As filed with the Securities and Exchange Commission on December 9, 1998
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
22000 AOL WAY, DULLES, VIRGINIA 20166-9323
(Address of principal executive offices)
AMERICA ONLINE, INC. 1992 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK OPTION PLAN
(Full Title of the Plan)
Sheila A. Clark, Esq.
Vice President, Acting General Counsel
and Assistant Secretary
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-1000
(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>
Amount Proposed
Title of Securities to be to be Maximum Offering Proposed Amount of
Registered(1) Registered(2) Price Per Share Maximum Aggregate Offering Price Registration Fee
Common Stock,
$.01 par value 10,000,000 (3)(4) $552,708,341 $163,049
</TABLE>
(1) Common Stock being registered hereby includes associated Preferred Share
Purchase Rights, which initially are attached to and traded with the shares
of the Registrant's Common Stock. Value attributable to such rights, if
any, is reflected in the market price of the Common Stock.
(2) The number of shares of Common Stock to be registered consists of the
aggregate number of shares which may be sold upon the exercise of options
which have previously been granted and/or may hereafter be granted under
the America Online, Inc. 1992 Employee, Director and Consultant Stock
Option Plan (the "Plan"). The maximum number of shares which may be sold
upon the exercise of such options granted under the Plan is subject to
adjustment in accordance with certain anti-dilution and other provisions of
the Plan.
(3) The maximum offering price per share has been determined solely for the
purpose of calculating the registration fee pursuant to Rules 457(c) and
(h) under the Securities Act as follows: for the 7,935,930 shares of Common
Stock which may be purchased upon exercise of outstanding options, the fee
is based on the average price of $47.19 at which options may be exercised.
(4) The maximum offering price per share has been determined solely for the
purpose of calculating the registration fee pursuant to Rules 457(c) and
(h) under the Securities Act as follows: for the 2,064,070 options that
have not yet been granted, the fee is based on the average of the high and
low prices of $86.34 for the Common Stock as quoted on the New York Stock
Exchange within five (5) business days prior to the above date of filing.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to General Instruction E on Form S-8 regarding the
registration of additional securities, America Online, Inc. (the "Company")
hereby is registering additional shares of common stock, par value $.01 per
share (the "Common Stock"), in the number set forth on the cover page of this
Registration Statement. Such shares are of the same class as other securities of
the Company for which previous registration statements have been filed with the
Securities and Exchange Commission (the "Commission") relating to the Company's
1992 Employee, Director and Consultant Stock Option Plan (the "Plan"), and such
registration statements, as listed below, are incorporated by reference herein:
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 333-57142 (filed on June 18, 1998);
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 333-46635 (filed on February 20,
1998);
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 333-22027 (filed on February 19,
1997);
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 333-07603 (filed on July 3, 1996);
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 33-78066 (filed on April 22, 1994);
Registration Statement on Form S-8, registering shares issued in
connection with the Plan, File No. 33-46607 (filed on March 24, 1992).
Pursuant to Rule E, this Registration Statement contains such
information required by Form S-8 that is not otherwise included in the
above-listed registration statements.
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, 1998, as filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (File
No. 0-19836).
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998, as filed with the Commission pursuant
to the Exchange Act (File No. 0-19836).
(c) The Company's Current Reports on Forms 8-K for events
dated August 4, 1998, September 28, 1998 and November 23, 1998 filed
pursuant to Section 13 or 15(d) of the 1934 Act (File No. 0-19836).
(d) The description of the Common Stock contained in the
Company's Registration Statement on Form S-3, Registration Number
333-46633, filed on February 20, 1998 with the Commission pursuant to
the Securities Act of 1933, as amended.
(e) The description of the preferred share purchase rights
contained in the Company's registration statement on Form 8-A filed
with the Commission pursuant to the Exchange Act on May 29, 1998.
(f) 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. 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), by reason of the fact that he 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 him in connection with such action, suit or
proceeding, if the indemnified party acted in good faith and in a manner he
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
indemnified party did not have reasonable cause to believe his 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 by reason of the fact that he is or was a director or
officer of the corporation, against any expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation.
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 him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of the law.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law
(the "Delaware Statute"), Article Ninth of the Registrant's Restated Certificate
of Incorporation (the "Certificate of Incorporation") provides that:
To the fullest extent permitted by the Delaware General
Corporation Law as the same now exists or may hereafter be amended, the
Corporation shall indemnify, and advance expenses to, its directors and
officers and any person who is or was serving at the request of the
Corporation as a director or officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. The
Corporation, by action of its board of directors, may provide
indemnification or advance expenses to employees and agents of the
Corporation 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.
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.
The Corporation 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 Corporation, or is or was serving at the
request of the Corporation 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 Corporation would have the power to indemnify him against
such liability under this Article Ninth.
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 Corporation 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 Corporation 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 Corporation, only
on such terms and conditions and to the extent determined by the board
of directors in its sole discretion.
In addition, Article Five of the Registrant's Restated By-Laws
(Incorporated by reference herein) provides that:
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 Corporation or is or was serving at
the request of the Corporation 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 Corporation to the fullest extent authorized by the
Delaware General 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 Corporation to provide broader
indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and
loss (including attorney's 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 the section "Right of Indemnitees to Bring
Suit" of this Article with respect to proceedings to enforce rights to
indemnification, the Corporation 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 Corporation.
Right to Advancement of Expenses. The right to indemnification
conferred in Section 1 of this Article shall include the right to be
paid by the Corporation the expenses (including attorney's fees)
incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General
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 Corporation of an undertaking,
by or on behalf of such Indemnitee, to repay all amounts so advanced if
it shall ultimately be 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 or
otherwise. The rights to indemnification and to the advancement of
expenses conferred in this section and the section "Right to
Indemnification" 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.
Right of Indemnitees to Bring Suit. If a claim under the
sections "Right to Indemnification" and "Right to Advancement of
Expenses" of this Article is not paid in full by the Corporation within
sixty (60) days after a written claim has been received by the
Corporation, 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
Corporation 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
Corporation 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 Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Corporation 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 General Corporation Law. Neither the failure of
the Corporation (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 General
Corporation Law, nor an actual determination by the Corporation
(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 Corporation 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 Corporation.
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 Corporation's Certificate of
Incorporation as amended from time to time, these By-Laws, any
agreement, any vote of stockholders or disinterested directors or
otherwise.
Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent
of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law.
Indemnification of Employees and Agents of the Corporation.
The Corporation 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 Corporation 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 Corporation.
The directors and officers of the Registrant are covered by a policy of
liability insurance.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
4.1 Amendment of Section A of Article 4 of the
Restated Certificate of Incorporation of
America Online, Inc. (filed as Exhibit 4.1
to the Registrant's Registration Statement
on Form S-8 filed on February 20, 1998 and
incorporated herein by reference)
4.2 Section B of Article 4, Article 6 and
Article 8 of the Restated Certificate of
Incorporation of the Registrant (filed as
part of Exhibit 3.1 to the Registrant's Form
10-K for the year ended June 30, 1997 and
incorporated herein by reference)
4.3 Rights Agreement dated as of May 12, 1998,
including Exhibit A (Certificate of
Designation setting forth the terms of
Series A Junior Participating Preferred
Stock, $.01 par value), Exhibit B (Form of
Rights Certificate) and Exhibit C (Summary
of Rights to Purchase Series A Junior
Participating Preferred Shares) (Filed as
Exhibit 4.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended
March 31, 1998 and incorporated herein by
reference.)
4.4 America Online, Inc. 1992 Employee, Director
and Consultant Stock Option Plan
5 Opinion of Sheila A. Clark, Acting General
Counsel to the Company (including the
consent of such acting general counsel),
regarding the legality of securities being
offered
23.1 Consent of Sheila A. Clark, Acting General
Counsel to the Company (included in her
opinion filed as Exhibit 5 hereto)
23.2 Consent of Ernst & Young LLP
24 Powers of Attorney
Item 9. Undertakings
(a) The 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 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 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 County of Loudoun, State of Virginia, on
this 8th day of December, 1998.
AMERICA ONLINE, INC.
By: *
Stephen M. Case
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on the 8th day of December, 1998, by
the following persons in the capacities indicated.
Signature Title
Chairman and Chief Executive Officer
* (Principal Executive Officer)
Stephen M. Case
* President, Chief Operating Officer and
Robert W. Pittman Director
Senior Vice President, Chief Financial
Officer, Treasurer, and Assistant
/s/J. Michael Kelly Secretary (Principal Financial Officer)
J. Michael Kelly
* Vice President, Controller and Chief
James F. MacGuidwin Accounting and Budget Officer
(Principal Accounting Officer)
* Director
Daniel F. Akerson
* Director
Frank J. Caufield
* Director
Alexander M. Haig, Jr.
* Director
William N. Melton
* Director
Thomas Middelhoff
* Director
Colin L. Powell
* Director
Franklin D. Raines
By: /s/J. Michael Kelly
J. Michael Kelly
Attorney-in-Fact
Exhibit Index
Exhibit No. Description
4.4 America Online, Inc. 1992 Employee, Director and Consultant
Stock Option Plan
5 Opinion of Sheila A. Clark, Acting General Counsel to the
Company (including the consent of such acting general
counsel), regarding the legality of securities being offered
23.1 Consent of Sheila A. Clark, Acting General Counsel to the
Company (included in her opinion filed as Exhibit 5 hereto)
23.2 Consent of Ernst & Young LLP
24 Powers of Attorney
Exhibit 4.4
AMERICA ONLINE, INC.
1992 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK OPTION PLAN
(AS AMENDED AND RESTATED)
1. PURPOSES OF THE PLAN.
The Plan is intended to encourage ownership of Shares by Key Employees
and directors of and certain consultants to the Company in order to attract such
people, to induce them to work for the benefit of the Company or of an
Affiliate, and to provide additional incentive for them to promote the success
of the Company or of an Affiliate. The Plan provides for the granting of ISOs
and Non-Qualified Options.
2. DEFINITIONS.
Unless otherwise specified or unless the context otherwise requires,
the following terms, as used in this America Online, Inc. 1992
Employee, Director and Consultant Stock Option Plan, have the following
meanings:
Administrator means the Board of Directors, unless it has
delegated power to act on its behalf to the Committee, in
which case the Administrator means the Committee.
Affiliate, with respect to ISOs, means a corporation which,
for purposes of Section 424 of the Code, is a parent or
subsidiary of the Company, direct or indirect, and with
respect to Non-Qualified Options, means any corporation,
company or other entity such that the Company directly or
indirectly, through one or more intermediaries, owns or
controls the greater of (i) 25% of the voting power or
outstanding securities of such corporation, company or other
entity; or (ii) such amount of voting or outstanding
securities or has other controlling interest such that the
Shares and the Options would qualify for registration on Form
S-8, all as determined by the Administrator.
Board of Directors means the Board of Directors of the
Company.
Change in Control means either a Corporate Change in Control
or a Transactional Change in Control.
Code means the United States Internal Revenue Code of 1986, as
amended.
Committee means the committee of the Board of Directors to
which the Board of Directors has delegated power to act under
or pursuant to the provisions of the Plan.
Common Stock means shares of the Company's common stock, $.01
par value per share.
Company means America Online, Inc., a Delaware corporation.
Corporate Change in Control means the happening of any of the
following events:
(1) the acquisition by any individual, entity or group (an
"Entity"), including any "person" within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act, of
beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 30% or more of either
(i) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined
voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding, however,
the following: (A) any acquisition directly from the Company
(excluding any acquisition by virtue of the exercise of an
exercise, conversion or exchange privilege unless the security
being so exercised, converted or exchanged was itself acquired
directly from the Company), (B) any acquisition by the
Company, or (C) any acquisition by an employee benefit plan
(or related trust) sponsored or maintained by the Company or
by any corporation controlled by the Company; or
(2) a change in the composition of the Board since July 30,
1997, such that the individuals who, as of such date,
constituted the Board of Directors (the "Incumbent Board")
cease for any reason to constitute at least a majority of such
Board; provided that any individual who becomes a director of
the Company subsequent to July 30, 1997 whose election, or
nomination for election by the Company's stockholders, was
approved by the vote of at least a majority of the directors
then comprising the Incumbent Board shall be deemed a member
of the Incumbent Board; and provided further, that any
individual who was initially elected as a director of the
Company as a result of an actual or threatened election
contest, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act, or any other actual or
threatened solicitation of proxies or consents by or on behalf
of any person or Entity other than the Board shall not be
deemed a member of the Incumbent Board.
Disability or Disabled means permanent and total disability as
defined in Section 22(e)(3) of the Code.
Fair Market Value of a Share of Common Stock means:
(1) If the Common Stock is listed on a national securities
exchange or traded in the over-the-counter market and sales
prices are regularly reported for the Common Stock, the
closing or last price of the Common Stock on the Composite
Tape or other comparable reporting system for the applicable
date, or if the applicable date is not a trading day, the
trading day immediately preceding the applicable date;
(2) If the Common Stock is not traded on a national securities
exchange but is traded on the over-the-counter market, if
sales prices are not regularly reported for the Common Stock
for the trading day referred to in clause (1), and if bid and
asked prices for the Common Stock are regularly reported, the
mean between the bid and the asked price for the Common Stock
at the close of trading in the over-the-counter market on the
applicable date, or if the applicable date is not a trading
day, on the trading day immediately preceding the applicable
date; and
(3) If the Common Stock is neither listed on a national
securities exchange nor traded in the over-the-counter market,
such value as the Administrator, in good faith, shall
determine.
Involuntary Employment Action shall mean any change in the
terms and conditions of the Participant's employment with the
Company or any successor, without cause (as defined herein),
to such extent that:
(1) the Participant shall fail to be vested with power,
authority and resources analogous to the Participant's title
and/or office prior to the Change in Control, or
(2) the Participant shall lose any significant duties or
responsibilities attending such office, or
(3) there shall occur a reduction in the Participant's base
compensation, or
(4) the Participant's employment with the Company, or its
successor, is terminated without cause (as defined herein).
ISO means an option meant to qualify as an incentive stock
option under Section 422 of the Code.
Key Employee means an employee of the Company or of an
Affiliate (including, without limitation, an employee who is
also serving as an officer or director of the Company or of an
Affiliate), designated by the Administrator to be eligible to
be granted one or more Options under the Plan.
Non-Qualified Option means an option which is not intended to
qualify as an ISO.
Option means an ISO or Non-Qualified Option granted under the
Plan.
Option Agreement means an agreement between the Company and a
Participant delivered pursuant to the Plan, in such form as
the Administrator shall approve.
Participant means a Key Employee, director or consultant to
whom one or more Options are granted under the Plan. As used
herein, "Participant" shall include "Participant's Survivors"
where the context requires.
Plan means this America Online, Inc. 1992 Employee, Director
and Consultant Stock Option Plan.
Shares means shares of the Common Stock as to which Options
have been or may be granted under the Plan or any shares of
capital stock into which the Shares are changed or for which
they are exchanged within the provisions of Paragraph 3 of the
Plan. The Shares issued upon exercise of Options granted under
the Plan may be authorized and unissued shares or shares held
by the Company in its treasury, or both.
Survivors means a deceased Participant's legal representatives
and/or any person or persons who acquired the Participant's
rights to an Option by will or by the laws of descent and
distribution.
Transactional Change in Control shall mean any of the
following transactions to which the Company is a party:
(1) a reorganization, recapitalization, merger or
consolidation (a "Corporate Transaction") of the Company,
unless securities representing 60% or more of either the
outstanding shares of common stock or the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors of the Company or
the corporation resulting from such Corporate Transaction (or
the parent of such corporation) are held subsequent to such
transaction by the person or persons who were the beneficial
holders of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to
such Corporate Transaction, in substantially the same
proportions as their ownership immediately prior to such
Corporate Transaction; or
(2) the sale, transfer or other disposition of all or
substantially all of the assets of the Company.
3. SHARES SUBJECT TO THE PLAN.
The number of Shares which may be issued from time to time pursuant to
this Plan shall be 194,320,000 or the equivalent of such number of Shares after
the Administrator, in its sole discretion, has interpreted the effect of any
stock split, stock dividend, combination, recapitalization or similar
transaction in accordance with Paragraph 16 of the Plan.
If an Option ceases to be "outstanding", in whole or in part, the
Shares which were subject to such Option shall be available for the granting of
other Options under the Plan. Any Option shall be treated as "outstanding" until
such Option is exercised in full, or terminates or expires under the provisions
of the Plan, or by agreement of the parties to the pertinent Option Agreement.
4. ADMINISTRATION OF THE PLAN.
The Administrator of the Plan will be the Board of Directors, except to
the extent the Board of Directors delegates its authority to the Committee, in
which case the Committee shall be the Administrator.
Subject to the provisions of the Plan, the Administrator is authorized to:
a. Interpret the provisions of the Plan or of any Option or
Option Agreement and to make all rules and determinations
which it deems necessary or advisable for the administration
of the Plan;
b. Determine which employees of the Company or of an Affiliate
shall be designated as Key Employees and which of the Key
Employees, directors and consultants shall be granted Options;
c. Determine the number of Shares for which an Option or Options
shall be granted, provided, however, that in no event shall
Options to purchase more than 8,000,000 Shares be granted to
any Participant in any fiscal year; and
d. Specify the terms and conditions upon which an Option or
Options may be granted;
provided, however, that all such interpretations, rules, determinations, terms
and conditions shall be made and prescribed in the context of preserving the tax
status under Section 422 of the Code of those Options which are designated as
ISOs. Subject to the foregoing, the interpretation and construction by the
Administrator of any provisions of the Plan or of any Option granted under it
shall be final, unless otherwise determined by the Board of Directors, if the
Administrator is the Committee. The Administrator's determinations under the
Plan need not be uniform and may be made by it selectively among persons who
receive, or are eligible to receive, Options under the Plan (whether or not such
persons are similarly situated). Without limiting the generality of the
foregoing, the Administrator shall be entitled, among other things, to make non
uniform and selective determinations, and to enter into non uniform and
selective Option Agreements, as to (a) the persons to receive Options under the
Plan, (b) the terms and provisions of Options under the Plan, and whether a
termination of service with the Company and any Affiliate has occurred.
5. ELIGIBILITY FOR PARTICIPATION.
The Administrator will, in its sole discretion, name the Participants
in the Plan, provided, however, that each Participant must be a Key Employee,
director or consultant of the Company or of an Affiliate at the time an Option
is granted. Members of the Company's Board of Directors who are not employees of
the Company or of an Affiliate may receive options pursuant to Paragraph 6,
Subparagraph A(f), but only pursuant thereto. Notwithstanding any of the
foregoing provisions, the Administrator may authorize the grant of an Option to
a person not then an employee, director or consultant of the Company or of an
Affiliate; provided, however, that the actual grant of such Option shall be
conditioned upon such person becoming eligible to become a Participant at or
prior to the time of the execution of the Option Agreement evidencing such
Option. ISOs may be granted only to Key Employees. Non-Qualified Options may be
granted to any Key Employee, director or consultant of the Company or an
Affiliate. The granting of any Option to any individual shall neither entitle
that individual to, nor disqualify him or her from, participation in any other
grant of Options.
6. TERMS AND CONDITIONS OF OPTIONS.
Each Option shall be set forth in writing in an Option Agreement, duly
executed by the Company and, to the extent required by law or requested by the
Company, by the Participant. The Administrator may provide that Options be
granted subject to such terms and conditions, consistent with the terms and
conditions specifically required under this Plan, as the Administrator may deem
appropriate including, without limitation, subsequent approval by the
stockholders of the Company of this Plan or any amendments thereto.
A. Non-Qualified Options: Each Option intended to be a
Non-Qualified Option shall be subject to the terms and
conditions which the Administrator determines to be
appropriate and in the best interest of the Company, subject
to the following minimum standards for any such Non-Qualified
Option:
a. Option Price: The option price (per share) of the
Shares covered by each Option shall be determined by
the Administrator but shall not be less than one
hundred percent (100%) of the Fair Market Value (per
share) of the Shares on the date of grant of the
Option.
b. Each Option Agreement shall state the number of
Shares to which it pertains;
c. Each Option Agreement shall state the date or dates
on which it first is exercisable and the date after
which it may no longer be exercised, and may provide
that the Option rights accrue or become exercisable
in installments over a period of months or years, or
upon the occurrence of certain conditions or the
attainment of stated goals or events; and
d. Exercise of any Option may be conditioned upon the
Participant's execution of a Share purchase agreement
in form satisfactory to the Administrator providing
for certain protections for the Company and its other
stockholders, including requirements that:
i. The Participant's or the Participant's Survivors'
right to sell or transfer the Shares may be
restricted; and
ii. The Participant or the Participant's
Survivors may be required to execute letters
of investment intent and must also
acknowledge that the Shares will bear
legends noting any applicable restrictions.
e. Limitation on Grant of Non-Qualified Options: No
Non-Qualified Option shall be granted after the date
provided in Paragraph 22 of this Plan.
f. Directors' Options: Each director of the Company
who is not an employee of the Company or any
Affiliate, upon first being elected or appointed to
the Board of Directors, shall be granted a
Non-Qualified Option to purchase 10,000 shares;
provided, however, that the Administrator shall be
entitled to grant an Option for such higher number
of shares as may be appropriate (as determined by
the Administrator) for recruitment purposes. On the
date following the annual meeting of stockholders of
the Company each year, giving effect to the election
of any director or directors at such annual meeting
of stockholders, each director who is not an
employee of the Company or any Affiliate and who has
served at least six months as a director shall be
granted a Non-Qualified Option to purchase 10,000
Shares. In addition, on date following the annual
meeting of stockholders of the Company each year,
giving effect to the election of any director or
directors at such annual meeting of stockholders,
each director who is not an employee of the Company
or any Affiliate and who serves on the Compensation
Committee or the Audit Committee of the Board of
Directors (or other committee designated by the
Board of Directors to be entitled to receive options
under this sentence) shall be granted a
Non-Qualified Option to purchase 5,000 shares;
provided, further, that on such date, each such
director who serves as the Chair of such committee
shall be granted an additional Option to purchase
5,000 shares. The grants for service as a committee
member or Chair shall cover service on all eligible
committees and shall not be cumulative for service
on more than one committee. Each Option granted
pursuant to this Section 6(A)(f) shall (i) have an
exercise price equal to the Fair Market Value (per
share) of the Shares on the date of grant of the
Option, (ii) have a term of ten (10) years, and
(iii) be immediately exercisable (subject to Section
16 of the Securities Exchange Act of 1934, as
amended (the "1934 Act")). The Board of Directors
may amend this Section 6(A)(f) to increase, reduce,
eliminate, or institute option grants for Board,
Committee, or other individual or collective service
under this Plan.
B. ISOs: Each Option intended to be an ISO shall so state and
shall be issued only to a Key Employee and be subject to at
least the following terms and conditions, with such additional
restrictions or changes as the Administrator determines are
appropriate but not in conflict with Section 422 of the Code
and relevant regulations and rulings of the Internal Revenue
Service:
a. Minimum standards: The ISO shall meet the minimum
standards required of Non-Qualified Options, as
described in Paragraph 6(A) above, except clauses (a)
and (f) thereunder.
b. Option Price: Immediately before the Option is
granted, if the Participant owns, directly or by
reason of the applicable attribution rules in
Section 424(d) of the Code:
i. Ten percent (10%) or less of the total
combined voting power of all classes of
stock of the Company or an Affiliate, the
Option price per share of the Shares covered
by each Option shall not be less than one
hundred percent (100%) of the Fair Market
Value per share of the Shares on the date of
the grant of the Option.
ii. More than ten percent (10%) of the total
combined voting power of all classes of
stock of the Company or an Affiliate, the
Option price per share of the Shares covered
by each Option shall not be less than one
hundred ten percent (110%) of the Fair
Market Value on the date of grant.
c. Term of Option: For Participants who own
i. Ten percent (10%) or less of the total
combined voting power of all classes of
stock of the Company or an Affiliate, each
Option shall terminate not more than ten
(10) years from the date of the grant or at
such earlier time as the Option Agreement
may provide.
ii. More than ten percent (10%) of the total
combined voting power of all classes of
stock of the Company or an Affiliate, each
Option shall terminate not more than five
(5) years from the date of the grant or at
such earlier time as the Option Agreement
may provide.
d. Limitation on Yearly Exercise: The Option
Agreements shall restrict the amount of Options
which may be exercisable in any calendar year (under
this or any other ISO plan of the Company or an
Affiliate) so that the aggregate Fair Market Value
(determined at the time each ISO is granted) of the
stock with respect to which ISOs are exercisable for
the first time by the Participant in any calendar
year does not exceed one hundred thousand dollars
($100,000), provided that this subparagraph (d)
shall have no force or effect if its inclusion in
the Plan is not necessary for Options issued as ISOs
to qualify as ISOs pursuant to Section 422(d) of the
Code.
e. Limitation on Grant of ISOs: No ISOs shall be granted
after February 3, 2002, the date which is the earlier
of ten (10) years from the date of the adoption of
the Plan by the Company and the date of the approval
of the Plan by the shareholders of the Company.
f. To the extent that an Option which is intended to be
an ISO fails to so qualify, it shall be treated as a
Non-Qualified Option.
7. EXERCISE OF OPTIONS AND ISSUE OF SHARES.
An Option (or any part or installment thereof) shall be exercised by
giving written notice to the Company at its principal executive office address,
together with provision for payment of the full purchase price in accordance
with this Paragraph for the Shares as to which the Option is being exercised,
and upon compliance with any other condition(s) set forth in the Option
Agreement. Such written notice shall be signed by the person exercising the
Option, shall state the number of Shares with respect to which the Option is
being exercised and shall contain any representation required by the Plan or the
Option Agreement. Payment of the purchase price for the Shares as to which such
Option is being exercised shall be made (a) in United States dollars in cash or
by check, or (b) at the discretion of the Administrator, through delivery of
shares of Common Stock having a Fair Market Value equal as of the date of the
exercise to the cash exercise price of the Option, or (c) at the discretion of
the Administrator, by delivery of the grantee's personal recourse note bearing
interest payable not less than annually at no less than 100% of the applicable
Federal rate, as defined in Section 1274(d) of the Code, or (d) at the
discretion of the Administrator, in accordance with a cashless exercise program
established with a securities brokerage firm, and approved by the Administrator,
or (e) at the discretion of the Administrator, through such other method of
payment approved by the Administrator, or (f) at the discretion of the
Administrator, by any combination of (a), (b), (c), (d) and (e) above.
Notwithstanding the foregoing, the Administrator shall accept only such payment
on exercise of an ISO as is permitted by Section 422 of the Code.
The Company shall then reasonably promptly deliver the Shares as to
which such Option was exercised to the Participant (or to the Participant's
Survivors, as the case may be). In determining what constitutes "reasonably
promptly," it is expressly understood that the delivery of the Shares may be
delayed by the Company in order to comply with any law or regulation (including,
without limitation, state securities or "blue sky" laws) which requires the
Company to take any action with respect to the Shares prior to their issuance.
The Shares shall, upon delivery, be evidenced by an appropriate certificate or
certificates for fully paid, non-assessable Shares.
The Administrator shall have the right to accelerate the date of
exercise of any installment of any Option; provided that the Administrator shall
not accelerate the exercise date of any installment of any Option granted to any
Key Employee as an ISO (and not previously converted into a Non-Qualified Option
pursuant to Paragraph 19) if such acceleration would violate the annual vesting
limitation contained in Section 422(d) of the Code, as described in Paragraph
6(B)(d).
The Administrator may, in its discretion, amend any term or condition
of an outstanding Option provided (i) such term or condition as amended is
permitted by the Plan, (ii) if any amendment is materially adverse to the
Participant, any such amendment shall be made only with the consent of the
Participant to whom the Option was granted, or in the event of the death of the
Participant, the Participant's Survivors, and (iii) any such amendment of any
ISO shall be made only after the Administrator, after consulting with counsel
for the Company, determines whether such amendment would constitute a
"modification" of any Option which is an ISO (as that term is defined in Section
424(h) of the Code) or would cause any adverse tax consequences for the holder
of such ISO.
8. RIGHTS AS A STOCKHOLDER.
No Participant to whom an Option has been granted shall have rights as
a stockholder with respect to any Shares covered by such Option, except after
due exercise of the Option and tender of the full purchase price for the Shares
being purchased pursuant to such exercise (and satisfaction of such other
conditions for the transfer of Shares as may be required pursuant to the Option)
and registration of the Shares in the Company's share register in the name of
the Participant.
9. ASSIGNABILITY AND TRANSFERABILITY OF OPTIONS.
By its terms, an Option granted to a Participant shall not be
transferable by the Participant other than (i) by will or by the laws of descent
and distribution, or (ii) as otherwise determined by the Administrator and set
forth in the applicable Option Agreement. The designation of a beneficiary of an
Option by a Participant shall not be deemed a transfer prohibited by this
Paragraph. Except as provided above, an Option shall be exercisable, during the
Participant's lifetime, only by such Participant (or by his or her legal
representative) and shall not be assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process. Any attempted transfer, assignment,
pledge, hypothecation or other disposition of any Option or of any rights
granted thereunder contrary to the provisions of this Plan, or the levy of any
attachment or similar process upon an Option, shall be null and void.
10. EFFECT OF TERMINATION OF SERVICE OTHER THAN "FOR CAUSE" OR DEATH OR
DISABILITY.
Except as otherwise provided in the pertinent Option Agreement, in the
event of a termination of service (whether as an employee, director or
consultant) with the Company or an Affiliate before the Participant has
exercised all Options, the following rules apply:
a. A Participant who ceases to be an employee, director or
consultant of the Company or of an Affiliate (for any reason
other than termination "for cause", Disability, or death for
which events there are special rules in Paragraphs 11, 12, and
13, respectively), may exercise any Option granted to him or
her to the extent that the Option is exercisable on the date
of such termination of service, but only within such term as
the Administrator has designated in the pertinent Option
Agreement.
b. Except as provided in Subparagraph (c) below, or Paragraph 12
or 13, in no event may an Option Agreement provide, if the
Option is intended to be an ISO, that the time for exercise be
later than three (3) months after the Participant's
termination of employment.
c. The provisions of this Paragraph, and not the provisions of
Paragraph 12 or 13, shall apply to a Participant who
subsequently becomes Disabled or dies after the termination of
employment, director status or consultancy, provided, however,
in the case of a Participant's Disability or death within
three (3) months after the termination of employment, director
status or consultancy, the Participant or the Participant's
Survivors may exercise the Option within one (1) year after
the date of the Participant's termination of employment, but
in no event after the date of expiration of the term of the
Option.
d. Notwithstanding anything herein to the contrary, if subsequent
to a Participant's termination of employment, termination of
director status or termination of consultancy, but prior to
the exercise of an Option, the Board of Directors determines
that, either prior or subsequent to the Participant's
termination, the Participant engaged in conduct which would
constitute "cause" (as defined in Section 11 below), then such
Participant shall forthwith cease to have any right to
exercise any Option.
e. A Participant to whom an Option has been granted under the
Plan who is absent from work with the Company or with an
Affiliate because of temporary disability (any disability
other than a permanent and total Disability as defined in
Paragraph 2 hereof), or who is on leave of absence for any
purpose, shall not, during the period of any such absence, be
deemed, by virtue of such absence alone, to have terminated
such Participant's employment, director status or consultancy
with the Company or with an Affiliate, except as the
Administrator or the Option Agreement may otherwise expressly
provide.
f. Except as required by law or as set forth in the pertinent
Option Agreement, Options granted under the Plan shall not be
affected by any change of a Participant's status within or
among the Company and any Affiliates, so long as the
Participant continues to be an employee, director or
consultant of the Company or any Affiliate.
11. EFFECT OF TERMINATION OF SERVICE "FOR CAUSE".
Except as otherwise provided in the pertinent Option Agreement, the
following rules apply if the Participant's service (whether as an employee,
director or consultant) with the Company or an Affiliate is terminated "for
cause" prior to the time that all his or her outstanding Options have been
exercised:
a. All outstanding and unexercised Options as of the time the
Participant is notified his or her service is terminated for
"cause" will immediately be forfeited.
b. For purposes of this Plan, "cause" shall include (and is not
limited to) dishonesty with respect to the Company or any
Affiliate, insubordination, substantial malfeasance or
non-feasance of duty, unauthorized disclosure of confidential
information, and conduct substantially prejudicial to the
business of the Company or any Affiliate. The determination of
the Administrator as to the existence of "cause" will be
conclusive on the Participant and the Company.
c. "Cause" is not limited to events which have occurred prior to
a Participant's termination of service, nor is it necessary
that the Administrator's finding of "cause" occur prior to
termination. If the Administrator determines, subsequent to a
Participant's termination of service but prior to the exercise
of an Option, that either prior or subsequent to the
Participant's termination the Participant engaged in conduct
which would constitute "cause," then the right to exercise any
Option is forfeited.
d. Any definition in an agreement between the Participant and the
Company or an Affiliate, which contains a conflicting
definition of "cause" for termination and which is in effect
at the time of such termination, shall supersede the
definition in this Plan with respect to such Participant.
12. EFFECT OF TERMINATION OF SERVICE FOR DISABILITY.
Except as otherwise provided in the pertinent Option Agreement, a
Participant who ceases to be an employee, director or consultant of the Company
or of an Affiliate by reason of Disability may exercise any Option granted to
such Participant:
a. To the extent exercisable but not exercised on the date of
Disability; and
b. In the event rights to exercise the Option accrue
periodically, to the extent of a pro rata portion of any
additional rights as would have accrued had the Participant
not become Disabled prior to the end of the accrual period
which next ends following the date of Disability. The
proration shall be based upon the number of days of such
accrual period prior to the date of Disability.
A Disabled Participant may exercise such rights only within the period
ending one (1) year after the date of the Participant's termination of
employment, directorship or consultancy, as the case may be, notwithstanding
that the Participant might have been able to exercise the Option as to some or
all of the Shares on a later date if the Participant had not become disabled and
had continued to be an employee, director or consultant or, if earlier, within
the originally prescribed term of the Option.
The Administrator shall make the determination both of whether
Disability has occurred and the date of its occurrence (unless a procedure for
such determination is set forth in another agreement between the Company and
such Participant, in which case such procedure shall be used for such
determination). If requested, the Participant shall be examined by a physician
selected or approved by the Administrator, the cost of which examination shall
be paid for by the Company.
13. EFFECT OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR CONSULTANT.
Except as otherwise provided in the pertinent Option Agreement, in the
event of the death of a Participant while the Participant is an employee,
director or consultant of the Company or of an Affiliate, such Option may be
exercised by the Participant's Survivors:
a. To the extent exercisable but not exercised on the date of
death; and
b. In the event rights to exercise the Option accrue
periodically, to the extent of a pro rata portion of any
additional rights which would have accrued had the Participant
not died prior to the end of the accrual period which next
ends following the date of death. The proration shall be based
upon the number of days of such accrual period prior to the
Participant's death.
If the Participant's Survivors wish to exercise the Option, they must
take all necessary steps to exercise the Option within one (1) year after the
date of death of such Participant, notwithstanding that the decedent might have
been able to exercise the Option as to some or all of the Shares on a later date
if he or she had not died and had continued to be an employee, director or
consultant or, if earlier, within the originally prescribed term of the Option.
14. PURCHASE FOR INVESTMENT.
Unless the offering and sale of the Shares to be issued upon the
particular exercise of an Option shall have been effectively registered under
the Securities Act of 1933, as now in force or hereafter amended (the "1933
Act"), the Company shall be under no obligation to issue the Shares covered by
such exercise unless and until the following conditions have been fulfilled:
a. The person(s) who exercise(s) such Option shall warrant to the
Company, prior to the receipt of such Shares, that such
person(s) are acquiring such Shares for their own respective
accounts, for investment, and not with a view to, or for sale
in connection with, the distribution of any such Shares, in
which event the person(s) acquiring such Shares shall be bound
by the provisions of the following legend which shall be
endorsed upon the certificate(s) evidencing their Shares
issued pursuant to such exercise of such grant:
"The shares represented by this certificate have been
taken for investment and they may not be sold or
otherwise transferred by any person, including a
pledgee, unless (1) either (a) a Registration
Statement with respect to such shares shall be
effective under the Securities Act of 1933, as
amended, or (b) the Company shall have received an
opinion of counsel satisfactory to it that an
exemption from registration under such Act is then
available, and (2) there shall have been compliance
with all applicable state securities laws."
b. At the discretion of the Administrator, the Company shall have
received an opinion of its counsel that the Shares may be
issued upon such particular exercise in compliance with the
1933 Act without registration thereunder.
The Company may delay issuance of the Shares until completion of any
action or obtaining of any consent which the Company deems necessary under any
applicable law (including, without limitation, state securities or "blue sky"
laws.)
15. DISSOLUTION OR LIQUIDATION OF THE COMPANY.
Upon the dissolution or liquidation of the Company, all Options granted
under this Plan which as of such date shall not have been exercised will
terminate and become null and void; provided, however, that if the rights of a
Participant or a Participant's Survivors have not otherwise terminated and
expired, (i) the Participant or the Participant's Survivors will have the right
immediately prior to such dissolution or liquidation to exercise any Option to
the extent that the Option is exercisable as of the date immediately prior to
such dissolution or liquidation; and (ii) if a Change in Control shall have
occurred within the twelve months immediately prior to the date of such
dissolution or liquidation, such Participant or such Participant's Survivors
will have the right immediately prior to such dissolution or liquidation to
exercise any Option then outstanding whether or not such Option is exercisable
as of such date.
16. ADJUSTMENTS.
Upon the occurrence of any of the following events, a Participant's
rights with respect to any Option granted to him or her hereunder which has not
previously been exercised in full shall be adjusted as hereinafter provided,
unless otherwise specifically provided in the pertinent Option Agreement:
A. Stock Dividends and Stock Splits. If (i) the shares of Common Stock
shall be subdivided or combined into a greater or smaller number of shares or if
the Company shall issue any shares of Common Stock as a stock dividend on its
outstanding Common Stock, or (ii) additional shares or new or different shares
or other securities of the Company or other non-cash assets are distributed with
respect to such shares of Common Stock, the number of shares of Common Stock
deliverable upon the exercise of such Option may be appropriately increased or
decreased proportionately, and appropriate adjustments may be made in the
purchase price per share to reflect such subdivision, combination or stock
dividend. The number of Shares subject to options to be granted to directors
pursuant to Paragraph 6(A)(f) shall also be proportionately adjusted upon the
occurrence of such events, except as the Administrator shall otherwise determine
in its sole discretion. The number of Shares subject to options to be granted
pursuant to Paragraph 4(c) shall also be proportionately adjusted upon the
occurrence of such events.
B. Corporate Changes in Control. In the event of a Corporate Change in
Control
(i) Each Option outstanding as of the date such Corporate
Change in Control is determined to have occurred, and which is not then
exercisable by reason of vesting requirements, shall automatically
accelerate the vesting so that the Option shall become fully
exercisable and vested on the first to occur of (x) the date the Option
becomes vested and exercisable under its original terms (with respect
only to such Options as otherwise would vest during such one-year
period under their terms), (y) the first anniversary of the date such
Corporate Change in Control is determined to have occurred, and (z) the
occurrence of an Involuntary Employment Action; and
(ii) The Options so accelerated shall remain so exercisable
until the earlier of the original expiration date of the Option and the
earlier termination of the Option in accordance with the Plan and the
Agreement.
C. Transactional Changes in Control. In the event of a Transactional
Change in Control,
(i) Each Option outstanding as of the date such Transactional
Change in Control is determined to have occurred shall be either: (a)
assumed by the successor corporation (or its parent) or replaced with a
comparable option to purchase shares of the capital stock of the
successor corporation (or its parent) on an equitable basis, (b)
terminated upon written notice to the Participants stating that all
Options (for purposes of this Subparagraph all Options then outstanding
shall be deemed to be exercisable) must be exercised within a specified
number of days (which shall not be less than 15 days) from the date
such notice is given, at the end of which period the Options shall
terminate, or (c) terminated in exchange for a cash payment equal to
the excess of the Fair Market Value of the shares subject to such
Options (for purposes of this Subparagraph all Options then outstanding
shall be deemed to be exercisable) over the exercise price thereof;
provided, however, that if any of the treatments of Options pursuant to
this Plan set forth in clauses (a), (b) or (c) above would make a
Transactional Change in Control transaction ineligible for
pooling-of-interest accounting under APB No. 16 such that but for the
nature of such treatment such transaction would otherwise be eligible
for such accounting treatment, the Committee (or the Administrator if
no Committee has been appointed) shall have the ability to substitute
for any cash or other consideration payable under such treatment shares
of Common Stock with a Fair Market Value or other consideration with
value equal to the cash or other consideration that would otherwise be
payable pursuant to such treatment. The determination of which of the
treatments set forth in clauses (a), (b) and (c) above to provide and
of comparability under clause (a) above shall be made by the
Administrator and its determinations shall be final, binding and
conclusive.
(ii) Each Option that is assumed or replaced in connection
with a Transactional Change in Control shall automatically accelerate
so that the Option shall become fully exercisable and vested on the
first to occur of (x) the date the Option becomes vested and
exercisable under its original terms (with respect only to such Options
as otherwise would vest during such one-year period under their terms),
(y) the first anniversary of the date such Transactional Change in
Control is determined to have occurred, and (z) the occurrence of an
Involuntary Employment Action. The Options so accelerated shall remain
so exercisable until the earlier of the original expiration date of the
Option and the earlier termination of the Option in accordance with the
Plan and the Agreement.
D. Corporate Transaction. In the event of a Corporate Transaction that
does not constitute a Transactional Change in Control or in the event of a
similar event, pursuant to which securities of the Company or of another
corporation or entity are issued with respect to the outstanding shares of
Common Stock, a Participant upon exercising an Option shall be entitled to
receive for the purchase price paid upon such exercise the securities which
would have been received if such Option had been exercised prior to such
Corporate Transaction.
E. Modification of ISOs. Notwithstanding the foregoing, any adjustments
made pursuant to Subparagraph A, B, C or D with respect to ISOs shall be made
only after the Administrator, after consulting with counsel for the Company,
determines whether such adjustments would constitute a "modification" of such
ISOs (as that term is defined in Section 424(h) of the Code) or would cause any
adverse tax consequences for the holders of such ISOs. If the Administrator
determines that such adjustments made with respect to ISOs would constitute a
"modification" of such ISOs, it may refrain from making such adjustments, unless
the holder of an ISO specifically requests in writing that such adjustment be
made and such writing indicates that the holder has full knowledge of the
consequences of such "modification" on his or her income tax treatment with
respect to the ISO.
17. ISSUANCES OF SECURITIES.
Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares subject to Options. Except as
expressly provided herein, no adjustments shall be made for dividends paid in
cash or in property (including without limitation, securities) of the Company.
18. FRACTIONAL SHARES.
No fractional shares shall be issued under the Plan and the person
exercising such right shall receive from the Company cash in lieu of such
fractional shares equal to the Fair Market Value thereof.
19. CONVERSION OF ISOs INTO NON-QUALIFIED OPTIONS; TERMINATION OF ISOs.
The Administrator, at the written request of any Participant, may in
its discretion take such actions as may be necessary to convert such
Participant's ISOs (or any portions thereof) that have not been exercised on the
date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the Participant is an employee of
the Company or an Affiliate at the time of such conversion. Such actions may
include, but not be limited to, extending the exercise period or reducing the
exercise price of the appropriate installments of such Options. At the time of
such conversion, the Administrator (with the consent of the Participant) may
impose such conditions on the exercise of the resulting Non-Qualified Options as
the Administrator in its discretion may determine, provided that such conditions
shall not be inconsistent with this Plan. Nothing in the Plan shall be deemed to
give any Participant the right to have such Participant's ISOs converted into
Non-Qualified Options, and no such conversion shall occur until and unless the
Administrator takes appropriate action. The Administrator, with the consent of
the Participant, may also terminate any portion of any ISO that has not been
exercised at the time of such conversion.
20. WITHHOLDING.
In the event that any federal, state, or local income taxes, employment
taxes, Federal Insurance Contributions Act ("F.I.C.A.") withholdings or other
amounts are required by applicable law or governmental regulation to be withheld
from the Participant's salary, wages or other remuneration in connection with
the exercise of an Option or a Disqualifying Disposition (as defined in
Paragraph 21), the Company may withhold from the Participant's compensation, if
any, or may require that the Participant advance in cash to the Company, or to
any Affiliate of the Company which employs or employed the Participant, the
amount of such withholdings unless a different withholding arrangement,
including the use of shares of the Company's Common Stock or a promissory note,
is authorized by the Administrator (and permitted by law). For purposes hereof,
the fair market value of the shares withheld for purposes of payroll withholding
shall be determined in the manner provided in Paragraph 2 above, as of the most
recent practicable date prior to the date of exercise. If the fair market value
of the shares withheld is less than the amount of payroll withholdings required,
the Participant may be required to advance the difference in cash to the Company
or the Affiliate employer. The Administrator in its discretion may condition the
exercise of an Option for less than the then Fair Market Value on the
Participant's payment of such additional withholding.
21. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION.
Each Key Employee who receives an ISO must agree to notify the Company
in writing immediately after the Key Employee makes a Disqualifying Disposition
of any shares acquired pursuant to the exercise of an ISO. A Disqualifying
Disposition is any disposition (including any sale) of such shares before the
later of (a) two years after the date the Key Employee was granted the ISO, or
(b) one year after the date the Key Employee acquired Shares by exercising the
ISO. If the Key Employee has died before such stock is sold, these holding
period requirements do not apply and no Disqualifying Disposition can occur
thereafter.
22. TERMINATION OF THE PLAN.
The Plan will terminate on February 3, 2002, the date which is ten (10)
years from the earlier of the date of its adoption and the date of its approval
by the stockholders of the Company. The Plan may be terminated at an earlier
date by vote of the stockholders of the Company; provided, however, that any
such earlier termination will not affect any Options granted or Option
Agreements executed prior to the effective date of such termination.
23. AMENDMENT OF THE PLAN AND AGREEMENTS.
The Plan may be amended by the stockholders of the Company. The Plan
may also be amended by the Board of Directors or the Administrator, including,
without limitation, to the extent necessary to qualify any or all outstanding
Options granted under the Plan or Options to be granted under the Plan for
favorable federal income tax treatment (including deferral of taxation upon
exercise) as may be afforded incentive stock options under Section 422 of the
Code, for as long as the Company has a class of stock registered pursuant to
Section 12 of the 1934 Act and to the extent necessary to qualify the shares
issuable upon exercise of any outstanding Options granted, or Options to be
granted, under the Plan for listing on any national securities exchange or
quotation in any national automated quotation system of securities dealers. Any
amendment approved by the Administrator which the Administrator determines is of
a scope that requires stockholder approval shall be subject to obtaining such
stockholder approval. Any modification or amendment of the Plan shall not,
without the consent of a Participant, materially adversely affect his or her
rights under an Option previously granted to him or her. With the consent of the
Participant affected, the Administrator may amend outstanding Option Agreements
in a manner which may be materially adverse to the Participant but which is not
inconsistent with the Plan. In the discretion of the Administrator, outstanding
Option Agreements may be amended by the Administrator in a manner which is not
materially adverse to the Participant.
24. EMPLOYMENT OR OTHER RELATIONSHIP.
Nothing in this Plan or any Option Agreement shall be deemed to prevent
the Company or an Affiliate from terminating the employment, consultancy or
director status of a Participant, nor to prevent a Participant from terminating
his or her own employment, consultancy or director status or to give any
Participant a right to be retained in employment or other service by the Company
or any Affiliate for any period of time.
All Options shall constitute a special incentive payment to the
Participant and shall not be taken into account in computing the amount of
salary or compensation of the Participant for the purpose of determining any
benefits under any pension, retirement, profit-sharing, bonus, life insurance or
other benefit plan of the Company or under any agreement between the Company and
the Participant, unless such plan or agreement specifically provides otherwise.
25. GOVERNING LAW.
This Plan shall be construed and enforced in accordance with the law of
the State of Delaware.
Exhibit 5
December 8, 1998
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166
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 10,000,000 additional shares (the "Shares") of
the Company's common stock, par value $.01 per share ("Common Stock"), and
certain Preferred 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 America Online, Inc. 1992 Employee,
Director and Consultant Stock Option Plan (the "Plan").
I am Acting General Counsel to the Company and have acted as counsel in
connection with 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
amended, and 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. America Online, Inc. 1992 Employee, Director and Consultant Stock
Option Plan; and
5. Rights Agreement of the Company adopted on May 12, 1998 (the
"Rights Agreement").
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 Preferred 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 Preferred 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 Preferred Stock Purchase Rights, if the Company's
Preferred Stock Purchase Rights have not expired or been redeemed in
accordance with the terms of the Rights Agreement, will be validly
issued.
You acknowledge that I am admitted to practice only in Massachusetts,
Texas and the District of Columbia and am not an expert in the laws of any other
jurisdiction. No one other than the addressees and their assigns are permitted
to rely on or distribute this opinion without the prior written consent of the
undersigned.
This opinion is limited to the General Corporation Law of the State of
Delaware and federal law, although the Company acknowledges that I am not
admitted to practice in the State of Delaware and am not an expert in the laws
of that jurisdiction. 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, Esq.
Acting General Counsel
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-____________) pertaining to the America Online, Inc. 1992 Employee,
Director and Consultant Stock Option Plan of America Online, Inc. of our report
dated September 25, 1998, 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, 1998, filed with the Securities and Exchange Commission.
/S/ERNST & YOUNG LLP
Ernst & Young LLP
Vienna, Virginia
December 3, 1998
Exhibit 24
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, Stephen M. Case, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/STEPHEN M. CASE
Signature
STEPHEN M. CASE
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, Robert W. Pittman, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/ROBERT W. PITTMAN
Signature
ROBERT W. PITTMAN
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, James F. MacGuidwin, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/JAMES F. MACGUIDWIN
Signature
JAMES F. MACGUIDWIN
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, Daniel F. Akerson, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/DANIEL F. AKERSON
Signature
DANIEL F. AKERSON
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, Frank J. Caufield, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/FRANK J. CAUFIELD
Signature
FRANK J. CAUFIELD
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, Alexander M. Haig, Jr., whose signature appears below, constitute
and appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and
Sheila A. Clark, and each of them, my true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution in each of them, for
him/her and in his/her name, place and stead, and in any and all capacities, to
sign the Registration Statement on Form S-8 for the registration of shares of
common stock, $.01 par value (the "Common Stock"), of America Online, Inc.
reserved for issuance upon the exercise of options which have been or may be
granted under the 1992 Employee, Director and Consultant Stock Option Plan, and
any required amendments or supplements thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in or about the premises,
as full to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them or their or his/her substitutes may lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/ALEXANDER M. HAIG, JR.
Signature
ALEXANDER M. HAIG, JR.
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, William N. Melton, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/WILLIAM N. MELTON
Signature
WILLIAM N. MELTON
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, Thomas Middelhoff, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/THOMAS MIDDELHOFF
Signature
THOMAS MIDDELHOFF
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, Colin L. Powell, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/COLIN L. POWELL
Signature
COLIN L. POWELL
Print Name
POWER OF ATTORNEY
FOR
1992 EMPLOYEE, DIRECTOR AND CONSULTANT
STOCK OPTION PLAN
I, Franklin D. Raines, whose signature appears below, constitute and
appoint Stephen M. Case, J. Michael Kelly, George Vradenburg, III, and Sheila A.
Clark, and each of them, my true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution in each of them, for him/her and
in his/her name, place and stead, and in any and all capacities, to sign the
Registration Statement on Form S-8 for the registration of shares of common
stock, $.01 par value (the "Common Stock"), of America Online, Inc. reserved for
issuance upon the exercise of options which have been or may be granted under
the 1992 Employee, Director and Consultant Stock Option Plan, and any required
amendments or supplements thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or about the premises, as full to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his/her substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 8th day of December, 1998.
/S/FRANKLIN D. RAINES
Signature
FRANKLIN D. RAINES
Print Name
