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EXHIBIT 99.1
REGISTRATION PROCEDURES
These REGISTRATION PROCEDURES (the "Procedures") are dated as of March 8,
1999, and are between MINDSPRING ENTERPRISES, INC., a Delaware corporation
("MindSpring"), and ICG PST, INC., a Delaware corporation formerly known as
NETCOM On-Line Communication Services, Inc. ("ICG PST").
A. BACKGROUND
1. MindSpring and ICG PST (the "Parties") are parties to an Asset
Purchase Agreement dated as of January 5, 1999, as amended by the
Closing Agreement between the Parties dated February 17, 1999 (as so
amended, the "Asset Purchase Agreement"). Pursuant to the Asset
Purchase Agreement, on February 17, 1999, MindSpring issued 376,116
shares of MindSpring common stock, par value $.01 per share (the
"Shares"), to ICG PST.
2. Pursuant to Section 6.1 of the Asset Purchase Agreement, the Parties
agree that it is necessary and desirable to establish certain
procedures and understandings in order to implement Section 5.10 of
the Asset Purchase Agreement relating to the preparation and filing by
MindSpring of a resale registration statement on Form S-3 or other
eligible form with respect to the Shares (the "Resale Registration
Statement"). These Procedures are as follows:
B. MINDSPRING WILL:
1. furnish to ICG PST's counsel for review before filing with the
Securities and Exchange Commission (the "SEC") copies of the Resale
Registration Statement and any amendments or supplements thereto;
2. notify ICG PST (which notification may be made through ICG PST's
counsel) of (a) any request by the SEC to amend or supplement the
Resale Registration Statement, or (b) any stop order issued or
threatened by the SEC, and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
3. prepare and file with the SEC such amendments and supplements to the
Resale Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Resale Registration
Statement effective for a period of not less than sixty (60) days or
such shorter period which will terminate when all of the Shares
covered by the Resale Registration Statement have been sold (the last
day of such period being referred to herein as the "Termination
Date"), and comply with the provisions of the Securities Act of 1933,
as amended (the "Securities Act"), with respect to the disposition of
all securities covered by the Resale Registration Statement during
such period in accordance with the intended methods of disposition by
ICG PST set forth in the Resale Registration Statement;
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4. furnish to ICG PST, without charge, such number of copies of the
Resale Registration Statement, each amendment and supplement thereto
(in each case including all exhibits thereto), and the prospectus
included in the Resale Registration Statement (including each
preliminary prospectus), and such other documents, as ICG PST may
reasonably request, in order to facilitate the public sale or other
disposition of the Shares;
5. use its best efforts to register or qualify the Shares under such
other securities or blue sky laws of such jurisdictions as ICG PST
reasonably requests and do any and all other acts and things which may
be reasonably necessary or advisable to enable ICG PST to consummate
the disposition in such jurisdictions of the Shares; provided,
however, that MindSpring shall not for any such purpose be required to
(a) qualify to do business as a foreign corporation in any
jurisdiction where, but for the requirements of these Procedures, it
is not then so qualified, (b) subject itself to taxation in any such
jurisdiction, or (c) take any action which would subject it to consent
to general or unlimited service of process in any such jurisdiction
where it is not then so subject;
6. cause the Shares to be listed on The Nasdaq Stock Market's National
Market, and to provide a transfer agent and registrar for the Shares
no later than the effective date of the Resale Registration Statement;
7. promptly notify ICG PST, at any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act, of the
happening of any event which comes to MindSpring's attention if, as a
result of such event, the prospectus included in the Resale
Registration Statement, as then in effect, includes any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading and, at
the request of ICG PST, deliver a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of the Shares, such prospectus
shall not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading; and
8. otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC and make available to its security holders, in
each case as soon as practicable, an earnings statement covering a
period of at least twelve months, beginning with the first day of
MindSpring's first full fiscal quarter after the effective date of the
registration statement (as the term "effective date" is defined in
Rule 158(c) under the Securities Act), which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act
including, at MindSpring's option, Rule 158 thereunder.
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C. ICG PST WILL:
1. furnish to MindSpring such information regarding ICG PST and the
distribution of the Shares as MindSpring may from time to time
reasonably request in writing;
2. upon receipt of any notice from MindSpring of the happening of any
event of the kind described in Paragraph B.7 above, forthwith
discontinue disposition of the Shares pursuant to the Resale
Registration Statement until ICG PST receives the copies of the
supplemented or amended prospectus contemplated by Paragraph B.7
above, and, if so directed by MindSpring, ICG PST will deliver to
MindSpring (at MindSpring's expense) all copies, other than permanent
file copies, then in ICG PST's possession, of the prospectus covering
the Shares at the time of receipt of such notice; and
3. notify MindSpring in writing promptly after all of the Shares subject
to the Resale Registration Statement have been sold or otherwise
distributed.
C. ICG PST REPRESENTS THAT:
1. as of and after the filing of the Resale Registration Statement until
the Termination Date (1) ICG PST will be the sole legal and beneficial
owner of the Shares and (2) the Shares can and will be transferable
free and clear of all Encumbrances. For purposes of the foregoing, the
term "Encumbrances" means any lien, pledge, encumbrance, security
interest, option, hypothecation, reservation, order, decree, judgment,
condition, restriction, charge, agreement, claim or equity of any
kind;
2. ICG PST has not entered in to any arrangements with any other
MindSpring stockholder or with any broker, dealer, underwriter or
agent relating to the distribution of the Shares and will notify
MindSpring immediately upon entering into any such arrangement;
3. the information with respect to ICG PST contained in the draft Resale
Registration Statement dated March 5, 1999 is correct and complete,
and
4. ICG PST has been notified by MindSpring that during such time as ICG
PST may be engaged in a distribution of the Shares, it is required to
comply with Regulation M under the Securities Exchange Act of 1934, as
amended.
E. COUNTERPARTS
These Procedures may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the undersigned have executed and delivered
these Procedures, or caused these Procedures to be duly executed and delivered
on their behalf, as of the date first above written.
MINDSPRING ENTERPRISES, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President,
General Counsel and Secretary
ICG PST, INC.
By: /s/H. ▇▇▇ ▇▇▇▇▇▇
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Name: H. ▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
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