As filed with the Securities and Exchange Commission on July 3, 1996
Registration No. 33-97078
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICA ONLINE, INC.
(Exact name of registrant as specified in charter)
Delaware 54-1322110
(State or other (I.R.S.
jurisdiction of Employer
incorporation or Identificatio
organization) n Number)
8619 WESTWOOD CENTER DRIVE, VIENNA, VIRGINIA 22182-2285
(Address of principal executive offices)
JOHNSON-GRACE COMPANY 1995 STOCK OPTION PLAN
Ellen M. Kirsh, Esq.
Vice President, General Counsel
and Secretary
America Online, Inc.
8619 Westwood Center Drive
Vienna, Virginia 22182-2285
(703)448-8700
(Name, address, including zip code,
and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be to be Price Per Offering Registrati
Registered(1) Register Share(2) Price(4) on Fee
ed
Common Stock, 218,064 $41.4375 $9,036,027 $3,115.87
$.01 par value
(1) The Registrant adopted a Rights Agreement on April 23, 1993. Pursuant
to such shareholder rights plan the right to receive one-hundredth (1/100)
share of preferred stock for each share of Common Stock was provided to
holders of the Common Stock under certain defined circumstances. No such
rights are currently exercisable. Value attributable to such rights, if any,
is reflected in the market price of the Common Stock.
(2) The maximum offering price per share of 218,064 shares of Common Stock
to be registered pursuant to this Registration Statement has been determined
solely for the purpose of calculating the registration fee pursuant to Rules
457(c) and (h) under the Securities Act of 1933, as amended (the "Securities
Act"), based on the average of the high and low prices for the Common Stock
as quoted on the Nasdaq Stock Market National Market within five (5) business
days prior to the above date of filing.
(3) The maximum aggregate offering price per share of 218,064 shares of
Common Stock to be registered pursuant to this Registration Statement has
been determined solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and (h) under the Securities Act based on the
average of the high and low prices for the Common Stock as quoted on the
Nasdaq Stock Market National Market within five (5) business days prior to
the above date of filing.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(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 (the
"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, which have been filed by America Online, Inc.,
a Delaware corporation (the "Company"), with the Commission, are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1995, as filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since June 30, 1995.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form S-3, Registration Number 33-97078, filed with
the Commission pursuant to the Exchange Act.
(d) In addition, all documents filed by the Company with the Commission
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 hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and
to be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Limitation of Liability; Indemnification of Directors and Officers;
Insurance
The Company's Restated Certificate of Incorporation eliminates the
liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director to the fullest extent
permitted by the General Corporation Law of the State of Delaware (the
"Delaware Corporation Law"). The Delaware Corporation Law permits a
corporation to limit or eliminate the personal liability of its directors to
the corporation or its stockholders for monetary damages for breach of
fiduciary duty, other than (1) for any breach of the duty of loyalty to the
corporation or its stockholders, (2) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law,
(3) for willful or negligent violations of provisions regarding the unlawful
payment of dividends or unlawful stock repurchases or redemptions, or (4) for
any transaction from which the director derived an improper personal benefit.
As permitted by the Delaware Corporation Law, Article Ninth of the
Company's Restated Certificate of Incorporation (the "Certificate of
Incorporation") (filed as Exhibit 3.1 to the Company's Form 10-Q for the
period ending September 30, 1995 (the "Form 10-Q")) provides that:
1. To the fullest extent permitted by the Delaware Corporation Law as the
same now exists or may hereafter be amended, the Company shall indemnify, and
advance expenses to, its directors and officers and any person who is or was
serving at the request of the Company as a director or officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise. The Company, by action of its board of directors, may provide
indemnification or advance expenses to employees and agents of the Company or
other persons only on such terms and conditions and to the extent determined
by the board of directors in its sole and absolute discretion.
2. The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article Ninth shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
3. The Company shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Company would have the power to indemnify
him against such liability under this Article Ninth.
4. The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article Ninth shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors
and administrators of such officer or director. The indemnification and
advancement of expenses that may have been provided to an employee or agent
of the Company by action of the board of directors, pursuant to the last
sentence of Paragraph 1 of this Article Ninth, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an
employee or agent of the Company and shall inure to the benefit of the heirs,
executors and administrators of such a person, after the time such person has
ceased to be an employee or agent of the Company, only on such terms and
conditions and to the extent determined by the board of directors in its sole
discretion.
Section 145 of the Delaware Corporation Law provides for indemnification
by the Company of its directors and officers. In addition, Article Five of
the Company's By-Laws (filed as Exhibit 3.2 to the Form S-3, Registration No.
33-90430) provides that:
5. Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director or an officer of the Company
or is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee
benefit plan (hereinafter an "Indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Company to the fullest extent authorized by the Delaware Corporation Law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than such law permitted the Company to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith; provided, however, that, except as
provided in Section 3 of this Article [(paragraph 7 of this Item 6)] with
respect to proceedings to enforce rights to indemnification, the Company
shall indemnify any such Indemnitee in connection with a proceeding (or part
thereof) initiated by such Indemnitee only if such proceeding (or part
thereof) was authorized by the board of directors of the Company.
6. Right to Advancement of Expenses. The right to indemnification
conferred in Section 1 of this Article [(paragraph 5 of this Item 6)] shall
include the right to be paid by the Company the expenses (including
attorneys' fees) incurred in defending any such proceeding in advance of its
final disposition; provided, however, that, if the Delaware Corporation Law
requires, an advancement of expenses incurred by an Indemnitee in his
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such Indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Company of an undertaking, by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately by determined by final judicial
decision from which there is no further right to appeal that such Indemnitee
is not entitled to be indemnified for such expenses under this Section 2
[(this paragraph 6 of this Item 6)] or otherwise. The rights to
indemnification and to the advancement of expenses conferred in Sections 1
and 2 [(paragraphs 5 and 6 of this Item 6)] of this Article shall be contract
rights and such rights shall continue as to an Indemnitee who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of
the Indemnitee's heirs, executors and administrators. Any repeal or
modification of any of the provisions of this Article shall not adversely
affect any right or protection of an Indemnitee existing at the time of such
repeal or modification.
7. Right of Indemnitees to Bring Suit. If a claim under Section 1 or 2 of
this Article [(paragraph 5 or 6 of this Item 6)] is not paid in full by the
Company within sixty (60) days after a written claim has been received by the
Company, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty (20) days, the Indemnitee
may at any time thereafter bring suit against the Company to recover the
unpaid amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Company to recover an advancement of
expenses pursuant to the terms of an undertaking, the Indemnitee shall also
be entitled to be paid the expenses of prosecuting or defending such suit.
In (i) any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) in any suit brought by the Company to recover an advancement of
expenses pursuant to the terms of an undertaking, the Company shall be
entitled to recover such expenses upon a final adjudication that, the
Indemnitee has not met any applicable standard for indemnification set forth
in the Delaware Corporation Law. Neither the failure of the Company
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth
in the Delaware Corporation Law, nor an actual determination by the Company
(including its board of directors, independent legal counsel, or its
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee
to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Company to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article or otherwise shall be on the Company.
8. Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Company's Certificate of Incorporation as amended from time to
time, these by-laws, any agreement, any vote of stockholders or disinterested
directors or otherwise.
9. Insurance. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense, liability or loss
under the Delaware Corporation Law.
10. Indemnification of Employees and Agents of the Company. The Company
may, to the extent authorized from time to time by the board of directors,
grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Company to the fullest extent of the provisions of
this Article with respect to the indemnification and advancement of expenses
of directors and officers of the Company.
As permitted by the Delaware Corporation Law, the Company's Restated
Certificate of Incorporation and the Company's Restated By-Laws, the
directors and officers of the Company are covered by a policy of liability
insurance.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
4.1 Restated Certificate of Incorporation
of America Online, Inc. (filed as
Exhibit 3.1 to the Form 10-Q for the
period ending September 30, 1995 and
incorporated herein by reference)
4.2 Restated By-Laws of America Online,
Inc. (filed as Exhibit 3.2 to the Form
S-3, Registration No. 33-90430 and
incorporated herein by reference)
4.3* Johnson-Grace Company 1995 Stock
Incentive Plan
4.4* Form of Restricted Stock Purchase
Agreement under the Johnson-Grace
Company 1995 Stock Incentive Plan
5 Opinion of Sheila A. Clark, Deputy
General Counsel to the Company
(including the consent of such general
counsel), regarding the legality of
securities being offered
23.1 Consent of Sheila A. Clark, Deputy
General Counsel to the Company
(included in his opinion filed as
Exhibit 5 hereto)
23.2 Consent of Ernst & Young LLP,
independent auditors
24* Powers of Attorney
* Previously filed.
Item 9. Undertakings
(a) The undersigned 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 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 undersigned 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Vienna, State of Virginia, on this 3rd day of
July, 1996.
AMERICA ONLINE, INC.
By: /s/STEPHEN M. CASE
Stephen M. Case
Chairman, Chief Executive
Officer, President and Director
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed on the 3rd day of July, 1996, by the following
persons in the capacities indicated.
Signature Title
Chairman, Chief Executive
Officer, President and
Director (Principal Executive
/s/STEPHEN M. CASE Officer)
Stephen M. Case
* Director
James V. Kimsey
* Director
Frank J. Caufield
* Director
Alexander M. Haig, Jr.
* Director
William N. Melton
* Director
Thomas Middelhoff
* Director
Scott C. Smith
* Director
Robert J. Frankenberg
* Director
Robert W. Pittman
Senior Vice President and
Chief Financial Officer,
Treasurer and Chief
Accounting Officer
(Principal Financial and
/s/LENNERT J. LEADER Accounting Officer)
Lennert J. Leader
*By: /s/LENNERT J. LEADER
Lennert J. Leader
Attorney -In-Fact
July 3, 1996
America Online, Inc.
8619 Westwood Center Drive
Vienna, Virginia 22182-2285
Ladies and Gentlemen:
This opinion is furnished in connection with the filing by America
Online, Inc. (the "Company") with the Securities and Exchange Commission of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended. You have requested my opinion concerning
the status under Delaware law of the 218,064 additional shares (the "Shares")
of the Company's common stock, par value $.01 per share ("Common Stock"), and
certain Common Stock Purchase Rights (the "Rights") which are being
registered under the amendment to the Registration Statement for issuance by
the Company pursuant to the terms of the Johnson-Grace Company 1995 Stock
Option Plan (the "Plan").
I am Deputy General Counsel to the Company and have acted as counsel in
connection with the amendment to the Registration Statement. In that
connection, I, or a member of my staff upon whom I have relied, have examined
and am familiar with originals or copies, certified or otherwise, identified
to our satisfaction, of:
1. Restated Certificate of Incorporation of the Company as presently
in effect;
2. Restated By-Laws of the Company as presently in effect;
3. Certain resolutions adopted by the Company's Board of Directors;
4. Johnson-Grace Company 1995 Stock Option Plan; and
5. Rights Agreement of the Company.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. We have also assumed that:
(i) all of the Shares will be issued for the consideration permitted under
the Plan as currently in effect, and none of such Shares will be issued for
less than $.01; (ii) all actions required to be taken under the Plan by the
Compensation Committee and the Board of Directors of the Company have been or
will be taken by the Compensation Committee and the Board of Directors of the
Company, respectively; and (iii) at the time of the exercise of the options
under the Plan, the Company shall continue to have sufficient authorized and
unissued shares of Common Stock reserved for issuance thereunder.
Based upon and subject to the foregoing, we are of the opinion that:
1. The shares of Common Stock and the related Common Stock Purchase
Rights which may be issued upon the exercise of the Rights have been
duly authorized for issuance.
2. If and when any Common Stock and the related Common Stock Purchase
Rights are issued in accordance with the authorization therefor (as
adjusted) established with respect to the applicable Rights in
accordance with the requirements of the Plan, and against receipt of the
exercise price therefor, and assuming the continued updating and
effectiveness of the Registration Statement and the completion of any
necessary action to permit such issuance to be carried out in accordance
with applicable securities laws, such shares of Common Stock will be
validly issued, fully-paid and nonassessable, and the accompanying
Common Stock Purchase Rights, if the Company's Common Stock Purchase
Rights have not expired or been redeemed in accordance with the terms of
the Rights Agreement, will be validly issued.
This opinion is limited to the General Corporation Law of the State of
Delaware and federal law. We express no opinion with respect to the laws of
any other jurisdiction.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and further consent to the use of my name wherever
appearing in the Registration Statement and any amendment thereto.
Very truly yours,
/s/SHEILA A. CLARK
Sheila A. Clark
SAC/jem
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Post Effective Amendment No. 1 to Form S-8 No. 33-97078) pertaining to
America Online, Inc.Os Johnson-Grace Company 1995 Stock Option Plan of our
report dated February 1, 1996 with respect to the consolidated financial
statements of America Online, Inc. included in its Annual Report (Form 10-K)
for the year ended June 30, 1995, filed with the Securities and Exchange
Commission.
Ernst & Young LLP
Vienna, Virginia
June 26, 1996
