exercise price of $4.88 per share for lease lines.
23. On May 10, 1996, the Company entered into consulting agreements with two
consultants. In connection with these agreements, the Company agreed that it
will issue warrants to purchase an aggregate of 20,000 shares of Common Stock at
a per share exercise price of $4.88 per share upon completion of the consulting
services.
24. On May 31, 1996, in connection with the amendment of its agreement with
UUNET, the Company agreed to issue warrants to purchase 20,000 shares of Common
Stock at $10.00 per share.
25. On June 6, 1996, the Company issued warrants to purchase 196,670 shares
of Common Stock at an exercise price equal to the lesser of (i) $10.00 or (ii)
the price at which Common Stock is first sold in a public or private sale after
the issuance of the warrants and prior to the issuance of Common Stock subject
to such warrants. Messrs. Azeez, Kavner, O'Donnell and Slatkin were granted
13,333, 6,667, 15,000 and 15,000 of these warrants, respectively.
26. On July 22, 1996, the Company issued warrants to purchase 200,000 shares
of Common Stock at an exercise price of $10.00 per share in connection with the
execution of its agreement with PSINet.
27. In September 1996, the Company issued Warrants to purchase 15,000 shares
of Common Stock at an exercise price of $5.50 per share to each of three members
of the Company's Technology Advisory Council.
Convertible Debt Obligation
28. On October 31, 1996, UUNET Technology, Inc. purchased from the Company,
a $5 million convertible promissory note, convertible into a maximum of 765,000
shares of Common Stock.
II-3
<PAGE>
Options to Purchase Common Stock
29. On March 18, 1995, the Company granted non-plan Options to purchase
150,000 shares of Common Stock at an exercise price of $0.30 per share to Mr.
Phil Gale in consideration for Mr. Gale's development efforts and as payment for
the development by Mr. Gale of certain software for the Company. Upon
termination by Mr. Gale of his employment on March 8, 1996, 29,583 of these
shares had vested and the balance expired.
30. On June 19, 1995, the Company granted non-plan Options to purchase
500,000 shares of Common Stock at an exercise price of $0.91 to Mr. Dayton in
consideration for his continuing efforts to develop the Company and its
business.
31. On June 19, 1995, the Company granted non-plan Options to purchase
100,000 shares of Common Stock at an exercise price of $0.91 per share to Mr.
Robert E. Johnson, Jr. in consideration for his accepting employment with the
Company.
32. On December 1, 1995, the Company granted non-plan Options to purchase
100,000 shares of Common Stock at an exercise price of $2.42 to Mr. Leland C.
Thoburn in consideration for his accepting employment with the Company.
33. In addition to the options described, between September 30, 1995 and
September 24, 1996, the Registrant granted options to purchase an aggregate of
2,032,500 shares of Common Stock to employees of the Registrant at exercise
prices ranging from $2.42 to $5.50 per share as incentives under the
Registrant's 1995 Stock Option Plan. Of these, options for 21,000 shares of
Common Stock have been forfeited due to the termination of the employment of
various grantees.
All issuances of securities described above were made in reliance on the
exemption from registration provided by Section 4(2) of the Securities Act of
1933 or Section 3(b) of the Securities Act of 1933 and Rule 701 thereunder. The
Company believes that all of the securities were acquired by the investors for
investment and with no view toward the resale or distribution thereof. In each
instance, the investor was either an employee of the Company or a sophisticated
investor, the offers and sales were made without any public solicitation and the
stock certificates bear restrictive legends. No underwriter was involved in the
transactions and no commissions were paid.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement*
3.1 -- Amended and Restated Certificate of Incorporation**
3.2 -- Bylaws**
3.3 -- Certificate of Designation, Preferences and Rights of Series A Convertible Preferred Stock++
4.1 -- See exhibits 3.1 and 3.2 for provisions of the Certificate of Incorporation and Bylaws
defining rights of holders of Common Stock
4.2 -- Specimen Stock Certificate*
4.3 -- Form of Warrant Agreement**
4.4 -- Registration Rights Agreement, Amendment No. 1 to Registration Rights Agreement and
Amendment No. 2 to Registration Rights Agreement*
4.5 -- Buy-Sell Agreement dated June 10, 1995 among the Registrant, Sky Dayton, Reed Slatkin and
Kevin O'Donnell***
5.1 -- Opinion of Hunton & Williams*
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------
<C> <C> <S>
9.1 -- Voting Trust Agreement dated June 10, 1995 among Sky Dayton, Reed Slatkin and Kevin
O'Donnell***
10.1 -- 1995 Stock Option Plan and forms of Stock Option Agreement and Stock Purchase Agreement**
10.2 -- Amended and Restated Stock Option Plan for Directors*
10.3 -- Master Lease Agreement, dated February 8, 1996, between the Registrant and Boston Financial
& Equity Corporation**
10.4 -- Lease Line Agreement, dated January 30, 1996, between the Registrant and Boston Financial &
Equity Corporation**
10.5 -- Master Lease Agreement, dated September 1, 1995, between the Registrant and LINC Capital
Management**
10.6 -- Netscape Communications Corporation Internet Service Provider Navigator Distribution
Agreement dated May 31, 1996, between the Registrant and Netscape Communications
Corporation+**
(a) Amendment No. 1 to Netscape Communications Corporation Internet Service Provider
Agreement++
(b) Amendment No. 2 to Netscape Communications Corporation Internet Service Provider
Agreement+, ++
10.7 -- Network Services Agreement dated May 31, 1996, between the Registrant and UUNET
Technologies, Inc.+**
(a) Addendum No. 1 to Network Services Agreement+
10.8 -- Software Distribution Agreement (MacTCP) dated October 2, 1995, between the Registrant and
Apple Computer, Inc.***
10.9 -- Employment Agreement, dated January 15, 1996, between the Registrant and Mr. Charles G.
Betty**
10.10 -- Indemnification Agreement, dated August 31, 1995, among the Registrant and Kevin O'Donnell
as Indemnitors and Reed Slatkin as Indemnitee**
10.11 -- Indemnification and Participation Agreement, dated December 1, 1995, among the Registrant
and Kevin O'Donnell as Indemnitors and Reed Slatkin as Indemnitee**
10.12 -- Standard Industrial/Commercial Multi-Tenant Lease, dated December 1, 1995, between the
Registrant and Becton, Dickinson***
10.13 -- Business Loan Agreement, dated June 15, 1995, and Promissory Note in the original principal
amount of $250,000 between the Registrant and California United Bank***
10.14 -- Line of Credit Note in the original principal amount of $250,000, dated June 23, 1995 and
Security Agreement, dated June 23, 1995 between the Registrant and the Bank of California,
N.A.**
10.15 -- Line of Credit Note in the original principal amount of $1,000,000, dated November 2, 1995,
between the Registrant and the Bank of California, N.A.**
10.16 -- Production and Distribution Agreement, dated May 6, 1996, between the Registrant and
National Media Corporation**
10.17 -- Documents evidencing the Company's sale of $2,950,000 of its 10% Promissory Notes, dated
June 18, 1996:
(a) Form of Subscription Agreement***
(b) Form of Warrant***
(c) Form of 10% Promissory Note***
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- --------------------------------------------------------------------------------------------
<C> <C> <S>
10.18 -- Amended and Restated Stock Purchase Agreement Relating to 2,727,273 shares of Series A
Convertible Preferred Stock between the Company and the Investors named therein, dated
September 10, 1996*
10.19 -- Internet Wizard Sign-Up Agreement between the Company and Microsoft Corporation, dated
August 16, 1996+, ++
10.20 -- Network Access Agreement between the Company and PSINet, Inc., dated July 22, 1996 and
Amendment No. 1 to Network Access Agreement+, ++
10.21 -- Office Lease by and between The Mutual Life Insurance Company of New York, as Landlord, and
the Company, as Tenant, dated September 20, 1996++
10.22 -- Standard Office Lease -- Gross, by and between Glen Feliz Properties, as Landlord, and the
Company, as Tenant, dated July 2, 1996++
10.23 -- Amended and Restated Note Purchase Agreement between the Company and UUNET Technologies,
Inc. dated October 31, 1996 and Convertible Promissory Note*
11.1 -- Statement re computation of per share earnings++
23.1 -- Consent of Price Waterhouse LLP, independent public accountants
23.2 -- Consent of Hunton & Williams (contained in its opinion in exhibit 5.1)*
23.3 -- Consent of Paul McNulty++
27. -- Financial Data Schedule++
</TABLE>
- ------------
* To be filed by amendment.
** Incorporated by reference to the exhibit designated by the same exhibit
number and filed as an exhibit to the Company's Registration Statement on
Form S-1 (Registration No. 333-5055) filed with the Commission on June 3,
1996.
*** Incorporated by reference to the exhibit designated by the same exhibit
number and filed as an exhibit to Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Registration No. 333-5055) filed with
the Commission on June 27, 1996.
+ Confidential treatment requested.
++ Previously filed.
(b) Financial Statement Schedules:
All of the financial statement schedules for which provision is made in the
applicable accounting regulations of the Commission are either not required
under the related instructions or are inapplicable and have therefore been
omitted, except for the Financial Data Schedule referenced above as Exhibit 27
and filed herewith; provided, however, that Exhibit 27 shall not be deemed filed
for purposes of Section 11 of the Securities Act, Section 18 of the Exchange Act
and Section 323 of the Trust Indenture Act, or otherwise be subject to the
liabilities of such sections, nor shall it be deemed a part of this Registration
Statement.
ITEM 17. UNDERTAKINGS
The Company hereby undertakes to provide the Underwriter at the closing
specified in the underwriting agreement, certificates in such denominations and
registered in such names as required by the Underwriter to permit prompt
delivery to each Purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons to the Company, the Company 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is
II-6
<PAGE>
asserted by such director, officer or controlling person in connection with the
securities being registered, the Company 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of a
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment to its Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Pasadena, State of
California, on the 19th day of November, 1996.
EARTHLINK NETWORK, INC.
By: /S/ SKY D. DAYTON
-----------------------------------
Sky D. Dayton
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment to Registration Statement has been signed by the following persons in
the capacities indicated below on the 19th day of November, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- -------------------------------------- --------------------------------------
<C> <S>
/S/ SKY D. DAYTON
- -------------------------------------- Chairman of the Board of Directors
Sky D. Dayton
/S/ CHARLES G. BETTY President, Chief Executive Officer and
- -------------------------------------- Director (Principal Executive
Charles G. Betty Officer)
/S/ BARRY W. HALL Chief Financial Officer (Principal
- -------------------------------------- Financial and
Barry W. Hall Accounting Officer)
SIDNEY AZEEZ*
- -------------------------------------- Director
Sidney Azeez
ROBERT M. KAVNER*
- -------------------------------------- Director
Robert M. Kavner
LINWOOD A. LACY, JR.*
- -------------------------------------- Director
Linwood A. Lacy, Jr.
KEVIN M. O'DONNELL*
- -------------------------------------- Director
Kevin M. O'Donnell
JOHN W. SIDGMORE*
- -------------------------------------- Director
John W. Sidgmore
REED E. SLATKIN*
- -------------------------------------- Director
Reed E. Slatkin
*By: /S/ SKY D.
DAYTON
- --------------------------------------
Sky D. Dayton
Attorney-in-fact
</TABLE>
II-8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS PAGE
- --------- ---------
<C> <S> <C>
1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Certificate of Incorporation**
3.2 Bylaws**
3.3 Certificate of Designation Preferences and Rights of Series A Convertible Preferred Stock++
4.1 See exhibits 3.1, 3.2 and 3.3 for provisions of the Certificate of Incorporation and Bylaws
defining rights of holders of Common Stock
4.2 Specimen Stock Certificate*
4.3 Form of Warrant Agreement**
4.4 Registration Rights Agreement, Amendment No. 1 to Registration Rights Agreement and Amendment
No. 2 to Registration Rights Agreements*
4.5 Buy-Sell Agreement dated June 10, 1995 among the Registrant, Sky Dayton, Reed Slatkin and
Kevin O'Donnell***
5.1 Opinion of Hunton & Williams*
9.1 Voting Trust Agreement dated June 10, 1995 among Sky Dayton, Reed Slatkin and Kevin
O'Donnell***
10.1 1995 Stock Option Plan and forms of Stock Option Agreement and Stock Purchase Agreement**
10.2 Amended and Restated Stock Option Plan for Directors*
10.3 Master Lease Agreement, dated February 8, 1996, between the Registrant and Boston Financial &
Equity Corporation**
10.4 Lease Line Agreement, dated January 30, 1996, between the Registrant and Boston Financial &
Equity Corporation**
10.5 Master Lease Agreement, dated September 1, 1995, between the Registrant and LINC Capital
Management**
10.6 Netscape Communications Corporation Internet Service Provider Navigator Distribution Agreement
dated May 31, 1996, between the Registrant and Netscape Communications Corporation+**
(a) Amendment No. 1 to Netscape Communications Corporation Internet Service Provider
Agreement++
(b) Amendment No. 2 to Netscape Communications Corporation Internet Service Provider
Agreement+, ++
10.7 Network Services Agreement dated May 31, 1996, between the Registrant and UUNET Technologies,
Inc.+**
(a) Addendum No. 1 to Network Services Agreement+
10.8 Software Distribution Agreement (MacTCP) dated October 2, 1995, between the Registrant and
Apple Computer, Inc.***
10.9 Employment Agreement, dated January 15, 1996, between the Registrant and Mr. Charles G.
Betty**
10.10 Indemnification Agreement, dated August 31, 1995, among the Registrant and Kevin O'Donnell as
Indemnitors and Reed Slatkin as Indemnitee**
10.11 Indemnification and Participation Agreement, dated December 1, 1995, among the Registrant and
Kevin O'Donnell as Indemnitors and Reed Slatkin as Indemnitee**
10.12 Standard Industrial/Commercial Multi-Tenant Lease, dated December 1, 1995, between the
Registrant and Becton, Dickinson***
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS PAGE
- --------- ---------
<C> <S> <C>
10.13 Business Loan Agreement, dated June 15, 1995, and Promissory Note in the original principal
amount of $250,000 between the Registrant and California United Bank***
10.14 Line of Credit Note in the original principal amount of $250,000, dated June 23, 1995 and
Security Agreement, dated June 23, 1995 between the Registrant and the Bank of California,
N.A.**
10.15 Line of Credit Note in the original principal amount of $1,000,000, dated November 2, 1995,
between the Registrant and the Bank of California, N.A.**
10.16 Production and Distribution Agreement, dated May 6, 1996, between the Registrant and National
Media Corporation**
10.17 Documents evidencing the Company's sale of $2,950,000 of its 10% Promissory Notes, dated June
18, 1996:
(a) Form of Subscription Agreement***
(b) Form of Warrant***
(c) Form of 10% Promissory Note***
10.18 Amended and Restated Stock Purchase Agreement Relating to 2,727,273 shares of Series A
Convertible Preferred Stock between the Company and the Investors named therein, dated
September 10, 1996*
10.19 Internet Wizard Sign-Up Agreement between the Company and Microsoft Corporation, dated August
16, 1996+, ++
10.20 Network Access Agreement between the Company and PSINet, Inc., dated July 22, 1996 and
Amendment No. 1 to Network Access Agreement+, ++
10.21 Office Lease by and between The Mutual Life Insurance Company of New York, as Landlord, and
the Company, as Tenant, dated September 20, 1996++
10.22 Standard Office Lease -- Gross, by and between Glen Feliz Properties, as Landlord, and the
Company, as Tenant, dated July 2, 1996++
10.23 Amended and Restated Note Purchase Agreement between the Company and UUNET Technologies, Inc.
dated October 31, 1996 and Convertible Promissory Note*
11.1 Statement re computation of per share earnings++
23.1 Consent of Price Waterhouse LLP, independent public accountants
23.2 Consent of Hunton & Williams (contained in its opinion in exhibit 5.1)*
23.3 Consent of Paul McNulty++
27. Financial Data Schedule++
</TABLE>
- ------------
* To be filed by amendment.
** Incorporated by reference to the Exhibit designated by the same exhibit
number and filed as an exhibit to the Company's Registration Statement on
Form S-1 (Registration No. 333-5055) filed with the Commission on June 3,
1996.
*** Incorporated by reference to the exhibit designated by the same exhibit
number and filed as an exhibit to Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Registration No. 333-5055) filed with
the Commission on June 27, 1996.
+ Confidential treatment requested.
++ Previously filed.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-1 of our report dated May 31, 1996, except for
Notes 11 and 12, as to which the dates are June 27, 1996 and November 4, 1996,
respectively, relating to the financial statements of EarthLink Network, Inc.,
which appears in such Prospectus. We also consent to the reference to us under
the heading "Experts" and "Selected Financial Data" in such Prospectus. However,
it should be noted that Price Waterhouse LLP has not prepared or certified such
"Selected Financial Data."
PRICE WATERHOUSE LLP
Costa Mesa, California
November 15, 1996
