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As filed with the Securities and Exchange Registration No. 333-________
Commission on April 14, 2000
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
EARTHLINK, INC.
(Exact name of issuer as specified in its charter)
Delaware 58-22511877
State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1430 West Peachtree Street, N.W.
Suite 400
Atlanta, Georgia 30309
(Address of principal executive offices)
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EARTHLINK, INC.
STOCK OPTION PLAN
(Full Title of the Plans)
-------------------
Samuel DeSimone, Jr.
Secretary
EarthLink, Inc.
1430 West Peachtree Street, N.W.
Suite 400
Atlanta, Georgia 30309
(404) 815-0770
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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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 3,372,503 $14.88 $50,182,844 $13,247.52
par value.................... shares
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</TABLE>
(1) 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 $14.88 per
share, which was the closing price of the Registrant's Common Stock on April 12,
2000, as reported in The Wall Street Journal.
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EXPLANATION STATEMENT
This Registration Statement on Form S-8 is being filed by EarthLink,
Inc., a Delaware corporation (the "Company"), to register an additional
3,372,503 shares of the Company's common stock, $.01 par value per share
("Common Stock") reserved to be issued under a stock option plan formerly
utilized by EarthLink Network, Inc. prior to the merger of EarthLink Network,
Inc. and MindSpring Enterprises, Inc. on February 4, 2000.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of 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.
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, 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.
Each shares of EarthLink, Inc. common stock entitles its holder to one
vote on all matters required or permitted to be voted on by EarthLink, Inc. The
terms of the Common Stock do not contain any conversion or redemption rights or
rights to subscribe for more securities of EarthLink, Inc. Holders of Common
Stock have no right to cumulate votes in the election of directors. Holders of
Common Stock are entitled to receive dividends if declared by the Company's
board of directors out of funds legally available for distribution. Upon the
liquidation of the Company, the holders of Common Stock will be entitled,
subject to the rights of the holders of any outstanding preferred stock of the
Company, to receive pro rata all assets, if any, of the Company available for
distribution after the payment of expenses and all prior claims.
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 6 of the Registrant's Certificate of Incorporation generally
permits indemnification of directors and Article XII of the Registrant's By-laws
generally permits indemnification of directors, officers and employees 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.
II-1
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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:
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<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit
4.1 of the Registrant's Registration Statement on Form S-8, Reg. No. 333-30024).
4.2 Bylaws (incorporated herein by reference to Exhibit 4.2 of the Registrant's Registration
Statement on Form S-8, Reg. No. 333-30024).
4.3 Specimen Stock Certificate (incorporated herein by reference to Exhibit 4.3 of the
Registrant's Registration Statement on Form S-8, Reg. No. 333-30024).
4.4 Stock Option Plan (EarthLink Network, Inc.) (incorporated herein by reference to Exhibit 4.4
of the Registrant's Registration Statement on Form S-8, Reg. No. 333-30024).
5 Opinion of Hunton & Williams, as counsel with respect to the securities being registered.
23.1 Consent of Hunton & Williams (included in Exhibit 5).
24 Power of Attorney (see signature pages to this Registration Statement).
</TABLE>
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;
(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 end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
II-2
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(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.
(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-3
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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 Atlanta, Georgia on this 14th day of April, 2000.
EARTHLINK, INC.
By: /s/ Charles G. Betty
---------------------------------
Charles G. Betty
Chief Executive 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 Samuel
DeSimone 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 April 14, 2000 by the following persons in
the capacities indicated.
<TABLE>
<S> <C>
/s/ Charles G. Betty
- ------------------------------------- Chief Executive Officer and Director
Charles G. Betty (principal executive officer)
/s/ Lee Adrean
- ------------------------------------- Chief Financial Officer (principal financial and
Lee Adrean principal accounting officer)
/s/ Charles M. Brewer
- ------------------------------------- Chairman of the Board of Directors
Charles M. Brewer
/s/ Michael S. McQuary
- ------------------------------------- President and Director
Michael S. McQuary
/s/ Sky D. Dayton
- ------------------------------------- Director
Sky D. Dayton
/s/ Linwood A. Lacy, Jr.
- ------------------------------------- Director
Linwood A. Lacy, Jr.
/s/ Campbell B. Lanier, III
- ------------------------------------- Director
Campbell B. Lanier, III
</TABLE>
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<TABLE>
<S> <C>
/s/ William H. Scott, III
- ------------------------------------- Director
William H. Scott, III
/s/ William T. Esrey
- ------------------------------------- Director
William T. Esrey
/s/ Reed E. Slatkin
- ------------------------------------- Director
Reed E. Slatkin
/s/ Len J. Lauer
- ------------------------------------- Director
Len J. Lauer
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit
4.1 of the Registrant's Registration Statement on Form S-8, Reg. No. 333-30024).
4.2 Bylaws (incorporated herein by reference to Exhibit 4.2 of the Registrant's Registration
Statement on Form S-8, Reg. No. 333-30024).
4.3 Specimen Stock Certificate (incorporated herein by reference to Exhibit 4.3 of the
Registrant's Registration Statement on Form S-8, Reg. No. 333-30024).
4.4 Stock Option Plan (EarthLink Network, Inc.) (incorporated herein by reference to Exhibit 4.4
of the Registrant's Registration Statement on Form S-8, Reg. No. 333-30024).
5 Opinion of Hunton & Williams, as counsel with respect to the securities being registered.
23.1 Consent of Hunton & Williams (included in Exhibit 5).
24 Power of Attorney (see signature pages to this Registration Statement).
</TABLE>
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EXHIBIT 5
April 14, 2000
EarthLink, Inc.
1430 West Peachtree Street, N.W.
Suite 400
Atlanta, Georgia 30309
Re: EARTHLINK, INC. REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have served as counsel for EarthLink, Inc., a Delaware Corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended, pursuant to the Company's Registration Statement on Form S-8
(the "Registration Statement"), of 3,372,503 shares (the "Shares") of the
Company's authorized common stock, $.01 par value per share, under the Stock
Option Plan (EarthLink Networks, Inc.) (the "Plan").
We have examined and are familiar with originals or copies (certified
or otherwise identified to our satisfaction) of such documents, corporate
records and other instruments relating to the organization of the Company and to
the authorization and issuance of the Shares subject to the Plans, as
appropriate, as we have deemed necessary and advisable.
Based upon the foregoing and having regard for such legal consideration
as we deem relevant, it is our opinion that the Shares will be, when issued in
accordance with the terms of the Plans, legally issued, fully paid and
non-assessable.
We do hereby consent to the filing of this Opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Hunton & Williams
Hunton & Williams
