<PAGE>
As filed with the Securities and Exchange Registration No. 333-________
Commission on February 10, 2000
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
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)
-------------------
EARTHLINK, INC.
STOCK OPTION PLANS
(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>
====================================================================================================================
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 par value..... 12,534,499 shares $27.88 $349,461,832 $92,257.44
====================================================================================================================
</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
$27.88 per share, which was the closing price of the Registrant's Common
Stock on February 9, 2000, as reported in The Wall Street Journal.
================================================================================
<PAGE>
EXPLANATION STATEMENT
This Registration Statement on Form S-8 is being filed by EarthLink,
Inc., a Delaware corporation (the "Company"), to register 12,534,499 shares
of the Company's common stock, $.01 par value per share ("Common Stock")
under three stock option plans (the EarthLink, Inc. Stock Option Plans)
utilized to govern the stock options granted to former stockholders of
EarthLink Network, Inc. and MindSpring Enterprises, Inc. prior to their
merger 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 share 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,
II-2
<PAGE>
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.
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.
4.2 Bylaws.
4.3 Specimen Stock Certificate.
4.4 Stock Option Plan (EarthLink Network, Inc.).
4.5 Amended and Restated Stock Option Plan (MindSpring Enterprises, Inc.)
4.6 Directors Stock Option Plan (MindSpring Enterprises, Inc.).
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>
II-3
<PAGE>
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 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.
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,
II-4
<PAGE>
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-5
<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 Atlanta, Georgia on this 10th day of February, 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 n 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 10, 2000 by the following persons in
the capacities indicated.
/s/ Charles G. Betty
- ------------------------------ Chief Executive Officer and Director
Charles G. Betty (principal executive officer)
/s/ Grayson L. Hoberg
- ------------------------------ Chief Financial Officer
Grayson L. Hoberg (principal financial and 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
<PAGE>
/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
<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 Stock Option Plan (EarthLink Network, Inc.).
4.5 Amended and Restated Stock Option Plan (MindSpring Enterprises, Inc.)
4.6 Directors Stock Option Plan (MindSpring Enterprises, Inc.).
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>
<PAGE>
Exhibit 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
EARTHLINK, INC.
EarthLink, Inc. (the "Corporation"), a corporation duly organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. Its original Certificate of Incorporation was filed with the
Secretary of State of Delaware on September 21, 1999.
2. The Corporation hereby certifies that this Amended and Restated
Certificate of Incorporation was duly adopted by the Board of Directors of the
Corporation in accordance with the provisions of Section 141 of the General
Corporation Law of the State of Delaware (the "DGCL").
3. Holders of at least a majority of the outstanding shares of capital
stock of the Corporation, in accordance with the Bylaws of the Corporation and
Section 228 of the DGCL, duly approved the Amended and Restated Certificate of
Incorporation in the form hereof.
4. Having been duly adopted pursuant to Sections 242 and 245 of the
DGCL, this Amended and Restated Certificate of Incorporation restates and
integrates and further amends the provisions previously filed with the Secretary
of State of the State of Delaware on September 21, 1999.
5. The text of the Certificate of Incorporation of the Corporation
hereby is amended and restated to read in its entirety as follows:
ARTICLE 1. NAME
The name of the Corporation is EARTHLINK, INC. (the "Corporation").
ARTICLE 2. REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Delaware is to be located at Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801. The name of the Corporation's
registered agent at such address is The Corporation Trust Company.
<PAGE>
ARTICLE 3. PURPOSES AND POWERS
The purposes for which the Corporation is formed are to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware ("DGCL") and to possess and exercise
all of the powers and privileges granted by such law.
ARTICLE 4. CAPITAL STOCK
The total number of shares of capital stock that the Corporation is
authorized to issue is four hundred million (400,000,000), divided into two
classes as follows:
(a) three hundred million (300,000,000) shares of common stock, $.01
par value per share ("Common Stock"); and
(b) one hundred million (100,000,000) shares of preferred stock, $.01
par value per share ("Preferred Stock").
COMMON STOCK. The holders of Common Stock shall be entitled to one vote
for each share on all matters required or permitted to be voted on by
stockholders of the Corporation under the DGCL. The Common Stock shall be
subject to all of the rights, privileges, preferences and priorities of the
Preferred Stock as set forth herein.
PREFERRED STOCK. The Board of Directors is authorized, subject to
limitations prescribed by law and the provisions of this Amended and Restated
Certificate of Incorporation, to provide for the issuance, without stockholder
approval, of shares of Preferred Stock in series, and by filing a certificate
pursuant to the DGCL, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualifications, limitations
or restrictions thereof.
The authority of the Board of Directors with respect to each series of
Preferred Stock shall include, but not be limited to, determination of the
following:
(1) The number of shares constituting that series and the distinctive
designation of that series; and
(2) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series;
and
(3) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights; and
<PAGE>
(4) Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provision for adjustment
of the conversion rate in such events as the Board of Directors shall determine;
and
(5) Whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or dates
upon or after which they shall be redeemable, and the amount per share payable
in case of redemption, which amount may vary under different conditions and at
different redemption dates; and
(6) Whether that series shall have a sinking fund for the redemption or
purchase of shares of that series and, if so, the terms and amount of such
sinking fund; and
(7) The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
the relative rights of priority, if any, of payment of shares of that series;
and
(8) Any other relative rights, preferences and limitations of that
series.
ARTICLE 5. BOARD OF DIRECTORS
The following persons, having the following mailing address and class
designations, shall serve as the initial Board of Directors of the Corporation
until the first Annual Meeting of Stockholders or until his successor is elected
and qualified is:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS CLASS
- ---- --------------- -----
<S> <C> <C>
Charles M. Brewer EarthLink, Inc. 3
1430 West Peachtree Street, NW
Suite 400
Atlanta, Georgia 30309
Sky D. Dayton EarthLink, Inc. 3
3100 New York Drive
Pasadena, California 31107
Charles G. Betty EarthLink, Inc. 3
3100 New York Drive, Suite 201
Pasadena, California 91107
Campbell B. Lanier, III EarthLink, Inc. 3
1430 West Peachtree Street, NW
Suite 400
Atlanta, Georgia 30309
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
William T. Esrey Sprint Corporation 3
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
William H. Scott, III EarthLink, Inc. 2
1430 West Peachtree Street, NW
Suite 1430
Atlanta, Georgia 30309
Michael S. McQuary EarthLink, Inc. 2
1430 West Peachtree Street, NW
Suite 1430
Atlanta, Georgia 30309
Linwood A. Lacy, Jr. EarthLink, Inc. 2
3100 New York Drive, Suite 201
Pasadena, California 91107
Reed E. Slatkin EarthLink, Inc. 2
3100 New York Drive, Suite 201
Pasadena, California 91107
Len J. Lauer Sprint Corporation 1
8140 Ward Parkway
Mail Stop MOKCMP0505
Kansas City, Missouri
</TABLE>
The business and affairs of the Corporation shall be managed by, or
under the direction of, a Board of Directors comprised as follows:
(1) The initial number of directors shall be thirteen (13) and thereafter
the number of directors of the Corporation shall be not less than two
(2) and not more than seventeen (17), the exact number within such
minimum and maximum limits to be fixed and determined from time to time
by resolution of a majority of the Board of Directors or by the
affirmative vote of the holders of at least a majority of all
outstanding shares entitled to be voted in the election of directors,
voting together as a single class.
(2) The Board of Directors shall be divided into three classes (designated
as Class I, Class II, and Class III), as nearly equal in number as
possible. The initial term of Class I directors shall expire
<PAGE>
at the annual meeting of stockholders in 2000, that of Class II shall
expire at the annual meeting in 2001, and that of Class III directors
shall expire at the annual meeting in 2002, and in all cases as to each
director until his or her successor shall be elected and shall qualify,
or until his or her earlier resignation, removal from office, death or
incapacity.
(3) Subject to the foregoing, at each annual meeting of stockholders the
successors to the class of directors whose term shall then expire shall
be elected to hold office for a term expiring at the third succeeding
annual meeting and until their successors shall be elected and
qualified. Except as set forth below with respect to vacancies and
newly created directorships, directors shall be elected by a plurality
of the votes of the shares present in person or represented by proxy at
the meeting and entitled to vote on the election of directors. The
directors of the Corporation shall not be required to be elected by
written ballots.
(4) If the number of directors is changed by resolution of the Board of
Directors pursuant to this Article VIII, any increase or decrease shall
be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, but in no case
shall a decrease in the number of directors shorten the term of an
incumbent director.
(5) Nominations for the election of directors may be made by the Board of
Directors or a committee appointed by the Board of Directors, or by any
stockholder of record entitled to vote generally in the election of
directors; provided, however, that any stockholder of record entitled
to vote generally in the election of directors may nominate one or more
persons for election as directors at a meeting only if written notice
of such stockholder's intent to make such nomination or nominations has
been given, either by personal delivery or by the United States mail,
postage prepaid, to the Secretary of the Corporation not later than (i)
with respect to any election to be held at the Annual Meeting of
Stockholders, 90 days in advance of such meeting, and (ii) with respect
to any election for directors to be held at a Special Meeting of
Stockholders, the close of business on the seventh day following the
date on which notice of such meeting is first given to stockholders.
Each such notice shall set forth:
(a) the name and address of the stockholder of record who intends
to make the nomination and of the person or persons to be
nominated;
(b) a representation that the stockholder is a holder of record of
shares of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
(c) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder;
<PAGE>
(d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy
statement filed pursuant to the then-current proxy rules of
the Securities and Exchange Commission if the nominees were to
be nominated by the Board of Directors; and
(e) the consent of each nominee to serve as a director of the
Corporation if so elected.
The Chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedure.
(6) Any vacancy on the Board of Directors that results from an increase in
the number of directors or from the prior death, resignation,
retirement, disqualification or removal from office of a director shall
be filled by a majority of the Board of Directors then in office,
though less than a quorum, or by the sole remaining director, or by the
stockholders of the Corporation if the Board of Directors has not
filled the vacancy. Any director elected to fill a vacancy resulting
from the prior death, resignation, retirement, disqualification or
removal from office of a director shall have the same remaining term as
that of his or her predecessor.
(7) At any meeting of stockholders with respect to which notice of such
purpose has been given, the entire Board of Directors or any individual
director may be removed, with or without cause, by the affirmative vote
of the holders of a majority of all outstanding shares entitled to be
voted at an election of directors, except that if less than the entire
Board of Directors is to be removed, no director may be removed without
cause if the votes cast against his removal would be sufficient to
elect him if then cumulatively voted at an election of the entire Board
of Directors.
(8) Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect
directors at an Annual or Special Meeting of Stockholders, the
election, term of office, filling of vacancies and other features of
such directorships shall be governed by the terms of this Certificate
of Incorporation or the resolutions of the Board of Directors creating
such class or series, as the case may be, applicable thereto.
The invalidity or unenforceability of this Article 5 or any
portion hereof, or of any action taken pursuant to this Article 5,
shall not affect the validity or enforceability of any other provision
of this Certificate of Incorporation, any action taken pursuant to such
other provision, or any action taken pursuant to this Article 5.
ARTICLE 6. LIMITATION OF LIABILITY; INDEMNIFICATION
The directors of the Corporation shall be protected from personal
liability, through indemnification or otherwise, to the fullest extent permitted
under the DGCL as from time to time in effect and any other provisions of
Delaware law.
<PAGE>
A director of the Corporation shall under no circumstances have any
personal liability to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for those specific breaches
and acts or omissions with respect to which the DGCL expressly provides that
this provision shall not eliminate or limit such personal liability of
directors. The modification or repeal of this paragraph of Article 6 shall not
adversely affect the restriction hereunder of a director's personal liability
for any act or omission occurring prior to such modification or repeal.
The Corporation shall indemnify each director and officer of the
Corporation to the fullest extent permitted by applicable law, except as may be
otherwise provided in the Corporation's Bylaws. The modification or repeal of
this paragraph of Article 6 shall not adversely affect the right of
indemnification of any director or officer hereunder with respect to any act or
omission occurring prior to such modification or repeal.
ARTICLE 7. AMENDMENT OF CERTIFICATE OF INCORPORATION AND
BYLAWS
The Corporation reserves the right, at any time and from time to time,
to alter, amend or repeal any provision contained in this Amended and Restated
Certificate of Incorporation, and to add or insert other provisions authorized
by the DGCL, in the manner now or hereafter prescribed by the laws of the State
of Delaware, except that Article 5, Article 6 and this Article 7 may not be
altered, amended or repealed except by the affirmative vote of at least
two-thirds (2/3) of the shares entitled to vote thereon and the affirmative vote
of a majority of the members of the entire Board of Directors. The Board of
Directors of the Corporation is hereby expressly authorized to make, amend,
repeal or otherwise alter the Bylaws of the Corporation. All rights, preferences
and privileges of any nature conferred upon stockholders, directors or any other
persons whomsoever by and pursuant to this Amended and Restated Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the rights reserved in this Article 7.
[SIGNATURES ON FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be executed by Charles G. Betty, its
Chief Executive Officer, and by W. Tinley Anderson, III, its Assistant
Secretary, this the 1st day of February, 2000.
WWW HOLDINGS, INC.
By: CHARLES G. BETTY
----------------------------
Charles G. Betty,
Chief Executive Officer
ATTEST:
/S/ W. TINLEY ANDERSON, III
- -----------------------------
W. Tinley Anderson, III
Assistant Secretary
<PAGE>
EXHIBIT 4.2
BYLAWS
OF
EARTHLINK, INC.
(a Delaware corporation)
<PAGE>
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I OFFICES.................................................................................................1
ARTICLE II STOCKHOLDERS' MEETINGS.................................................................................1
2.1 Places of Meetings...................................................................................1
2.2 Annual Meetings......................................................................................1
2.3 Special Meetings.....................................................................................1
2.4 Voting...............................................................................................1
2.5 Quorum...............................................................................................1
2.6 List of Stockholders.................................................................................2
2.7 Action Without Meeting...............................................................................2
ARTICLE III BOARD OF DIRECTORS....................................................................................2
3.1 Powers...............................................................................................2
3.2 Election of Directors................................................................................2
3.3 Compensation.........................................................................................2
3.4 Meetings and Quorum..................................................................................3
3.5 Committees...........................................................................................3
3.6 Conference Telephone Meetings........................................................................4
3.7 Action Without Meeting...............................................................................4
ARTICLE IV OFFICERS...............................................................................................4
4.1 Titles and Election..................................................................................4
4.2 Duties...............................................................................................5
(a) Chairman of the Board of Directors..........................................................5
(b) Vice-Chairman of the Board of Directors.....................................................5
(c) Chief Executive Officer.....................................................................5
(d) President...................................................................................5
(e) Vice Presidents.............................................................................5
(f) Secretary...................................................................................5
(g) Treasurer...................................................................................6
(g) Assistant Secretaries and Treasurers........................................................6
4.3 Delegation of Authority..............................................................................6
4.4 Compensation.........................................................................................6
ARTICLE V RESIGNATIONS, VACANCIES AND REMOVALS....................................................................6
5.1 Resignations.........................................................................................6
5.2 Vacancies............................................................................................7
(a) Directors...................................................................................7
(b) Officers....................................................................................7
5.3 Removals.............................................................................................7
(a) Directors...................................................................................7
(b) Officers....................................................................................7
ARTICLE VI CAPITAL STOCK..........................................................................................7
6.1 Certificates of Stock................................................................................7
6.2 Transfer of Stock....................................................................................7
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<TABLE>
<S> <C>
6.3 Record Dates.........................................................................................8
6.4 Lost Certificates....................................................................................8
ARTICLE VII FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC...............................................................8
7.1 Fiscal Year..........................................................................................8
7.2 Bank Deposit, Checks, Etc............................................................................8
ARTICLE VIII BOOKS AND RECORDS....................................................................................9
8.1 Place of Keeping Books...............................................................................9
8.2 Examination of Books.................................................................................9
ARTICLE IX NOTICES................................................................................................9
9.1 Requirements of Notice...............................................................................9
9.2 Waivers..............................................................................................9
ARTICLE X SEAL....................................................................................................9
ARTICLE XI POWERS OF ATTORNEY....................................................................................10
ARTICLE XII INDEMNIFICATION; INTERESTED PARTIES..................................................................10
12.1 Indemnification....................................................................................10
12.2 Miscellaneous......................................................................................11
ARTICLE XIII AMENDMENTS..........................................................................................11
13.1 Amendment or Repeal................................................................................11
13.2 Stockholder Proposals..............................................................................11
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<PAGE>
BYLAWS
of
EARTHLINK, INC.
ARTICLE I
OFFICES
EarthLink, Inc. (the "Corporation") shall at all times
maintain a registered office in the State of Delaware and a registered agent at
that address but may have other offices located in or outside of the State of
Delaware as the Board of Directors may from time to time determine.
ARTICLE II
STOCKHOLDERS' MEETINGS
2.1 PLACES OF MEETINGS. All meetings of stockholders shall be held at
such place or places in or outside of the State of Delaware as the Board of
Directors may from time to time determine or as may be designated in the notice
of meeting or waiver of notice thereof, subject to any provisions of the laws of
the State of Delaware.
2.2 ANNUAL MEETINGS. The annual meeting of stockholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held on such date within five (5) months after
the end of each fiscal year of the Corporation and at such time as may be
designated from time to time by the Board of Directors. If the annual meeting is
not held as specified in the preceding sentence, it may be held as soon
thereafter as convenient and shall be called the annual meeting. Written notice
of the time and place of the annual meeting shall be given by mail to each
stockholder entitled to vote thereat at the address of such stockholder as it
appears on the records of the Corporation, not less than ten (10) nor more than
sixty (60) days prior to the scheduled date thereof, unless such notice is
waived as provided in Article IX of these Bylaws.
2.3 SPECIAL MEETINGS. Special meetings of stockholders may be called at
any time by the Chairman of the Board of Directors or a majority of the Board of
Directors. Written notice of the time, place and specific purposes of such
meeting shall be given by mail to each stockholder entitled to vote thereat at
the address of such stockholder as it appears on the records of the Corporation,
not less than ten (10) nor more than sixty (60) days prior to the scheduled date
thereof, unless such notice is waived as provided in Article IX of these Bylaws.
2.4 VOTING. At all meetings of stockholders, each stockholder entitled
to vote on the record date, as determined under Article VI, Section 6.3 of these
Bylaws or, if not so determined, as prescribed under the General Corporation Law
of the State of Delaware (the "DGCL"), shall be entitled to one vote for each
share of stock standing of record in the name of such stockholder, subject to
any restrictions or qualifications set forth in the Certificate of Incorporation
or any amendment thereto.
2.5 QUORUM. At any meeting of stockholders, a majority of the number of
shares of stock outstanding and entitled to vote thereat (or a majority of the
number of shares of stock entitled to vote as a class or series) present in
person or by proxy, shall constitute a quorum, but a smaller interest may
adjourn any meeting from time to time, and the meeting may be held as
<PAGE>
adjourned without further notice, subject to such limitations as may be imposed
under the DGCL, and PROVIDED further that once a quorum is established at a
meeting as set forth hereunder, the quorum may not otherwise be eliminated
during such meeting. When a quorum is present at any meeting, a majority of the
number of shares of stock entitled to vote present thereat shall decide any
question brought before such meeting unless the question is one upon which a
different vote is required by the DGCL, the Certificate of Incorporation or
these Bylaws, in which case such express provision shall govern.
2.6 LIST OF STOCKHOLDERS. At least ten (10) days before every meeting,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary
or the transfer agent in charge of the stock ledger of the Corporation. Such
list shall be open for examination by any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten
(10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall represent conclusive evidence as to who are the
stockholders entitled to examine such list or the books of the Corporation or to
vote in person or by proxy at such meeting.
2.7 ACTION WITHOUT MEETING. Action required to be taken or which may be
taken at any annual meeting or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by all
the holders of outstanding stock entitled to vote on such action, and shall be
delivered in the manner specified by law or by the Corporation's Certificate of
Incorporation.
ARTICLE III
BOARD OF DIRECTORS
3.1 POWERS. The business and affairs of the Corporation shall be
carried on by or under the direction of the Board of Directors, which shall have
all the powers authorized by the DGCL, subject to such limitations as may be
provided by the Certificate of Incorporation or these Bylaws.
3.2 ELECTION OF DIRECTORS. Directors shall be elected at each annual
meeting of stockholders as provided in the Certificate of Incorporation, each
director so elected to serve until the election and qualification of his or her
successor or until his or her earlier death, resignation, retirement,
disqualification or removal from office. Directors need not be stockholders, nor
need they be residents of the State of Delaware.
3.3 COMPENSATION. The Board of Directors, or a committee thereof, may
from time to time by resolution authorize the payment of fees or other
compensation to the directors for services as such to the Corporation,
including, but not limited to, fees for serving as members of the Board of
Directors or any committee thereof and for attendance at meetings of the Board
of Directors or any committee thereof, and may determine the amount of such fees
and compensation. Directors shall in any event be paid their reasonable travel
and other expenses for
<PAGE>
attendance at all meetings of the Board or committees thereof. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor in amounts
authorized or otherwise approved from time to time by the Board of Directors or
any committee thereof.
3.4 MEETINGS AND QUORUM. Meetings of the Board of Directors may be held
either in or outside of the State of Delaware. A quorum shall be a majority of
the then-authorized and sitting number of directors.
Meetings other than regular meetings may be called at any time by the
Chief Executive Officer or the Chairman of the Board of Directors and must be
called by the Chief Executive Officer upon the request of a majority or more of
the members of the Board of Directors.
Special meetings of the Board of Directors may be called by the
Chairman of the Board of Directors or the Chief Executive Officer on five days'
notice to each director, either personally or by telephone, express delivery
service (so that the scheduled delivery date of the notice is at least one day
in advance of the meeting), telegram or facsimile transmission, and on five
days' notice by mail (effective upon deposit of such notice in the mail). The
notice need not describe the purpose of a special meeting.
Notice of each meeting, other than a regular meeting (unless required
by the Board of Directors), shall be given to each director by mailing the same
to each director at his or her residence or business address at least five days
before the meeting or by delivering the same to him personally or by telephone,
telegraph or telecopier at least two days before the meeting unless, in case of
exigency, the Chairman of the Board of Directors or the Chief Executive Officer
shall prescribe a shorter notice to be given personally, or notice may
alternatively be given by telephone, telegraph, telecopier, cable or wireless to
all or any one or more of the directors at their respective residences or places
of business. Notice by mail shall be deemed to be given at the earlier of (a)
receipt thereof, or (b) five days after it is deposited in the United States
mail with first-class postage affixed thereon. Notice to directors may also be
given by telecopier transmission to the director's telecopier transmission
number supplied for the purpose of telecopier transmissions and, upon actual
confirmation of such receipt by the director, such notice shall be deemed to be
given as of the date and time of telephonic confirmation of receipt.
Telephonic notice shall be deemed given at such a time as such notice is
actually provided to the director.
Notice of any meeting shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by the DGCL,
the Certificate of Incorporation, the Bylaws or by the order of the Board of
Directors.
3.5 COMMITTEES. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, provide for committees of two or more
directors and shall elect the members thereof to serve at the pleasure of the
Board of Directors and may designate one of such members to act as chairman
thereof. The Board of Directors may at any time change the membership of any
committee, fill vacancies in it, designate alternate members to replace any
absent or disqualified members at any meeting of such committee or dissolve it.
During the intervals between the meetings of the Board of Directors, the
Executive Committee (if one shall have been constituted) shall possess and may
exercise any or all of the powers of the Board of
<PAGE>
Directors in the management or direction of the business and affairs of the
Corporation and under the Bylaws to the extent authorized by resolution adopted
by a majority of the whole Board of Directors and subject to such limitations as
may be imposed by the DGCL.
Each committee may determine its rules of procedure and the notice to
be given of its meetings (although in the absence of any special notice
procedure, the notice provisions of Section 3.4 hereof shall govern), and it may
appoint such other committees and assistants as it shall from time to time deem
necessary. A majority of the members of the each committee shall constitute a
quorum.
3.6 CONFERENCE TELEPHONE MEETINGS. Any one or more members of the Board
of Directors or any committee thereof may participate in a meeting by means of a
conference telephone call or other similar communication equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
3.7 ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may be
taken without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
ARTICLE IV
OFFICERS
4.1 TITLES AND ELECTION. The officers of the Corporation shall be the
Chief Executive Officer, President and the Secretary, each of whom shall
initially be elected as soon as convenient by the Board of Directors. The
officers of the Corporation shall hold office until their successors are chosen
and qualify or until their earlier resignation or removal. Any officer may
resign at any time upon written notice to the Corporation. Any officer elected
or appointed by the Board of Directors may be removed at any time, with or
without cause, by the affirmative vote of a majority of the Board of Directors.
Any person may hold more than one office if the duties can be adequately
performed by the same person and to the extent permitted by the DGCL.
The Board of Directors, in its discretion, may also at any time elect
or appoint a Chairman of the Board of Directors, one or more Senior or Executive
Vice Presidents, one or more Vice Presidents, a Chief Operating Officer, a Chief
Financial Officer, a Treasurer and one or more Assistant Secretaries and
Assistant Treasurers and such other officers as it may deem advisable, each of
whom shall hold office at the pleasure of the Board of Directors, except as may
otherwise be approved by the Board of Directors, or until his or her earlier
death, resignation, retirement, removal or other termination of employment, and
shall have such authority and shall perform such duties as may be prescribed or
determined from time to time by the Board of Directors or in case of officers
other than the Chairman of the Board, if not prescribed or determined by the
Board of Directors, the Chief Executive Officer or the then senior executive
officer may prescribe or determine. The Board of Directors may require any
officer or other employee or agent to give bond for the faithful performance of
his or her duties in such form and with such sureties as the Board may require.
<PAGE>
4.2 DUTIES. Subject to such limitations and other conditions as the
Board of Directors may from time to time prescribe or determine, the following
officers shall have the following powers and duties:
(a) CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors, if one is elected, shall be a director and, when
present, shall preside at all meetings of the stockholders and of the
Board of Directors.
(b) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be charged with general supervision of the management, business,
affairs and policy of the Corporation, shall be the senior executive of
the Corporation, shall report directly to the Board of Directors and
shall have such other powers and perform such other duties as the Board
of Directors may prescribe from time to time. The Chief Executive
Officer shall (subject to the presence of the Chairman of the Board of
Directors, if one exists) preside at all meetings of the stockholders
and, if he is a director, of the Board of Directors.
(c) PRESIDENT. The President shall exercise the powers and
authority and perform all of the duties commonly incident to his or her
office, shall report to the Chief Executive Officer and shall perform
such other duties as the Board of Directors or Chief Executive Officer
shall specify from time to time.
(d) VICE PRESIDENTS. The Vice President or Vice Presidents
shall perform such duties as may be assigned to them from time to time
by the Board of Directors or by the Chief Executive Officer if the
Board of Directors does not do so. In the absence or disability of the
Chief Executive Officer, President, the Executive Vice Presidents in
order of seniority, or if none, the Senior Vice Presidents in order of
seniority, or if none, the Vice Presidents in order of seniority, may,
unless otherwise determined by the Board of Directors, exercise the
powers and perform the duties pertaining to the office of President,
except that if one or more Vice Presidents has been elected or
appointed, the person holding such office in order of seniority shall
exercise the powers and perform the duties of the office of President.
(e) SECRETARY. The Secretary or in his or her absence an
Assistant Secretary shall keep the minutes of all meetings of
stockholders and of the Board of Directors and any committee thereof,
give and serve all notices, attend to such correspondence as may be
assigned to him or her, keep in safe custody the seal of the
Corporation, and affix such seal to all such instruments properly
executed as may require it, shall perform all of the duties commonly
incident to his or her office and shall have such other duties and
powers as may be prescribed or determined from time to time by the
Board of Directors or by the Chief Executive Officer if the Board of
Directors does not do so.
(f) TREASURER. The Treasurer or in his or her absence an
Assistant Treasurer, subject to the order of the Board of Directors,
shall have the care and custody of the monies, funds, securities,
valuable papers and documents of the Corporation (other than his or her
own bond, if any, which shall be in the custody of the Chief Executive
Officer), and shall have, under the supervision of the Board of
Directors, all the powers and duties commonly incident to his or her
office. He or she shall deposit all funds of the Corporation in such
bank or banks, trust company or trust companies, or with such firm or
firms doing a banking
<PAGE>
business as may be designated by the Board of Directors or by the Chief
Executive Officer if the Board of Directors does not do so. He or she
may endorse for deposit or collection all checks, notes and similar
instruments payable to the Corporation or to its order. He or she shall
keep accurate books of account of the Corporation's transactions, which
shall be the property of the Corporation, and together with all of the
property of the Corporation in his or her possession, shall be subject
at all times to the inspection and control of the Board of Directors.
The Treasurer shall be subject in every way to the order of the Board
of Directors, and shall render to the Board of Directors and/or the
Chief Executive Officer of the Corporation, whenever they may require
it, an account of all his or her transactions and of the financial
condition of the Corporation. In addition to the foregoing, the
Treasurer shall have such duties as may be prescribed or determined
from time to time by the Board of Directors or by the Chief Executive
Officer if the Board of Directors does not do so.
(g) ASSISTANT SECRETARIES AND TREASURERS. Assistants to the
Secretaries and Treasurers may be appointed by the Chief Executive
Officer or elected by the Board of Directors and shall perform such
duties and have such powers as shall be delegated to them by the
President or the Board of Directors.
4.3 DELEGATION OF AUTHORITY. The Board of Directors may at any time
delegate the powers and duties of any officer for the time being to any other
officer, director or employee.
4.4 COMPENSATION. The compensation of the officers of the Corporation
shall be fixed by the Board of Directors or a committee thereof, and the fact
that any officer is a director shall not preclude such officer from receiving
compensation or from voting upon the resolution providing the same.
ARTICLE V
RESIGNATIONS, VACANCIES AND REMOVALS
5.1 RESIGNATIONS. Any director or officer may resign at any time by
giving written notice thereof to the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer or the Secretary. Any such
resignation shall take effect at the time specified therein or, if the time be
not specified, upon receipt thereof; and unless otherwise specified therein or
in these Bylaws, the acceptance of any resignation shall not be necessary to
make it effective.
5.2 VACANCIES.
(a) DIRECTORS. Any vacancy in the Board of Directors caused by
reason of death, disqualification, incapacity, resignation, removal,
increase in the authorized number of directors or otherwise, shall be
filled in the manner provided in the Certificate of Incorporation.
(b) OFFICERS. The Board of Directors may at any time or from
time to time fill any vacancy among the officers of the Corporation.
<PAGE>
5.3 REMOVALS.
(a) DIRECTORS. Except as may otherwise be provided by the DGCL
or the Certificate of Incorporation or any amendment thereto, any
director or the entire Board of Directors may be removed, with or
without cause, by the affirmative vote of the holders of a majority of
all outstanding shares entitled to be voted at an election of
directors.
(b) OFFICERS. Subject to the provisions of any validly
existing agreement, the Board of Directors may at any meeting remove
from office any officer, with or without cause, and may appoint a
successor.
ARTICLE VI
CAPITAL STOCK
6.1 CERTIFICATES OF STOCK. Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the Corporation
in such form as may be prescribed or authorized by the Board of Directors, duly
numbered and setting forth the number and kind of shares represented thereby.
Such certificates shall be signed by the Chief Executive Officer, the President
or a Vice President, unless some other person is thereunto specifically
authorized as provided in Article IV, Section 4.2 of these Bylaws, and by the
Treasurer or an Assistant Treasurer or by the Secretary or an Assistant
Secretary. Any or all of such signatures may be in facsimile.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on a certificate has ceased to be such
officer, transfer agent or registrar before the certificate has been issued,
such certificate may nevertheless be issued and delivered by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
6.2 TRANSFER OF STOCK. Shares of the capital stock of the Corporation
shall be transferable only upon the books of the Corporation upon the surrender
of the certificate or certificates properly assigned and endorsed for transfer.
If the Corporation has a transfer agent or registrar acting on its behalf, the
signature of any officer or representative thereof may be in facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars and may make or
authorize such agents to make all such rules and regulations deemed expedient
concerning the issue, transfer and registration of shares of stock.
6.3 RECORD DATES. For the purpose of determining stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend, or to express consent
to corporate action in writing without a meeting, or in order to make a
determination of stockholders for any other proper purposes, the Corporation's
stock transfer books shall not be closed, but a record date shall be set by the
Board of Directors and, upon that date, the Corporation or its transfer agent
shall take a record of the stockholders without actually closing the stock
transfer books. Such record date shall not be more than sixty
<PAGE>
(60) days, nor less than ten (10) days, prior to the date on which the
particular action requiring such determination of stockholders is to be taken.
If no such record date is fixed by the Board, the record date shall be
that prescribed by the DGCL.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may, in their discretion, fix a
new record date for the adjourned meeting.
6.4 LOST CERTIFICATES. In case of loss or mutilation or destruction of
a stock certificate, a duplicate certificate may be issued upon such terms as
may be determined or authorized by the Board of Directors or the Executive
Committee (if one has been appointed), or by the Chief Executive Officer if the
Board of Directors or the Executive Committee does not do so.
ARTICLE VII
FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC.
7.1 FISCAL YEAR. The fiscal year of the Corporation shall be the
calendar year, unless otherwise fixed by resolution of the Board of Directors.
7.2 BANK DEPOSIT, CHECKS, ETC. The funds of the Corporation shall be
deposited in the name of the Corporation or of any division thereof in such
banks or trust companies in the United States or elsewhere as may be designated
from time to time by the Board of Directors or by such officer or officers as
the Board of Directors may authorize to make such designations.
All checks, drafts or other orders for the withdrawal of funds from any
bank account shall be signed by such person or persons as may be designated from
time to time by the Board of Directors. The signatures on checks, drafts or
other orders for the withdrawal of funds may be in facsimile if authorized in
the designation.
ARTICLE VIII
BOOKS AND RECORDS
8.1 PLACE OF KEEPING BOOKS. The books and records of the Corporation
may be kept within or outside of the State of Delaware.
8.2 EXAMINATION OF BOOKS. Except as may otherwise be provided by the
DGCL, the Certificate of Incorporation or these Bylaws, the Board of Directors
shall have the power to determine from time to time whether and to what extent
and at what times and places and under what conditions any of the accounts,
records and books of the Corporation are to be open to the inspection of any
stockholder. No stockholder shall have any right to inspect any account or book
or document of the Corporation except as prescribed by law or authorized by
express resolution of the stockholders or of the Board of Directors.
<PAGE>
ARTICLE IX
NOTICES
9.1 REQUIREMENTS OF NOTICE. Whenever notice is required to be given by
statute, the Certificate of Incorporation or these Bylaws, except as otherwise
provided in Section 3.4 hereof, it shall not mean personal notice unless so
specified, but such notice may be given in writing by depositing the same in a
post office, letter box or mail chute postage prepaid and addressed to the
person to whom such notice is directed at the address of such person on the
records of the Corporation, and such notice shall be deemed given at the time
when the same shall be thus mailed.
9.2 WAIVERS. Any stockholder, director or officer may, in writing or by
telegram or cable, at any time waive any notice or other formality required by
law, the Certificate of Incorporation or these Bylaws. Such waiver of notice,
whether given before or after any meeting or action, shall be deemed equivalent
to notice. Presence of a stockholder either in person or by proxy at any meeting
of stockholders and presence of any director at any meeting of the Board of
Directors shall constitute a waiver of such notice as may be required by law,
the Certificate of Incorporation or these Bylaws, unless such presence is solely
for the purpose of objecting to the lack of notice and such objection is stated
at the commencement of the meeting.
ARTICLE X
SEAL
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall determine from time to time and may consist of a
facsimile thereof or the word "SEAL" enclosed in parentheses or brackets. The
corporate seal of the Corporation shall not be necessary to validate or
authenticate any instrument duly executed by the Corporation or to render any
such instrument enforceable against the Corporation.
ARTICLE XI
POWERS OF ATTORNEY
The Board of Directors may authorize one or more of the officers of the
Corporation to execute powers of attorney delegating to named representatives or
agents power to represent or act on behalf of the Corporation, with or without
the power of substitution.
In the absence of any action by the Board of Directors, any officer of
the Corporation may execute, for and on behalf of the Corporation, waivers of
notice of meetings of stockholders and proxies, or may vote shares directly, for
such meetings of any company in which the Corporation may hold voting
securities.
ARTICLE XII
INDEMNIFICATION
12.1 INDEMNIFICATION. The Corporation shall have the power to indemnify
a director, officer or employee of the Corporation (including making provision
for advancement of expenses) to the full extent and under the circumstances
permitted by the DGCL in effect from time to time, as set forth in the
Corporation's Certificate of Incorporation (as amended from time
<PAGE>
to time), in accordance with the procedures, conditions and limitations set
forth therein. The indemnification conferred in this Section 12.1 also shall
include the right to be paid by the Corporation (and such successor) the
expenses (including attorneys' fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition;
provided, however, that, if and to the extent the DGCL requires, the payment of
such expenses (including attorneys' fees) incurred by a director or officer in
advance of the final disposition of a proceeding shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such director
or officer to repay all amounts so paid in advance if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section 12.1 or otherwise; and PROVIDED FURTHER, that, such expenses
incurred by other employees and agents may be so paid in advance upon such terms
and conditions, if any, as the Board of Directors deems appropriate.
12.2 Claims; Process. If a claim under Section 12.1 is not paid in full
by the Corporation within sixty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring an action against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such action. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in connection with any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the DGCL for
the Corporation to indemnify the claimant for the amount claimed or is otherwise
not entitled to indemnification under Section 12.1, but the burden of proving
such defense shall be on the Corporation. Unless otherwise specified in an
agreement with the claimant, an actual determination by the Corporation (in the
manner provided under the DGCL) after the commencement of such action that the
claimant has not met such applicable standard of conduct shall not be a defense
to the action, but shall create a presumption that the claimant has not met the
applicable standard of conduct. The rights to indemnification and advance
payment of expenses provided by Section 12.1 hereof shall not be deemed
exclusive of any other rights to which those seeking indemnification and advance
payment of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
12.3 SURVIVAL OF INDEMNIFICATION RIGHTS; INSURANCE. The indemnification
and advance payment of expenses and rights thereto provided by, or granted
pursuant to, Section 12.1 hereof shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee, partner or agent and shall inure to the benefit of the
personal representatives, heirs, executors and administrators of such person.
The Corporation shall have power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, against any liability asserted against such person or
incurred by such person in any such capacity, or arising out of such person's
status as such, and related expenses, whether or not the Corporation would have
the power to indemnify such person against such liability under the provisions
of the DGCL.
<PAGE>
12.4 MISCELLANEOUS. Subject to the limitations set forth in the DGCL,
the Board of Directors may also on behalf of the Corporation grant
indemnification to any individual other than a Person to such extent and in such
matter as the Board of Directors in its sole discretion may from time to time
and at any time determine.
ARTICLE XIII
AMENDMENTS
13.1 AMENDMENT OR REPEAL. Except as provided otherwise by the laws of
the State of Delaware or the Certificate of Incorporation, these Bylaws may be
amended or repealed either:
(a) At any meeting of stockholders at which a quorum is
present by vote of a majority of the number of shares of stock entitled
to vote present in person or by proxy at such meeting as provided in
Article II of these Bylaws; provided that the notice of such meeting of
stockholders or waiver of notice thereof contains a statement of the
substance of the proposed amendment or repeal; or
(b) At any meeting of the Board of Directors by a majority
vote of the directors then in office, except for the provisions
authorizing actions by more than a majority of the directors in which
case such provision may be amended or repealed by such number of
directors as are required at act pursuant to such provision.
13.2 STOCKHOLDER PROPOSALS. Any stockholder who intends to
propose that any provision of these Bylaws be amended by action of the
stockholders shall notify the Secretary of the Corporation in writing
of the amendment or amendments which such stockholder intends to
propose not later than one hundred eighty (180) days prior to a request
by such stockholder to call a special meeting for such purpose or, if
such proposal is intended to be made at an annual meeting of
stockholders, not later than the latest date permitted for submission
of stockholder proposals by Rule 14a-8 under the Securities Exchange
Act of 1934. Such notice to the Secretary shall include the text of the
proposed amendment or amendments and a brief statement of the reason or
reasons why such stockholder intends to make such proposal.
EARTHLINK, INC.
By: /S/ CHARLES G. BETTY
--------------------------------------
Name: CHARLES G. BETTY
------------------------------------
Title: CHIEF EXECUTIVE OFFICER
-----------------------------------
Date: SEPTEMBER 23, 1999
----------------------
<PAGE>
Exhibit 4.3
[LOGO] [LOGO] [LOGO]
COMMON STOCK SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 270921 10 2
Earthlink, Inc.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
- -------------------------------------------------------------------------------
THIS CERTIFIES THAT
IS THE OWNER OF
- -------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, $.01 PAR VALUE, OF
- --------------------------------Earthlink, Inc.--------------------------------
transferable on the books of the Corporation by the holder hereof in person
or by duly authorized Attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned and registered by
the Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of the duly authorized officers.
COUNTERSIGNED AND REGISTERED
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
By
AUTHORIZED SIGNATURE
Dated:
[SEAL]
/s/ Samuel R. DeSimone, Jr. /s/ Charles G. Betty
SECRETARY CHIEF EXECUTIVE OFFICER
<PAGE>
EarthLink, Inc.
The Corporation will furnish without charge to each stockholder who so
requests, a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties -------- ----------
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to Minors
in common Act
--------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, HEREBY SELL, ASSIGN AND TRANSFER
------------------------
UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- ---------------------------------------
- -------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OR ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------SHARES
OF THE CAPITAL STOCK REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT
ATTORNEY
- ----------------------------------------------------------------------
TO TRANSFER THE SAID STOCK ON THE BOOKS OF THE WITHIN NAMED CORPORATION WITH
FULL POWER OF SUBSTITUTION IN THE PREMISES
DATED
-----------------------------------
--------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
-------------------------------------
SIGNATURE(S) GUARANTEED: THE SIGNATURE(S) SHOULD BE
GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS,
SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
<PAGE>
Exhibit 4.4
1995 STOCK OPTION PLAN
(EARTHLINK NETWORK, INC.)
1. PURPOSES OF THE PLAN. The purposes of this 1995 Stock Option Plan are
to attract and retain the best available personnel, to provide additional
incentive to the Employees of the Company and its Subsidiaries, to promote the
success of the Company's business and to enable the Employees to share in the
growth and prosperity of the Company by providing them with an opportunity to
purchase stock in the Company.
Options granted hereunder may be either Incentive Stock Options or
Nonstatutory Stock Options, at the discretion of the Board and as reflected in
the terms of the written stock option agreement.
2. DEFINITIONS. As used herein, the following definitions shall apply:
a. "AFFILIATE" shall mean any entity that directly, or indirectly through
one or more intermediaries, controls or is controlled by, or is under common
control with, the Company.
b. "BOARD" shall mean the Board of Directors of the Company.
c. "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time. References in the Plan to any section of the Code shall be deemed
to include any amendment or successor provisions to such section and any
regulations issued under such section.
d. "COMMON STOCK" shall mean the Common Stock of the Company.
e. "COMPANY" shall mean EarthLink Network, Inc., a California corporation.
f. "COMMITTEE" shall mean the Committee the Board appoints in accordance
with Section 4(a) of the Plan.
g. "CONTINUOUS EMPLOYMENT" or "CONTINUOUS STATUS AS AN EMPLOYEE" shall
mean the absence of any interruption or termination of employment or service as
an Employee by or to the Company or any Parent or Subsidiary of the Company.
Continuous Employment shall not be considered interrupted in the case of
authorized sick leave, authorized military leave or any other authorized leave
of absence the Board approves or in the case of transfers between locations of
the Company or between the Company, its Parent, or any of its Subsidiaries or
their successors.
<PAGE>
h. "DISABILITY" shall mean the inability of the Optionee to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or has lasted or can
be expected to last for a continuous period of not less than 12 months. In
determining the Disability of an Optionee, the Board may require the Optionee to
furnish proof of the existence of Disability and may select a physician to
examine the Optionee. The final determination as to the Disability of the
Optionee shall be made by the Board.
i. "EMPLOYEE" shall mean any person, including officers and directors,
employed by the Company, its Parent, any of its Subsidiaries or its successors.
A person shall not be deemed to be employed by the Company merely because such
person is a member of the Board of Directors of the Company or a consultant to
the Company.
j. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
k. "INCENTIVE STOCK OPTION" shall mean an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code.
l. "NON-EMPLOYEE DIRECTORS" shall mean directors who (i) are not current
officers or employees of the Company or its Parent or any Subsidiary, (ii) do
not, either directly or indirectly, receive compensation from the Company or its
Parent or any Subsidiary for services rendered in any capacity other than a
director, except for any amount not in excess of the amount for which disclosure
would be required pursuant to Regulation S-K 404(a) promulgated under the
Securities Exchange Act of 1934, (iii) do not possess an interest in any
transaction for which disclosure would be required pursuant to Regulation S-K
404(a) promulgated under the Securities Exchange Act of 1934, and (iv) are not
engaged in any business relationship for which disclosure would be required
pursuant to Regulation S-K 404(b) promulgated under the Securities and Exchange
Act of 1934.
m. "NONSTATUTORY STOCK OPTION" shall mean an Option which is not an
Incentive Stock Option.
n. "OPTION" shall mean a stock option granted pursuant to the Plan
evidencing the grant of a right to an Employee pursuant to the Plan to purchase
a specified number of Shares at a specified exercise price.
o. "OPTION AGREEMENT" shall mean a written agreement substantially in one
of the forms attached hereto as Exhibit A, or such other form or forms as the
Board (subject to the terms and conditions of this Plan) may from time to time
approve, evidencing and reflecting the terms of an Option.
<PAGE>
p. "OPTIONED STOCK" shall mean the Common Stock subject to an Option.
q. "OPTIONEE" shall mean an Employee who is granted an Option.
r. "PARENT" shall mean a "parent corporation," whether now or hereafter
existing, as described in Sections 424(e) and (g) of the Code.
s. "PLAN" shall mean this 1995 Stock Option Plan.
t. "SHARE" or "SHARES" shall mean shares of the Common Stock, as adjusted
in accordance with Section 10 of the Plan.
u. "STOCK PURCHASE AGREEMENT" shall mean an agreement substantially in the
form attached hereto as Exhibit B, or such other form as the Board may from time
to time approve, which is to be executed as a condition of purchasing Optioned
Stock upon exercise of an Option.
v. "SUBSIDIARY" OR "SUBSIDIARIES" shall mean a subsidiary corporation or
corporations, whether now or hereafter existing, as defined in Sections 424(f)
and (g) of the Code.
w. "TERMINATION FOR CAUSE" shall mean termination of employment as a
result of (i) (A) any act by the Optionee constituting a felony under any
federal, state or local law; (B) the Optionee's willful and continued failure to
perform the duties assigned to him or her as an Employee; (C) any material
breach by the Optionee of any agreement with the Company concerning his or her
employment or other understanding concerning the terms and conditions of
employment by the Company; (D) dishonesty, gross negligence or malfeasance by
the Optionee in the performance of his or her duties as an Employee or any
conduct by the Optionee which involves a material conflict of interest with any
business of the Company or Affiliate; or (E) the Optionee's taking or knowingly
omitting to take any other action in the performance of Optionee's duties as an
Employee without informing appropriate members of management to whom such
Optionee reports, which action, in the determination of the Board, has caused or
substantially contributed to the material deterioration in the business or
financial condition of the Company or any Affiliate, taken as a whole or (ii)
any other reason as defined in a written employment agreement between the
Company and the Optionee which the Board approves.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 10 of the
Plan, the maximum aggregate number of Shares which may be optioned and sold
pursuant to the exercise of Options under the Plan is 7,700,000. The Shares may
be authorized but unissued or reacquired Shares.
<PAGE>
If an Option should expire or become unexercisable for any reason
without having been exercised in full or if the Company repurchases Shares from
the Optionee pursuant to the terms of a Stock Purchase Agreement, the
unpurchased or repurchased Shares, respectively, which were subject thereto
shall, unless the Plan shall have been terminated, return to the Plan and become
available for other Options under the Plan.
4. Administration of the Plan.
a. PROCEDURE. The Board shall administer the Plan. Members of the Board
who are eligible for Options or have been granted Options may vote on any
matters affecting the administration of the Plan or the grant of any Options
pursuant to the Plan, except that no such member shall act upon the granting of
an Option to himself or herself, but any such member may be counted in
determining the existence of a quorum at any meeting of the Board during which
action is taken with respect to the granting of Options to him or her.
The Board may at any time appoint a Committee consisting of not less
than two Non-Employee Directors to administer the Plan on behalf of the Board,
subject to such terms and conditions as the Board may prescribe. Members of the
Committee shall serve for such period of time as the Board may determine. From
time to time the Board may increase the size of the Committee and appoint
additional members thereto, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies however caused or remove
all members of the Committee and thereafter directly administer the Plan.
b. POWERS OF THE BOARD. Subject to the provisions of the Plan, the
Board shall have the authority, in its discretion: (i) to grant Incentive Stock
Options and Nonstatutory Stock Options; (ii) to determine, upon review of
relevant information and in accordance with Section 7 of the Plan, the fair
market value per Share; (iii) to determine the terms and conditions of vesting
of Options, the exercise price of the Options and the consideration to be paid
for shares upon the exercise of Options (which exercise price and consideration
shall be determined in accordance with Section 7 of the Plan); (iv) to determine
the Employees to whom, and the times at which, Options shall be granted, and the
number of Shares to be subject to each Option; (v) to prescribe, amend and
rescind rules and regulations relating to the Plan; (vi) to determine the terms
and provisions of each Option Agreement and each Stock Purchase Agreement (each
of which need not be identical with the terms of other Option Agreements and
Stock Purchase Agreements) and, with the consent of the holder thereof, to
modify or amend each Option and Stock Purchase Agreement; (vii) to determine
whether any Employee, as a condition to the exercise of an Option, will have to
execute a stock repurchase agreement or other agreement and to determine the
terms and provisions of any such agreement (which need not be identical with the
terms of any other such agreement) and, with the consent of the Optionee, to
amend any such agreement; (viii) to interpret the Plan, the Option Agreements,
the Stock Purchase Agreements or any agreement entered into with respect to the
grant or exercise of Options; (ix) to authorize any person to execute on behalf
of the Company any instrument required to effectuate the grant of an Option the
Board previously granted or to take such other actions as may be necessary or
appropriate
<PAGE>
with respect to the Company's rights pursuant to Options or agreements relating
to the grant or exercise thereof; and (x) to make such other determinations and
establish such other procedures as it deems necessary or advisable for the
administration of the Plan.
c. EFFECT OF THE BOARD'S DECISION. All decisions, determinations and
interpretations of the Board shall be final and binding on all Optionees and any
other holders of Options.
5. ELIGIBILITY. Options may be granted only to Employees (including
employees of the Company who are also directors of the Company).
6. TERM OF PLAN. Effectiveness of the Plan shall be subject to approval by
the shareholders of the Company within 12 months before or after the date the
Plan is adopted; provided, however, that Options may be granted pursuant to the
Plan prior to such shareholder approval subject to and conditioned upon
subsequent approval of the Plan by such shareholders. Shareholder approval shall
be obtained by the affirmative votes of the holders of a majority of voting
shares of the Company's capital stock present or represented and entitled to
vote at a meeting of shareholders duly held in accordance with the laws of the
State of Delaware or by such other means authorized under law. The Plan shall
continue in effect for a term of ten years unless sooner terminated in
accordance with the terms and provisions of the Plan.
7. OPTION PRICE AND CONSIDERATION.
a. EXERCISE PRICE. The exercise price per Share for the Shares to be
issued pursuant to the exercise of a Nonstatutory Stock Option shall be not less
than 85% of the fair market value per Share, as described below. The exercise
price per Share for the Shares to be issued pursuant to the exercise of an
Incentive Option shall be the fair market value per Share. However, with respect
to both Incentive Stock Options and Nonstatutory Stock Options, the exercise
price shall be 110% of the fair market value per Share on the date of grant in
the case of any Optionee who, at the time the Option is granted, owns stock (as
determined under Section 424(d) of the Code) possessing more than 10% of the
total combined voting power of all classes of stock of the Company or its Parent
or Subsidiaries.
b. FAIR MARKET VALUE. The Board in its sole discretion, exercised in
good faith, shall determine the fair market value per Share on the date of
grant.
c. PAYMENT OF CONSIDERATION. The Board in its discretion on the date of
grant shall determine the consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, and the
consideration may consist of cash, check, promissory notes or other forms of
legally permitted consideration.
<PAGE>
8. Options.
a. TERMS AND PROVISIONS OF OPTIONS. As provided in Section 4 of this
Plan and subject to any limitations specified herein, the Board shall have the
authority to determine the terms and provisions of any Option granted under the
Plan or any agreement required to be executed in connection with the grant or
exercise of an Option. Each Option granted pursuant to this Plan shall be
evidenced by an Option Agreement. Options granted under the Plan are conditioned
upon the Company obtaining any required permit or order from appropriate
governmental agencies, authorizing the Company to issue such Options and Shares
issuable upon exercise thereof.
b. NUMBER OF SHARES. Each Option Agreement shall state the number of
Shares to which it pertains and whether such Option is intended to constitute an
Incentive Stock Option or a Nonstatutory Stock Option. The maximum number of
Shares which may be awarded as Options under the Plan during any calendar year
to any Optionee is 250,000 Shares. If an Option that an Employee holds is
canceled, the canceled Option shall continue to be counted against the maximum
number of Shares for which Options may be granted to such Employee and any
replacement Option granted to such Employee shall also count against such limit.
c. TERM OF OPTION. The term of each Option shall be specified in the O
ption Agreement and may be up to ten years from the date of grant thereof,
except that the term of an Incentive Stock Option granted to an Employee who, at
the time the Incentive Stock Option is granted, owns stock representing more
than ten percent of the total combined voting power of all classes of stock of
the Company or its Parent or Subsidiaries, shall not exceed five years from the
date of grant thereof.
d. EXERCISE OF OPTION.
(1) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option shall
vest and become exercisable at such times, in such installments and under such
conditions as the Board may determine, specified in the Option Agreement and as
shall be permissible under the terms of the Plan, including performance criteria
with respect to the Company and/or the Optionee.
An Option may be exercised from time to time during the term of the
Option in accordance with the provisions of this Plan as to all or any portion
of the Shares then exercisable under an Option. An Option may not be exercised
for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company at its principal business office in
accordance with the terms of the Option Agreement by the person entitled to
exercise the Option and the Company has received full payment for the Shares
with respect to which the Option is exercised, accompanied by an executed Stock
Purchase Agreement (including the attachments thereto) substantially in the form
<PAGE>
of Exhibit B hereto and as may be modified by the Board from time to time, and
any other agreements required by the terms of the Plan and/or the Option
Agreement. Full payment may consist of such consideration and method of payment
allowable under Section 7 of the Plan. Until the Option is properly exercised in
accordance with the terms of this Section 8(d), no right to vote or to receive
dividends or any other rights as a shareholder shall exist with respect to the
Optioned Stock. No adjustment shall be made for a dividend or other right for
which the record date is prior to the date the Option is exercised, except as
provided in Section 10 of the Plan.
As soon as practicable after any proper exercise of an Option in
accordance with the provisions of the Plan, the Company shall, without transfer
or issue tax to the Optionee, deliver to the Optionee at the principal executive
office of the Company or such other place as shall be mutually agreed upon
between the Company and the Optionee, a certificate or certificates representing
the Shares for which the Option shall have been exercised. The Company may
postpone the time of issuance and delivery of the certificate(s) representing
the Shares for which the Option shall have been exercised for such period as the
Company may require, to comply with any applicable listing requirements of any
national or regional securities exchange or any law or regulation applicable to
the issuance or delivery of such Shares. No Option may be exercised unless the
shareholders of the Company have duly approved the Plan in accordance with
applicable law. Notwithstanding anything to the contrary herein, the terms of a
Stock Purchase Agreement required to be executed and delivered in connection
with the exercise of an Option may require the certificate or certificates
representing the Shares purchased upon the exercise of an Option to be delivered
and deposited with the Company as security for the Optionee's faithful
performance of the terms and conditions of his or her Stock Purchase Agreement.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(2) TERMINATION OF STATUS AS AN EMPLOYEE. If an Optionee ceases to
serve as an Employee for any reason other than death or Disability, and thereby
terminates his or her Continuous Status As An Employee, to the extent that such
Optionee was entitled to exercise the Option at the date of such termination,
such Optionee shall have the right to exercise the Option at any time within 30
days subsequent to the last day of such Optionee's Continuous Status As An
Employee (unless at the time of grant of such Option the Board specified a
longer period, not to exceed 90 days), PROVIDED, however, that no Option shall
be exercisable after the expiration of the term set forth in the Option
Agreement. To the extent that such Optionee was not entitled to exercise the
Option at the date of the terminating event, or if such Optionee does not
exercise such Option (which such Optionee was entitled to exercise) within the
time specified herein, the Option shall terminate. In the event that an
Optionee's Continuous Status As An Employee terminates due to death or
Disability, to the extent that such Optionee was entitled to exercise the Option
at the date of such termination, the Option may be exercised any time within 180
days subsequent to the death or Disability of the Optionee (unless at the time
of grant of such Option the Board specified a longer period, not to exceed one
year), PROVIDED, however, that no Option shall be exercisable after the
expiration of the Option term set forth in the Option Agreement. To
<PAGE>
the extent that such Optionee was not entitled to exercise such Option at the
date of his or her termination due to death or Disability or if such Option is
not exercised (to the extent it could be exercised) within the time specified
herein, the Option shall terminate.
e. LIMIT ON VALUE OF OPTIONED STOCK. To the extent that the aggregate
fair market value (determined at the time an Incentive Stock Option is granted)
of the Shares with respect to which Incentive Stock Options are exercisable for
the first time by an Optionee during any calendar year under all incentive stock
option plans of the Company, its Parent or its Subsidiaries, if any, exceeds
$100,000, the Options in excess of such limit shall be treated as Nonstatutory
Stock Options.
f. EXPIRATION OF OPTION. Notwithstanding any provision in the Plan,
including but not limited to the provisions set forth in this Section 8, an
Option may not be exercised, under any circumstances, after the expiration of
its term.
9. NONTRANSFERABILITY OF OPTIONS. Incentive Stock Options granted under
this Plan may not be sold, pledged, assigned, hypothecated, given, transferred
or disposed of in any manner, either voluntarily or involuntarily by operation
of law, other than by will or by the laws of descent or distribution , and any
such attempt may result, at the discretion of the Board, in the termination of
such Incentive Stock Options. During the lifetime of the Optionee, only he or
she or his or her legal guardian may exercise an Incentive Stock Option.
Nonstatutory Stock Options granted under this Plan may not be sold, pledged,
assigned, hypothecated, given, transferred or disposed of in any manner, either
voluntarily or involuntarily by operation of law, other than by will or by the
laws of descent or distribution and any such attempt may result, at the
discretion of the Board, in the termination of such Nonstatutory Stock Options.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
a. Subject to any required action by the shareholders of the Company,
the number of Shares covered by each outstanding Option, and the number of
Shares which have been authorized for issuance under the Plan but as to which no
Options have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option or repurchase of Shares from an Optionee
upon termination of employment or service, as well as the exercise price per
Share covered by each such outstanding Option, shall be proportionately adjusted
for any increase or decrease in the number of issued Shares resulting from a
stock split, reverse stock split, combination, recapitalization or
reclassification of the Common Stock, or the payment of a stock dividend (but
only on the Common Stock) or any other increase or decrease in the number of
issued shares of Common Stock effected without receipt of full and adequate
consideration by the Company (other than stock bonuses to Employees or
directors); provided, however, that the conversion of any convertible securities
of the Company shall not be deemed to have been effected without the receipt of
consideration. The Board shall make such adjustment and its determination in
that respect shall be final, binding and conclusive. Except as expressly
provided
<PAGE>
herein, no issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of Shares
subject to the Plan or an Option.
b. In the event of a proposed dissolution or liquidation of the Company
or the sale of all or substantially all of the assets of the Company (other than
in the ordinary course of business), or the merger, consolidation or
reorganization of the Company with or into another corporation as a result of
which the Company is not the surviving corporation or as a result of which the
outstanding Shares are exchanged for or converted into cash or property or
securities not of the Company, the Board shall (i) make provision for the
assumption of all outstanding Options by the successor corporation or a Parent
or a Subsidiary thereof, or (ii) declare that outstanding Options shall
terminate as of a date fixed by the Board which is at least thirty (30) days
after the notice thereof to the Optionee (unless such thirty (30) day period is
waived by the Optionee) and shall give each Optionee the right to exercise his
or her Option as to all or any part of the shares underlying such Option to the
extent then exercisable, provided such exercise does not violate Section 8(d)
(ii) of the Plan.
c. No fractional shares of Common Stock shall be issuable on account of
any action described in this Section, and the aggregate number of shares into
which Shares then covered by the Option, when changed as the result of such
action, shall be reduced to the largest number of whole shares resulting from
such action, unless the Board, in its sole discretion, shall determine to issue
scrip certificates in respect to any fractional shares, which scrip
certificates, in such event, shall be in a form and have such terms and
conditions as the Board in its discretion shall prescribe.
11. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for all
purposes, be the date on which the Board makes the determination granting such
Option, PROVIDED, however, that if the Board determines that such grant shall be
as of some future date, the date of grant shall be such future date. Notice of
the determination shall be given to each Employee to whom an Option is so
granted within a reasonable time after the date of such grant.
12. AMENDMENT AND TERMINATION OF THE PLAN.
a. AMENDMENT AND TERMINATION. The Board may from time to time amend or
terminate the Plan in such respects as the Board may deem advisable and shall
make any amendments which may be required so that Options intended to be
Incentive Stock Options shall at all times continue to be Incentive Stock
Options for the purpose of the Code, except that, without approval of the
holders of a majority of the shares of the Company's capital stock represented
or present and entitled to vote at a valid meeting of the Company's shareholders
at which action is taken on an amendment or revision, no such amendment shall:
<PAGE>
b. Increase the number of Shares subject to the Plan, other than in
connection with an adjustment under Section 10 of the Plan;
c. Materially change the designation of the class of Employees eligible
to be granted Options;
d. Extend the term of the Plan; or
e. Remove the administration of the Plan from the Board or the
Committee.
f. EFFECT OF AMENDMENT OR TERMINATION. Except as Section 10 otherwise
provides, any amendment or termination of the Plan shall not affect Options
already granted and such Options shall remain in full force and effect as if
this Plan had not been amended or terminated, unless the Optionee and the
Company mutually agree otherwise in writing.
13. Conditions Upon Issuance of Shares.
a. Shares shall not be issued pursuant to the exercise of an Option
unless the exercise of such Option and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, applicable state securities laws, the rules
and regulations promulgated under such laws, and the requirements of any stock
exchange upon which the Shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance.
b. As a condition to the exercise of an Option, the Board may require
the person exercising such Option to execute an agreement with, and/or may
require the person exercising such Option to make any representation and
warranty to, the Company as may in the judgment of counsel to the Company be
required under applicable law or regulation, including but not limited to a
representation and warranty that the Shares are being purchased only for
investment and without any present intention to sell or to distribute such
Shares if, in the opinion of counsel for the Company, such a representation and
warranty is appropriate under any of the aforementioned relevant provisions of
law.
14. RESERVATION OF SHARES. The Company, during the term of this Plan, shall
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The Company, during the term of this Plan, shall use its best efforts
to seek to obtain from appropriate regulatory agencies any requisite
authorization in order to issue and to sell such
<PAGE>
number of Shares as shall be sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain from any such regulatory agency having
jurisdiction the requisite authorizations that the Company's counsel deemed to
be necessary for the lawful issuance and sale of any Shares hereunder, or the
inability of the Company to confirm to its satisfaction that any issuance and
sale of any Shares hereunder will meet applicable legal requirements, shall
relieve the Company of any liability in respect to the failure to issue or to
sell such Shares as to which such requisite authority shall not have been
obtained.
15. STOCK OPTION AND STOCK PURCHASE AGREEMENTS. Options shall be evidenced
by written Option Agreements in such form or forms as the Board shall approve
from time to time. Upon the exercise of an Option, the Optionee shall sign and
deliver to the Company a Stock Purchase Agreement in such form or forms as the
Board shall approve from time to time.
16. EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective upon
shareholder approval as provided in Section 17 of the Plan. The Plan shall
continue in effect for a term of ten years unless sooner terminated under
Section 12 of the Plan.
17. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to
approval by the shareholders of the Company within 12 months before or after the
date the Board adopts the Plan. Shareholder approval at a duly held
shareholders' meeting may be obtained by the affirmative of the holders of a
majority of the shares of the Company represented or present and entitled to
vote thereon. All Options granted prior to shareholder approval of the Plan are
subject to such approval, and if such approval is not obtained within 12 months
before or after the date the Board adopts the Plan, all such Options shall
expire and shall be of no further force or effect.
18. TAXES, FEES, EXPENSES AND WITHHOLDING OF TAXES.
a. The Company shall pay all original issue and transfer taxes (but not
income taxes, if any) with respect to the grant of Options and/or the issue and
transfer of Shares pursuant to the exercise thereof, and all other fees and
expenses the Company necessarily incurs in connection therewith, and will from
time to time use its best efforts to comply with all laws and regulations which,
in the opinion of counsel for the Company, shall be applicable thereto.
b. The grant of Options hereunder and the issuance of Shares pursuant
to the exercise thereof is conditioned upon the Company's reservation of the
right to withhold, in accordance with any applicable law, from any compensation
or other amounts payable to the Optionee, any taxes that federal, state or local
law requires to be withheld as a result of the grant or exercise of such Option
or the sale of the Shares issued upon exercise thereof. To the extent that
compensation or other amounts, if any, payable to the Optionee are insufficient
to pay any taxes required to be so withheld, the Company may, in its sole
discretion, require the Optionee, as a condition of the exercise of an Option,
to pay in cash to the Company an amount sufficient
<PAGE>
to cover such tax liability or otherwise to make adequate provision for the
Company's satisfaction of its withholding obligations under federal, state and
local law.
19. LIABILITY OF COMPANY. The Company, its Parent or any Subsidiary which
is in existence or hereafter comes into existence shall not be liable to an
Optionee or other person if the Internal Revenue Service or any court having
jurisdiction determines for any reason that any Options intended to be Incentive
Stock Options granted hereunder do not qualify as incentive stock options within
the meaning of Section 422 of the Code.
20. INFORMATION TO OPTIONEE. The Company shall provide without charge at
least annually to each Optionee during the period his or her Option is
outstanding a balance sheet and income statement of the Company. In the event
that the Company provides annual reports or periodic reports to its shareholders
during the period in which an Optionee's Option is outstanding, the Company
shall provide to each Optionee a copy of each such report.
21. INDEMNIFICATION. No member of the Committee or of the Board shall be
liable for any action taken or for any omission, except in circumstances
involving actual bad faith, or for any action taken or for any omission, by any
other member or by any officer, agent or Employee. In addition to such other
rights of indemnification they may have as members of the Board, or as members
of the Committee, the Committee shall be indemnified by the Company against
reasonable expenses, including attorneys' fees actually and necessarily incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action or omission in connection with the Plan or any Option
taken thereunder, and against all amounts they pay in settlement thereof
(provided independent legal counsel the Company has selected approves the
settlement) or they pay in satisfaction of a judgment in any action, suit or
proceeding, except in relation to matters as to which it shall be adjudged in
such action, suit or proceeding that such Committee or Board member is liable
for actual bad faith in the performance of his or her duties; provided that
within 60 days after institution of any such action, suit or proceeding, a
Committee or Board member shall in writing offer the Company the opportunity, at
its own expense, to handle and defend the same.
22. NOTICES. Any notice to be given to the Company pursuant to the
provisions of this Plan shall be given in writing, addressed to the Company at
its principal office in care of its Secretary, and any notice to be given to an
Employee to whom an Option is granted hereunder shall be delivered personally or
addressed to him or her at the address given beneath his or her signature on his
Option Agreement or Stock Purchase Agreement or at such other address as such
Optionee or his or her transferee (upon the transfer of the Optioned Stock) may
hereafter designate in writing to the Company. Any such notice shall be deemed
duly given when enclosed in a properly sealed envelope or wrapper addressed as
aforesaid, registered or certified, and deposited, postage and registry or
certification fee prepaid, in a post office or branch post office the United
States Postal Service regularly maintains. It shall be the obligation of each
Optionee
<PAGE>
and each transferee holding Shares purchased upon exercise of an Option to
provide the Secretary of the Company, by letter mailed as provided hereinabove,
with written notice of his or her direct mailing address.
23. NO ENLARGEMENT OF EMPLOYEE RIGHTS. This Plan is purely voluntary on the
part of the Company, and the continuance of the Plan shall not be deemed to
constitute a contract between the Company and any Employee, or to be
consideration for or a condition of the employment or service of any Employee.
Nothing contained in this Plan shall be deemed to give any Employee the right to
be retained in the employ or service of the Company, its Parent, Subsidiary or a
successor corporation, or to interfere with the right of the Company or any such
corporations to discharge or to retire any Employee at any time with or without
cause and with or without notice. No Employee shall have any right to or
interest in Options authorized hereunder prior to the grant thereof to such
Employee, and upon such grant he or she shall have only such rights and
interests as are expressly provided herein, subject, however, to all applicable
provisions of the Company's Articles of Incorporation, as the same may be
amended from time to time.
24. LEGENDS ON CERTIFICATES.
a. FEDERAL LAW. Unless an appropriate registration statement is filed
pursuant to the Securities Act of 1933, as amended, with respect to the Options
and Shares issuable under this Plan, each document or certificate representing
such Options or Shares shall be endorsed thereon with a legend substantially as
follows:
b. "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE, TRANSFER
OR DISTRIBUTION THEREOF. NO SUCH SALE, TRANSFER OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. "
c. ADDITIONAL LEGENDS. Each document or certificate representing the
Options or Shares issuable under the Plan shall also contain legends as may be
required under applicable blue sky laws or by any Stock Purchase Agreement or
other agreement the execution of which is a condition to the exercise of an
Option under this Plan.
25. AVAILABILITY OF PLAN. A copy of this Plan shall be delivered to the
Secretary of the Company and he or she shall show it to any eligible person
making reasonable inquiry concerning it.
<PAGE>
26. INVALID PROVISIONS. In the event that any provision of this Plan is
found to be invalid or otherwise unenforceable under any applicable law, such
invalidity or unenforceability shall not be construed as rendering any other
provisions contained herein as invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid or unenforceable provision was not contained herein.
27. SEVERABILITY. In the event that any provision of the Plan is found to
be invalid or otherwise unenforceable under any applicable law, such invalidity
or unenforceability shall not be construed as rendering any other provisions
contained herein as invalid or unenforceable, and all such other provisions
shall be given full force and effect to the saline extent as though the invalid
or unenforceable provision was not contained herein.
28. APPLICABLE LAW. To the extent that federal laws do not otherwise
control, this Plan shall be governed by and construed in accordance with the
laws of the State of California without regard to the conflict of laws
principles thereof.
<PAGE>
AMENDED AND RESTATED STOCK OPTION PLAN
Mindspring Enterprises, Inc., a Delaware corporation (the
"Corporation"), sets forth herein the terms of this Stock Option Plan (the
"Plan") as follows:
1. PURPOSE
The Plan is intended to advance the interests of the
Corporation by providing eligible individuals (as designated pursuant to Section
4 below) an opportunity to acquire (or increase) a proprietary interest in the
Corporation, which thereby will create a stronger incentive to expend maximum
effort for the growth and success of the Corporation and its subsidiaries and
will encourage such eligible individuals to remain in the employ or service of
the Corporation or that of one or more of its subsidiaries. Each stock option
granted under the Plan (an "Option") is intended to be an "incentive stock
option" ("Incentive Stock Option") within the meaning of Section 422 of the
Internal Revenue Code of 1986, or the corresponding provision of any
subsequently enacted tax statute, as amended from time to time (the "Code"),
except to the extent that any such Option would exceed the limitations set forth
in Section 7 below and except for Options specifically designated at the time of
grant as not being "incentive stock options."
2. ADMINISTRATION
2.1. THE BOARD
The Plan shall be administered by the Board of Directors of
the Corporation (the "Board"), which shall have the full power and authority to
take all actions and to make all determinations required or provided for under
the Plan or any Option granted or Option Agreement (as defined in Section 8
below) entered into hereunder and all such other actions and determinations not
inconsistent with the specific terms and provisions of the Plan deemed by the
Board to be necessary or appropriate to the administration of the Plan or any
Option granted or Option Agreement entered into hereunder. The interpretation
and construction by the Board of any provision of the Plan or of any Option
granted or Option Agreement entered into hereunder shall be final and
conclusive.
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2.2. THE COMMITTEE
The Board may from time to time appoint a Compensation
Committee (the "Committee"). The Board, in its sole discretion, may provide that
the role of the Committee shall be limited to making recommendations to the
Board concerning any determinations to be made and actions to be taken by the
Board pursuant to or with respect to the Plan, or the Board may delegate to the
Committee such powers and authorities related to the administration of the Plan,
as set forth in Section 2.1 above, as the Board shall determine, consistent with
the Certificate of Incorporation and By-laws of the Corporation and applicable
law. In the event that the Plan or any Option granted or Option Agreement
entered into hereunder provides for any action to be taken by or determination
to be made by the Board, such action may be taken by or such determination may
be made by the Committee if the power and authority to do so has been delegated
to the Committee by the Board as provided for in this Section. Unless otherwise
expressly determined by the Board, any such action or determination by the
Committee shall be final and conclusive.
2.3. NO LIABILITY
No member of the Board or of the Committee shall be liable for
any action or determination made, or any failure to take or make an action or
determination, in good faith with respect to the Plan or any Option granted or
Option Agreement entered into hereunder.
3. STOCK
The stock that may be issued pursuant to Options granted under
the Plan shall be shares of Common Stock and/or shares of Preferred Stock of the
Corporation (such shares of Common Stock and Preferred Stock being collectively
referred to herein as the "Stock"), which shares may be treasury shares or
authorized but unissued shares. The number of shares of Stock that may be issued
pursuant to Options granted under the Plan shall not exceed in the aggregate
4,500,000 shares of Stock, which number of shares is subject to adjustment as
provided in Section 18 below. If any Option expires, terminates or is terminated
for any reason prior to exercise in full, the shares of Stock that were subject
to the unexercised portion of such Option shall be available for future Options
granted under the Plan.
4. ELIGIBILITY
Options may be granted under the Plan to any employee of the
Corporation or any "subsidiary corporation" thereof within the meaning of
Section 424(f) of the Code (a "Subsidiary") (including any such employee who is
an officer or director of the Corporation or any Subsidiary) as the Board shall
determine and designate from time to time prior to expiration or termination of
the
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<PAGE>
Plan. An individual may hold more than one Option, subject to such restrictions
as are provided herein. The maximum number of shares of Stock subject to Options
that may be granted under the Plan to any employee of the Corporation or any
Subsidiary is 600,000 shares in any calendar year (subject to adjustment
pursuant to Section 18. hereof).
5. EFFECTIVE DATE AND TERM OF THE PLAN
5.1. EFFECTIVE DATE
The Plan shall become effective as of the date of adoption by
the Board, subject to stockholders' approval of the Plan within one year of such
effective date by a majority of the votes cast at a duly held meeting of the
stockholders of the Corporation at which a quorum representing a majority of all
outstanding stock is present, either in person or by proxy, and voting on the
matter, or by written consent in accordance with applicable state law and the
articles of incorporation and by-laws of the Corporation; PROVIDED, HOWEVER,
that upon approval of the Plan by the stockholders of the Corporation as set
forth above, all options granted under the Plan on or after the effective date
shall be fully effective as if the stockholders of the Corporation had approved
the Plan on the effective date. If the stockholders fail to approve the Plan
within one year of such effective date, any options granted hereunder shall be
null, void and of no effect.
5.2. TERM
The Plan shall terminate on the date ten years after the
effective date.
6. GRANT OF OPTIONS
Subject to the terms and conditions of the Plan, the Board
may, at any time and from time to time prior to the date of termination of the
Plan, grant to such eligible individuals as the Board may determine
("Optionees") Options to purchase such number of shares of the Stock on such
terms and conditions as the Board may determine, including any terms or
conditions which may be necessary to qualify such Options as "incentive stock
options" under Section 422 of the Code. The date on which the Board approves the
grant of an Option shall be considered the date on which such Option is granted.
7. LIMITATION ON INCENTIVE STOCK OPTIONS
An Option shall constitute an Incentive Stock Option only to
the extent that the aggregate fair market value (determined at the time the
Option is granted) of the Stock with respect to which Incentive Stock Options
are exercisable for the first time by any Optionee during any calendar year
(under the Plan and all other plans of the Optionee's employer corporation and
its parent and subsidiary
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<PAGE>
corporations within the meaning of Section 422(d) of the Code) does not exceed
$100,000.
8. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by
written agreements ("Option Agreements") to be executed by the Corporation and
by the Optionee, in such form or forms as the Board shall from time to time
determine. Option Agreements covering Options granted from time to time or at
the same time need not contain similar provisions; PROVIDED, HOWEVER, that all
such Option Agreements shall comply with all terms of the Plan.
9. OPTION PRICE
The purchase price of each share of the Stock subject to an
Option (the "Option Price") shall be fixed by the Board and stated in each
Option Agreement. In the case of an Option that is intended to constitute an
Incentive Stock Option, the option price shall be not less than the greater of
par value or 100 percent of the fair market value of a share of the Stock
covered by the Option on the date the Option is granted (as determined in good
faith by the Board); PROVIDED, HOWEVER, that in the event the Optionee would
otherwise be ineligible to receive an Incentive Stock Option by reason of the
provisions of Sections 422(b)(6) and 424(d) of the Code (relating to stock
ownership of more than ten percent), the Option Price of an Option which is
intended to be an Incentive Stock Option shall be not less than the greater of
par value or 110 percent of the fair market value of a share of the Stock
covered by the Option at the time such Option is granted. In the event that the
Stock is listed on an established national or regional stock exchange, is
admitted to quotation on the National Association of Securities Dealers
Automated Quotation System, or is publicly traded in an established securities
market, in determining the fair market value of the Stock, the Board shall use
the closing price of the Stock on such exchange or System or in such market (the
highest such closing price if there is more than one such exchange or market) on
the date the Option is granted (or, if there is no such closing price, then the
Board shall use the mean between the highest bid and lowest asked prices or
between the high and low prices on such date), or, if no sale of the Stock has
been made on such day, on the next preceding day on which any such sale shall
have been made. In the case of an Option not intended to constitute an Incentive
Stock Option, the Option Price shall be not less than the par value of the Stock
covered by the Option.
10. TERM AND EXERCISE OF OPTIONS
10.1. TERM AND EXERCISE
Each Option granted under the Plan shall terminate and all
rights to purchase shares thereunder shall cease upon the expiration of ten
years (ten years
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<PAGE>
and 30 days, in the case of an Option which is not designated as an Incentive
Stock Option) from the date such Option is granted, or on such date prior
thereto as may be fixed by the Board and stated in the Option Agreement relating
to such Option; PROVIDED, HOWEVER, that in the event the Optionee would
otherwise be ineligible to receive an Incentive Stock Option by reason of the
provisions of Sections 422(b)(6) and 424(d) of the Code (relating to stock
ownership of more than ten percent), an Option granted to such Optionee which is
intended to be an Incentive Stock Option shall in no event be exercisable after
the expiration of five years from the date it is granted.
10.2. OPTION PERIOD AND LIMITATIONS ON EXERCISE
Each Option granted under the Plan shall be exercisable, in
whole or in part, at any time and from time to time over a period commencing on
or after the date of grant and ending upon the expiration or termination of the
Option, as the Board shall determine and set forth in the Option Agreement
relating to such Option. Without limiting the foregoing, the Board, subject to
the terms and conditions of the Plan, may in its sole discretion provide that an
Option may not be exercised in whole or in part for a stated period or periods
of time during which such Option is outstanding; PROVIDED, HOWEVER, that any
such limitation on the exercise of an Option contained in any Option Agreement
may be rescinded, modified or waived by the Board, in its sole discretion, at
any time and from time to time after the date of grant of such Option, so as to
accelerate the time at which the Option may be exercised. Notwithstanding any
other provisions of the Plan, no Option shall be exercisable in whole or in part
prior to the date the Plan is approved by the stockholders of the Corporation as
provided above.
10.3. METHOD OF EXERCISE
An Option that is exercisable hereunder may be exercised by
delivery to the Corporation on any business day, at its principal office
addressed to the attention of the President, of written notice of exercise,
which notice shall specify the number of shares with respect to which the Option
is being exercised and shall be accompanied by payment in full of the Option
Price of the shares for which the Option is being exercised. The minimum number
of shares of Stock with respect to which an Option may be exercised, in whole or
in part, at any time shall be the lesser of 100 shares or the maximum number of
shares available for purchase under the Option at the time of exercise. Payment
of the Option Price for the shares of Stock purchased pursuant to the exercise
of an Option shall be made, as determined by the Board and set forth in the
Option Agreement pertaining to an Option, either (i) in cash or by check payable
to the order of the Corporation (which check may, in the discretion of the
Corporation, be required to be certified); (ii) through the tender to the
Corporation of shares of Stock, which shares shall be valued, for purposes of
determining the extent to which the Option Price has been paid thereby, at their
fair market value (determined in the manner described in Section 9 above) on the
date of exercise; or (iii) by a combination of the methods described in (i) and
(ii);
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<PAGE>
PROVIDED, HOWEVER, that the Board may in its discretion impose and set forth in
the Option Agreement pertaining to an Option such limitations or prohibitions on
the use of shares of Stock to exercise Options as it deems appropriate.
Notwithstanding the foregoing, payment in full of the Option Price need not
accompany the written notice of exercise provided the notice directs that the
Stock certificate or certificates for the shares for which the Option is
exercised be delivered to a licensed broker acceptable to the Corporation as the
agent for the individual exercising the Option and, at the time such Stock
certificate or certificates are delivered, the broker tenders to the Corporation
cash (or cash equivalents acceptable to the Corporation) equal to the Option
Price. An attempt to exercise any Option granted hereunder other than as set
forth above shall be invalid and of no force and effect. Promptly after the
exercise of an Option and the payment in full of the Option Price of the shares
of Stock covered thereby, the individual exercising the Option shall be entitled
to the issuance of a Stock certificate or certificates evidencing his ownership
of such shares. A separate Stock certificate or certificates shall be issued for
any shares purchased pursuant to the exercise of an Option which is an Incentive
Stock Option, which certificate or certificates shall not include any shares
which were purchased pursuant to the exercise of an Option which is not an
Incentive Stock Option. An individual holding or exercising an Option shall have
none of the rights of a stockholder until the shares of Stock covered thereby
are fully paid and issued to him, and, except as provided in Section 18 below,
no adjustment shall be made for dividends or other rights for which the record
date is prior to the date of such issuance.
11. TRANSFERABILITY OF OPTIONS
During the lifetime of an Optionee, only such Optionee (or, in
the event of legal incapacity or incompetency, the Optionee's guardian or legal
representative) may exercise the Option. No Option shall be assignable or
transferable by the Optionee to whom it is granted, other than by will or the
laws of descent and distribution.
12. TERMINATION OF EMPLOYMENT
On the 30th day following the termination of the employment of
an Optionee with the Corporation or a Subsidiary, other than by reason of the
death or "permanent and total disability" (within the meaning of Section
22(e)(3) of the Code) of such Optionee, any Option granted to an Optionee
pursuant to the Plan shall terminate, and such Optionee shall have no further
right to purchase shares of Stock pursuant to such Option; PROVIDED, HOWEVER,
that in the event that such termination of employment is by reason of the
Optionee's retirement with the consent of the Corporation or a Subsidiary in
accordance with the normal retirement policies of the Corporation or a
Subsidiary, as the case may be, then such Optionee shall have the right (subject
to the general limitations on exercise set forth in Section 10 above), at any
time within three months after such retirement
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<PAGE>
and prior to termination of the Option pursuant to Section 10 above, to
exercise, in whole or in part, any Option held by such Optionee at the date of
such retirement, whether or not such Option was exercisable immediately prior to
such retirement; PROVIDED FURTHER, that the Board may provide, by inclusion of
appropriate language in any Option Agreement, that an Optionee may (subject to
the general limitations on exercise set forth in Section 10 above), in the event
of termination of employment of the Optionee with the Corporation or a
Subsidiary, exercise an Option, in whole or in part, at any time subsequent to
such termination of employment and prior to termination of the Option pursuant
to Section 10 above, either subject to or without regard to any installment
limitation on exercise imposed pursuant to Section 10 above, as the Board, in
its sole and absolute discretion, shall determine and set forth in the Option
Agreement. Whether a termination of employment is to be considered by reason of
retirement with the consent of the Corporation or a Subsidiary in accordance
with the normal retirement policies of the Corporation or a Subsidiary, as the
case may be, and whether a leave of absence or leave on military or government
service shall constitute a termination of employment for purposes of the Plan,
shall be determined by the Board, which determination shall be final and
conclusive. For purposes of the Plan, a termination of employment with the
Corporation or a Subsidiary shall not be deemed to occur if the Optionee is
immediately thereafter employed with the Corporation or any other Subsidiary
13. RIGHTS IN THE EVENT OF DEATH OR DISABILITY
13.1. DEATH
If an Optionee dies while employed by the Corporation or a
Subsidiary, the executors or administrators or legatees or distributees of such
Optionee's estate shall have the right (subject to the general limitations on
exercise set forth in Section 10 above), at any time within one year after the
date of such Optionee's death and prior to termination of the Option pursuant to
Section 10 above, to exercise any Option held by such Optionee at the date of
such Optionee's death, whether or not such Option was exercisable immediately
prior to such Optionee's death; PROVIDED, HOWEVER, that the Board may provide by
inclusion of appropriate language in any Option Agreement that, in the event of
the death of an Optionee, the executors or administrators or legatees or
distributees of such Optionee's estate may exercise an Option (subject to the
general limitations on exercise set forth in Section 10 above), in whole or in
part, at any time subsequent to such Optionee's death and prior to termination
of the Option pursuant to Section 10 above, either subject to or without regard
to any installment limitation on exercise imposed pursuant to Section 10 above,
as the Board, in its sole and absolute discretion, shall determine and set forth
in the Option Agreement.
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13.2. DISABILITY
If an Optionee terminates employment with the Corporation or a
Subsidiary by reason of the "permanent and total disability" (within the meaning
of Section 22(e)(3) of the Code) of such Optionee, then such Optionee shall have
the right (subject to the general limitations on exercise set forth in Section
10 above), at any time within one year after such termination of employment and
prior to termination of the Option pursuant to Section 10 above, to exercise, in
whole or in part, any Option held by such Optionee at the date of such
termination of employment, whether or not such Option was exercisable
immediately prior to such termination of employment; PROVIDED, HOWEVER, that the
Board may provide, by inclusion of appropriate language in any Option Agreement,
that an Optionee may (subject to the general limitations on exercise set forth
in Section 10 above), in the event of the termination of employment of the
Optionee with the Corporation or a Subsidiary by reason of the "permanent and
total disability" (within the meaning of Section 22(e)(3) of the Code) of such
Optionee, exercise an Option, in whole or in part, at any time subsequent to
such termination of employment and prior to termination of the Option pursuant
to Section 10 above, either subject to or without regard to any installment
limitation on exercise imposed pursuant to Section 10 above, as the Board, in
its sole and absolute discretion, shall determine and set forth in the Option
Agreement. Whether a termination of employment is to be considered by reason of
"permanent and total disability" for purposes of this Plan shall be determined
by the Board, which determination shall be final and conclusive.
14. USE OF PROCEEDS
The proceeds received by the Corporation from the sale of
Stock pursuant to Options granted under the Plan shall constitute general funds
of the Corporation.
15. SECURITIES ACT OF 1933
The Corporation shall not be required to sell or issue any
shares of Stock under any Option if the sale or issuance of such shares would
constitute a violation by the individual exercising the Option or the
Corporation of any provisions of any law or regulation of any governmental
authority, including without limitation any federal or state securities laws or
regulations. Specifically in connection with the Securities Act of 1933, as
amended (the "Securities Act"), upon exercise of any Option, unless a
registration statement under such Act is in effect with respect to the shares of
Stock covered by such Option, the Corporation shall not be required to sell or
issue such shares unless the Corporation has received evidence satisfactory to
it that the holder of such Option may acquire such shares pursuant to an
exemption from registration under such Act. Any determination in this connection
by the Corporation shall be final, binding, and conclusive. The
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<PAGE>
Corporation may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act. The Corporation shall not be
obligated to take any affirmative action in order to cause the exercise of an
Option or the issuance of shares pursuant thereto to comply with any law or
regulation of any governmental authority. As to any jurisdiction that expressly
imposes the requirement that an Option shall not be exercisable unless and until
the shares of Stock covered by such Option are registered or are subject to an
available exemption from registration, the exercise of such Option (under
circumstances in which the laws of such jurisdiction apply) shall be deemed
conditioned upon the effectiveness of such registration or the availability of
such an exemption.
16. SECURITIES EXCHANGE ACT OF 1934: RULE 16B-3
16.1. GENERAL
The Plan is intended to comply with Rule 16b-3 ("Rule 16b-3")
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from
and after the date on which the Corporation first registers a class of equity
security under Section 12 of the Exchange Act (the "Registration Date"). From
and after the Registration Date, any provision inconsistent with Rule 16b-3 (as
in effect on the Registration Date) shall, to the extent permitted by law and
determined to be advisable by the Committee (constituted in accordance with
Section 10) or the Board (acting pursuant to Section 10), be inoperative and
void. Moreover, in the event that the Plan does not include a provision required
by Rule 16b-3 to be stated therein, such provision (other than one relating to
eligibility requirements and the amount or timing of awards) shall be deemed
automatically to be incorporated into the Plan insofar as participants subject
to Section 16 are concerned. In addition, from and after the Registration Date
the provisions set forth in Sections 16.2 through 16.5 shall apply.
16.2. COMPENSATION COMMITTEE
From and after the Registration Date, the Committee appointed
pursuant to Section 2.2 shall consist of not fewer than two members of the
Board, neither of whom, during the twelve months prior to service on such
Committee, shall have been granted an Option under this Plan and each of whom
shall qualify (at the time of appointment to the Committee and during all
periods of service on the Committee) in all respects as a "disinterested person"
as defined in Rule l6b-3.
16.3. ACTION BY THE BOARD
From and after the Registration Date, the Board may act under
the Plan other than by, or in accordance with the recommendations of, the
Committee, constituted as set forth in Section 2.2 above, only if all members of
the Board are "disinterested persons" as defined in Rule 16b-3.
9
<PAGE>
16.4. ADDITIONAL RESTRICTION ON TRANSFER OF STOCK
From and after the Registration Date, no director, officer or
other "insider" of the Corporation subject to Section 16 of the Exchange Act
shall be permitted to sell Stock (which such "insider" had received upon
exercise of an Option) during the six months immediately following the grant of
such Option.
16.5. ADDITIONAL REQUIREMENT OF STOCKHOLDERS' APPROVAL
From and after the Registration Date, no amendment by the
Board shall, without approval by a majority of the votes cast at a duly held
meeting of the stockholders of the Corporation at which a quorum representing a
majority of all outstanding stock is present, either in person or by proxy, and
voting on the amendment, or by written consent in accordance with applicable
state law and the articles of incorporation and by-laws of the Corporation,
materially increase the benefits accruing to eligible individuals under the Plan
or take any other action that would require the approval of such stockholders
pursuant to Rule 16b-3.
17. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend,
suspend or terminate the Plan as to any shares of Stock as to which Options have
not been granted; PROVIDED, HOWEVER, that no amendment by the Board shall,
without approval by a majority of the votes cast at a duly held meeting of the
stockholders of the Corporation at which a quorum representing a majority of all
outstanding stock is present, either in person or by proxy, and voting on the
amendment, or by written consent in accordance with applicable state law and the
articles of incorporation and by-laws of the Corporation, materially change the
requirements as to eligibility to receive Options or increase the maximum number
of shares of Stock in the aggregate that may be sold pursuant to Options granted
under the Plan (except as permitted under Section 18 hereof). Except as
permitted under Section 18 hereof, no amendment, suspension or termination of
the Plan shall, without the consent of the holder of the Option, alter or impair
rights or obligations under any Option theretofore granted under the Plan.
18. EFFECT OF CHANGES IN CAPITALIZATION
18.1. CHANGES IN STOCK
If the outstanding shares of Stock are increased or decreased
or changed into or exchanged for a different number or kind of shares or other
securities of the Corporation by reason of the conversion of the outstanding
shares of Preferred Stock to shares of Common Stock of the Corporation pursuant
to the terms of the Certificate of Incorporation of the Corporation, or by
reason of any recapitalization, reclassification, stock split-up, combination of
shares, exchange of shares, stock dividend or other distribution payable in
capital stock, or other
10
<PAGE>
increase or decrease in such shares effected without receipt of consideration by
the Corporation, occurring after the effective date of the Plan, the number and
kinds of shares for the purchase of which Options may be granted under the Plan
shall be adjusted proportionately and accordingly by the Corporation. In
addition, the number and kind of shares for which Options are outstanding shall
be adjusted proportionately and accordingly, so that the proportionate interest
of the holder of the Option immediately following such event shall, to the
extent practicable, be the same as immediately prior to such event. Any such
adjustment in outstanding Options shall not change the aggregate Option Price
payable with respect to shares subject to the unexercised portion of the Option
outstanding but shall include a corresponding proportionate adjustment in the
Option Price per share.
18.2. REORGANIZATION WITH CORPORATION SURVIVING
Subject to Section 18.3 hereof, if the Corporation shall be
the surviving corporation in any reorganization, merger or consolidation of the
Corporation with one or more other corporations, any Option theretofore granted
pursuant to the Plan shall pertain to and apply to the securities to which a
holder of the number of shares of Stock subject to such Option would have been
entitled immediately following such reorganization, merger or consolidation,
with a corresponding proportionate adjustment of the Option Price per share so
that the aggregate Option Price thereafter shall be the same as the aggregate
Option Price of the shares remaining subject to the Option immediately prior to
such reorganization, merger or consolidation.
18.3. OTHER REORGANIZATIONS; SALE OF ASSETS/STOCK
Upon the dissolution or liquidation of the Corporation, or
upon a merger, consolidation or reorganization of the Corporation with one or
more other corporations in which the Corporation is not the surviving
corporation, or upon a sale of substantially all of the assets of the
Corporation to another corporation, or upon any transaction (including, without
limitation, a merger or reorganization in which the Corporation is the surviving
corporation) approved by the Board which results in any person or entity owning
80 percent or more of the combined voting power of all classes of stock of the
Corporation, the Plan and all Options outstanding hereunder shall terminate,
except to the extent provision is made in writing in connection with such
transaction for the continuation of the Plan and/or the assumption of the
Options theretofore granted, or for the substitution for such Options of new
options covering the stock of a successor corporation, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kinds of shares and
exercise prices, in which event the Plan and Options theretofore granted shall
continue in the manner and under the terms so provided. In the event of any such
termination of the Plan, each individual holding an Option shall have the right
(subject to the general limitations on exercise set forth in Section 10 above),
immediately prior to the occurrence of such termination and during such period
occurring prior to such termination as the Board in its sole discretion shall
11
<PAGE>
designate, to exercise such Option in whole or in part, whether or not such
Option was otherwise exercisable at the time such termination occurs and without
regard to any installment limitation on exercise imposed pursuant to Section 10
above, but subject to any additional limitations that the Board may, in its sole
discretion, include in any Option Agreement. The Board shall send written notice
of an event that will result in such a termination to all individuals who hold
Options not later than the time at which the Corporation gives notice thereof to
its stockholders.
18.4. ADJUSTMENTS
Adjustments under this Section related to stock or securities
of the Corporation shall be made by the Board, whose determination in that
respect shall be final, binding and conclusive. No fractional shares of Stock or
units of other securities shall be issued pursuant to any such adjustment, and
any fractions resulting from any such adjustment shall be eliminated in each
case by rounding downward to the nearest whole share or unit.
18.5. NO LIMITATIONS ON CORPORATION
The grant of an Option pursuant to the Plan shall not affect
or limit in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
19. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Option granted or Option
Agreement entered into pursuant to the Plan shall be construed to confer upon
any individual the right to remain in the employ of the Corporation or any
Subsidiary, or to interfere in any way with the right and authority of the
Corporation or any Subsidiary either to increase or decrease the compensation of
any individual at any time, or to terminate any employment or other relationship
between any individual and the Corporation or any Subsidiary.
20. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan nor the submission of the
Plan to the stockholders of the Corporation for approval shall be construed as
creating any limitations upon the right and authority of the Board to adopt such
other incentive compensation arrangements (which arrangements may be applicable
either generally to a class or classes of individuals or specifically to a
particular individual or individuals) as the Board in its discretion determines
desirable, including, without limitation, the granting of stock options
otherwise than under the Plan.
12
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
PAGE
1. PURPOSE...........................................................................................1
2. ADMINISTRATION....................................................................................1
2.1. The Board....................................................................................1
2.2. The Committee................................................................................2
2.3. No Liability.................................................................................2
3. STOCK.............................................................................................2
4. ELIGIBILITY.......................................................................................2
5. EFFECTIVE DATE AND TERM OF THEPLAN................................................................3
5.1. Effective Date...............................................................................3
5.2. Term.........................................................................................3
6. GRANT OF OPTIONS..................................................................................3
7. LIMITATION ON INCENTIVE STOCK OPTIONS.............................................................3
8. OPTION AGREEMENTS.................................................................................4
9. OPTION PRICE......................................................................................4
10. TERM AND EXERCISE OF OPTIONS......................................................................4
10.1. Term and Exercise...........................................................................4
10.2. Option Period and Limitations on Exercise...................................................5
10.3. Method of Exercise..........................................................................5
11. TRANSFERABILITY OF OPTIONS........................................................................6
12. TERMINATION OF EMPLOYMENT.........................................................................6
13. RIGHTS IN THE EVENT OF DEATH OR DISABILITY........................................................7
13.1. Death.......................................................................................7
13.2. Disability..................................................................................8
14. USE OF PROCEEDS...................................................................................8
15. SECURITIES ACT OF 1933............................................................................8
16. SECURITIES EXCHANGE ACT OF 1934: RULE 16B-3.......................................................9
16.1. General.....................................................................................9
16.2. Compensation Committee......................................................................9
16.3. Action by the Board.........................................................................9
16.4. Additional Restriction on Transfer of Stock................................................10
16.5. Additional Requirement of Stockholders'Approval............................................10
17. AMENDMENT AND TERMINATION OF THE PLAN............................................................10
18. EFFECT OF CHANGES IN CAPITALIZATION..............................................................10
18.1. Changes in Stock...........................................................................10
18.2. Reorganization With Corporation Surviving..................................................11
18.3. Other Reorganizations; Sale of Assets/Stock................................................11
18.4. Adjustments................................................................................12
18.5. No Limitations on Corporation... .........................................................12
19. DISCLAIMER OF RIGHTS.............................................................................12
20. NONEXCLUSIVITY OF THE PLAN.......................................................................12
</TABLE>
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AMENDED AND RESTATED
STOCK OPTION PLAN
OF
MINDSPRING ENTERPRISES, INC.
<PAGE>
Exhibit 4.6
MINDSPRING ENTERPRISES, INC.
DIRECTORS STOCK OPTION PLAN
MindSpring Enterprises, Inc., a Delaware corporation (the
"Corporation"), sets forth herein the terms of this Directors Stock Option Plan
(the "Plan") as follows:
1. PURPOSE
The Plan is intended to advance the interests of the
Corporation by providing eligible individuals (as designated pursuant to Section
4 below) an opportunity to acquire (or increase) a proprietary interest in the
Corporation, which thereby will create a stronger incentive to expend maximum
effort for the growth and success of the Corporation and its subsidiaries and
will encourage such eligible individuals to remain in the employ or service of
the Corporation or that of one or more of its affiliates. No stock option
granted under the Plan (an "Option") is intended to be an "incentive stock
option" ("Incentive Stock Option") within the meaning of Section 422 of the
Internal Revenue Code of 1986, or the corresponding provision of any
subsequently enacted tax statute, as amended from time to time (the "Code").
2. ADMINISTRATION
2.1. BOARD
The Plan shall be administered by the Board of Directors of
the Corporation (the "Board"), which shall have the full power and authority to
take all actions and to make all determinations required or provided for under
the Plan or any Option granted or Option Agreement (as defined in Section 7
below) entered into hereunder and all such other actions and determinations not
inconsistent with the specific terms and provisions of the Plan deemed by the
Board to be necessary or appropriate to the administration of the Plan or any
Option granted or Option Agreement entered into hereunder. The interpretation
and construction by the Board of any provision of the Plan or of any Option
granted or Option Agreement entered into hereunder shall be final and
conclusive.
2.2. NO LIABILITY
No member of the Board shall be liable for any action or
determination made, or any failure to take or make an action or determination,
in good faith with respect to the Plan or any Option granted or Option Agreement
entered into hereunder.
3. STOCK
The stock that may be issued pursuant to Options granted under
the Plan shall be shares of Common Stock of the Corporation (the "Stock"), which
shares may be treasury shares or authorized but unissued shares. The number of
shares of Stock that may be issued pursuant to Options granted under the Plan
shall not exceed in the aggregate 70,000 shares of Stock, which number of shares
is subject to adjustment as provided in Section 17.4 below. If any Option
expires, terminates or is terminated for any reason prior to exercise in full,
the shares of Stock that were subject to the unexercised portion of such Option
shall be available for future Options granted under the Plan.
<PAGE>
4. ELIGIBILITY
Options will be granted under the Plan to non-employee
directors of the Corporation.
5. EFFECTIVE DATE AND TERM OF THE PLAN
The Plan shall be effective as of the date of adoption by the
Board (the "Effective Date"), subject to approval of the Plan within one year of
such Effective Date by the affirmative votes of the holders of a majority of the
shares present, or represented, and entitled to vote at a duly held meeting of
the stockholders of the Corporation at which a quorum is present, either in
person or by proxy, or by written consent in accordance with applicable state
law and the Certificate of Incorporation or the Bylaws of the Corporation;
PROVIDED, HOWEVER, that upon approval of the Plan by the stockholders of the
Corporation as set forth above, all options granted under the Plan on or after
the Effective Date shall be fully effective as if the stockholders of the
Corporation had approved the Plan on the Effective Date. If the stockholders
fail to approve the Plan within one year of such Effective Date, any options
granted hereunder shall be null, void and of no effect. The Plan shall terminate
on the date ten years after the Effective Date.
6. GRANT OF OPTIONS
6.1. FORMULA GRANTS
On the Effective Date, each nonemployee director then serving
on the Board shall be granted Options to purchase 10,000 shares of Stock.
Thereafter, the Board shall grant to each nonemployee director of the
Corporation, upon such person's initial election or appointment to serve as such
a director, Options to purchase 10,000 shares of Stock.
6.2. DISCRETIONARY GRANTS
The Board may, at any time and from time to time prior to the
date of termination of the Plan, grant to any nonemployee director then serving
on the Board Options to purchase such number of shares of Stock on such terms
and conditions as the Board may determine. Without limiting the foregoing, the
Board may at any time, with the consent of the Optionee, amend the terms of
outstanding Options or issue new Options in exchange for the surrender and
cancellation of outstanding Options. The date on which the Board approves the
grant of an Option (or such later date as is specified by the Board) shall be
considered the date on which such Option is granted.
7. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by
written agreements ("Option Agreements") executed by the Corporation and by the
Optionee, in such form or forms as the Board shall from time to time determine.
Option Agreements covering Options granted from time to time or at the same time
need not contain similar provisions; PROVIDED, HOWEVER, that all such Option
Agreements shall comply with all terms of the Plan.
8. OPTION PRICE
The purchase price of each share of the Stock subject to an
Option granted pursuant to Section 6.1 (the "Option Price") shall be the fair
market value of the Stock (the "Market Price") as determined by the Board. The
Option Price of each share of Stock subject to an Option granted
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<PAGE>
pursuant to Section 6.2 shall be fixed by the Board and stated in each Option
Agreement. In the event that the Stock is listed on an established national or
regional stock exchange, is admitted to quotation on the National Association of
Securities Dealers Automated Quotation System, or is publicly traded on an
established securities market, in determining the fair market value of the
Stock, the Board shall use the closing price of the Stock on such exchange or
System or in such market (the highest such closing price if there is more that
one such exchange or market) on the trading date immediately before the Option
is granted (or, if there is no such closing price, then the Board shall use the
mean between the high and low prices on such date), or, if no sale of the Stock
had been made on such day, on the next preceding day on which any such sale
shall have been made.
9. TERM AND EXERCISE OF OPTIONS
9.1. TERM
Each Option granted pursuant to Section 6.1 shall terminate
and all rights to purchase shares thereunder shall cease upon the expiration of
ten years and 30 days from the date such Option is granted. Each Option granted
pursuant to Section 6.2 shall terminate and all rights to purchase shares
thereunder shall cease upon the date determined by the Board.
9.2. OPTION PERIOD AND LIMITATIONS ON EXERCISE
The Optionee may exercise the Option granted pursuant to
Section 6.1 (subject to the limitations on exercise set forth in this Plan or in
the Option Agreement relating to such Option), in installments as follows: on
the second anniversary of the date of grant of the Option, as set forth in
Section 6.1 above, the Option shall be exercisable in respect of 50 percent of
the number of shares specified in Section 6.1 above, and the Option shall be
exercisable in respect of an additional 25 percent of the number of shares
specified in Section 6.1 above on each of the third and fourth anniversaries of
the date of grant, as set forth in Section 6.1 above. The foregoing
installments, to the extent not exercised, shall accumulate and be exercisable,
in whole or in part, at any time and from time to time, after becoming
exercisable and prior to the termination of the Option; provided, that no single
exercise of the Option shall be for less than 100 shares, unless the number of
shares purchased is the total number at the time available for purchase under
this Option. The Optionee may exercise the Option granted pursuant to Section
6.2 (subject to the limitations on exercise set forth in this Plan or in the
Option Agreement relating to such Option) in whole or in part, at any time and
from time to time, over a period commencing on or after the date of grant and,
to the extent that the Board determines and sets forth a termination date for
such Option in the Option Agreement (including any amendment thereto), ending
upon the stated expiration or termination date.
9.3. METHOD OF EXERCISE
An Option that is exercisable hereunder may be exercised by
delivery to the Corporation on any business day, at its principal office
addressed to the attention of the President, of written notice of exercise,
which notice shall specify the number of shares with respect to which the Option
is being exercised and shall be accompanied by payment in full of the Option
Price of the shares for which the Option is being exercised. The minimum number
of shares of Stock with respect to which an Option may be exercised, in whole or
in part, at any time shall be the lesser of 100 shares or the maximum number of
shares available for purchase under the Option at the time of exercise. Payment
of the Option Price for the shares of Stock purchased pursuant to the exercise
of an Option shall be made, as determined by the Board and set forth in the
Option Agreement pertaining to an Option, either (i) in cash or by check payable
to the order of the Corporation (which
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<PAGE>
check may, in the discretion of the Corporation, be required to be certified);
(ii) through the tender to the Corporation of shares of Stock, which shares
shall be valued, for purposes of determining the extent to which the Option
Price has been paid thereby, at their fair market value (determined by the Board
in good faith) on the date of exercise; or (iii) by a combination of the methods
described in (i) and (ii). An attempt to exercise any Option granted hereunder
other than as set forth above shall be invalid and of no force and effect.
Notwithstanding the foregoing, payment in full of the Option Price need not
accompany the written notice of exercise provided the notice directs that the
Stock certificate of certificates for the shares for which the Option is
exercised be delivered to a licensed broker acceptable to the Corporation as the
agent for the individual exercising the Option and, at the time such Stock
certificate or certificates are delivered, the broker tenders to the Corporation
cash (or cash equivalents acceptable to the Corporation).
Promptly after the exercise of an Option and the payment in
full of the Option Price of the shares of Stock covered thereby, the individual
exercising the Option shall be entitled to the issuance of a Stock certificate
or certificates evidencing his ownership of such shares. An individual holding
or exercising an Option shall have none of the rights of a stockholder until the
shares of Stock covered thereby are fully paid and issued to him, and, except as
provided in Section 17 below, no adjustment shall be made for dividends or other
rights for which the record date is prior to the date of such issuance.
10. TRANSFERABILITY OF OPTIONS
During the lifetime of an Optionee, only such Optionee (or, in
the event of legal incapacity or incompetency, the Optionee's guardian or legal
representative) may exercise the Option. No Option shall be assignable or
transferable by the Optionee to whom it is granted, other than by will or the
laws of descent and distribution.
11. SERVICE TERMINATION
Except as otherwise provided in the Optionee's Option
Agreement, upon the termination of an Optionee's service as a director of the
Corporation or a Subsidiary, other than by reason of the death or permanent and
total disability of such Optionee, any Option granted to an Optionee pursuant to
the Plan shall terminate, and such Optionee shall have no further right to
purchase shares of Stock pursuant to such Option.
12. RIGHTS IN THE EVENT OF DEATH OR DISABILITY
12.1. DEATH
Except as otherwise provided in the Optionee's Option
Agreement, if an Optionee dies while in the service of the Corporation or an
affiliate or Subsidiary, the executors or administrators or legatees or
distributees of such Optionee's estate shall have the right (subject to the
general limitations on exercise set forth in Section 9.2 above), at any time
within one year after the date of such Optionee's death and prior to termination
of the Option pursuant to Section 9.1 above, to exercise any Option held by such
Optionee at the date of such Optionee's death, whether or not such Option was
exercisable immediately prior to such Optionee's death.
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<PAGE>
12.2. DISABILITY
Except as otherwise provided in the Optionee's Option
Agreement, if an Optionee's service is terminated by reason of the permanent and
total disability of the Optionee, then such Optionee shall have the right
(subject to the general limitations on exercise set forth in Section 9.2 above),
at any time within one year after such termination of service and prior to
termination of the Option pursuant to Section 9.1 above, to exercise, in whole
or in part, any Option held by such Optionee at the date of such termination,
whether or not such Option was exercisable immediately prior to such
termination. Whether such termination is to be considered by reason of permanent
and total disability for purposes of this Plan shall be determined by the Board,
which determination shall be final and conclusive.
13. USE OF PROCEEDS
The proceeds received by the Corporation from the sale of
Stock pursuant to Options granted under the Plan shall constitute general funds
of the Corporation.
14. SECURITIES ACT OF 1933
The Corporation shall not be required to sell or issue any
shares of Stock under any Option if the sale or issuance of such shares would
constitute a violation by the individual exercising the Option or the
Corporation of any provisions of any law or regulation of any governmental
authority, including without limitation any federal or state securities laws or
regulations. Specifically in connection with the Securities Act of 1933, as
amended (the "Securities Act"), upon exercise of any Option, unless a
registration statement under such Act is in effect with respect to the shares of
Stock covered by such Option, the Corporation shall not be required to sell or
issue such shares unless the Corporation has received evidence satisfactory to
it that the holder of such Option may acquire such shares pursuant to an
exemption from registration under such Act. Any determination in this connection
by the Corporation shall be final, binding, and conclusive. The Corporation may,
but shall in no event be obligated to, register any securities covered hereby
pursuant to the Securities Act. The Corporation shall not be obligated to take
any affirmative action in order to cause the exercise of an Option or the
issuance of shares pursuant thereto to comply with any law or regulation of any
governmental authority. As to any jurisdiction that expressly imposes the
requirement that an Option shall not be exercisable unless and until the shares
of Stock covered by such Option are registered or are subject to an available
exemption from registration, the exercise of such Option (under circumstances in
which the laws of such jurisdiction apply) shall be deemed conditioned upon the
effectiveness of such registration or the availability of such an exemption.
15. SECURITIES EXCHANGE ACT OF 1934: RULE 16B-3
15.1. GENERAL
The Plan is intended to comply with Rule 16b-3 ("Rule 16b-3")
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from
and after the date on which the Corporation first registers a class of equity
security under Section 12 of the Exchange Act (the "Registration Date"). From
and after the Registration Date, any provision inconsistent with Rule 16b-3 (as
in effect on the Registration Date) shall, to the extent permitted by law and
determined to be advisable by the Board be inoperative and void. Moreover, in
the event the Plan does not include a provision required by Rule 16b-3 to be
stated therein, such provision (other than one relating to
-5-
<PAGE>
eligibility requirements and the amount and timing of awards) shall be deemed
automatically to be incorporated into the Plan insofar as participant is subject
to Section 16 are concerned.
15.2. ADDITIONAL RESTRICTION ON TRANSFER OF STOCK
From and after the Registration Date, no director, officer or
other "insider" of the Corporation subject to Section 16 of the Exchange Act
shall be permitted to sell Stock (which such "insider" had received upon
exercise of an Option) during the six months immediately following the grant of
such Option.
16. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend,
suspend or terminate the Plan as to any shares of Stock as to which Options have
not been granted; except that any amendment or alteration to the Plan shall be
subject to the approval of the Corporation's stockholders not later than the
annual meeting next following such Board action if such stockholder approval is
required by any federal or state law or regulation or the rules of any stock
exchange or automated quotation system on which the Stock may then be listed or
quoted, and the Board may otherwise, in its discretion, determine to submit
other such changes to the Plan to stockholders for approval. Except as permitted
under Section 17 hereof, no amendment, suspension or termination of the Plan
shall, without the consent of the holder of the Option, alter or impair rights
or obligations under any Option theretofore granted under the Plan.
17. EFFECT OF CHANGES IN CAPITALIZATION
17.1. CHANGES IN STOCK
If the outstanding shares of Stock are increased or decreased
or changed into or exchanged for a different number or kind of shares or other
securities of the Corporation by reason of the conversion of the outstanding
shares of Preferred Stock to shares of Common Stock of the Corporation pursuant
to the terms of the Certificate of Incorporation of the Corporation, or by
reason of any recapitalization, reclassification, stock split-up, combination of
shares, exchange of shares, stock dividend or other distribution payable in
capital stock, or other increase or decrease in such shares effected without
receipt of consideration by the Corporation, occurring after the Effective Date
of the Plan, the number and kinds of shares for the purchase of which Options
may be granted under the Plan shall be adjusted proportionately and accordingly
by the Corporation. In addition, the number and kind of shares for which Options
are outstanding shall be adjusted proportionately and accordingly, so that the
proportionate interest of the holder of the Option immediately following such
event shall, to the extent practicable, be the same as immediately prior to such
event. Any such adjustment in outstanding Options shall not change the aggregate
Option Price payable with respect to shares subject to the unexercised portion
of the Option outstanding but shall include a corresponding proportionate
adjustment in the Option Price per share.
17.2. REORGANIZATION WITH CORPORATION SURVIVING
Subject to Section 17.3 hereof, if the Corporation shall be
the surviving corporation in any reorganization, merger or consolidation of the
Corporation with one or more other corporations, any Option theretofore granted
pursuant to the Plan shall pertain to and apply to the securities to which a
holder of the number of shares of Stock subject to such Option would have been
entitled immediately following such reorganization, merger or consolidation,
with a corresponding
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<PAGE>
proportionate adjustment of the Option Price per share so that the aggregate
Option Price thereafter shall be the same as the aggregate Option Price of the
shares remaining subject to the Option immediately prior to such reorganization,
merger or consolidation.
17.3. OTHER REORGANIZATIONS; SALE OF ASSETS/STOCK
Upon the dissolution or liquidation of the Corporation, or
upon a merger, consolidation or reorganization of the Corporation with one or
more other corporations in which the Corporation is not the surviving
corporation, or upon a sale of substantially all of the assets of the
Corporation to another corporation, or upon any transaction (including, without
limitation, a merger or reorganization in which the Corporation is the surviving
corporation) approved by the Board which results in any person or entity owning
80 percent or more of the combined voting power of all classes of stock of the
Corporation, the Plan and all Options outstanding hereunder shall terminate,
except to the extent provision is made in writing in connection with such
transaction for the continuation of the Plan and/or the assumption of the
Options theretofore granted, or for the substitution for such Options of new
options covering the stock of a successor corporation, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kinds of shares and
exercise prices, in which event the Plan and Options theretofore granted shall
continue in the manner and under the terms so provided. In the event of any such
termination of the Plan, each individual holding an Option shall have the right
(subject to the general limitations on exercise set forth in Section 9.2 above),
immediately prior to the occurrence of such termination and during such period
occurring prior to such termination as the Board in its sole discretion shall
designate, to exercise such Option in whole or in part, whether or not such
Option was otherwise exercisable at the time such termination occurs and without
regard to any installment limitation on exercise imposed pursuant to Section 9.2
above, but subject to any additional limitations that the Board may, in its sole
discretion, include in any Option Agreement. The Board shall send written notice
of an event that will result in such a termination to all individuals who hold
Options not later than the time at which the Corporation gives notice thereof to
its stockholders.
17.4. ADJUSTMENTS
Adjustments under this Section 17 related to stock or
securities of the Corporation shall be made by the Board, whose determination in
that respect shall be final, binding and conclusive. No fractional shares of
Stock or units of other securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such adjustment shall be
eliminated in each case by rounding downward to the nearest whole share or unit.
17.5. NO LIMITATIONS ON CORPORATION
The grant of an Option pursuant to the Plan shall not affect
or limit in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
18. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Option granted or Option
Agreement entered into pursuant to the Plan shall be construed to confer upon
any individual the right to continue as a member of the Board or interfere in
any way with the right of the Corporation to terminate such relationship.
<PAGE>
19. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan nor the submission of the
Plan to the stockholders of the Corporation for approval shall be construed as
creating any limitations upon the right and authority of the Board to adopt such
other incentive compensation arrangements (which arrangements may be applicable
either generally to a class or classes of individuals or specifically to a
particular individual or individuals) as the Board in its discretion determines
desirable, including, without limitation, the granting of stock options
otherwise than under the Plan.
* * * *
-8-
<PAGE>
ATTACHMENT B
MINDSPRING ENTERPRISES, INC.
DIRECTORS STOCK OPTION PLAN
AS AMENDED AS OF MARCH 25, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
1. PURPOSE...........................................................................................1
2. ADMINISTRATION....................................................................................1
2.1. Board.....................................................................................1
2.2. No Liability..............................................................................1
3. STOCK.............................................................................................1
4. ELIGIBILITY.......................................................................................2
5. EFFECTIVE DATE AND TERM OF THE PLAN...............................................................2
6. GRANT OF OPTIONS..................................................................................2
6.1. Formula Grants............................................................................2
6.2. Discretionary Grants......................................................................2
7. OPTION AGREEMENTS.................................................................................2
8. OPTION PRICE......................................................................................2
9. TERM AND EXERCISE OF OPTIONS......................................................................3
9.1. Term......................................................................................3
9.2. Option Period and Limitations on Exercise.................................................3
9.3. Method of Exercise........................................................................3
10. TRANSFERABILITY OF OPTIONS.......................................................................4
11. SERVICE TERMINATION..............................................................................4
12. RIGHTS IN THE EVENT OF DEATH OR DISABILITY.......................................................4
12.1. Death....................................................................................4
12.2. Disability...............................................................................5
13. USE OF PROCEEDS..................................................................................5
14. SECURITIES ACT OF 1933...........................................................................5
15. SECURITIES EXCHANGE ACT OF 1934: RULE 16B-3......................................................5
15.1. General..................................................................................5
15.2. Additional Restriction on Transfer of Stock..............................................6
16. AMENDMENT AND TERMINATION OF THE PLAN............................................................6
17. EFFECT OF CHANGES IN CAPITALIZATION..............................................................6
17.1. Changes in Stock.........................................................................6
17.2. Reorganization With Corporation Surviving................................................6
17.3. Other Reorganizations; Sale of Assets/Stock..............................................7
17.4. Adjustments..............................................................................7
17.5. No Limitations on Corporation............................................................7
18. DISCLAIMER OF RIGHTS.............................................................................7
19. NONEXCLUSIVITY OF THE PLAN.......................................................................8
</TABLE>
i
<PAGE>
EXHIBIT 5
February 10, 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 12,534,499 shares
(the "Shares") of the Company's authorized common stock, $.01 par value per
share, under the Stock Option Plan (EarthLink Network, Inc.), the Amended and
Restated Stock Option Plan (MindSpring Enterprises, Inc.) and Directors
Stock Option Plan (MindSpring Enterprises, Inc.) (the "Plans").
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
