<PAGE>
As filed with the Securities and Exchange Commission on March 9, 1999
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 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.
Consulting Agreement
(Full title of the plan)
-------------------
Kirsten L. Hansen
Secretary and Director of Legal Affairs
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)
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------- ------------------- --------------------- --------------------- ------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered(1) per share(2) offering price(2) registration fee
- --------------------------------- ------------------- --------------------- --------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 20,000 $61.19 $1,223,800 $361.02
par value.................... shares
- --------------------------------- ------------------- --------------------- --------------------- ------------------
</TABLE>
(1) Represents shares granted pursuant to an employee benefit plan as
defined in Rule 405. Pursuant to Rule 416(a) the number of shares
of Common Stock registered hereunder includes such indeterminate
number of additional shares of Common Stock as may be offered or
issued in the future to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of computing the registration fee.
This amount was calculated pursuant to Rule 457(c) on the basis of
$61.19 per share, which was the average of the high and low prices
of the registrant's Common Stock on the Nasdaq National Market
System on March 3, 1999, as reported in The Wall Street Journal.
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATION STATEMENT
This Registration Statement on Form S-8 is being filed pursuant to
General Instruction E of Form S-8 to register 20,000 additional shares of
EarthLink Network, Inc. (the "Company") common stock, $.01 par value per share
("Common Stock") which have not been registered to date (the "Shares"). The
Shares were issued to Robert L. Zangrillo ("Mr. Zangrillo") as compensation for
consulting services rendered to the Company through New Media Group, Inc. ("New
Media") of which Mr. Zangrillo is the principal owner. Such services were
rendered pursuant to a Consulting Agreement between the Company and New Media
effective as of January 8, 1997 (the "Effective Date") under which the Company
agreed to issue to New Media up to 20,000 shares of Common Stock to be issued in
two equal increments of 10,000 shares on each of the first and second
anniversary of the Effective Date (the "Consulting Agreement"). On July 1, 1998,
a two for one stock split was approved by the board of Directors and
Stockholders of the Company thereby increasing the number of shares to be issued
to Mr. Zangrillo on the second anniversary of the Effective Date from 10,000 to
20,000 shares. Pursuant to the Consulting Agreement the Company agreed to exert
good faith efforts to register the Shares on behalf of Mr. Zangrillo, on Form
S-8 upon request by New Media.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
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 (File No. 000-20799);
(ii) The Company's Current Report on Form 8-K, dated August
13, 1998 (File No. 000-20799);
(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 Form 8-K dated February 17,
1998; and
(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).
II-1
<PAGE>
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 deregisters all
securities then remaining unsold, 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 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. 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 Company
pursuant to the foregoing provisions, the Company 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.
4.2** Bylaws.
4.3*** Specimen Stock Certificate.
4.4**** Consulting Agreement dated January 8, 1997, between
EarthLink Network, Inc. and New Media Group, Inc.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
5 Opinion of Hunton & Williams with respect to the securities
being registered.
23.1 Consent of Hunton & Williams (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24 Power of Attorney (see signature pages to this Registration
Statement).
</TABLE>
- --------------
* Incorporated herein by reference to Exhibit 3.1 in the Company's
Registration Statement on Form S-1 (Registration No. 333-15871).
** Incorporated herein by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1 (Registration No. 333-15871).
*** Incorporated herein by reference to Exhibit 4.2 of the Company's
Registration Statement on Form S-1 (Registration No. 333-15871).
**** Incorporated herein by reference to Exhibit 4.4 of the Company's
Registration Statement on Form S-8 (Registration No. 333-50963).
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; and
(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.
II-3
<PAGE>
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 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>
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 Pasadena, California on this 9th day of March, 1999.
EARTHLINK NETWORK, INC.
By: /s/ CHARLES G. BETTY
----------------------------
Charles G. 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 Charles G. Betty and Grayson
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 Registration
Statement has been signed below on March 9, 1999 by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
<S> <C>
/S/ CHARLES G. BETTY President, Chief Executive Officer and Director
- ------------------------------------- (principal executive officer)
Charles G. Betty
/S/ GRAYSON L. HOBERG Senior Vice President, Finance and Chief Financial
- ------------------------------------- Officer (principal financial and accounting
Grayson L. Hoberg officer)
/S/ SKY D. DAYTON Director
- -------------------------------------
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.
II-5
<PAGE>
/S/ PAUL MCNULTY Director
- -------------------------------------
Paul McNulty
/S/ KEVIN M. O'DONNELL Director
- -------------------------------------
Kevin M. O'Donnell
/S/ REED E. SLATKIN Director
- -------------------------------------
Reed E. Slatkin
/S/ PATTI S. MANUEL Director
- -------------------------------------
Patti S. Manuel
/S/ WILLIAM T. ESREY Director
- -------------------------------------
William T. Esrey
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
4.1* Amended and Restated Certificate of Incorporation.
4.2** Bylaws.
4.3*** Specimen Stock Certificate.
4.4**** Consulting Agreement dated January 8, 1997, between
EarthLink Network, Inc. and New Media Group, Inc.
5 Opinion of Hunton & Williams with respect to the securities
being registered.
23.1 Consent of Hunton & Williams (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24 Power of Attorney(see signature pages to this Registration
Statement).
</TABLE>
* Incorporated herein by reference to Exhibit 3.1 in the Company's
Registration Statement on Form S-1 (Registration No. 333-15871).
** Incorporated herein by reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-1 (Registration No. 333-15871).
*** Incorporated herein by reference to Exhibit 4.2 of the Company's
Registration Statement on Form S-1 (Registration No. 333-15871).
**** Incorporated herein by reference to Exhibit 4.4 of the Company's
Registration Statement on Form S-8 (Registration No. 333-50963).
<PAGE>
EXHIBIT 5
NationsBank Plaza
Suite 4100
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
March 9, 1999
EarthLink Network, Inc.
3100 New York Drive
Suite 210
Pasadena, California 91107
Re: Registration Statement on Form S-8
Consulting Agreement between EarthLink Network, Inc. and New
Media Group, Inc.
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 20,000 shares of common stock, $.01 par
value, of the Company (the "Shares") issued pursuant to a Consulting Agreement
between New Media Group, Inc. ("New Media") and the Company (the "Consulting
Agreement") pursuant to which the Shares were issued to Robert L. Zangrillo
("Mr. Zangrillo"), the principal owner of New Media, for services he rendered to
the Company through New Media.
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
Consulting Agreement 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 the
Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ HUNTON & WILLIAMS
HUNTON & WILLIAMS
<PAGE>
<PAGE>
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 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.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Century City, California
March 4, 1999
