As filed with the Securities and Exchange Commission on January 11, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AOL TIME WARNER INC.
(Exact name of registrant as specified in charter)
Delaware 13-4099534
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
75 ROCKEFELLER PLAZA, NEW YORK, NEW YORK 10019
(Address of principal executive offices)
AOL TIME WARNER INC. DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
GERALD M. LEVIN
Chief Executive Officer
AOL Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
(212) 484-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
---------------------------- ------------------- ----------------------- ---------------------- ----------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered (1) registered offering price per aggregate offering registration fee
obligation (2) price (2)
---------------------------- ------------------- ----------------------- ---------------------- ----------------------
Deferred Compensation 100,000,000 100% $100,000,000 $25,000
Obligations
---------------------------- ------------------- ----------------------- ---------------------- ----------------------
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of AOL Time
Warner Inc. to pay deferred compensation in the future in accordance with
the terms of the AOL Time Warner Inc. Deferred Compensation Plan.
(2) Estimated solely for the purpose of determining the registration fee.
EXPLANATORY NOTE
AOL Time Warner Inc. (the "Registrant") hereby files this Registration
Statement on Form S-8 relating to the Deferred Compensation Obligations of the
Registrant pursuant to the AOL Time Warner Inc. Deferred Compensation Plan (the
"Plan").
Upon consummation of the mergers (the "Merger") provided for in the Second
Amended and Restated Agreement and Plan of Merger, dated as of January 10, 2000,
among the Registrant, America Online, Inc. ("America Online"), Time Warner Inc.
("Time Warner"), America Online Merger Sub Inc., a wholly owned subsidiary of
the Registrant ("AOL Merger Sub") and Time Warner Merger Sub Inc., a wholly
owned subsidiary of the Registrant ("TW Merger Sub"), AOL Merger Sub will be
merged into America Online and TW Merger Sub will be merged into Time Warner. As
a result, America Online and Time Warner will each become a wholly owned
subsidiary of the Registrant and the Registrant will assume the obligations of
Time Warner under the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents
are not being filed with the Securities and Exchange Commission either as
part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. Such documents and the documents
incorporated by reference in this Registration Statement pursuant to Item
3 of Part II of this Form, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission by the Registrant, America Online, Inc. (File No. 1-12143) and Time
Warner Inc. (File No. 1-12259) pursuant to the Securities Exchange Act of 1934
or as otherwise indicated, are hereby incorporated by reference in this
Registration Statement and shall be deemed to be a part hereof:
(a) America Online, Inc.'s Annual Report on Form 10-K for the fiscal
year ended June 30, 2000 (filing date September 22, 2000), as amended by
Amendment No. 1 thereto on Form 10-K/A dated October 27, 2000 (filing date
October 30, 2000).
(b) America Online, Inc.'s Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2000 (filing date November 9, 2000).
(c) Time Warner Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1999 (filing date March 30, 2000) as amended by Amendment No.
1 thereto on Form 10-K/A dated June 26, 2000 (filing date June 27, 2000).
(d) Time Warner Inc.'s Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2000 (filing date May 15, 2000).
(e) Time Warner Inc.'s Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 2000 (filing date August 14, 2000).
(f) Time Warner Inc.'s Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2000 (filing date November 13, 2000).
(g) Time Warner Inc.'s Current Report on Form 8-K dated January 10,
2000 (filing date January 14, 2000).
(h) Time Warner Inc.'s Current Report on Form 8-K dated January 23,
2000 (filing date January 28, 2000).
(i) Time Warner Inc.'s Current Report on Form 8-K dated February 2,
2000 (filing date February 10, 2000).
(j) Time Warner Inc.'s Current Report on Form 8-K dated January 10,
2000 (filing date February 11, 2000).
(k) Time Warner Inc.'s Current Report on Form 8-K dated March 13, 2000
(filing date March 13, 2000).
(l) Time Warner Inc.'s Current Report on Form 8-K dated March 31, 2000
(filing date March 31, 2000).
(m) Time Warner Inc.'s Current Report on Form 8-K dated April 12, 2000
(filing date April 19, 2000).
(n) Time Warner Inc.'s Current Report on Form 8-K dated April 19, 2000
(filing date April 25, 2000).
(o) Time Warner Inc.'s Current Report on Form 8-K dated May 22, 2000
(filing date May 22, 2000).
(p) Time Warner Inc.'s Current Report on Form 8-K dated October 5, 2000
(filing date October 5, 2000).
All documents subsequently filed by the Registrant or pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein by reference and shall be deemed a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein and to be a part
hereof 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 which also is or is deemed to be incorporated
by reference herein modifies or supersedes such 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.
Under the Plan, the Registrant will provide eligible employees the opportunity
to defer a specified percentage or amount of their cash compensation. The
obligations of the Registrant under the Plan (the "Obligations") will be
unsecured general obligations of the Registrant to pay the deferred compensation
in the future in accordance with the terms of the Plan, and will rank on a
parity with other unsecured and unsubordinated indebtedness of the Registrant
from time to time outstanding. However, because the Registrant is a holding
company, the right of the Registrant, and hence the right of creditors of the
Registrant (including participants in the Plan), to participate in any
distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the Registrant
itself as a creditor of the subsidiary may be recognized. Accordingly,
participants in the Plan may be deemed to be effectively subordinated to such
claims In addition, dividends, loans and advances from certain subsidiaries to
the Registrant are restricted by certain agreements.
The amount of compensation to be deferred by each participating
employee (each a "Participant") will be determined in accordance with the Plan
based on elections by each Participant. Each Obligation will be payable on the
date selected by each Participant in accordance with the terms of the Plan or,
if earlier, death, disability or other termination of employment pursuant to the
terms of the Plan. The Obligations will be indexed to one or more investment
crediting rate options (the "Crediting Rate Options") individually chosen by
each Participant from a list of investment fund options. Each Participant's
Obligation will be adjusted to reflect the investment experience, whether
positive or negative, of the selected Crediting Rate Options, including any
appreciation or depreciation. The Obligations will be denominated and be payable
in United States dollars.
A Participant's right or the right of any other person to the
Obligations cannot be assigned, alienated, sold, garnished, transferred,
pledged, or encumbered except by a written designation of a beneficiary under
the Plan, by written will, or by the laws of descent and distribution.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by each Participant, at the
option of the Registrant or through operation of a mandatory or optional sinking
fund or analogous provision. However, the Registrant reserves the right to amend
or terminate the Plan at any time, except that no such amendment or termination
shall adversely affect the right of the Participant to the balance of his or her
deferred account as of the date of such amendment or termination.
The Obligations are not convertible into another security of the
Registrant. The Obligations will not have the benefit of a negative pledge or
any other affirmative or negative covenant on the part of the Registrant. No
trustee has been appointed having the authority to take action with respect to
the Obligations and each Participant will be responsible for acting
independently with respect to, among other things, the giving of notices,
responding to any requests for consents, waivers or amendments pertaining to the
Obligations, enforcing covenants and taking action upon default.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware
("Delaware Corporation Law") provides, in general, that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, other than an action
by or in the right of the corporation, because the person is or was a director
or officer of the corporation. Such indemnity may be against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation and if, with respect to any criminal action or proceeding, the
person did not have reasonable cause to believe the person's conduct was
unlawful.
Section 145(b) of the Delaware Corporation Law provides, in general,
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor because the person is or was a director or officer of the
corporation, against any expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
be indemnified for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145(g) of the Delaware Corporation Law provides, in general,
that a corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation
against any liability asserted against the person in any such capacity, or
arising out of the person's status as such, whether or not the corporation would
have the power to indemnify the person against such liability under the
provisions of the law.
Article VII of the Registrant's By-laws requires indemnification to the
fullest extent permitted under Delaware law of any person who is or was a
director or officer of the Registrant who is or was involved or threatened to be
made so involved in any proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was serving as a
director, officer, employee or agent of the Registrant or was serving at the
request of the Registrant as a director, officer, employee or agent of any other
enterprise.
The foregoing statements are subject to the detailed provisions of
Section 145 of the Delaware Corporation Law and Article VII of the By-laws of
the Registrant.
The Registrant's Directors' and Officers' Liability and Reimbursement
Insurance Policy is designed to reimburse the Registrant for any payments made
by it pursuant to the foregoing indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
Item 9. Undertakings
(a) The Registrant 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 of 1933;
(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.
(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 this registration statement is on Form S-3,
Form S-8 or Form F-3, 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 registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant 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 Registrant 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
Act and will be governed by the final adjudication of such issue.
EXHIBIT INDEX
Exhibit Description of Exhibit
Number
4.1 Time Warner Inc. Deferred Compensation Plan (to be renamed AOL
Time Warner Inc. Deferred Compensation Plan) (the "Deferred
Compensation Plan") (which is incorporated herein by reference
to Exhibit 4 to the Registration Statement on Form S-8 filed
by Time Warner Inc. on December 18, 1998 (Registration No.
333-69161)).
4.2 Amendments No. 1 through 6 to the Deferred Compensation Plan,
effective on June 18, 1999, September 13, 1999, October 25,
1999 (except where otherwise indicated), October 25, 1999
(except where otherwise indicated), November 15, 1999 (except
where otherwise indicated) and March 15, 2000 (except where
otherwise indicated), respectively (which are incorporated
herein by reference to Exhibits 10.14 through 10.19,
respectively, to Time Warner Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1999 (File No. 1-12259)).
4.3 Amendments No. 7 and 8 to the Deferred Compensation Plan,
approved on May 25, 2000 and June 28, 2000, respectively
(which are incorporated herein by reference to Exhibits 10.2
and 10.3, respectively, to Time Warner Inc.'s Quarterly Report
on Form 10-Q for the quarter ended June 30, 2000 (File No.
1-12259)).
4.4 Amendments No. 9 and 10 to the Deferred Compensation Plan,
approved on August 4, 2000 and November 1, 2000, respectively
(which are incorporated herein by reference to Exhibits 10.1
and 10.2, respectively, to Time Warner Inc.'s Quarterly Report
on Form 10-Q for the quarter ended September 30, 2000 (File
No. 1-12259)).
5 Opinion of Paul T. Cappuccio, Vice President of AOL Time
Warner Inc.
23.1 Consents of Ernst & Young LLP.
23.2 Consent of Paul T. Cappuccio, Vice President of AOL Time
Warner Inc. (included in Opinion filed as Exhibit 5).
24 Powers of Attorney.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this Registration Statement on Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on January 11, 2001.
AOL TIME WARNER INC.
By: /s/ J. Michael Kelly
Name: J. Michael Kelly
Title: Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
* Chief Executive Officer January 11, 2001
Gerald M. Levin (principal executive officer)
* Chief Financial Officer, January 11, 2001
J. Michael Kelly Executive Vice President
(principal financial and
accounting officer) and Director
*
Christopher P. Bogart Vice President and Director January 11, 2001
*
Richard J. Bressler Director January 11, 2001
*
Paul T. Cappuccio Vice President and Director January 11, 2001
</TABLE>
* By: /s/ J. Michael Kelly
Name: J. Michael Kelly
Attorney-In-Fact
