<PAGE>
As filed with the Securities and Exchange Commission on February 27, 1997
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EARTHLINK NETWORK, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-4481766
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3100 NEW YORK DRIVE
SUITE 210
PASADENA, CALIFORNIA 91107
(Address of principal executive offices and zip code)
EARTHLINK NETWORK, INC.
1995 STOCK OPTION PLAN
(Full Title of the Plan)
BARRY W. HALL
VICE-PRESIDENT
CHIEF FINANCIAL OFFICER
3100 NEW YORK DRIVE
SUITE 210
PASADENA, CALIFORNIA 91107
(818) 296-2400
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock, $0.01 1,500,000 $17.31 (2) $25,965,000 (3) $7,869
par value shares (1)
- ----------------------------------------------------------------------------------------
</TABLE>
(1) Representing shares to be issued and sold by the Registrant under the
EarthLink Network, Inc. 1995 Stock Option Plan (the "Plan"). This
Registration Statement also covers such indeterminable number of
additional shares as may become issuable to prevent dilution in the
event of a stock split, stock dividend, reclassification or other
similar transaction pursuant to the terms of the Plan.
(2) The average of the high and low prices of the Registrant's Common Stock
as reported by the Nasdaq National Market System for February 21, 1997.
(3) The aggregate offering price is calculated solely for the purpose of
determining the registration fee pursuant to Rule 457(h)(1) under the
Securities Act of 1933, as amended.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given
to employees of the Registrant as required by Rule 428(b)(1) promulgated
under the Securities Act of 1933, as amended (the "Securities Act").
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:
(a)(1) The Registrant's Prospectus on Form S-1 as filed pursuant to Rule
424(b) of the Securities Act which contains audited financial statements for
the Registrant's latest fiscal year (File No. 333-15871);
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed pursuant to Section 12
of the Securities Exchange Act of 1934 (the "Exchange Act") (File No.
000-20799).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered hereby
have been sold or that deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State of
Delaware, as amended, the Registrant 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 Registrant 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 Registrant'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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
The Registrant intends to purchase directors' and officers' liability
insurance.
<PAGE>
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
Exhibit
No. Description
- -------- -----------
4.1 Amended and Restated Certificate of Incorporation (incorporated
herein by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1, Reg. No. 333-15871).
4.2 Bylaws (incorporated herein by reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S-1, Reg. No. 333-15871).
4.3 Certificate of Designation, Preferences and Rights of Series A
Convertible Preferred Stock, as amended (incorporated herein by
reference to Exhibit 3.3 of the Registrant's Registration Statement
on Form S-1, Reg. No. 333-15871).
4.4 Specimen Stock Certificate (incorporated herein by reference to
Exhibit 4.2 of the Registrant's Registration Statement on Form S-1,
Reg. No. 333-15871).
4.5 Form of Warrant Agreement (incorporated herein by reference to
Exhibit 4.3 of the Registrant's Registration Statement on Form S-1,
Reg. No. 333-15871).
4.6 Registration Rights Agreement, Amendment No. 1 thereto and Amendment
No. 2 thereto (incorporated herein by reference to Exhibit 4.4 of
the Registrant's Registration Statement on Form S-1, Reg.
No. 333-15871).
5 Opinion of counsel with respect to the securities being
registered.
23.1 Consent of counsel (included in Exhibit 5).
23.2 Consent of Price Waterhouse LLP, independent accountants.
24 Power of Attorney (see signature pages to this Registration
Statement).
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 of 1933;
(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; and
<PAGE>
(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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, 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 that time shall be deemed to be the initial BONA FIDE offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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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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 Pasadena, State of California, on this the 27th
day of February, 1997.
EARTHLINK NETWORK, INC.
By: /s/ C. Garry Betty
------------------------------
C. Garry Betty
President, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of C. Garry Betty and Barry W. Hall as
his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective 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 required or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or their substitutes, could lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below on February 27th, 1997 by the following
persons in the capacities indicated.
/s/ C. Garry Betty President, Chief Executive Officer and
- ---------------------------------- Director (principal executive officer)
C. Garry Betty
/s/ Barry W. Hall Vice President, Finance and Chief Financial
- ---------------------------------- Officer (principal financial and accounting
Barry W. Hall Officer)
/s/ Sky D. Dayton
- ---------------------------------- Director
Sky D. Dayton
/s/ Sidney Azeez
- ---------------------------------- Director
Sidney Azeez
/s/ Robert M. Kavner
- ---------------------------------- Director
Robert M. Kavner
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/s/ Linwood A. Lacy, Jr.
- ---------------------------------- Director
Linwood A. Lacy, Jr.
/s/ Paul McNulty
- ---------------------------------- Director
Paul McNulty
/s/ Kevin M. O'Donnell
- ---------------------------------- Director
Kevin M. O'Donnell
/s/ John W. Sidgmore
- ---------------------------------- Director
John W. Sidgmore
/s/ Reed E. Slatkin
- ---------------------------------- Director
Reed E. Slatkin
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EXHIBIT INDEX
Exhibit
No. Description
- -------- -----------
4.1 Amended and Restated Certificate of Incorporation (incorporated
herein by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-1, Reg. No. 333-15871).
4.2 Bylaws (incorporated herein by reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S-1, Reg. No. 333-15871).
4.3 Certificate of Designation, Preferences and Rights of Series A
Convertible Preferred Stock, as amended (incorporated herein by
reference to Exhibit 3.3 of the Registrant's Registration Statement
on Form S-1, Reg. No. 333-15871).
4.4 Specimen Stock Certificate (incorporated herein by reference to
Exhibit 4.2 of the Registrant's Registration Statement on Form S-1,
Reg. No. 333-15871).
4.5 Form of Warrant Agreement (incorporated herein by reference to
Exhibit 4.3 of the Registrant's Registration Statement on Form S-1,
Reg. No. 333-15871).
4.6 Registration Rights Agreement, Amendment No. 1 thereto and Amendment
No. 2 thereto (incorporated herein by reference to Exhibit 4.4 of
the Registrant's Registration Statement on Form S-1, Reg.
No. 333-15871).
5 Opinion of counsel with respect to the securities being
registered.
23.1 Consent of counsel (included in Exhibit 5).
23.2 Consent of Price Waterhouse LLP, independent accountants.
24 Power of Attorney (see signature pages to this Registration
Statement).
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EXHIBIT 5
Hunton & Williams
NationsBank Plaza
Suite 4100
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
February 25, 1997
EarthLink Network, Inc.
3100 New York Drive
Pasadena, California 91107
Re: Registration Statement on Form S-8
1995 Stock Option Plan
Ladies and Gentlemen:
We have served as counsel for EarthLink Network, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on
Form S-8 (the "Registration Statement"), of an aggregate of 1,500,000 shares
(the "Shares") of common stock, $.01 par value, of the Company, to be issued
and sold by the Company to eligible employees, officers and directors of the
Company pursuant to the EarthLink Network, Inc., Stock Option Plan (the
"Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the authorization of the grants of securities pursuant to the
Plan as we have deemed necessary and advisable. In such examinations, we
have assumed the genuineness of all signatures on all originals and copies of
documents we have examined, the authenticity of all documents submitted to us
as originals and the conformity to original documents of all certified,
conformed or photostatic copies. As to questions of fact material and
relevant to our opinion, we have relied upon certificates or representations
of Company officials and of appropriate governmental officials.
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate law of the State of Delaware.
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares and the receipt of
payment therefor as provided in the Plan and as contemplated by the
Registration Statement, such Shares will be validly issued, fully
paid and non-assessable.
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We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Hunton & Williams
HUNTON & WILLIAMS
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 4, 1996 appearing on page
F-2 of EarthLink Network, Inc.'s Registration Statement on Form S-1 for the
nine months ended September 30, 1996.
PRICE WATERHOUSE LLP
Costa Mesa, California
February 21, 1997
