As filed with the Securities and Exchange Commission on April 27, 2016
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 HOLDINGS CORP.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or organization)
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46-4228084
(I.R.S. Employer Identification No.)
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1170 Peachtree Street, Suite 900, Atlanta, Georgia 30309
(Address of Principal Executive Offices) (Zip Code)
EarthLink Holdings Corp. 2016 Equity and Cash Incentive Plan
(Full title of the plan)
Louis M. Alterman
Executive Vice President, Chief Financial Officer
EarthLink Holdings Corp.
1170 Peachtree St., Suite 900
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
1001 Haxall Point
P.O. Box 1122
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):
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Large accelerated filer
x
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Accelerated filer
o
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Non-accelerated filer
o
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Smaller reporting company
o
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount to be
registered(1)(2)
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Proposed maximum
offering price
per share(3)
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Proposed maximum
aggregate
offering price
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Amount of
registration fee
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Common Stock, $0.01 par value per share
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8,765,746
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$
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5.68
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$
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49,789,437
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$
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5,014
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(1)
An additional 3,234,254 shares of Common Stock may be issued under the EarthLink Holdings Corp. 2016 Equity and Cash Incentive Plan (the “Plan”) that are represented by awards which were granted under the EarthLink Holdings Corp. 2011 Equity and Cash Incentive Plan (the “2011 Plan”) after December 31, 2015. An additional indeterminate number of shares of Common Stock may be issued under the Plan that are represented by awards which previously have been granted and are outstanding under the 2011 Plan after December 31, 2015 and which subsequently expire or otherwise lapse, are terminated or forfeited, are settled in cash, or exchanged, prior to the issuance of shares of Common Stock, for Awards not involving shares of Common Stock, without the issuance of the underlying shares of Common Stock. All of such additional shares of Common Stock have previously been registered with the Securities and Exchange Commission pursuant to the Company’s Form S-8 Registration Statement (Registration No. 333-173889) for the 2011 Plan.
(2)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), 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.
(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 $5.68 per share, which was the average of the high and low prices of the Common Stock as quoted on The NASDAQ Global Select Market on April 20, 2016.
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 Amended and Restated Certificate of Incorporation of EarthLink Holdings Corp., as amended, (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.
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Exhibit No.
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Description
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3.1
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Amended and Restated Certificate of Incorporation of EarthLink Holdings Corp. (incorporated herein by reference to Exhibit 3.1 to EarthLink Holdings Corp.’s Current Report on Form 8-K, dated January 2, 2014—File No. 001-15605).
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3.2
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Amended and Restated Bylaws of EarthLink Holdings Corp. (incorporated herein by reference to Exhibit 3.2 to EarthLink Holdings Corp.’s Current Report on Form 8-K, dated January 2, 2014—File No. 001-15605).
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4.1
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Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.3 to EarthLink Holdings Corp.’s Registration Statement on Form S-8—File No. 333-30024).
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4.3
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EarthLink Holdings Corp. 2016 Equity and Cash Incentive Plan (incorporated herein by reference to Annex B to the Company’s Definitive Proxy Statement on Schedule 14A (File No. 001-15605), filed March 15, 2016).
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3
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5.1
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Opinion of Troutman Sanders LLP as to the legality of the securities being registered (filed herewith).
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23.1
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Consent of Troutman Sanders LLP (included in the opinion filed as Exhibit 5.1 to this Registration Statement).
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23.2
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Consent of Ernst & Young LLP (filed herewith).
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24.1
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Powers of Attorney (included on signature page).
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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.
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(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.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and appoints Joseph F. Eazor, Louis M. Alterman and Samuel R. DeSimone, Jr., 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.
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Signature
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Title
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Date
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/s/ Joseph F. Eazor
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Chief Executive Officer, President and Director
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April 27, 2016
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Joseph F. Eazor
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(principal executive officer)
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/s/ Louis M. Alterman
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Executive Vice President and Chief Financial
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April 27, 2016
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Louis M. Alterman
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Officer (principal financial officer)
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/s/ R. Michael Thurston
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Vice President and Controller
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April 27, 2016
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R. Michael Thurston
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(principal accounting officer)
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/s/ Susan D. Bowick
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Director
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April 27, 2016
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Susan D. Bowick
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/s/ Kathy S. Lane
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Director
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April 27, 2016
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Kathy S. Lane
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/s/ Garry K. McGuire
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Director
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April 27, 2016
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Garry K. McGuire
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/s/ R. Gerard Salemme
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Director
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April 27, 2016
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R. Gerard Salemme
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/s/ Julie A. Shimer, Ph.D.
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Director
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April 27, 2016
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Julie A. Shimer, Ph.D.
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/s/ Marc F. Stoll
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Director
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April 27, 2016
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Marc F. Stoll
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/s/ Walter L. Turek
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Director
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April 27, 2016
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Walter L. Turek
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