As filed with the Securities and Exchange Commission on December 8, 2010
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EARTHLINK, INC.
(Exact name of registrant as specified in its charter)
Delaware |
| 58-2511877 |
(State or other jurisdiction of incorporation or organization) |
| (I.R.S. Employer Identification No.) |
1375 Peachtree St., Atlanta, Georgia 30309
(Address of Principal Executive Offices) (Zip Code)
ITC^DeltaCom, Inc. Amended and Restated Stock Incentive Plan
(Full title of the plan)
Bradley A. Ferguson
Chief Financial Officer
EarthLink, Inc.
1375 Peachtree Street
Atlanta, Georgia 30309
(Name and address of agent for service)
(404) 815-0770
(Telephone number, including area code, of agent for service)
Copies to:
David M. Carter
Troutman Sanders LLP
Troutman Sanders Building
1001 Haxall Point
Richmond, Virginia 23219
(804) 697-1200
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer x | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of securities |
| Amount to be |
| Proposed maximum |
| Proposed maximum |
| Amount of |
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Common Stock, $0.01 par value per share(4) |
| 587,672 shares |
| $ | 8.98 |
| $ | 5,277,295 |
| $ | 376.27 |
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(1) | This registration statement (“Registration Statement”) registers the issuance of 587,672 shares (the “Shares”) of the common stock, $0.01 par value, (“Company Common Stock”) of EarthLink, Inc., a Delaware corporation (the “Registrant,” or the “Company”). The Shares represent the aggregate number of shares subject to outstanding awards available for issuance pursuant to the ITC^DeltaCom, Inc. Amended and Restated Stock Incentive Plan (the “Plan”), assumed by the Registrant in connection with the acquisition of ITC^DeltaCom, Inc., a Delaware corporation (“ITC^DeltaCom”) pursuant to an Agreement and Plan of Merger dated as of October 1, 2010 (the “Merger Agreement”). The Shares are issuable in respect of previously outstanding ITC^DeltaCom restricted stock units. The number of Shares subject to outstanding awards under the Plan as of the closing of the transactions contemplated by the Merger Agreement and registered hereunder have been calculated pursuant to the conversion ratio set forth in the Merger Agreement. |
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(2) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Company Common Stock that become issuable under the Plan by reason of any stock splits, stock dividends or similar transactions. |
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(3) | Estimated solely for the purpose of computing the registration fee. This amount was calculated pursuant to Rule 457(h) under the Securities Act on the basis of $8.98 per share, which was the average of the high and low prices of the Company Common Stock as quoted on NASDAQ on December 6, 2010. |
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(4) | Each share is accompanied by a preferred stock purchase right pursuant to the Rights Agreement between the Registrant and American Stock Transfer & Trust Company dated August 6, 2002. Until the occurrence of certain events specified in the Rights Agreement, these rights are not exercisable, are evidenced by the certificates for the common stock and are transferred solely with the common stock. The value attributable to these rights, if any, is reflected in the value of the common stock, and, accordingly, no separate registration fee is paid. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required in Part I of this Registration Statement is included in prospectuses for the Plan that are not filed as part of this Registration Statement pursuant to the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference and made a part hereof:
1. The Company’s Annual Report on Form 10-K for the year ended December 31, 2009;
2. The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010; June 30, 2010; and September 30, 2010;
3. The Company’s Current Reports on Form 8-K, filed with the Commission on February 5, 2010; May 7, 2010; July 22, 2010; October 1, 2010 and December 2, 2010.
4. The description of the Company’s common stock, $0.01 par value per share, contained in the Registration Statement on Form 8-A (Registration No. 001-15605) filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on January 7, 2000, including any amendment or report filed for the purpose of updating such description.
5. The description of the Company’s stockholders’ rights plan contained in the Registration Statement on Form 8-A (Registration No. 001-15605) filed with the Commission on August 6, 2002, including any amendments or reports filed for the purpose of updating that description.
All documents subsequently filed with the Commission by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that is incorporated by reference herein modifies or supersedes such earlier statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law (the “DGCL”), a corporation may indemnify its directors, officers, employees and agents and its former directors, officers, employees and agents and those who serve, at the corporation’s request, in such capacities with another enterprise, against expenses (including attorneys’ fees), as well as judgments, fines and settlements in nonderivative lawsuits, actually and reasonably incurred in connection with the defense of any action, suit or proceeding in which they or any of them were or are made parties or are threatened to be made parties by reason of their serving or having served in such capacity. The DGCL provides, however, that such person must have acted in good faith and in a manner such person reasonably believed to be in (or not opposed to) the best interests of the corporation and, in the case of a criminal action, such person must have had no reasonable cause to believe his or her conduct was unlawful. In addition, the DGCL does not permit indemnification in any action or suit by or in the right of the corporation, where such person has been adjudged liable to the corporation, unless, and only to the extent that, a court determines that such person fairly and reasonably is entitled to indemnity for costs the court deems proper in light of liability adjudication. Indemnity is mandatory to the extent a claim, issue or matter has been successfully defended.
The Second Restated Certificate of Incorporation of EarthLink, Inc. (the “Charter”) contains provisions that provide that no director of the Company shall be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director except for (a) any breach of the director’s duty of loyalty to the Company or its stockholders; (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law; (c) liability under Section 174 of the DGCL; or (d) any transaction from which the director derived an improper personal benefit. The Charter contains provisions that further provide for the indemnification of directors and officers to the fullest extent applicable law permits. Under the Amended and Restated Bylaws of the Company, the Company is required to advance expenses an officer or director incurs in defending any such action if the director or officer undertakes to repay such amount if it is determined that the director or officer is not entitled to indemnification.
The Company has in effect directors’ and officers’ liability insurance that may cover liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. |
| Description |
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4.1 |
| Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.3 of the Registration Statement on Form S-8 of EarthLink, Inc.—File No. 333-30024). |
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4.2 |
| Rights Agreement, dated as of August 6, 2002, between EarthLink, Inc. and American Stock Transfer and Trust Co. (incorporated by reference to Exhibit 4.1 to EarthLink, Inc.’s Report on Form 8-K dated August 6, 2002—File No. 001-15605). |
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5.1 |
| Opinion of Troutman Sanders LLP as to the legality of the securities being registered (filed herewith). |
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23.1 |
| Consent of Troutman Sanders LLP (included in the opinion filed as Exhibit 5.1 to this Registration Statement). |
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23.2 |
| Consent of Ernst & Young LLP (filed herewith). |
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24.1 |
| Powers of Attorney (included on signature page). |
Item 9. Undertakings
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act,
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement,
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement,
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference 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 undersigned 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 the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on this 8th day of December, 2010.
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| EARTHLINK, INC. | |
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| (Registrant) | |
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| By: | /s/ BRADLEY A. FERGUSON |
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| Bradley A. Ferguson |
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| Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and appoints Rolla P. Huff and Bradley A. Ferguson, and each of them individually, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the undersigned and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he might or could in person, hereby ratifying and confirming all that such attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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| Date |
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/s/ ROLLA P. HUFF |
| Chairman of the Board and Chief Executive Officer |
| December 8, 2010 |
Rolla P. Huff |
| (principal executive officer) |
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/s/ BRADLEY A. FERGUSON |
| Chief Financial Officer |
| December 8, 2010 |
Bradley A. Ferguson |
| (principal financial and accounting officer) |
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/s/ SUSAN D. BOWICK |
| Director |
| December 8, 2010 |
Susan D. Bowick |
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/s/ S. MARCE FULLER |
| Director |
| December 8, 2010 |
S. Marce Fuller |
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/s/ TERRELL B. JONES |
| Director |
| December 8, 2010 |
Terrell B. Jones |
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/s/ DAVID A. KORETZ |
| Director |
| December 8, 2010 |
David A. Koretz |
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/s/ THOMAS E. WHEELER |
| Director |
| December 8, 2010 |
Thomas E. Wheeler |
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/s/ M. WAYNE WISEHART |
| Director |
| December 8, 2010 |
M. Wayne Wisehart |
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EXHIBIT INDEX
Exhibit No. |
| Description |
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4.1 |
| Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.3 of the Registration Statement on Form S-8 of EarthLink, Inc.—File No. 333-30024). |
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4.2 |
| Rights Agreement, dated as of August 6, 2002, between EarthLink, Inc. and American Stock Transfer and Trust Co. (incorporated by reference to Exhibit 4.1 to EarthLink, Inc.’s Report on Form 8-K dated August 6, 2002—File No. 001-15605). |
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5.1 |
| Opinion of Troutman Sanders LLP as to the legality of the securities being registered (filed herewith). |
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23.1 |
| Consent of Troutman Sanders LLP (included in the opinion filed as Exhibit 5.1 to this Registration Statement). |
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23.2 |
| Consent of Ernst & Young LLP (filed herewith). |
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24.1 |
| Powers of Attorney (included on signature page). |