UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): May 3, 2011
EARTHLINK, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State of Incorporation) | | 001-15605
(Commission File Number) | | 58-2511877
(I.R.S. Employer Identification No.) |
1375 Peachtree St., Atlanta, Georgia | | 30309 |
(Address of principal executive offices) | | (Zip Code) |
(404) 815-0770
(Registrant’s telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last report date)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
At the EarthLink, Inc. (the “Company”) 2011 annual meeting of stockholders held on May 3, 2011 (the “2011 Annual Meeting”), the Company’s stockholders approved proposals to amend the Company’s Second Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to (a) declassify the Board of Directors and to provide for the annual election of directors and (b) delete the plurality voting standard in uncontested director elections to allow the Bylaws to provide for a majority voting standard in those elections. The amendments to the Certificate of Incorporation were previously approved by the Board of Directors and became effective on May 3, 2011. To implement the majority voting standard, the Board of Directors also approved an amendment to Article III, Section 3.2 of the Company’s Second Amended and Restated Bylaws (the “Bylaws”), contingent upon stockholder approval of the majority voting standard proposal, providing for a majority voting standard in uncontested director elections, which became effective on May 3, 2011.
The foregoing descriptions of the amendments to the Certificate of Incorporation and the Bylaws are qualified in their entirety by reference to the full text of such documents, which are filed as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K and are incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders
The following summarizes the voting results for the eight proposals submitted for a vote of the stockholders at the 2011 Annual Meeting:
Proposal 1. To amend the Company’s Second Restated Certificate of Incorporation to declassify the Board of Directors. This proposal was approved by the Company’s stockholders at the 2011 Annual Meeting.
Votes For — 95,857,280
Votes Against — 740,746
Votes Abstained — 195,506
Proposal 2. To amend the Company’s Second Restated Certificate of Incorporation to provide for a majority voting standard in uncontested director elections. This proposal was approved by the Company’s stockholders at the 2011 Annual Meeting.
Votes For — 95,996,706
Votes Against — 618,745
Votes Abstained — 178,081
Proposal 3. To elect Susan D. Bowick, Nathaniel A. Davis, Marce Fuller, Rolla P. Huff, David A. Koretz, Thomas E. Wheeler and M. Wayne Wisehart to EarthLink’s Board of Directors to serve until the 2012 annual meeting of stockholders or until his or her successor is duly elected and qualified. This proposal was approved by the Company’s stockholders at the 2011 Annual Meeting.
Name | | Votes For | | Votes
Withheld | | Broker non-
votes | |
Susan D. Bowick | | 70,878,821 | | 8,523,128 | | 17,391,583 | |
Nathaniel A. Davis | | 76,994,790 | | 2,407,159 | | 17,391,583 | |
Marce Fuller | | 70.872,263 | | 5,529,686 | | 17,391,583 | |
Rolla P. Huff | | 75,132,349 | | 4,269,600 | | 17,391,583 | |
David A. Koretz | | 77,477,400 | | 1,924,549 | | 17,391,583 | |
Thomas E. Wheeler | | 70,882,544 | | 8,519,405 | | 17,391,583 | |
M. Wayne Wisehart | | 70,871,616 | | 8,530,333 | | 17,391,583 | |
Proposal 4. Since Proposal 1 to declassify the Board of Directors was approved, Proposal 4 to elect Class III Directors was not submitted to stockholders.
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Proposal 5. To approve a non-binding advisory resolution approving the compensation of our named executive officers. This proposal was approved by the Company’s stockholders at the 2011 Annual Meeting.
Votes For — 63,135,578
Votes Against — 14,148,135
Votes Abstained — 2,118,236
Broker non-votes — 17,391,583
Proposal 6. To provide a non-binding advisory vote as to the frequency of the non-binding stockholder vote to approve the compensation of our named executive officers. The Company’s stockholders approved a one-year frequency for this non-binding stockholder vote.
One-Year Frequency — 71,707,466
Two-Year Frequency — 107,397
Three-Year Frequency — 5,665,724
Votes Abstained — 1,921,362
In light of these voting results and other matters considered by the Board of Directors, the Board of Directors and management have determined to implement an annual advisory vote on the compensation of our of our named executive officers beginning with the next annual meeting of stockholders in 2012.
Proposal 7. To approve the EarthLink, Inc. 2011 Equity and Cash Incentive Plan. This proposal was approved by the Company’s stockholders at the 2011 Annual Meeting.
Votes For — 62,760,163
Votes Against — 14,566,509
Votes Abstained — 2,075,277
Broker non-votes — 17,391,583
Proposal 8. To ratify the appointment by the Audit Committee of the Board of Directors of Ernst & Young LLP as our independent registered public accounting firm for the year ending December 31, 2011. This proposal was approved by the Company’s stockholders at the 2011 Annual Meeting.
Votes For — 91,188,242
Votes Against — 5,396,825
Votes Abstained — 208,465
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit No. | | Description |
3.1 | | Second Restated Certificate of Incorporation of EarthLink, Inc., as amended (incorporated herein by reference to Exhibit 3.1 to EarthLink, Inc.’s Registration Statement on Form S-8—File No. 333-173889) |
| | |
3.2 | | Third Amended and Restated Bylaws of EarthLink, Inc. (incorporated herein by reference to Exhibit 3.2 to EarthLink, Inc.’s Registration Statement on Form S-8—File No. 333-173889) |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| EARTHLINK, INC. |
| (Registrant) |
| | |
| | |
| By: | /s/ Bradley A. Ferguson |
| Name: | Bradley A. Ferguson |
| Title: | Executive Vice President, |
| | Chief Financial Officer |
| | |
| | |
Date: May 5, 2011 | | |
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EXHIBIT INDEX
Exhibit No. | | Description |
3.1 | | Second Restated Certificate of Incorporation of EarthLink, Inc., as amended (incorporated herein by reference to Exhibit 3.1 to EarthLink, Inc.’s Registration Statement on Form S-8—File No. 333-173889) |
| | |
3.2 | | Third Amended and Restated Bylaws of EarthLink, Inc. (incorporated herein by reference to Exhibit 3.2 to EarthLink, Inc.’s Registration Statement on Form S-8—File No. 333-173889) |
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