As filed with the Securities and Exchange Commission on April 21, 1999
Registration No. _______
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICA ONLINE, INC.
(Exact name of registrant as specified in its charter)
Delaware 54-1322110
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
22000 AOL Way,
Dulles, Virginia 20166-9323 (703) 265-1000
(Address, including zip code, and telephone,
including area code, of registrant's principal executive offices)
Stephen M. Case
Chief Executive Officer
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)
Copy to:
Sheila A. Clark, Esquire
Senior Vice President and
Acting General Counsel
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-1000
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. ?
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. X
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. ?
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. ?
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. ?
CALCULATION OF REGISTRATION FEE
<TABLE>
Title of Securities to be Amount Proposed Proposed Amount of
Registered(1) to be Maximum Offering Maximum Aggregate Offering Registration Fee
Registered Price Per Share(2) Price(2)
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 31,024,709 $127.15625 $3,944,985,653.78 $1,096,706.01
</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) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the high and low prices
of America Online's common stock on the New York Stock Exchange on
April 19, 1999.
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS
(Subject to completion, dated April 21, 1999)
31,024,709 Shares of Common Stock
AMERICA ONLINE, INC.
This prospectus relates to the public offering, which is not being
underwritten, of 31,024,709 shares of our common stock which is held by the
selling stockholders listed on pages 8 and 9. The selling stockholders may offer
their shares of common stock through public or private transactions, on or off
the New York Stock Exchange, at prevailing market prices, or at privately
negotiated prices. We will not receive any of the proceeds from the sale of the
shares.
Our Common Stock is listed on the New York Stock Exchange under the
symbol "AOL." On April 20, 1999, the last reported sale price for the common
stock was $128.69 per share.
You should carefully consider the risk factors beginning on page 2 of
this prospectus before purchasing any of the common stock offered by this
prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999.
The Company
Founded in 1985, America Online, Inc., based in Dulles, Virginia, is
the world leader in interactive services, Web brands, Internet technologies, and
e-commerce services.
America Online has two major lines of Internet businesses organized
into four product groups:
- the interactive online services business, comprised of the
Interactive Services Group, the Interactive Properties Group and the
AOL International Group, and
- the enterprise solutions business, comprised of the Netscape
Enterprise Group.
The product groups are described below.
The Interactive Services Group develops and operates branded
interactive services, including:
- the AOL service, a worldwide Internet online service with more than
17 million members
- theCompuServe service, a worldwide Internet online service with
approximately 2 million members
- the Netscape Netcenter, an Internet portal with more than 15 million
registered users
- the AOL.COM portal
- the Netscape Navigator and Communicator browsers
The Interactive Properties Group is built around branded properties
that operate across multiple services and platforms, such as:
- Digital City, Inc., the No. 1 branded local content network and
community guide on the AOL service and the Internet
- ICQ, a portal that provides instant communications and chat
technology
The AOL International Group oversees the AOL and CompuServe operations
outside the United States.
The Netscape Enterprise Group focuses on providing businesses a range
of software products, technical support, consulting and training services. These
products and services historically have enabled businesses and users to share
information, manage networks and facilitate electronic commerce.
In November 1998, America Online entered into a strategic alliance with
Sun Microsystems, Inc., a leader in network computing products and services, to
accelerate the growth of enterprise-class e-commerce, and to use Sun's Java
technology to develop selected next-generation Internet devices that will help
Internet users access America Online's brands through a variety of hardware
devices. The strategic alliance provides that, over a three year period, we will
develop and market, together with Sun, client software and network application
and server software for electronic commerce, extended communities and
connectivity, including software based in part on the Netscape code base, on Sun
code and technology and on certain America Online services features, to business
enterprises.
America Online was incorporated in Delaware on May 24, 1985. The
principal executive offices are located at 22000 AOL Way, Dulles, Virginia
20166-9323. Our telephone number at that address is (703) 265-1000.
Risk Factors
Before purchasing the shares offered by this prospectus, you should
carefully consider the risks described below, in addition to the other
information presented in this prospectus or incorporated by reference into this
prospectus. If any of the following risks actually occur, they could seriously
harm our business, financial condition or results of operations. In such case,
the trading price of our common stock could decline and you may lose all or part
of your investment.
We Face Competition for Subscription Revenues and the Development and Sale of
Electronic Commerce Infrastructure and Applications
We face competition from a wide range of other companies in the
communications, advertising, entertainment, information, media, Web-based
services, software, technology, direct mail and electronic commerce fields for
subscription, advertising, and commerce revenue, for the development and sale of
electronic commerce infrastructure and applications and in the development of
distribution technologies and equipment.
Competitors for subscription revenues include:
- online services such as the Microsoft Network, AT&T Worldnet and
Prodigy Classic
- national and local Internet service providers, such as MindSpring
and EarthLink
- long distance and regional telephone companies offering access as
part of their telephone service, such as AT&T Corp., MCI
WorldCom, Inc., Sprint Corporation and regional Bell operating
companies
- cable television companies
- cable Internet access services offered by companies such as
AtHome Corporation and Road Runner Group
Competitors for advertising and commerce revenues include:
- online services such as the Microsoft Network, AT&T Worldnet and
Prodigy Classic
- Web-based navigation and search service companies such as Yahoo!
Inc., Infoseek Corporation, Lycos, Inc. and Excite, Inc.
- global media companies including newspapers, radio and television
stations and content providers, such as the National Broadcasting
Corporation, CBS Corporation, The Walt Disney Company, Time
Warner Inc., The Washington Post Company and Conde Nast
Publications, Inc.
- cable Internet access services offered by companies such as
AtHome Corporation and Road Runner Group
Competitors in the development and sale of electronic commerce
infrastructure and applications include:
- providers of electronic commerce infrastructure such as server
software, including International Business Machines Corporation,
Microsoft Corporation, Oracle Corporation, Novell, Inc.,
Software.com, Inc., BEA Systems, Inc. and the provider of the
Apache Web Server
- providers of electronic commerce applications including
International Business Machines Corporation, Oracle Corporation,
General Electric Information Systems, Microsoft Corporation,
PeopleSoft, Inc., SAP A.G., Open Market, Inc., Ariba
Technologies, CommerceOne, Sterling Commerce, Inc. and
BroadVision, Inc.
Competition in the development of distribution technologies and
equipment includes:
- broadband distribution technologies used in cable Internet access
services offered by companies such as AtHome Corporation and Road
Runner Group
- advanced telephone-based access services offered through digital
subscriber line technologies offered by local telecommunications
companies
- other advanced digital services offered by broadcast, satellite
and wireless companies
- television-based interactive computer services, such as those
offered by Microsoft's WebTV
- personal digital assistants, enhanced mobile phones and other
equipment offering functional equivalents to our features
Some of our present competitors and potential future competitors may
have greater financial, technical, marketing or personnel resources than us. The
competitive environment could have a variety of adverse effects on us. For
example, it could:
- require price reductions in the subscription fees for online
services and require increased spending on marketing, network
capacity, content procurement and product development
- negatively impact our ability to generate greater revenues and
profits from sources other than online service subscription
revenues, such as advertising and electronic commerce
- limit our opportunities to enter into or renew agreements with
content providers and distribution partners
- limit our ability to develop new products and services
- limit our ability to continue to grow or sustain our subscriber
base
- require price reductions in our enterprise software products
- result in a loss of our market share in the enterprise software
industry
- require an increase in our sales and marketing expenditures, and
a reduction in our advertising revenues, relating to our
Netcenter Internet portal
Any of the foregoing events could have an adverse impact on revenues or
result in an increase in costs as a percentage of revenues, either of which
could have a material adverse effect on our business, financial condition and
operating results.
We Need to Manage Integration of Our Mergers and Acquisitions
In March 1999 we completed the merger with Netscape Communications
Corporation, a leading provider of software and services for Internet users,
including Netscape Netcenter, and the Netscape Navigator and Netscape
Communicator browsers. The Netscape merger involves risks, including successful
integration and management of the acquired technology, operations and personnel
of Netscape. The integration of America Online and Netscape will be a complex,
time consuming process and may result in a disruption of the combined company if
not completed in a timely and efficient manner. The combined company must
operate as a combined organization utilizing common information and
communications systems, operating procedures, financial controls, human
resources practices and other shared infrastructure. There may be substantial
difficulties, costs and delay involved in integrating America Online and
Netscape, including potential incompatibility of business cultures, perceived
adverse changes in client service standards or business focus, potential sales
channel conflicts, the loss of key employees and diversion of attention of
management from other ongoing business concerns. There can be no assurance we
will be able to successfully manage and operate Netscape. Any of these factors
could have a material adverse effect on our business, financial condition and
operating results.
Additionally, we have acquired and merged with several smaller
companies over the last several years. The integration of these acquired
businesses may also lead to the loss of key employees of the acquired companies
and diversion of the attention of existing management from other ongoing
business concerns.
Potential Year 2000 Problems May Have an Adverse Effect on Our Operations and
Ability to Offer Products and Services Without Interruption
America Online utilizes a significant number of computer software
programs and operating systems across its entire organization, including
applications used in operating its online services and Web sites, the
proprietary software of the AOL and CompuServe services, Netscape software
products, member and customer services, network access, content providers, joint
ventures and various administrative and billing functions. To the extent that
these applications contain source codes that are unable to appropriately
interpret the upcoming calendar year 2000, some level of modification, or even
possibly replacement may be necessary.
In 1997, America Online appointed a Year 2000 Task Force to perform an
audit to assess the scope of America Online's risks and bring its applications
into compliance. This Task Force is undertaking its assessment of America
Online's company-wide compliance and is overseeing testing. America Online's
system hardware components, client and host software, current versions of
Netscape software products and corporate business and information systems are
currently undergoing review and testing. To date, America Online has experienced
very few problems related to Year 2000 testing, and the problems that have been
identified are in the process of being fixed.
America Online intends to make Year 2000 compliant certain versions of
the client software for the AOL service and the CompuServe service that are
available on the Windows and Macintosh operating systems, as well as versions of
Netscape software products that are currently shipped. These versions of the
software incorporate proprietary software and third-party component software
that may not be Year 2000 compliant, and testing continues. A patch or upgrade
may be required for members or customers using some of these versions to achieve
Year 2000 compliance. Over the coming months, America Online will be working to
obtain and make available any required patches or upgrades at no cost to members
of the online services and to communicate their availability. America Online
also will make available, at no additional cost to customers, any required
patches to the versions of Netscape software products currently being shipped to
customers and communicate their availability. In addition, America Online will
be encouraging members and customers to upgrade to versions of the software that
are expected to be Year 2000 compliant, if they have not already done so.
In addition, America Online is continuing to gather information from
its vendors, joint venture partners and content partners about their progress in
identifying and addressing problems that their computer systems may face in
correctly processing date information related to the Year 2000. America Online
intends to continue its efforts to seek reassurances regarding the Year 2000
compliance of vendors, joint venture partners and content partners. In the event
any third parties cannot timely provide America Online with content, products,
services or systems that meet the Year 2000 requirements, the content on America
Online's services, access to America Online's services, the ability to offer
products and services and the ability to process sales could be materially
adversely affected.
The costs incurred through March 1999 to address Year 2000 compliance
were approximately $7 million. America Online currently estimates it will incur
a total of approximately $20 million in costs to support its compliance
initiatives. America Online cannot predict the outcome of its Year 2000 program,
whether third party systems are or will be Year 2000 compliant, the costs
required to address the Year 2000 issue, or whether a failure to achieve
substantial Year 2000 compliance will have a material adverse effect on America
Online's business, financial condition or results of operations. Failure to
achieve Year 2000 compliance could result in interruptions in the work of its
employees, the inability of members and customers to access America Online's
online services and Web sites or errors and defects in the Netscape products.
This, in turn, may result in the loss of subscription services revenue,
advertising and commerce revenue or enterprise solution revenue, the inability
to deliver minimum guaranteed levels of traffic, diversion of development
resources, or increased service and warranty costs. Occurrence of any of these
may also result in additional remedial costs and damage to reputation.
America Online is in the process of developing a contingency plan to
address possible risks to its systems. It is America Online's intention to
implement its contingency plan no later than July 1999.
The Price of Our Common Stock is Volatile
The trading price of our common stock has been and may continue to be
subject to wide fluctuations over short and long periods of time. During the
last year, the closing sale prices of our common stock on the New York Stock
Exchange ranged from $17.25 to $175.25. Our stock price may fluctuate in
response to a number of events and factors, such as:
- quarterly variations in financial results and membership growth
and usage
- the announcement of technological innovations, mergers,
acquisitions, strategic partnerships or new product offerings by
America Online or its competitors
- the entrance of new competitors into the online services market
- changes in financial estimates and recommendations by securities
analysts and news reports relating to trends in the
Internet-related markets
- the operating and stock price performance of other companies that
investors may deem comparable
In addition, the market prices for Internet-related companies have
experienced volatility that often has not been directly related to the operating
performance of such companies. Market and industry fluctuations may adversely
affect the price of our common stock, regardless of our operating performance.
Where You Can Find More Information
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file with the Commission at the Commission's public
reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call
the Commission at 1-800-SEC-0330 for further information on the public reference
room. Our Commission filings are also available to the public at the
Commission's web site at http://www.sec.gov.
The Commission allows us to "incorporate by reference" the information
we file with them, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered to be part of this prospectus, and information that we file later
with the Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the Commission under Sections 13(a), 13(c ), 14 or 15(d) of the
Securities Exchange Act prior to the termination of the offerings described in
this prospectus:
(a) Annual Report on Form 10-K for the fiscal year ended June 30, 1998
(SEC file number 001-12143 and filing date of September 28, 1998);
(b) Quarterly Report on Form 10-Q, for the quarterly period ended
September 30, 1998 (SEC file number 001-12143 and filing date of
November 6, 1998);
(c) Quarterly Report on Form 10-Q, for the quarterly period ended December
31, 1998 (SEC file number 001-12143 and filing date of February 10,
1999);
(d) Proxy Statement on Schedule 14A for the 1998 Annual Meeting (SEC file
number 001-12143 and filing date of September 28, 1998);
(e) Current Report on Form 8-K dated August 4, 1998 (SEC file number
001-12143 and filing date of August 5, 1998);
(f) Current Report on Form 8-K dated September 28, 1998 (SEC file number
001-12143 and filing date of September 29, 1998);
(g) Current Report on Form 8-K dated November 23, 1998 (SEC file number
001-12143 and filing date of November 24, 1998);
(h) Current Report on Form 8-K dated February 1, 1999 (SEC file number
001-12143 and filing date of February 11, 1999);
(i) Current Report on Form 8-K dated November 9, 1998 (SEC file number
001-12143 and filing date of February 17, 1999);
(j) Current Report on Form 8-K dated March 17, 1999 (SEC file number
001-12143 and filing date of March 26, 1999);
(k) Current Report on Form 8-K/A dated March 17, 1999 (SEC file number
001-12143 and filing date of April 21, 1999);
(l) Current Report on Form 8-K dated April 21, 1999 (SEC file number
001-12143 and filing date of April 21, 1999); and
(m) The description of our capital stock, including preferred share
purchase rights, which is contained in registration statements on Form
8-A under the Exchange Act, including any amendments or reports filed
for the purpose of updating such description.
You may request a copy of these filings, at no cost, by writing or
telephoning as follows:
America Online, Inc.
Attention: Investor Relations
22000 AOL Way
Dulles, VA 20166
(703) 265-2741
[email protected]
This prospectus is part of a registration statement on Form S-3 we
filed with the SEC under the Securities Act. You should rely only on the
information or representations provided in this prospectus. We have authorized
no one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus is accurate as of any date other
than the date on the front of the document.
Forward-Looking Statements
This prospectus and the documents incorporated by reference in this
prospectus contain forward-looking statements. These forward-looking statements
are based on our current expectations, estimates and projections about our
industry, management's beliefs and certain assumptions made by us. Words such as
"anticipates," "expects," "intends," "plans," "believes," "seeks," "estimates"
and variations of these words or similar expressions are intended to identify
forward-looking statements. These statements are not guarantees of future
performance and are subject to certain risks, uncertainties and assumptions that
are difficult to predict. Therefore, our actual results could differ materially
from those expressed or forecasted in any forward-looking statements as a result
of a variety of factors, including those set forth in "Risk Factors" above and
elsewhere in, or incorporated by reference into, this prospectus. We undertake
no obligation to update publicly any forward-looking statements for any reason,
even if new information becomes available or other events occur in the future.
Use Of Proceeds
The selling stockholders are offering all of the shares of common stock
covered by this prospectus. We will not receive any proceeds from the sales of
these shares.
Selling Stockholders
The following table sets forth the number of shares owned by each of
the selling stockholders. All information contained in the table below is based
upon their beneficial ownership as of April 20, 1999. Sprint Communications
Company, L.P. has informed us that it plans to sell or otherwise dispose of all
of the shares it owns and therefore will not own any of the shares after the
consummation of this offering. We are not able to estimate the amount of shares
that will be held by the other selling stockholders after the completion of this
offering because those selling stockholders may offer all or some of the shares
and because there currently are no agreements, arrangements or understandings
with respect to the sale of any of their shares. The following table assumes
that all of the shares being registered will be sold. The selling stockholders
are not making any representation that any shares covered by the prospectus will
be offered for sale. The selling stockholders reserve the right to accept or
reject, in whole or in part, any proposed sale of shares.
<TABLE>
Number of Shares Percent of Outstanding
Name of Selling Stockholder Number of Shares Registered for Shares After
Beneficially Owned Sale Hereby the Offering
<S> <C> <C> <C>
Sprint Communications Company, 28,800,000 28,800,000 --
LP
Arrow Investments, Inc. (1)(2) 20,980 20,980 --
Ranger Investments, L.P. (1)(3) 16,800 16,800 --
Bear, Stearns International 339,968 339,968 --
Limited
Softven No. 2 Investment 211,392 211,392 --
Enterprise Partnership (1)
Vulcan Ventures Incorporated 269,188 269,188 --
(1)(4)
The Washington Post Company (1) 45,756 45,756 --
Thomas M. Sammon, Jr. (1) 21,236 21,236 --
Bradley W. Scurlock (1) 40,336 40,336 --
Robert Scurlock (1) 19,782 19,782 --
Stephen L. Tomlin (1) 30,804 30,804 --
Natacha Sacha 436 436 --
Theodore H. Barnett 150,588 150,588 --
James A. Joaquin 111,726 111,726 --
Anne Stendel Thomas 305 305 --
Number of Shares Percent of Outstanding
Name of Selling Stockholder Number of Shares Registered for Shares After
Beneficially Owned Sale Hereby the Offering
Nicole Demeo Overson 305 305 --
21st Century Internet Fund, 395,115 395,115 --
L.P.
Benchmark Capital Partners II, 297,850 297,850 --
L.P. (5)
Neal Margulis 4,097 4,097 --
Howard Goldman 5,966 5,966 --
Javier E. Rojas 4,097 4,097 --
Joseph M. Beninato 111,726 111,726 --
Anthony A. Espinoza 111,726 111,726 --
Lisa Gansky 30 30 --
Jon R. Love 4,097 4,097 --
Brian Goffman 311 311 --
Cecilia A. Hayes 467 467 --
Steve Victorino 155 155 --
Comdisco, Inc. 4,917 4,917 --
R. Payton Stiewe 155 155 --
VLG Investments 1998 4,087 4,087 --
Stephen A. Murray 311 311 --
</TABLE>
(1) The following stockholders own shares of common stock that are currently
held in escrow under the terms of an Escrow Agreement dated November 9, 1998
between such stockholders and America Online. Such shares are being registered
under the registration statement on Form S-3 filed in connection with this
prospectus and are included in the amounts listed in the table above, but such
shares may not be sold by the selling stockholders until the shares are released
from the escrow, which is expected to be in November 1999: Arrow Investments -
20,980 shares, Ranger Investments - 16,800 shares, Softven No. 2 - 21,140
shares, Vulcan Ventures - 26,920 shares, Washington Post - 4,575 shares, Thomas
Sammon - 6,536 shares, Bradley Scurlock - 6,536 shares, Robert Scurlock - 3,600
shares, and Stephen Tomlin - 5,604 shares.
(2) The shares held of record by Arrow Investments are beneficially owned by
Barry Diller, the Chairman and sole stockholder of Arrow Investments.
(3) The shares held of record by Ranger Investments are beneficially owned by
Arrow Investments, the General Partner of Ranger Investments. Mr. Diller is the
Chairman and sole stockholder of Arrow Investments.
(4) The shares held of record by Vulcan Ventures are beneficially owned by Paul
G. Allen, the Chairman, President and sole stockholder of Vulcan Ventures.
(5) Benchmark Capital Management Co. II, L.C. is the general partner of
Benchmark Capital Partners II, L.P., and the managing members of Benchmark
Capital Management are: David M. Beirne, Bruce W. Dunlevie, John W. Gurley,
Kevin R. Harvey, Robert C. Kagle, and Andrew S. Rachleff. Benchmark Capital
Management and Messrs Beirne, Dunlevie, Gurley, Harvey, Kagle and Rachleff all
disclaim beneficial ownership of the shares held by Benchmark Capital Partners
II, except to the extent of any indirect pecuniary interest therein.
The shares being sold by Sprint Communications Company L.P. were issued
in connection with Sprint's exercise of a warrant for common stock that America
Online issued to Sprint in May 1993. America Online issued the warrant in
connection with Sprint's provision of network services to us. We have filed a
registration statement with the Securities and Exchange Commission to register
the shares for sale or other transfer under the Securities Act to comply with
our requirements under the warrant. This prospectus is a part of the
registration statement. We also have agreed to keep the registration statement
effective for the earlier of one year or until this prospectus is no longer
required for Sprint to sell or otherwise transfer its shares and to prepare and
file any amendments or supplements to the registration statement that may be
necessary to keep the registration statement effective.
Sprint Communications Company L.P. is a Delaware limited partnership
all of whose partners are owned directly or indirectly by Sprint Corporation, a
Kansas corporation. Sprint LP is the largest component of the Sprint FON Group's
long-distance division. The FON Group's long distance division is the nation's
third largest long distance phone company and operates a nationwide, all-digital
long distance telecommunications network using state-of-the-art fiber-optic and
electronic technology. The long distance division provides domestic and
international voice, video and data communications services as well as
integration management and support services for computer networks. Sprint's
local telephone, wireless personal communications services, and other operations
are provided by Sprint's other divisions.
The other selling stockholders received their shares of common stock
pursuant to either our merger with PersonaLogic, Inc. in November 1998 or our
merger with When Inc. in March 1999.
The stockholders who received their shares pursuant to the PersonaLogic
merger are parties to a Registration Rights Agreement dated as of November 9,
1998, in which we agreed to include their shares in any registration statement
we filed within one year of the date of the agreement (other than on Forms S-4
or S-8), and to keep such registration statement effective for a period of 90
days. Several of those selling stockholders currently hold positions with
America Online. Stephen L. Tomlin and Thomas M. Sammon, Jr. are each vice
presidents of America Online and Bradley W. Scurlock is a managing director of
America Online.
The stockholders who received their shares pursuant to the When merger
are parties to a Registration Rights Agreement dated as of March 31, 1999 and a
Side Letter on Piggyback Registration Rights dated as of March 31,1999, in which
we agreed to include their shares in any registration statement we filed within
one year of the date of the Registration Rights Agreement (other than on Forms
S-4 or S-8), and to keep such registration statement effective for a period of
90 days. Two of those selling stockholders currently hold positions with America
Online. Theodore H. Barnett and Anthony Espinoza are each vice presidents of
America Online.
This prospectus also covers any additional shares of common stock that
become issuable in connection with the shares being registered by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase in
the number of our outstanding shares of common stock. In addition, this
prospectus covers the preferred stock purchase rights that currently trade with
America Online's common stock and entitle the holder to purchase additional
shares of common stock under certain circumstances.
Plan of Distribution
We are registering the common stock on behalf of the selling
stockholders. As used in this prospectus, the term "selling stockholders"
includes pledgees, transferees or other successors-in-interest selling shares
received from the selling stockholder as a pledgor, a borrower or in connection
with other non-sale-related transfers after the date of this prospectus. This
prospectus may also be used by transferees of the selling stockholders,
including broker-dealers or other transferees who borrow or purchase the shares
to settle or close out short sales of shares of common stock. The selling
stockholders will act independently of us in making decisions with respect to
the timing, manner, and size of each sale or non-sale related transfer. We will
not receive any of the proceeds of this offering.
Sprint
Sprint Communications Company L.P. is offering shares of common stock
that it purchased from us pursuant to the warrant issued in May 1993 in
connection with Sprint's provision of network services to us. This prospectus
covers Sprint's resale of up to 28,800,000 shares of common stock.
The shares may be sold or otherwise transferred by or for the account
of Sprint in transactions on the New York Stock Exchange, or otherwise. These
sales or transfers may be made in one or more transactions:
- at fixed prices,
- at market prices prevailing at the time of sale,
- at prices related to prevailing market prices, or
- at negotiated prices.
The shares may be sold or otherwise transferred by means of one or more of
the following transactions:
- in a block trade in which the broker-dealer so engaged will
attempt to sell the shares as agent, but may position and resell
a portion of the block as principal to facilitate the
transaction;
- through purchases by a broker-dealer as principal and resale by
that broker-dealer for its account pursuant to this prospectus;
- in ordinary brokerage transactions in which the broker solicits
purchasers or executes unsolicited orders; o in connection with
short sales (which may be executed by counterparties to hedging
or other derivative transactions) in which the shares may be
redelivered to close out short positions;
- in connection with the loan of shares registered hereunder to a
broker-dealer or other borrower or the pledge of shares
registered hereunder to a broker-dealer or other pledgee to
secure debts or other obligations, and the sale of the shares so
loaned or the sale of the shares so pledged upon a default;
- in connection with the writing or settlement of non-traded and
exchange-traded call options, in connection with the writing or
settlement of hedge transactions, and in connection with other
transactions in standardized or over-the-counter options;
- in privately negotiated transactions; or
- in any combination of any of the above methods or types of
transactions.
In effecting sales, broker-dealers engaged by Sprint may arrange for
other broker-dealers to participate in resales. Broker-dealers may receive
compensation in the form of discounts, concessions, or commissions from the
selling stockholders or from the purchasers of the shares or from both. This
compensation may exceed customary commissions.
Sprint and any broker-dealers, agents, or others that participate with
Sprint in the distribution of the shares may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act. Any commissions paid
or any discounts or concessions allowed to any of those persons and any profits
received on the resale of the shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. Sprint may agree
to indemnify any agent, dealer, or broker-dealer that participates in
transactions involving sales or other transfers of the shares against certain
liabilities, including liabilities arising under the Securities Act.
Because Sprint may be deemed to be an "underwriter" within the meaning
of Section 2(11) of the Securities Act, Sprint will be subject to the prospectus
delivery requirements of the Securities Act.
Upon being notified by Sprint that any material arrangement has been
entered into with a broker-dealer for the sale of shares through a block trade,
special offering, exchange distribution or secondary distribution, or a purchase
by a broker or dealer, we will file a supplement to this prospectus, if
required, pursuant to Rule 424(b) under the Securities Act, disclosing the
following information:
- the name of the selling stockholder and of the participating
broker-dealers;
- the number of shares involved;
- the price at which such shares were sold;
- the commissions paid or discounts or concessions allowed to the
broker-dealers, if any; and
- other facts material to the transaction.
In addition, upon being notified by Sprint that a pledgee or other
non-sale transferee intends to sell more than 500 shares, we will file a
supplement to this prospectus.
To comply with the securities laws of certain jurisdictions, if
applicable, the common stock will be offered or sold in such jurisdictions only
through registered or licensed brokers or dealers.
Sprint will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, which provisions may limit the timing of
purchases and sales of any of the common stock by Sprint. The foregoing may
affect the marketability of such securities.
We have agreed to bear all expenses of registering the shares (other
than fees and expenses, if any, of counsel or other advisors to the selling
stockholders) in accordance with the registration rights granted to Sprint in
the warrant. Sprint will pay any commissions, discounts, concessions or other
fees payable to broker-dealers in connection with any sale or other transfer of
the shares.
Other Selling Stockholders
The other selling stockholders are offering shares of common stock that
they received either in connection with our merger with PersonaLogic, Inc. in
November 1998 or our merger with When Inc. in March 1999. This prospectus covers
their resale of up to 2,224,709 shares of common stock.
The other selling stockholders may sell their shares of common stock
directly to purchasers from time to time. Alternatively, they may from time to
time offer the common stock to or through underwriters, broker/dealers or
agents, who may receive compensation in the form of underwriting discounts,
concessions or commissions from the selling stockholders or the purchasers of
such securities for whom they may act as agents. The selling stockholders and
any underwriters, broker/dealers or agents that participate in the distribution
of common stock may be deemed to be "underwriters" within the meaning of the
Securities Act and any profit on the sale of such securities and any discounts,
commissions, concessions or other compensation received by any such underwriter,
broker/dealer or agent may be deemed to be underwriting discounts and
commissions under the Securities Act.
The common stock may be sold from time to time in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale or at negotiated prices. The
sale of the common stock may be effected by means of one or more of the
following transactions (which may involve crosses or block transactions):
- on any national securities exchange, such as the NYSE, or
quotation service on which the common stock may be listed or
quoted at the time of sale,
- in the over-the-counter market,
- in transactions otherwise than on such exchanges or services or
in the over-the-counter market or
- through the purchase and sale of over-the-counter options.
In connection with sales of the common stock or otherwise, the selling
stockholders may enter into hedging transactions with broker/dealers, which may
in turn engage in short sales of the common stock in the course of hedging the
positions they assume. The selling stockholders may also sell common stock short
and deliver common stock to close out such short positions, or loan or pledge
common stock to broker/dealers that in turn may sell such securities.
At the time a particular offering of the common stock is made, a
prospectus supplement, if required, will be distributed which will set forth the
aggregate amount common stock being offered and the terms of the offering,
including the name or names of any underwriters, broker/dealers or agents, any
discounts, commissions and other terms constituting compensation from the
selling stockholders and any discounts, commissions or concessions allowed or
reallowed or paid to broker/dealers.
To comply with the securities laws of certain jurisdictions, if
applicable, the common stock will be offered or sold in such jurisdictions only
through registered or licensed brokers or dealers.
The selling stockholders will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder, which provisions may
limit the timing of purchases and sales of any of the common stock by the
selling stockholders. The foregoing may affect the marketability of such
securities.
Pursuant to the Registration Rights Agreement with the selling
stockholders who received their shares of common stock in the merger with
PersonaLogic, all expenses of the registration of the common stock will be paid
by us, including, without limitation, Commission filing fees; provided, however,
that the selling stockholders will pay all underwriting discounts and selling
commissions, if any. Pursuant to the Registration Rights Agreement with the
selling stockholders who received their shares of common stock in the merger
with When, such selling stockholders will pay a pro rata share of the Commission
filing fees and expenses related to the registration statement that this
prospectus is a part of. The selling stockholders will be indemnified by us
against certain civil liabilities, including certain liabilities under the
Securities Act, or will be entitled to contribution in connection therewith. We
will be indemnified by the selling stockholders severally against certain civil
liabilities, including certain liabilities under the Securities Act, or will be
entitled to contribution in connection therewith.
Experts
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended June 30, 1998, and supplemented in our Current Reports on Form 8-K filed
on February 17, 1999 and April 21, 1999, as set forth in their reports, which
are incorporated by reference in this prospectus and elsewhere in the
registration statement. Our financial statements are incorporated by reference
in reliance on Ernst & Young LLP's reports, given on their authority as experts
in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following sets forth the expenses in connection with the issuance
and distribution of the Securities being registered, other than underwriting
discounts and commissions. We shall bear all such expenses. All amounts set
forth below are estimates, other than the SEC registration fee.
SEC Registration Fee $1,096,706.01
New York Stock Exchange additional listing fee 105,000.00
Accounting Fees and Expenses 10,000.00
Miscellaneous 10,000.00
---------
TOTAL $1,221,706.01
=============
Item 15. Indemnification of Officers and Directors
Section 145(a) of the General Corporation Law of the State of Delaware
("Delaware Corporation Law") provides, in general, that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), because the person is or was a director
or officer of the corporation. Such indemnity may be against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation and if, with respect to any criminal action or proceeding, the
person did not have reasonable cause to believe the person's conduct was
unlawful.
Section 145(b) of the Delaware Corporation Law provides, in general,
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor because the person is or was a director or officer of the
corporation, against any expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation.
Section 145(g) of the Delaware Corporation Law provides, in general,
that a corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation
against any liability asserted against the person in any such capacity, or
arising out of the person's status as such, whether or not the corporation would
have the power to indemnify the person against such liability under the
provisions of the law.
Article Ninth of the Registrant's Restated Certificate of Incorporation
(incorporated by reference herein) provides for indemnification of directors,
officers and other persons as follows:
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, shall, 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.
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, because 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 before 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 the section "Right to Indemnification" 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
section "Right to Indemnification" or "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 (1) 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 (2) 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 16. Exhibits.
Exhibit Description
No.
3.1 Restated Certificate of Incorporation of America Online, Inc. (Filed as
Exhibit 3.1 to America Online's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997 and incorporated herein by reference.)
3.2 Amendment of Section A of Article 4 of the Restated Certificate of
Incorporation of America Online, Inc. (Filed as Exhibit 4.1 to America
Online's Registration Statement on Form S-3, Registration No. 333-
46633 and incorporated herein by reference.)
3.3 Restated By-Laws of America Online, Inc. (Filed as Exhibit 3.5 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended June
30, 1998 and incorporated herein by reference)
4.1 Article 4, Article 6 and Article 8 of the Restated Certificate of
Incorporation of America Online, Inc. (See Exhibits 3.1 and 3.2.)
4.2 Rights Agreement dated as of May 12, 1998, between America Online, Inc.
and BankBoston, N.A., as Rights Agent (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.)
5.1 Opinion of Sheila A. Clark, Acting General Counsel to America Online,
Inc., regarding the legality of securities being offered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Sheila A. Clark, Acting General Counsel to America Online,
Inc. (included in her opinion filed as Exhibit 5.1 and incorporated
herein by reference)
24.1 Powers of Attorney
Item 17. Undertakings.
A. Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the 1934 Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. Filings Incorporating Subsequent Exchange Act Documents by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of Exchange Act, as amended (the "Exchange Act") (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Request for Acceleration of Effective Date Insofar as
indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the County of Loudoun, Commonwealth of Virginia on April 21,
1999.
AMERICA ONLINE, INC.
By: /S/ J. MICHAEL KELLY
J. Michael Kelly
Senior Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signatures Title Date
/S/ STEPHEN M. CASE
Stephen M. Case Chairman of the Board and Chief Executive April 21, 1999
Officer (principal executive officer)
/S/ ROBERT W. PITTMAN
Robert W. Pittman President, Chief Operating Officer and Director April 21, 1999
/S/ J. MICHAEL KELLY
J. Michael Kelly Senior Vice President and Chief Financial April 21, 1999
Officer (principal financial officer)
/S/ JAMES F. MACGUIDWIN
James F. MacGuidwin Vice President, Controller and Chief Accounting April 21, 1999
and Budget Officer (principal accounting
officer)
/S/ DANIEL F. AKERSON
Daniel F. Akerson Director April 21, 1999
/S/ JAMES L. BARKSDALE
James L. Barksdale Director April 21, 1999
/S/ FRANK J. CAUFIELD
Frank J. Caufield Director April 21, 1999
/S/ ALEXANDER M. HAIG, JR.
Alexander M. Haig, Jr. Director April 21, 1999
/S/ WILLIAM N. MELTON
William N. Melton Director April 21, 1999
/S/ THOMAS MIDDELHOFF
Thomas Middelhoff Director April 21, 1999
/S/ COLIN L. POWELL
Colin L. Powell Director April 21, 1999
/S/ FRANKLIN D. RAINES
Franklin D. Raines Director April 21, 1999
</TABLE>
EXHIBIT INDEX
Exhibit
No. Description
5.1 Opinion of Sheila A. Clark, Acting General Counsel to America Online,
Inc., regarding the legality of securities being offered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Sheila A. Clark, Acting General Counsel to America Online,
Inc. (included in her opinion filed as Exhibit 5.1 hereto)
24.1 Powers of Attorney
Exhibit 5.1
April 21, 1999
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-3 (the "Registration Statement") under the
Securities Act of 1933, as amended. You have requested my opinion concerning the
status under Delaware law of the 31,024,709 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 Registration Statement for resale by certain of the Company's stockholders.
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. Rights Agreement of the Company adopted on May 12, 1998 (the "Rights
Agreement"); and
5. The Registration Statement.
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.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock and the related Preferred Stock Purchase Rights are duly
authorized, validly issued, fully paid and non-assessable.
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 23.1
Consent of Independent Auditors
We consent to the reference of our firm under the captions "Experts" in the
Registration Statement (Form S-3 No. 333-______) and related prospectus of
America Online, Inc. for the registration of 31,024,709 shares of its common
stock and to the incorporation by reference therein of our report dated
September 25, 1998, with respect to the consolidated financial statements of
America Online, Inc. included in its Annual Report on Form 10-K for the year
ended June 30, 1998, our report dated September 25, 1998 (except for the last
paragraph of Note 17, as to which the date is February 15, 1999) with respect to
the consolidated financial statements of America Online, Inc., included in its
Current Report on Form 8-K dated November 9, 1998, and our report dated
September 25, 1998 (except for the second paragraph of Note 19, as to which the
date is February 15, 1999 and the third paragraph of Note 19, as to which the
date is April 15, 1999), with respect to the supplemental consolidated financial
statements of America Online, Inc. included in its Current Report on Form 8-K/A
filed on April 21, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Vienna, Virginia
April 15, 1999
POWER OF ATTORNEY
I, Stephen M. Case, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/Stephen M. Case
POWER OF ATTORNEY
I, Robert W. Pittman, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/Robert W. Pittman
POWER OF ATTORNEY
I, Daniel F. Akerson, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/Daniel F. Akerson
POWER OF ATTORNEY
I, Frank J. Caufield, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/Frank J. Caufield
POWER OF ATTORNEY
I, General Alexander M. Haig, Jr., whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/General Alexander M. Haig, Jr.
POWER OF ATTORNEY
I, William N. Melton, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/William N. Melton
POWER OF ATTORNEY
I, Dr. Thoms Middelhoff, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/Dr. Thomas Middelhoff
POWER OF ATTORNEY
I, General Colin L. Powell, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/General Colin L. Powell
POWER OF ATTORNEY
I, James L. Barksdale, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/James L. Barksdale
POWER OF ATTORNEY
I, James F. MacGuidwin, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/James F. MacGuidwin
POWER OF ATTORNEY
I, J. Michael Kelly, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/J. Michael Kelly
POWER OF ATTORNEY
I, Franklin D. Raines, whose signature appears below,
constitute and appoint Stephen M. Case, Kenneth J. Novack, J. Michael Kelly,
Sheila A. Clark and James F. MacGuidwin, 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-3 for the
resale of America Online, Inc. common stock, and any required amendments or
supplements thereto (and any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, as amended), 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, for 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 substitute or substitutes 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 21 day of April, 1999.
/s/Franklin D. Raines
