<PAGE>
As filed with the Securities and Exchange Registration No. 333-66435
Commission on November 25, 1998
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
EARTHLINK NETWORK, INC.
(Exact name of issuer as specified in its charter)
Delaware 58-2389244
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3100 New York Drive
Suite 210
Pasadena, California 91107
(Address of principal executive offices)
-------------------
EARTHLINK NETWORK, INC.
Stock Option Agreements and Warrants
(Full Title of the Plans)
-------------------
Kirsten L. Hansen
Secretary and Director of Legal Affairs
Earthlink Network, Inc
3100 New York Drive
Suite 210
Pasadena, California 91107
(626) 296-2400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<PAGE>
Explanation Statement
This Amendment No. 1 to Registration Statement on Form S-8 is being
filed to attach the Reoffer Prospectus attached hereto as Appendix A. The
original Registration Statement on Form S-8 was filed to register shares
("Shares") of EarthLink Network, Inc., a Delaware corporation (the
"Company"), common stock, $.01 par value per share ("Common Stock") granted
under certain stock options and warrants awarded to certain employees,
directors and officers of the Company (collectively, the "Options"). This
Registration Statement on Form S-8 registers 1,000,000 Shares issuable upon
exercise of the Options, which have not been registered to date. The number
of shares and the exercise price for the options and warrants described below
have been modified to reflect the Company's stock splits.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The following sets forth information pertaining to options granted to
four (4) officers and directors of the Company and warrants granted to two
(2) directors of the Company, which grants were made independent of the
Company's Stock Option Plan:
a. Non-Statutory Stock Option granted to Leland C. Thoburn, Vice
President, Business Affairs, for the purchase of 100,000 shares of the
Company's Common Stock. The option is for a ten year term ending on
November 30, 2005 for an exercise price of $2.42 per share. The
option vests quarterly beginning March 1, 1996, and vests on the first
day of each third calendar month through September 1, 2000 as long as
the holder remains an employee of the Company. Upon termination of
employment, the holder has the right to exercise the option, to the
extent the option has vested within 30 days of termination. In the
case of the death or disability of the holder, the holder or his
estate has the right to exercise the option within 180 days subsequent
to the death or disability of the holder. The option is
nontransferable, other than by will or by the laws of descent.
The option is exercisable by execution of a Stock Purchase Agreement
which shall be delivered to the Secretary of the Company, accompanied
by payment of the aggregate Option price by check payable to the
Company. The number of shares covered by the Option and the exercise
price per share are adjusted for any increase or decrease in the
number of shares issued as a result of a stock split, reverse stock
split, combination, reclassification or payment of stock dividend or
any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company, excluding
conversion of convertible securities. Upon a proposed dissolution,
liquidation or sale of all or substantially all of the assets of the
Company, merger or reorganization of the Company with or into another
corporation of which the Company is not the surviving entity the
Company's Board of Directors will make provisions for the assumption
of the option by the successor entity or shall give the holder a
period to exercise the option before it terminates.
b. Non-Statutory Stock Option granted to Robert E. Johnson, Vice
President of OEM Channel Sales, for the purchase of 100,000 shares of
the Company's Common Stock. The option is for a ten year term ending
on November 30, 2005 for an exercise price of $0.91 per share. The
option vests quarterly beginning September 19, 1995, and vests on the
first day of each third calendar month through March 19, 2000 as long
as the holder remains an employee of the Company. Upon termination of
employment, the holder has the right to exercise the option, to the
extent the option has vested within 30 days of termination. In the
case of the death or disability of the holder, the holder or his
estate has the right to exercise the option within 180 days subsequent
to the death or disability of the holder. The option is
nontransferable, other than by will or by the laws of descent.
I-1
<PAGE>
The option is exercisable by execution of a Stock Purchase Agreement
which shall be delivered to the Secretary of the Company, accompanied
by payment of the aggregate Option price by check payable to the
Company. The number of shares covered by the Option and the exercise
price per share are adjusted for any increase or decrease in the
number of shares issued as a result of a stock split, reverse stock
split, combination, reclassification or payment of stock dividend or
any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company, excluding
conversion of convertible securities. Upon a proposed dissolution,
liquidation or sale of all or substantially all of the assets of the
Company, merger or reorganization of the Company with or into another
corporation of which the Company is not the surviving entity the
Company's Board of Directors will make provisions for the assumption
of the option by the successor entity or shall give the holder a
period to exercise the option before it terminates.
c. Warrants to purchase shares of the Company's Common Stock. The
Warrants are for a five year term ending on January 12, 2001 for an
exercise price of $2.42 per share. The Warrants vest in five equal
annual installments of twenty thousand (20,000) shares, with vesting
beginning on January 12, 1997, with an additional installment vesting
each anniversary provided that the holder remains a director of the
Company. The Warrants were granted as follows:
1. To Linwood A. Lacy, Jr. for 100,000 Shares; and
2. to Robert M. Kavner for 100,000 Shares.
The Warrants may be exercised by surrender of the Warrant certificate
at the principal office of the Company by check of the then applicable
Warrant Price. The number of shares subject to the Warrants and the
Warrant Price is subject to adjustment upon conversion, merger or
reclassification, subdivision or combination of shares, certain
dividends and distributions.
d. Non-Statutory Stock Option granted to Sky D. Dayton, Founder and
Chairman of the Board of Directors, for the purchase of 500,000
shares of Common Stock of the Company. The option is for a ten year
term ending on June 18, 2005, for an exercise price of $0.91 per
share. The option vests in twenty quarterly installments commencing
three months after the date of grant, as long as the holder remains
an employee of the Company or the agreement is not otherwise
terminated. Upon termination of employment, the holder has the
right to exercise the option within 30 days of termination, to the
extent the option has vested. In the case of the death or
disability of the holder, the holder or his estate has the right to
exercise the option within 180 days subsequent to the death or
disability of the holder. The option is nontransferable other than
by will or by the laws of descent.
The option is exercisable by execution of a Stock Purchase Agreement
which shall be delivered to the Secretary of the Company, accompanied
by payment of the aggregate Option price by check payable to the
Company. The number of shares covered by the Option and the exercise
price per share are adjusted for any increase or decrease in the
number of shares issued as a result of a stock split, reverse stock
split, combination, reclassification or payment of stock dividend or
any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company, excluding
conversion of convertible securities. Upon a proposed dissolution,
liquidation or sale of all or substantially all of the assets of the
Company, merger or reorganization of the Company with or into another
corporation of which the Company is not the surviving entity the
Company's Board of Directors will make provisions for the assumption
of the option by the successor entity or shall give the holder a
period to exercise the option before it terminates.
e. Non-Statutory Stock Option granted to Grayson L. Hoberg, Vice
President, Finance and Administration, and Chief Financial Officer,
for the purchase of 100,000 shares of Common Stock of the Company. The
option is for a ten year term ending on November 6, 2007, for an
exercise price of $8.00 per share. The option vests in twenty
quarterly installments commencing three months after the date of
grant, as long as the holder remains an employee or the
I-2
<PAGE>
agreement is not otherwise terminated. Upon termination of employment,
the holder has the right to exercise the option within 30 days of
termination, to the extent the option has vested. In the case of the
death or disability of the holder, the holder or his estate has the
right to exercise the option within 180 days subsequent to the death
or disability of the holder. The option is nontransferable other than
by will or by the laws of descent.
The option is exercisable by execution of a Stock Purchase Agreement
which shall be delivered to the Secretary of the Company, accompanied
by payment of the aggregate Option price by check payable to the
Company. The number of shares covered by the Option and the exercise
price per share are adjusted for any increase or decrease in the
number of shares issued as a result of a stock split, reverse stock
split, combination, reclassification or payment of stock dividend or
any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company, excluding
conversion of convertible securities. Upon a proposed dissolution,
liquidation or sale of all or substantially all of the assets of the
Company, merger or reorganization of the Company with or into another
corporation of which the Company is not the surviving entity the
Company's Board of Directors will make provisions for the assumption
of the option by the successor entity or shall give the holder a
period to exercise the option before it terminates.
The Options described above are not subject to the Employee Retirement
Income Security Act of 1974, as amended.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by the Company with the Commission are
incorporated herein by reference and made a part hereof:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(ii) The Company's Current Report on Form 8-K, dated August 13, 1998;
(iii) The Company's Quarterly Report on Form 10-Q dated August 14,
1998
(iv) The Company's Quarterly Report on Form 10-Q dated May 15, 1998;
(v) The Company's Current Report on Form 8-K dated February 17,
1998;
(vi) The description of the Company's Common Stock, $.01 par value
per share, contained in the Company's Registration Statement on
Form 8-A filed on January 9, 1997 (Registration No. 000-20799).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which reregisters all
securities then remaining unsold,
II-1
<PAGE>
shall be deemed to be incorporated by reference in the Registration Statement
and to be part hereof from the date of filing of such documents. Any statement
contained in a document 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
that is incorporated by reference herein modifies or supersedes such earlier
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.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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. In addition, the Company maintains
customary directors' and officers' liability insurance.
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.
Item 7. Exemption from Registration Claimed.
Not applicable.
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:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
*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-4, Reg. No. 333-52507).
*4.2 Bylaws (incorporated herein by reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S-4, Reg. No.
333-52507).
*4.3 Specimen Stock Certificate (incorporated herein by reference to
Exhibit 4.2 of the Registrant's Registration Statement on Form
S-1, Reg. No. 333-15781).
*4.4 Non-Statutory Stock Option Agreement for Leland C. Thoburn.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
*4.5 Non-Statutory Stock Option Agreement for Robert E. Johnson
*4.6 Warrant for Linwood A. Lacy, Jr.
*4.7 Warrant for Robert M. Kavner.
*4.8 Non-Statutory Stock Option Agreement for Sky D. Dayton.
*4.9 Non-Statutory Stock Option Agreement for Grayson L. Hoberg.
*5 Opinion of Hunton & Williams as counsel.
*23.1 Consent of counsel (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers, LLP independent accountants.
*24 Power of Attorney (see signature pages to this Registration
Statement).
</TABLE>
- ----------------------------
* = previously filed.
Item 9. Undertakings.
(a) The Company 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, as amended (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 low or high and 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 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;
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.
II-3
<PAGE>
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 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) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company 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 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 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.
II-4
<PAGE>
Appendix A
Reoffer Prospectus
Introduction
This Reoffer Prospectus is being filed in connection with the resale
by certain officers and directors of the Company of Shares (the "Shares") of
the Company's Common Stock issuable upon exercise of certain options and
warrants (the "Options"). Such Shares were initially registered pursuant to
the Registration Statement on Form S-8 (Registration No. 333-66435), filed
with the Commission on October 30, 1998.
Summary Information, Risk Factors and Ratio of Earnings to Fixed Charges
See Part I of Registration Statement on Form S-8, filed by EarthLink
Network, Inc., a Delaware corporation (the "Company"), with the Securities and
Exchange Commission (the "Commission") on October 30, 1998 (Registration No.
333-66435) for a description of certain Plan Information. See Pre-Effective
Amendment No. 2 to Registration Statement on Form S-1, filed by the Company with
the Commission on June 17, 1998 (Registration No. 333-53063) for a description
of "Risk Factors" and "Ratio of Earnings to Fixed Charges."
Use of proceeds
Not applicable.
Determination of Offering Price
See Part I of Registration Statement on Form S-8, filed by the
Company with the Commission on October 30, 1998 (Registration No. 333-66435) for
a description of the terms of certain stock options and warrants awarded to
certain employees, directors and officers of the Company.
Dilution
Not applicable.
Selling Security Holders
See Registration Statement on Form S-8 filed by the Company with the
Commission on October 30, 1998 (Registration No. 333-66435) for a description
of Options and persons to whom such Options were issued.
Plan of Distribution
This Reoffer Prospectus shall be utilized in connection with the resale
by certain officers and directors of the Company of Shares of the Company's
Common Stock issuable upon the exercise of the Options.
Description of Securities to be Registered
The Shares issuable upon conversion of the Options are Shares of the
Company's common stock, $.01 par value per share ("Common Stock"). See the
description of the Company's Common Stock contained in the Company's
Pre-Effective Amendment No. 2 to Registration Statement on Form S-1, filed by
the Company with the Commission on June 17, 1998 (Registration No.
333-53063).
Interests of Named Experts and Counsel
Not applicable.
<PAGE>
Material Changes
None.
Incorporation of Certain Information by Reference
The following documents, filed by the Company with the Commission
are incorporated herein by reference and made a part hereof:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(ii) The Company's Current Report on Form 8-K, dated August 13,
1998;
(iii) The Company's Quarterly Report on Form 10-Q dated August 14,
1998;
(iv) The Company's Quarterly Report on Form 10-Q dated May 15,
1998;
(v) The Company's Current Report on Form 8-K dated February 17,
1998;
(vi) The Company's Proxy Statement, dated August 3, 1998;
(vii) The description of the Company's Common Stock, $.01 par
value per share, contained in the Company's Registration Statement on Form 8-A
filed on January 9, 1997 (Registration No. 000-20799).
The Company will provide, without charge, to each person to whom a
copy of this Prospectus is delivered, including any beneficial owner, upon
written or oral request of such person, a copy of any or all of the documents
incorporated by reference herein (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into the information
that the Prospectus incorporates. Requests should be directed to Kirsten L.
Hansen, Esq., Secretary and Director of Legal Affairs, EarthLink Network, Inc.,
3100 New York Drive, Suite 210, Pasadena, California 91107, telephone number
(626) 296-2400.
Disclosure of Commission Position on Indemnification for Securities Act
Liabilities
Not applicable.
<PAGE>
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 Amendment No. 1
to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Pasadena, California on this 25th day of
November, 1998.
EARTHLINK NETWORK, INC.
By: /s/ Grayson L. Hoberg
------------------------------
Grayson L. Hoberg
Vice President, Finance and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Charles G. Betty and Grayson L. Hoberg 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 Amendment No. 1
to Registration Statement has been signed below on November 25, 1998 by
Grayson L. Hoberg on behalf of the following persons in the capacities
indicated pursuant to the power of attorney set forth above.
/s/ Grayson L. Hoberg
--------------------------------------
Grayson L. Hoberg, as attorney-in-fact
<TABLE>
<S> <C>
/s/ Charles G. Betty President, Chief Executive Officer and Director
- ------------------------ (principal executive officer)
Charles G. Betty
/s/ Grayson L. Hoberg Vice President, Finance and Chief Financial
- ------------------------ Officer (principal financial and principal
Grayson L. Hoberg accounting officer)
/s/ Sky D. Dayton Chairman of the Board of Directors
- ------------------------
Sky D. Dayton
/s/ Sidney Azeez Director
- ------------------------
Sidney Azeez
/s/ Robert M. Kavner Director
- ------------------------
Robert M. Kavner
/s/ Linwood A. Lacy, Jr. Director
- ------------------------
Linwood A. Lacy, Jr.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
/s/ Paul McNulty Director
- ------------------------
Paul McNulty
/s/ Kevin M. O'Donnell Director
- ------------------------
Kevin M. O'Donnell
/s/ William T. Esrey Director
- ------------------------
William T. Esrey
/s/ Reed E. Slatkin Director
- ------------------------
Reed E. Slatkin
/s/ Patti S. Manuel Director
- ------------------------
Patti S. Manuel
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
*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-4, Reg. No. 333-52507).
*4.2 Bylaws (incorporated herein by reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S-4, Reg. No.
333-52507).
*4.3 Specimen Stock Certificate (incorporated herein by reference to
Exhibit 4.2 of the Registrant's Registration Statement on Form
S-1, Reg. No. 333-15781).
*4.4 Non-Statutory Stock Option Agreement for Leland C. Thoburn.
*4.5 Non-Statutory Stock Option Agreement for Robert E. Johnson
*4.6 Warrant for Linwood A. Lacy, Jr.
*4.7 Warrant for Robert M. Kavner.
*4.8 Non-Statutory Stock Option Agreement for Sky D. Dayton.
*4.9 Non-Statutory Stock Option Agreement for Grayson L. Hoberg.
*5 Opinion of Hunton & Williams as counsel.
*23.1 Consent of counsel (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants.
*24 Power of Attorney (see signature pages to this Registration
Statement).
</TABLE>
- ------------------------
* = previously filed
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Amendment
No. 1 to Registration Statement on Form S-8 of our report dated January 29,
1998 appearing on page F-2 of EarthLink Network, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1997.
PricewaterhouseCoopers LLP
/s/ PricewaterhouseCoopers LLP
----------------------------------
Century City, California
November 25, 1998
