As filed with the Securities and Exchange Commission on June 2, 1999
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)
------------------------------------
MOVIEFONE, INC.
1994 Stock Option Plan
(Full Title of the Plan)
------------------------------------
SHEILA A. CLARK, ESQ.
Senior Vice President and
Acting General Counsel
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>
- ---------------------------- ------------------- ----------------------- ---------------------- ----------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered (1) registered offering price per aggregate offering registration fee
share (2) price
- ---------------------------- ------------------- ----------------------- ---------------------- ----------------------
Common Stock,
<S> <C> <C> <C> <C>
$.01 par value per share 340,000 $15.26 $5,188,400 $1,422.38
- ---------------------------- ------------------- ----------------------- ---------------------- ----------------------
</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 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 340,000 shares of Common
Stock which may be purchased upon exercise of outstanding options, the fee
is based on the average price of $15.26 at which options may be exercised.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. Such documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by America
Online, Inc., a Delaware corporation (the "Company"), with the Commission, are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1998, as filed with the Commission on September 28, 1998 pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
001-12143).
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1998, December 31, 1998 and March 31, 1999, as filed with the
Commission on November 6, 1998, February 10, 1999, and May 7, 1999 respectively,
pursuant to the Exchange Act (File No. 001-12143).
(c) The Company's Proxy Statement on Schedule 14A for the Company's 1998
Annual Meeting (SEC file number 001-12143 and filing date of September 28,
1998).
(d) The Company's Current Report on Form 8-K dated August 4, 1998 (File No.
001-12143 and filing date of August 5, 1998).
(e) The Company's Current Report on Form 8-K dated September 28, 1998 (File
No. 001-12143 and filing date of September 29, 1998).
(f) The Company's Current Report on Form 8-K dated November 23, 1998 (File
No. 001-12143 and filing date of November 24, 1998).
(g) The Company's Current Report on Form 8-K dated February 1, 1999 (File
No. 001-12143 and filing date of February 11, 1999).
(h) The Company's Current Report on Form 8-K dated November 9, 1998 (File
No. 001-12143 and filing date of February 17, 1999).
(i) The Company's Current Report on Form 8-K dated March 17, 1999 (File No.
001-12143 and filing date of March 26, 1999).
(j) The Company's Current Report on Form 8-K/A dated March 17, 1999 (File
No. 001-12143 and filing date of April 21, 1999).
(k) The Company's Current Report on Form 8-K dated April 21, 1999 (File No.
001-12143 and filing date of April 21, 1999).
(l) The Company's Current Report on Form 8-K dated May 21, 1999 (File No.
001-12143 and filing date of May 27, 1999).
(m) The descriptions of the Company's Common Stock, including preferred
share purchase rights, which are 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.
(n) 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 (incorporated by reference herein)
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 3.1 to
the Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 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 between America Online,
Inc. and BankBoston, N.A., as Rights Agent, 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 Restated By-Laws of Registrant (filed as Exhibit 3.5 to
Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 1998 and incorporated herein by reference)
4.5 MovieFone, Inc. 1994 Stock Option Plan
5.1 Opinion of Sheila A. Clark, Acting General Counsel to the
Company, 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 5.1 and incorporated
herein by reference)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high 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 2nd day of
June, 1999.
AMERICA ONLINE, INC.
By: /S/ J. MICHAEL KELLY
J. Michael Kelly
Senior Vice President, Chief Financial Officer,
Treasurer and Assistant Secretary
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed on the 2nd day of June, 1999, by the
following persons in the capacities indicated.
Signature Title
___________*_____________________ Chairman of the Board and Chief Executive
Stephen M. Case Officer (Principal Executive Officer)
___________*_____________________ President, Chief Operating Officer and
Robert W. Pittman Director
_____/S/ J. MICHAEL KELLY________ Senior Vice President, Chief Financial
J. Michael Kelly Office, Treasurer and Assistant Secretary
(Principal Financial Officer)
___________*______________________ Vice President, Controller, Chief
James F. MacGuidwin Accounting and Budget Officer (Principal
Accounting Officer) and Director
___________*______________________ Director
Daniel F. Akerson
___________*______________________ Director
James L. Barksdale
___________*______________________ 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
4.5 MovieFone, Inc. 1994 Stock Option Plan
5.1 Opinion of Sheila A. Clark, Acting General Counsel to the Company,
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 5.1 and incorporate herein
by reference)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney
Exhibit 4.5
MOVIEFONE, INC.
1994 STOCK OPTION PLAN
1. Purpose; Types of Options; Construction.
The purpose of the MovieFone, Inc. 1994 Stock Option Plan (the
"Plan") is to enable MovieFone, Inc. (the "Company") to attract and retain the
services of professional and managerial employees and other persons (including
non-employee directors) rendering services to the Company considered essential
to the long term success of the Company by providing long-term incentives. The
Plan provides the authority to grant stock options (including "incentive stock
options" and "nonqualified stock options") to professional and managerial
employees of and other persons rendering services to the Company and any
Subsidiary. An additional purpose of the Plan is-to build a proprietary interest
among the Company's Non-Employee Directors and thereby secure for the Company's
stockholders the benefits associated with common stock ownership by those who
will oversee the Company's future growth and success. From and after the
consummation of the Initial Public Offering (this and other initially
capitalized terms used herein have the meanings given in Section 2 hereof) the
Plan is intended to satisfy the requirements of Rule 16b-3 promulgated under
Section 16 of the Exchange Act and shall be interpreted in a manner consistent
with the requirements thereof.
2. Definitions.
For purposes of the Plan, the following terms shall be defined
as set forth below:
(a) "Beneficiary" means the person, persons, trust or trusts which have been
designated by an Optionee in his or her most recent written beneficiary
designation filed with the Company to receive any Option(s) or any shares of
Stock payable pursuant thereto to which such Optionee would then be entitled
under the Plan upon his or her death, or, if there is no designated Beneficiary
or surviving designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive such
Option(s) or shares.
(b) "Board" means the board of directors of the Company.
(c) "Cause" means, unless otherwise defined in the particular option Agreement
evidencing the grant of an Option (i) the willful failure or refusal by the
Optionee to substantially perform his duties or responsibilities which continues
after being brought to the attention of the Optionee (other than any such
failure resulting from the Optionee's incapacity due to Disability), (ii) the
willful engaging by the Optionee in misconduct which is materially injurious to
the Company or a Subsidiary, monetarily or otherwise, or the Optionee's
commission of any fraud, misappropriation, embezzlement or similar act, which is
brought to the attention of the Optionee in writing not more than thirty (30)
days from the date of its discovery by the Company, a Subsidiary or the Board.
(d) "Change of Control" means a change in control of the Company which will be
deemed to have occurred if:
(i) any "person," as such term is used in Sections 13(d) and 14(d) of the
Exchange Act (other than (1) the Company, (2) any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, (3) any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as
their ownership of Stock, or (4) Dr. Henry Jarecki, Andrew Jarecki or
any person affiliated with either of them, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 50%
or more of the combined voting power of the Company's then outstanding
voting securities;
(ii) during any period of two consecutive years following the Initial Public
Offering, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii), or (iv) of this Section
2(f)) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute
at least a majority thereof;
(iii) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving or parent entity) 50% or more of the
combined voting power of the voting securities of the Company or such
surviving or parent entity outstanding immediately after such merger or
consolidation or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquired 50% or more of the combined
voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets (or any
transaction having a similar effect).
(e) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(f) "Committee" means the committee established by the Board to administer the
Plan, the composition of which shall at all times satisfy the provisions of Rule
16b-3.
(g) "Company" means MovieFone, Inc., a corporation organized under the laws of
the State of Delaware, or any successor corporation.
(h) "Disability" means, unless otherwise defined in the particular Option
Agreement evidencing a grant of an option, an Optionee's inability, due to
illness or injury, to engage in any gainful occupation for which the individual
is suited by education, training or experience, which condition continues for at
least six (6) months.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and as now or hereafter construed, interpreted and applied by
regulations, rulings and cases.
(j) "Fair Market Value" means, with respect to Stock, the fair market value of
such Stock as determined by the Committee in its sole discretion; provided,
however, that (A) if the Stock is admitted to trading on a national securities
exchange, Fair Market Value on any date shall be the last sale price reported
for the Stock on such exchange on such date or on the last date preceding such
date on which a sale was reported, (B) if the Stock is admitted to quotation on
the Nasdaq National Market or other comparable quotation system, Fair Market
Value on any date shall be the last sale price reported for the Stock on such
system on such date or on the last day preceding such date on which a sale was
reported, or (C) if the Stock is admitted to quotation on the Nasdaq Stock
Market (as opposed to the National Market), Fair Market Value on any date shall
be the average of the highest bid and lowest asked prices of the Stock on such
system on such date.
(k) "Initial Public Offering" shall mean the initial public offering of shares
of Stock as contemplated by, and anticipated to occur pursuant to, the
Registration Statement on Form S-1 initially filed by the Company with the
Securities and Exchange Commission on March __, 1994, as such Registration
Statement may be amended from time to time.
(l) "ISO" means any option intended to be and designated as an incentive stock
option within the meaning of Section 422 of the Code.
(m) "Non-Employee Director" means a member of the Board who is not an employee
of the Company or a Subsidiary.
(n) "NQSO" means any Option that is designated as a nonqualified stock option.
(o) "Option" means a right, granted to an Optionee under Section 6, to purchase
shares of Stock. An Option may be either an ISO or an NQSO, provided that ISO's
may not be granted to independent contractors.
(p) "Option Agreement" means any written agreement, contract, or other
instrument or document evidencing the granting of an option under the Plan.
(q) "Optionee" means a person who has been granted an Option under the Plan.
(r) "Plan" means this MovieFone, Inc. 1994 Stock Option Plan, as amended from
time to time.
(s) "Rule 16b-311" means Rule 16b-3, as from time to time in effect promulgated
by the Securities and Exchange Commission under Section 16 of the Exchange Act,
including any successor to such Rule.
(t) "Stock" means shares of the class A common stock, par value $.01 per share,
of the Company.
(u) "Subsidiary" means (a) any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in the unbroken chain) owns stock
possessing 50% or more of the total combined equity ownership or voting power
which is held by the Company and/or one or-more Subsidiaries of all classes of
stock in one of the other corporations in the chain and (b) The Teleticketing
Company, L.P. [, provided that ISO's may not be granted to employees, or other
persons rendering services to, entities which are Subsidiaries of the Company
pursuant to clause (a) of this definition].
(v) "Ten Percent Stockholder" means an Optionee who, at the time an ISO is
granted, owns capital stock of the Company possessing more than ten percent (10%
of the total combined voting power of all classes of stock of the Company or any
Parent or Subsidiary.
3. Administration.
The Plan shall be administered by the Committee. The Committee
shall have the authority in its discretion, subject to and not inconsistent with
the express provisions of the Plan, to administer the Plan and to exercise all
the powers and authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan, including, without
limitation, the authority to grant Options; to determine the persons to whom and
the time or times at which Options shall be granted; to determine the type and
number of Options to be granted, the number of shares of Stock to which an
Option may relate and the terms and conditions, and any restrictions, procedures
for exercise and/or performance criteria, relating to any Option; and to
determine whether, to what extent, and under what circumstances an Option may be
settled, cancelled, forfeited, exchanged, or surrendered; to make adjustments in
the terms and conditions of, and the criteria and performance objectives (if
any) included in, Options in recognition of unusual or non-recurring events
affecting the Company or any Subsidiary or the financial statements of the
Company or any Subsidiary, or in response to changes in applicable laws,
regulations, or accounting principles; to construe-and interpret the Plan and
any Option Agreement; to prescribe, amend and rescind rules and regulations
relating to the Plan; to determine the terms and provisions of the Option
Agreements (which need not be identical for each Optionee) and any adjustments
thereto; to correct any defect, supply any omission, or reconcile any
inconsistency in the Plan or any Option Agreement; and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
The Committee may make such rules and regulations for the
conduct of its business as it shall deem advisable, and shall keep minutes of
its meetings. All determinations of the Committee shall be made by a majority of
its members either present in person or participating by conference telephone at
a meeting or by written consent. The Committee may delegate to one or more of
its members or to one or more agents such administrative duties as it may deem
advisable, and the Committee or any person to whom it has delegated duties as
aforesaid may employ one or more persons to render advice with respect to any
responsibility the Committee or such person may have under the Plan. All
decisions, determinations and interpretations of the Committee shall be final
and binding on all persons, including the Company, any Subsidiary, Optionee (or
any person claiming any rights under the Plan from or through any Optionee) and
stockholder.
No member of the Board or Committee shall be liable for any
action taken or determination made in good faith with respect to the Plan or any
Option granted hereunder.
4. Eligibility.
Options may be granted to officers, employee s, and directors
(whether or not also employees) of the Company and its present or future
Subsidiaries or other persons rendering services to the Company or such
Subsidiaries, in each case in the discretion of Committee. In determining the
persons to whom Options shall be granted, the Committee shall take into account
such factors as the Committee shall deem relevant in connection with
accomplishing the purposes of the Plan.
5. Stock Subject to the Plan.
The maximum number of shares of Stock reserved for the grant
of options under the Plan shall be 900,000, subject to adjustment as provided
herein. Such shares may, in whole or in part, be authorized but unissued shares
or shares that shall have been or may be reacquired by the Company in the open
market, in private transactions or otherwise. If any shares of Stock subject to
an Option are forfeited, cancelled, exchanged or surrendered or if an Option
otherwise terminates or expires without a distribution of shares of Stock to the
Optionee, the shares of Stock with respect to such Option shall, to the extent
of any such forfeiture, cancellation, exchange, surrender, termination or
expiration, again be available for Options under the Plan.
In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, stock, securities
or other property), reclassification, recapitalization, stock split, reverse
split, reorganization, merger, consolidation, spin-off combination, repurchase,
or share exchange, or other similar corporate transaction or event, affects the
Stock in such a way that, in the opinion of the Committee, an adjustment is
appropriate in order to prevent dilution or enlargement of the rights of
Optionees under the Plan, then the Committee shall make such equitable change or
adjustments as it deems necessary or appropriate to any or all of (i) the number
and kind of shares of Stock or other property which may thereafter be issued in
connection with Options, (ii) the number and kind of shares of Stock or other
property issued or issuable in respect of outstanding Options, and (iii) the
exercise price relating to any Option; provided that, with respect to ISOs, such
adjustment shall be made in accordance with Section 424(h) of the Code.
6. Specific Terms of Options.
(a) Number and Type of Option. The option Agreement shall state the number of
shares of Stock to which an Option relates and designate the option as an ISO or
an NQSO. (b) Exercise Price; Method of-Payment. The exercise price per share-of
Stock purchasable under an option shall be determined by the Committee; provided
that, in the case of an ISO, such exercise price shall be not less than 100% of
the Fair Market Value of the Stock covered by such Option on the date of grant
of such Option (110% of the Fair Market Value in the case of a grant to a
Ten-Percent Holder), and in no event shall the exercise price for the purchase
of shares of Stock be less than the par value of such shares. The exercise price
for Stock subject to an Option may be paid in cash or by check, by the tender by
the Optionee to the Company of outstanding shares of Stock, or, subject to
Section 8 of the Plan, by the delivery to the Company of a promissory note, or a
combination of any of the foregoing, in an amount having a combined value equal
to such exercise price. The value of any Stock tendered pursuant to the
preceding sentence shall be the Fair Market Value of such Stock as of the date
preceding the exercise.
(c) Term and Exercisability of Options. Options granted hereunder shall be for
such term as the Committee shall determine, provided that (i) no ISO shall be
exercisable after the expiration of ten (10) years from the date it is granted
(five (5) years in the case of an ISO granted to a Ten-Percent Stockholder) and
(ii) no NQSO shall be exercisable after the expiration of fifteen (15) years
from the date it is granted. The Committee may, subsequent to the granting of
any Option, extend the term thereof but in no event shall the term as so
extended exceed the maximum term provided for in the preceding sentence. Options
shall become exercisable, with respect to all or any portion of the shares of
Stock covered thereby, at such times and upon such conditions as the Committee
may determine, as reflected in the Option Agreement; provided that, the
Committee shall have the authority to accelerate the exercisability of any
outstanding Option at such time and under such circumstances as it, in its sole
discretion, deems appropriate. An Option may be exercised to the extent of any
or all shares of Stock as to which the Option has become exercisable by giving
written notice of such exercise to the Committee or its designated agent.
(d) Termination of Employment, etc. Unless otherwise set forth in the Option
Agreement, in the event that an Optionee ceases to be employed by or, in the
case of a non-employee, ceases to perform the services in respect of which the
option was granted for, the Company or any Subsidiary (in each case, a
"termination of employment"), any outstanding Options held by such Optionee
shall terminate as follows:
(i) if the Optionee's termination of employment is due to his death or
Disability, the Option (to the extent exercisable at the time of the
Optionee's termination of employment) shall be exercisable for a period
of one (1) year following such termination of employment, and shall
thereafter terminate;
(ii) if the Optionee's termination of employment is by the Company or a
Subsidiary for Cause, the Option shall terminate on the date of the
Optionee's termination of employment; and
(iii) if the Optionee's termination of employment is for any other reason
(including an Optionee's ceasing to be employed by a Subsidiary as a
result of the sale of such Subsidiary or an interest in such
Subsidiary), the Option (to the extent exercisable at the time of the
Optionee's termination of employment) shall be exercisable for a period
of ninety (90) days following such termination of employment, and shall
thereafter terminate.
Notwithstanding the foregoing, in the case of an NQSO, the
Committee may provide, either at the time an Option is granted or thereafter,
that the Option may be exercised after the periods provided for in this Section
6(d), but in no event beyond the term of the Option.
(e) Other Provisions. Options may be subject to such other conditions including,
but not limited to, restrictions on transferability of the shares acquired upon
exercise of such Options, as the Committee may prescribe in its discretion.
7. Change of Control Provisions. Unless otherwise set forth in the Option
Agreement, in the event of a Change of Control, all Options which were not
previously exercisable and vested shall become fully exercisable and vested and
any performance conditions imposed with respect to options shall be deemed to be
fully achieved.
8. Loan Provisions. Subject to the provisions of the Plan and all applicable
federal and state laws, rules and regulations, the Committee shall have the
authority to make loans to Optionees (on such terms and conditions as the
Committee shall determine) to enable such Optionees to purchase shares of Stock
in connection with the exercise of Options granted under the Plan. Such loans
shall be evidenced by a promissory note or other agreement, signed by the
borrower, which shall contain provisions for repayment and such other terms and
conditions as the Committee shall determine.
9. Non-Employee Director Options. Notwithstanding any of the other provisions of
the Plan to the contrary, the provisions of this Section 9 shall apply to and
govern grants of Options to Non-Employee Directors. Except as set forth in this
Section 9, the other provisions of the Plan shall apply to grants of Options to
Non-Employees Directors to the extent not inconsistent with this Section.
(a) General. Non-Employee Directors shall receive NQSO's in accordance with this
Section 9 and ISO's may not be granted under this Plan. The purchase price per
share of Stock purchasable under Options granted to Non-Employee Directors shall
be the Fair Market Value of such share on the date of grant. No option Agreement
with any Non-Employee Director may alter the provisions of this Section 9 and no
Option granted to a Non-Employee Director may be subject to a discretionary
acceleration of exercisability or vesting.
(b) Initial Grant. Upon the Closing the Initial Public Offering, each
Non-Employee Director as of such date shall be granted automatically, without
action by the Committee, an Option to purchase 9,000 shares of Stock.
(c) Grants to New Non-Employees Directors. Each Non-Employee Director who, after
the Initial Public Offering, is elected to the Board for the first time by the
stockholders of the Company at any special or annual meeting of stockholders,
will, at the time such director is elected and duly qualified, be granted
automatically, without action by the Committee, an Option to purchase 9,000
shares of Stock.
(d) Voting. Each Option granted to a Non-Employee Director shall be exercisable
as to 33-1/3 percent of the shares of Stock covered by the Option on each of the
first three anniversaries of the date of grant, provided, however, that each
Option shall be immediately exercisable in full upon a Change in Control. To the
extent not exercised, installments shall accumulate and be exercisable, in whole
or in part, at any time after becoming exercisable, but not later than the date
the Option expires. Section 6(d) and 7 hereof shall not apply to Options granted
to Non-Employee Directors.
(e) Duration. Subject to the immediately following sentence, each Option granted
to a Non-Employee Director shall be for a term of 10 years and 1 day. Upon the
cessation of a Non-Employee Director's membership, on the Board for any reason,
Options granted to such Non-Employee Director shall expire upon the earlier of
(i) three (3) years from the date of such cessation of Board membership or (ii)
expiration of the term of the option. The Committee may not provide for an
extended exercise period beyond the periods set forth in this Section 9(e).
10. General Provisions.
(a) Compliance with Local and Exchange Requirements. The Plan, the granting and
exercising of Options thereunder, and the other obligations of the Company under
the Plan and any Option Agreement, promissory note or other agreement shall be
subject to all applicable federal and state laws, rules and regulations, and to
such approvals by any regulatory or governmental agency as may be required. The
Company, in its discretion, may postpone the issuance or delivery of Stock under
any Option until completion of any stock exchange listing or registration or
qualification of such Stock or other required action under any state, federal or
foreign law, rule or regulation as the Company may consider appropriate, and may
require any Optionee to make such repesentations and agreements and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of Stock.
(b) Nontransferability. Options shall not be transferable by an Optionee except
by will or the laws of descent and distribution or, if then permitted under Rule
16b-3, pursuant to a qualified domestic relations order as defined under the
Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder, and shall be exercisable during the lifetime
of a Optionee only by such Optionee or his guardian or legal representative.
(c) No Right to Continued Employment, etc. Nothing in the Plan or in any Option
granted or any Option Agreement, promissory note or other agreement entered into
pursuant hereto shall confer upon any Optionee the right to continue in the
employ of the Company or any Subsidiary or to be entitled to any remuneration or
benefits not set forth in the Plan or such Option Agreement, promissory note or
other agreement or to interfere with or limit in any way the right of the
Company or any such Subsidiary to terminate such Optionee's employment.
(d) Agreement by Optionee Regarding Withholding Taxes. The company shall have
the right to deduct from any payment of cash to any Optionee an amount equal to
the federal, state and local income taxes and other amounts required by law to
be withheld with respect to any Option. Notwithstanding anything to the contrary
contained herein, if an Optionee is entitled to receive stock upon exercise of
an Option, the Company shall have the right to require such Optionee, prior to
the delivery of such Stock, to pay to the Company the amount of any of federal,
state or local income taxes and other amounts which the Company is required by
law to withhold. The Agreement evidencing any ISO granted under this Plan, shall
provide that if the Optionee makes a disposition, within the meaning of Section
424(c) of the Code and regulations promulgated thereunder, of any Stock issued
to such Optionee pursuant to such Optionee's exercise of the ISO, and such
disposition occurs within the two-year period commencing on the day after the
date of grant of such Option or within the one-year period commencing on the day
after the date of transfer of Stock to the Optionee pursuant to the exercise of
such Option, such Optionee shall, within ten (10) days of such disposition,
notify the Company thereof and thereafter immediately deliver to the Company any
amount of federal, state or local income taxes and other amounts which the
Company informs the Optionee the Company is required to withheld.
(e) Amendment and Termination of the Plan. The Board may at any time and from
time to time alter, amend, suspend, or terminate the Plan in whole or in part;
provided that, no amendment which requires stockholder approval in order for the
Plan to Continue to comply with Rule 16b-3, or any stock exchange rule, shall be
effective unless the same shall be approved by the requisite vote of the
stockholders of the Company entitled to vote thereon. Notwithstanding the
foregoing, no amendment shall affect adversely any of the rights of any Optionee
under any Option granted prior to such amendment without such Optionee's
consent. Unless terminated sooner by the Board, the Plan shall terminate on the
day preceding the tenth anniversary of its Effective Date (as defined below),
except with respect to Options outstanding on such date, and no Options may be
granted thereafter.
(f) No Rights to Options, No Stockholder Rights. No Optionee shall have any
claim to be granted any Option under the Plan, and there is no obligation for
uniformity of treatment of Optionees. Except as provided specifically herein, an
Optionee or a holder of an Option shall have no rights as a stockholder with
respect to any shares covered by the Option until the date of the issuance of a
stock certificate to him for such shares.
(g) Unfunded Status of Options. The Plan is intended to constitute an "unfunded"
plan for incentive compensation. With respect to any Options not yet exercised
by an Optionee pursuant to an Option, nothing contained in the Plan or any
Option shall give any such Optionee any rights that are greater than those of a
general creditor of the Company.
(h) No Fractional Shares. No fractional shares of Stock shall be issued or
delivered pursuant to the Plan or any Option. The Committee shall determine
whether cash or other property shall be paid or issued in lieu of such
fractional shares or whether such fractional shares or any rights thereto shall
be forfeited or otherwise eliminated.
(i) Beneficiary. An Optionee may file with the Committee a written designation
of a Beneficiary on such form as may be prescribed by the Committee and may,
from time to time, amend or revoke such designation. If no designated
Beneficiary survives the Optionee, the executor or administrator to the
Optionee's estate shall be deemed to be the Optionee's Beneficiary.
(j) GOVERNING LAW. THE PLAN AND ALL DETERMINATIONS MADE AND ACTIONS TAKEN
PURSUANT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
(k) Effective Date; Plan Termination. The Plan shall take effect on May 20, 1994
(the "Effective Date"), but the Plan (and any grants of options made prior to
the stockholder approval mentioned herein), shall be subject to the approval of
the holder(s) of a majority of the issued and outstanding shares of voting
securities of the Company entitled to vote, which approval must occur within
twelve months of the Effective Date. In the absence of such approval, any
Options granted under the Plan shall be null and void. Notwithstanding the
foregoing, the effectiveness of the Plan and the validity of any Option granted
hereunder is conditioned upon the consummation of the Initial Public Offering,
and shall be of no force or effect if the Initial Public offering is not
consummated.
TABLE OF CONTENTS
MOVIEFONE, INC.
1994 STOCK OPTION PLAN
Section Page
1. Purpose; Types of Options; Construction............................2
2. Definitions........................................................2
3. Administration.....................................................5
4. Eligibility........................................................6
5. Stock Subject to the Plan..........................................6
6. Specific Terms of Options..........................................6
7. Change of Control Provisions.......................................8
8. Loan Provisions....................................................8
9. Non-Employee Director Options......................................8
10. General Provisions.................................................9
AMENDMENT NUMBER ONE TO
THE MOVIEFONE, INC. 1994 STOCK OPTION PLAN
1. Amendment of Plan. Effective as of October 12,1995 (but subject to the
provisions of Section 2 hereof), the Board of Directors of MovieFone, Inc.,
pursuant to the authority reserved in Section 10(e) of the MovieFone, Inc.
1994 Stock Option Plan (the "Plan"), hereby amends Section 9 of the Plan in
its entirety to read as follows:
"9. Non-Employee Director Options. Notwithstanding any other
provision of the Plan to the contrary, the provisions of this Section 9
shall apply to and govern grants of Options to Non-Employee Directors.
Except as set forth in this Section 9, the other provisions of the Plan
shall apply to grants of Options to Non-Employees Directors to the
extent not inconsistent with this Section. The provisions of this
Section 9 shall not be amended more than once every six months, other
than to comport with changes in the Code, the Employee Retirement
Income Security Act of 1974, as amended, or the rules promulgated
thereunder.
(a) General. Non-Employee Directors shall receive NQSO's it accordance with
this Section 9. The purchase price per share of Stock purchasable under
Options granted to Non-Employee Directors shall be the Fair Market
Value of such share on the date of grant. No Option Agreement with any
Non-Employee Director may alter the provision of this Section 9 and no
Option granted to a Non-Employee Director may be subject to a
discretionary acceleration of exercisability or vesting.
(b) Initial Grant. As of October 12, 1995, each person who is then a
Non-Employee Director (an "Initial Director") shall be granted
automatically, without action by the Committee, an Option to purchase
2,000 shares of Stock.
(c) Grants to New Non-Employees Directors. Each person who, after October
12, 1995, becomes a Non-Employee Director for the first time (a
"Subsequent Director"), shall, at the time such director is elected and
duly qualified, be granted automatically, without action by the
Committee, an Option to purchase 2,000 shares of Stock.
(d) Annual Grants to Continuing Directors. On the date of each annual
meeting of stockholders of the Company, commencing with the 1996 annual
meeting of stockholders, each continuing Initial Director shall be
granted automatically, without action by the Committee, an Option to
purchase 2,000 shares of Stock. On the date of each annual meeting of
stockholders of the Company subsequent to a Subsequent Director's
becoming a Non-Employee Director, each continuing Subsequent Director
shall be granted automatically, without action by the Committee, an
option to purchase 2,000 shares of Stock, unless such Non-Employee
Director received a grant pursuant to paragraph (c) above by reason of
being elected a Non-Employee Director at such annual meeting.
(e) Vesting. Each Option granted to a Non-Employee Director shall first
vest and become exercisable as to all of the shares of Stock covered by
the Option on the first anniversary of the date of grant thereof if
such Non-Employee Director shall have continually served as such from
such date of grant through and including such first anniversary date;
provided, however, that each Option shall become immediately vested and
exercisable in full upon (i) a Change in Control, or (ii) the death of
the Non-Employee Director. Section 6(d) and 7 hereof shall not apply to
Options granted to Non-Employee Directors.
(f) Duration. Subject to the immediately following sentence, each Option
granted to a Non-Employee Director shall remain outstanding for a term
of 10 years from the date of grant. Upon the cessation of a
Non-Employee Director's membership on the Board for any reason, Options
granted to such Non-Employee Director shall expire upon the earlier of
(i) three (3) years from the date of such cessation of Board membership
or (ii) expiration of the term of the Option. The Committee may not
provide for an extended exercise period beyond the periods set forth in
this Section 9(f)."
2. Effectiveness of Plan. This Amendment Number One to the Plan and the
grants of stock options authorized hereunder is subject to approval by the
stockholders of the Company at the 1996 annual meeting of stockholders of the
Company. In the event that stockholder approval is not obtained, this Amendment
Number One to the Plan shall be of no force or effect and the Plan shall remain
in effect, without regard to this Amendment Number One, retroactive to October
12, 1995, as if this Amendment Number One was not made.
3. Prior Grants. This Amendment Number One to the Plan shall have no
effect on any stock option heretofore granted under Section 9 of the Plan, which
options shall remain outstanding in accordance with their terms.
AMENDMENT NUMBER TWO TO
THE MOVEEFONE, INC. 1994 STOCK OPTION PLAN
1. Amendment of Plan. Effective as of April 18, 1997 (but
subject to the provisions of Section 2 hereof), the Board of Directors of
MovieFone, Inc., pursuant to the authority reserved in Section 10(e) of the
MovieFone, Inc. 1994 Stock Option Plan, as amended (the "Plan"), hereby amends
the first sentence of Section 5 of the Plan in its entirety to read as follows:
"5. Stock Subject to the Plan. The maximum number of shares
of Stock reserved for the grant of Options under the Plan shall be
1,400,000, subject to adjustment as provided herein."
2. Effectiveness. This Amendment Number Two to the Plan is
subject to approval by the stockholders of MovieFone, Inc. at the 1997 annual
meeting of stockholders. In the event that stockholder approval is not obtained,
this Amendment Number Two to the Plan shall be of no force or effect and the
Plan shall remain in effect, without regard to this Amendment Number Two, as if
this Amendment Number Two was not made.
Exhibit 5.1
June 2, 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-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 340,000 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 issuance by the Company pursuant to the terms of the
MovieFone, Inc. 1994 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. Rights Agreement of the Company adopted on May 12, 1998 (the
"Rights Agreement"); and
5. The Plan.
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
and Management Development Committee and the Board of Directors of the Company
have been or will be taken by the Compensation and Management Development
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, ESQ.
----------------------
Sheila A. Clark, Esq.
Senior Vice President and
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 MovieFone, Inc. 1994 Stock Option Plan 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
May 26, 1999
Exhibit 24.1
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By: /s/Stephen M. Case
Signature
STEPHEN M. CASE
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/Daniel F. Akerson
Signature
DANIEL F. AKERSON
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/Robert W. Pittman
Signature
ROBERT W. PITTMAN
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/William N. Melton
Signature
WILLIAM N. MELTON
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
I, 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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/Alexander M. Haig, Jr.
Signature
ALEXANDER M. HAIG, JR.
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/Frank J. Caufield
Signature
FRANK J. CAUFIELD
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/James F. MacGuidwin
Signature
JAMES F. MACGUIDWIN
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/James L. Barksdale
Signature
JAMES L. BARKSDALE
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
I, Thomas 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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/Thomas Middelhoff
Signature
THOMAS MIDDELHOFF
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
I, 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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/Colin L. Powell
Signature
COLIN L. POWELL
Print Name
POWER OF ATTORNEY
FOR
MOVIEFONE, INC.
1994 Stock Option Plan
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 each Registration Statement on Form S-8 to be filed
in connection with the acquisition of MovieFone, Inc., 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 26th day of May, 1999.
By:/s/Franklin D. Raines
Signature
FRANKLIN D. RAINES
Print Name
