As filed with the Securities and Exchange Commission on March 17, 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 its Charter)
DELAWARE 54-1322110
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
22000 AOL Way
Dulles, Virginia 20166-9323
(Address of Principal Executive Offices,
including Zip Code)
Netscape Communications Corporation
1994 Stock Option Plan
Sheila A. Clark, Esq.
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>
Proposed Maximum Proposed Maximum
Title of Each Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered (1) Registered Share (2) Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock , par value 614,250 shares $5.32 $3,267,810.00 $908.45
$0.01 per share
</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 614,250 shares of
Common Stock , which may be purchased upon exercise of outstanding
options, the fee is based on the average price of $5.32 at which
options may be exercised.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents 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 have been filed by America Online, Inc., a Delaware
corporation (the "Company"), with the Commission and are incorporated herein by
reference:
(a) The Company's 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) The Company's 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) The Company's 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) 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)
(e) The Company's Current Report on Form 8-K dated August 4, 1998 (SEC file
number 001-12143 and filing date of August 5, 1998)
(f) The Company's Current Report on Form 8-K dated September 28, 1998 (SEC
file number 001-12143 and filing date of September 29, 1998)
(g) The Company's Current Report on Form 8-K dated November 23, 1998 (SEC
file number 001-12143 and filing date of November 24, 1998)
(h) The Company's Current Report on Form 8-K dated February 1, 1999 (SEC
file number 001-12143 and filing date of February 11, 1999)
(i) The Company's Current Report on Form 8-K dated November 9, 1998 (SEC
file number 001-12143 and filing date of February 17, 1999)
(j) The description of the common stock set forth in the Company's
Registration Statement on Form S-3 dated June 24, 1998 (SEC file number
333-57153 and filing date of June 24, 1998) filed pursuant to Section
12 of the Securities Exchange Act
(k) The description of the preferred share purchase rights contained in the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1998 (SEC file number 001-12143 and filing date of May 15, 1998)
(l) 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), 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 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
4.1 Article 4, Article 6, Article 8 and Article 11 of the Restated
Certificate of Incorporation of America Online, Inc. (filed as part of
Exhibit 3.1 to America Online, Inc.'s Form 10-K for the year ended
June 30, 1997 and incorporated herein by reference)
4.2 Amendment of Section A of Article 4 of the Restated Certificate of
Incorporation of America Online, Inc. (filed as Exhibit 3.1 to America
Online, Inc.'s Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998 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 (filed as Exhibit 4.1 to
America Online, Inc.'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 America Online, Inc. (filed as Exhibit 3.5 to
America Online, Inc.'s Annual Report on Form 10-K for the fiscal year
ended June 30, 1998 and incorporated herein by reference)
4.5 Netscape Communications Corporation 1994 Stock Option Plan, as amended
5.1 Opinion of Sheila A. Clark, Acting General Counsel to the Company
(including the consent of such acting general counsel) regarding the
legality of the securities being offered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Sheila A. Clark (included in her opinion filed as Exhibit
5.1 and incorporated herein by reference)
24.1 Powers of Attorney (filed as Exhibit 24.1 to America Online, Inc.'s
Registration Statement on Form S-8 for the AtWeb, Inc. 1997 Stock Plan
filed on March 17, 1999 and incorporated herein by reference)
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement. Notwithstanding
the foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high and of the
estimated maximum offering range may be
reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price
represent no more than 20 percent change in the
maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in
the effective registration statement; and
(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.
AMERICA ONLINE, INC.
By: /s/J.Michael Kelly
Name: J. Michael Kelly
Title: 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 17th day of March, 1999, by the
following persons in the capacities indicated.
Signature Title
* Chairman of the Board and Chief Executive Officer
Stephen M. Case (Principal Executive Officer)
* President, Chief Operating Officer and Director
Robert W. Pittman
Senior Vice President, Chief Financial Officer,
/s/J. Michael Kelly Treasurer and Assistant Secretary
J. Michael Kelly (Principal Financial Officer)
* Vice President, Controller, Chief Accounting and
James F. MacGuidwin Budget Officer (Principal Accounting Officer)
* Director
Daniel F. Akerson
* Director
Frank J. Caufield
* Director
Alexander M. Haig, Jr.
* Director
William N. Melton
* Director
Thomas Middelhoff
* Director
Colin L. Powell
* Director
Franklin D. Raines
* By: /s/J. Michael Kelly
J. Michael Kelly
Attorney-In-Fact
Exhibit Index
Exhibit
Number Description
4.5 Netscape Communications Corporation 1994 Stock Option Plan, as amended
5.1 Opinion of Sheila A. Clark, Acting General Counsel to the Company
(including the consent of such acting general counsel) regarding the
legality of the securities being offered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Sheila A. Clark (included in her opinion filed as Exhibit
5.1 and incorporated herein by reference)
NETSCAPE COMMUNICATIONS CORPORATION
1994 STOCK OPTION PLAN
(As amended June 19, 1995)
PURPOSES OF THE PLAN
This 1994 Stock Option Plan is intended to promote the interests of
Netscape Communications Corporation, a Delaware corporation, by
providing a method whereby eligible individuals who provide valuable
services to the Corporation (or any Parent or Subsidiary) may be
offered incentives and rewards which will encourage them to acquire a
proprietary interest, or otherwise increase their proprietary interest,
in the Corporation and continue to render services to the Corporation
(or any Parent or Subsidiary).
DEFINITIONS
For the purposes of this Plan, the following definitions shall be in
effect:
Board shall mean the Corporation's Board of Directors.
Code shall mean the Internal Revenue Code of 1986, as amended.
Committee shall mean a committee of two (2) or more Board
members appointed by the Board to exercise one or more
administrative functions under the Plan.
Common Stock shall mean the Corporation's common stock.
Corporate Transaction shall mean either of the following
stockholder-approved transactions to which the Corporation is
a party:
a merger or consolidation of the Corporation with or
into another corporation; or
the sale, transfer or other disposition of all or
substantially all of the Corporation's assets.
Corporation shall mean Netscape Communications Corporation, a
Delaware corporation.
Disability shall mean the inability of an individual to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment and shall be
determined by the Plan Administrator on the basis of such
medical evidence as the Plan Administrator deems warranted
under the circumstances. Disability shall be deemed to
constitute Permanent Disability in the event that such
Disability is expected to result in death or has lasted or can
be expected to last for a continuous period of not less than
twelve (12) months.
Employee shall mean an individual who is in the employ of the
Corporation or any Parent or Subsidiary, subject to the
control and direction of the employer entity as to both the
work to be performed and the manner and method of performance.
Exchange Act shall mean the Securities Exchange Act of 1934,
as amended.
Exercise Date shall mean the date on which the Corporation
shall have received written notice of the option exercise.
Fair Market Value per share of Common Stock on any relevant
date under the Plan shall be the value determined in
accordance with the following provisions:
If the Common Stock is not at the time listed or
admitted to trading on any Stock Exchange but is
traded on the Nasdaq National Market, the Fair Market
Value shall be the closing selling price per share of
Common Stock on the date in question, as such price
is reported by the National Association of Securities
Dealers through the Nasdaq National Market or any
successor system. If there is no closing selling
price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing
selling price on the last preceding date for which
such quotation exists.
If the Common Stock is at the time listed or admitted
to trading on any Stock Exchange, then the Fair
Market Value shall be the closing selling price per
share of Common Stock on the date in question on the
Stock Exchange determined by the Plan Administrator
to be the primary market for the Common Stock, as
such price is officially quoted in the composite tape
of transactions on such exchange. If there is no
closing selling price for the Common Stock on the
date in question, then the Fair Market Value shall be
the closing selling price on the last preceding date
for which such quotation exists.
If the Common Stock is at the time neither listed nor
admitted to trading on any Stock Exchange nor traded
on the Nasdaq National Market, then such Fair Market
Value shall be determined by the Plan Administrator
after taking into account such factors as the Plan
Administrator shall deem appropriate.
Incentive Option shall mean a stock option which satisfies the
requirements of Code Section 422.
Non-Statutory Option shall mean a stock option not intended to
meet the requirements of Code Section 422.
Parent shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations ending with the
Corporation, provided each corporation in the unbroken chain
(other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one
of the other corporations in such chain.
Plan shall mean the Corporation's 1994 Stock Option Plan, as
set forth in this document.
Plan Administrator shall mean either the Board or the
Committee, to the extent the Committee is at the time
responsible for the administration of the Plan in accordance
with Article III.
Service shall mean the provision of services to the
Corporation or any Parent or Subsidiary by an individual in
the capacity of an Employee, a non-employee member of the
board of directors or a consultant.
Stock Exchange shall mean either the American Stock Exchange
or the New York Stock Exchange.
Subsidiary shall mean any corporation (other than the
Corporation) in an unbroken chain of corporations beginning
with the Corporation, provided each such corporation (other
than the last corporation) in the unbroken chain owns, at the
time of the determination, stock possessing fifty percent
(50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such
chain.
10% Stockholder shall mean the owner of stock (as determined
under Code Section 424(d)) possessing ten percent (10%) or
more of the total combined voting power of all classes of
stock of the Corporation or any Parent or Subsidiary.
ADMINISTRATION OF THE PLAN
Procedure.
Multiple Administrative Bodies. If permitted by Rule 16b-3, the Plan
may be administered by different bodies with respect to directors,
officers who are not directors, and Employees who are neither directors
nor officers.
Administration With Respect to Directors and Officers Subject to
Section 16(b). With respect to option grants made to Employees who are
also officers or directors subject to Section 16(b) of the Exchange Act
("Section 16(b)"), the Plan shall be administered by (A) the Board, if
the Board may administer the Plan in a manner complying with the rules
under Rule 16b-3 promulgated pursuant to the Exchange Act ("Rule
16b-3") relating to the disinterested administration of employee
benefit plans under which Section 16(b) exempt discretionary grants and
awards of equity securities are to be made, or (B) a committee
designated by the Board to administer the Plan, which committee shall
be constituted to comply with the rules under Rule 16b-3 relating to
the disinterested administration of employee benefit plans under which
Section 16(b) exempt discretionary grants and awards of equity
securities are to be made. Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed
by the Board. From time to time the Board may increase the size of the
Committee and appoint additional members, remove members (with or
without cause) and substitute new members, fill vacancies (however
caused), and remove all members of the Committee and thereafter
directly administer the Plan, all to the extent permitted by the rules
under Rule 16b-3 relating to the disinterested administration of
employee benefit plans under which Section 16(b) exempt discretionary
grants and awards of equity securities are to be made.
Administration With Respect to Other Persons. With respect to option
grants made to Employees or consultants who are neither directors nor
officers of the Corporation, the Plan shall be administered by (A) the
Board or (B) a committee designated by the Board, which committee shall
be constituted to satisfy the legal requirements relating to the
administration of stock option plans under state corporate and
securities laws and the Code. Once appointed, such Committee shall
serve in its designated capacity until otherwise directed by the Board.
The Board may increase the size of the Committee and appoint additional
members, remove members (with or without cause) and substitute new
members, fill vacancies (however caused), and remove all members of the
Committee and thereafter directly administer the Plan, all to the
extent permitted by the legal requirements relating to the
administration of stock option plans under state corporate and
securities laws and the Code.
Powers of the Plan Administrator. The Plan Administrator shall have
full power and authority (subject to the provisions of the Plan) to
establish such rules and regulations as it may deem appropriate for
proper administration of the Plan and to make such determinations
under, and issue such interpretations of, the Plan and any outstanding
options as it may deem necessary or advisable. Additionally, the Plan
Administrator shall have the power, in its sole discretion, to provide
for the acceleration of vesting or waiver of forfeiture restrictions of
any option granted hereunder. Decisions of the Plan Administrator shall
be final and binding on all parties who have an interest in the Plan or
any outstanding option.
ELIGIBILITY FOR OPTION GRANTS
The persons eligible to receive option grants under the Plan
are as follows:
Employees,
non-employee members of the Board or the non-employee members
of the board of directors of any Parent or Subsidiary, and
consultants who provide valuable services to the Corporation
(or any Parent or Subsidiary).
The Plan Administrator shall have full authority to determine which
eligible individuals are to receive option grants under the Plan, the
number of shares to be covered by each such grant, the status of the
granted option as either an Incentive Option or a Non-Statutory Option,
the time or times at which each option is to become exercisable, the
vesting schedule (if any) applicable to the option shares and the
maximum term for which the option is to remain outstanding.
STOCK SUBJECT TO THE PLAN
The stock issuable under the Plan shall be shares of the Corporation's
authorized but unissued or reacquired Common Stock. The maximum number
of shares which may be issued over the term of the Plan shall not
exceed 4,518,336 shares, subject to adjustment from time to time in
accordance with the provisions of this Article V.
Shares subject to outstanding options shall be available for subsequent
option grants under the Plan to the extent (i) the options expire or
terminate for any reason prior to exercise in full or (ii) the options
are canceled in accordance with the cancellation-regrant provisions of
Article IX of the Plan. All shares issued under the Plan, whether or
not those shares are subsequently repurchased by the Corporation
pursuant to its repurchase rights under the Plan, shall reduce on a
share-for-share basis the number of shares of Common Stock available
for subsequent option grants.
In the event any change is made to the Common Stock issuable under the
Plan by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt
of consideration, appropriate adjustments shall be made to (i) the
maximum number and/or class of securities issuable under the Plan and
(ii) the number and/or class of securities and the exercise price per
share in effect under each outstanding option in order to prevent the
dilution or enlargement of benefits thereunder. The adjustments
determined by the Plan Administrator shall be final, binding and
conclusive. In no event shall any adjustments be made for the
conversion of one or more outstanding shares of the Corporation's
preferred stock into shares of the Common Stock.
TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Plan shall be authorized by action of
the Plan Administrator and may, at the Plan Administrator's discretion,
be either Incentive Options or Non-Statutory Options. Each granted
option shall be evidenced by one or more instruments in the form
approved by the Plan Administrator, provided, however, that each such
instrument shall comply with the terms and conditions specified below.
Each instrument evidencing an Incentive Option shall, in addition, be
subject to the applicable provisions of Article VII.
Exercise Price.
The exercise price per share shall be fixed by the Plan
Administrator. In no event, however, shall the exercise price
per share be less than eighty-five percent (85%) of the Fair
Market Value per share of Common Stock on the date of the
option grant.
If the individual to whom the option is granted is a 10%
Stockholder, then the exercise price per share shall not be
less than one hundred ten percent (110%) of the Fair Market
Value per share of Common Stock on the grant date.
The exercise price shall become immediately due upon exercise
of the option and shall, subject to the provisions of Article
X and the agreement evidencing the grant, be payable in cash
or check made payable to the Corporation. Should the
Corporation's outstanding Common Stock be registered under
Section 12(g) of the Exchange Act at the time the option is
exercised, then the exercise price may also be paid as
follows:
in shares of Common Stock held by the optionee for the
requisite period necessary to avoid a charge to the
Corporation's earnings for financial reporting purposes and
valued at Fair Market Value on the Exercise Date, or
through a special sale and remittance procedure pursuant to
which the optionee shall concurrently provide irrevocable
written instructions (a) to a Corporation-designated brokerage
firm to effect the immediate sale of the purchased shares and
remit to the Corporation, out of the sale proceeds available
on the settlement date, sufficient funds to cover the
aggregate exercise price payable for the purchased shares plus
all applicable Federal, state and local income and employment
taxes required to be withheld by the Corporation by reason of
such purchase and (b) to the Corporation to deliver the
certificates for the purchased shares directly to such
brokerage firm in order to complete the sale transaction.
Except to the extent such sale and remittance procedure is
utilized, payment of the exercise price for the purchased
shares must be made on the Exercise Date.
Term and Exercise of Options. Each option granted under the Plan shall
be exercisable at such time or times, during such period and for such
number of shares as shall be determined by the Plan Administrator and
set forth in the stock option agreement. However, no option shall have
a term in excess of ten (10) years measured from the grant date. The
option shall be exercisable during the optionee's lifetime only by the
optionee and shall not be assignable or transferable other than by will
or by the laws of descent and distribution following the optionee's
death.
Effect of Termination of Service. Except to the extent otherwise
provided pursuant to subsection C.2 below, the following provisions
shall govern the exercise period applicable to any options held by the
optionee at the time of cessation of Service or death:
Should the optionee cease to remain in Service for any reason other than death
or Disability, then the period during which each outstanding option held by such
optionee is to remain exercisable shall be limited to the three (3)-month period
following the date of such cessation of Service.
Should such Service terminate by reason of Disability, then
the period during which each outstanding option held by the
optionee is to remain exercisable shall be limited to the six
(6)-month period following the date of such cessation of
Service. However, should such Disability be deemed to
constitute Permanent Disability, then the period during which
each outstanding option held by the optionee is to remain
exercisable shall be extended by an additional six (6) months
so that the exercise period shall be limited to the twelve
(12)-month period following the date of the optionee's
cessation of Service by reason of such Permanent Disability.
Should the optionee die while holding one or more outstanding
options, then the period during which each such option is to
remain exercisable shall be limited to the twelve (12)-month
period following the date of the optionee's death. During such
limited period, the option may be exercised by the personal
representative of the optionee's estate or by the person or
persons to whom the option is transferred pursuant to the
optionee's will or in accordance with the laws of descent and
distribution.
Under no circumstances, however, shall any such option be
exercisable after the specified expiration date of the option
term.
During the applicable post-Service exercise period, the option
may not be exercised in the aggregate for more than the number
of vested shares for which the option is exercisable on the
date of the optionee's cessation of Service. Upon the
expiration of the applicable exercise period or (if earlier)
upon the expiration of the option term, the option shall
terminate and cease to be exercisable for any vested shares
for which the option has not been exercised. However, the
option shall, immediately upon the optionee's cessation of
Service, terminate and cease to be outstanding with respect to
any option shares for which the option is not at that time
exercisable or in which the optionee is not otherwise at that
time vested.
The Plan Administrator shall have full power and authority to
extend the period of time for which the option is to remain
exercisable following the optionee's cessation of Service or
death from the limited period in effect under subsection C.1
of this Article VI to such greater period of time as the Plan
Administrator shall deem appropriate; provided that in no
event shall such option be exercisable after the specified
expiration date of the option term.
Stockholder Rights. An optionee shall have no stockholder rights with
respect to the shares subject to the option until such individual shall
have exercised the option and paid the exercise price.
Unvested Shares. The Plan Administrator shall have the discretion to
authorize the issuance of unvested shares of Common Stock under the
Plan. Should the optionee cease Service while holding such unvested
shares, the Corporation shall have the right to repurchase, at the
exercise price paid per share, all or (at the discretion of the
Corporation and with the consent of the optionee) any of those unvested
shares. The terms and conditions upon which such repurchase right shall
be exercisable (including the period and procedure for exercise and the
appropriate vesting schedule for the purchased shares) shall be
established by the Plan Administrator and set forth in the agreement
evidencing such repurchase right. In no event, however, may the Plan
Administrator impose a vesting schedule upon any option granted under
the Plan or any shares of Common Stock subject to the option which is
more restrictive than twenty percent (20%) per year vesting, beginning
one (1) year after the grant date.
First Refusal Rights. Until such time as the Corporation's outstanding
shares of Common Stock are first registered under Section 12(g) of the
Exchange Act, the Corporation shall have the right of first refusal
with respect to any proposed sale or other disposition by the optionee
(or any successor in interest by reason of purchase, gift or other
transfer) of any shares of Common Stock issued under the Plan. Such
right of first refusal shall be exercisable in accordance with the
terms and conditions established by the Plan Administrator and set
forth in the agreement evidencing such right.
INCENTIVE OPTIONS
The terms and conditions specified below shall be applicable to all
Incentive Options granted under the Plan. Except as modified by the
provisions of this Article VII, all the provisions of the Plan shall be
applicable to Incentive Options. Incentive Options may only be granted
to individuals who are Employees. Options which are specifically
designated as Non-Statutory shall not be subject to such terms and
conditions.
Exercise Price. The exercise price per share of the Common Stock
subject to an Incentive Option shall in no event be less than one
hundred percent (100%) of the Fair Market Value per share of Common
Stock on the date of grant.
Dollar Limitation. The aggregate Fair Market Value of the Common Stock
(determined as of the respective date or dates of grant) for which one
(1) or more options granted to any Employee under this Plan (or any
other option plan of the Corporation or any Parent or Subsidiary) may
for the first time become exercisable as Incentive Options during any
one (1) calendar year shall not exceed the sum of One Hundred Thousand
Dollars ($100,000). To the extent the Employee holds two (2) or more
such options which become exercisable for the first time in the same
calendar year, the foregoing limitation on the exercisability of such
options as Incentive Options shall be applied on the basis of the order
in which such options are granted. Should the applicable One Hundred
Thousand Dollar ($100,000) limitation in fact be exceeded in any
calendar year, then the option shall nevertheless become exercisable
for the excess number of shares in such calendar year as a
Non-Statutory Option.
10% Stockholder. If any individual to whom an Incentive Option is
granted is a 10% Stockholder, then the option term shall not exceed
five (5) years measured from the grant date.
CHANGES IN CAPITALIZATION, CORPORATE TRANSACTIONS AND DISSOLUTIONS
Changes in Capitalization. Subject to any required action by the
shareholders of the Corporation, the number of shares of Common Stock
covered by each outstanding option, and the number of shares of Common
Stock which have been authorized for issuance under the Plan but as to
which no options have yet been granted or which have been returned to
the Plan upon cancellation or expiration of an option, as well as the
price per share of Common Stock covered by each such outstanding
option, shall be proportionately adjusted for any increase or decrease
in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease
in the number of issued shares of Common Stock effected without receipt
of consideration by the Corporation; provided, however, that conversion
of any convertible securities of the Corporation shall not be deemed to
have been "effected without receipt of consideration." Such adjustment
shall be made by the Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein,
no issuance by the Corporation of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect,
and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an option.
Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Corporation, to the extent that an option has not
been previously exercised, it will terminate immediately prior to the
consummation of such proposed action. The Board may, in the exercise of
its sole discretion in such instances, declare that any option shall
terminate as of a date fixed by the Board and give each Optionee the
right to exercise his or her option as to all or any part of the stock
subject to an option, including Shares as to which the option would not
otherwise be exercisable.
Corporate Transactions. In the event of a Corporate Transaction, each
outstanding option shall be assumed or an equivalent option substituted
by the successor corporation or a Parent or Subsidiary of the successor
corporation. In the event that the successor corporation refuses to
assume or substitute for the option, the Plan Administrator shall, in
lieu of such assumption or substitution, provide for the Optionee to
have the right to exercise the option as to all or a portion of the
stock subject to such option, including Shares as to which it would not
otherwise be exercisable. If the Plan Administrator makes an option
exercisable in lieu of assumption or substitution in the event of a
Corporate Transaction, the Plan Administrator shall notify the Optionee
that the option shall be fully exercisable for a period of fifteen (15)
days from the date of such notice, and the option shall terminate upon
the expiration of such period. For the purposes of this paragraph, the
option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each
share of stock subject to the option immediately prior to the merger or
sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of
the transaction (and if holders were offered a choice of consideration,
the type of consideration chosen by the holders of a majority of the
outstanding Shares); provided, however, that if such consideration
received in the merger or sale of assets was not solely common stock of
the successor corporation or its Parent, the Plan Administrator may,
with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the option, for each
share of stock subject to the option, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the
per share consideration received by holders of Common Stock in the
merger or sale of assets.
CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time
and from time to time, with the consent of the affected option holders,
the cancellation of any or all outstanding options under the Plan and
to grant in substitution therefor new options under the Plan covering
the same or different numbers of shares of Common Stock but with an
exercise price per share not less than (i) one hundred percent (100%)
of the Fair Market Value per share of Common Stock on the new grant
date in the case of a grant of an Incentive Option, (ii) one hundred
ten percent (110%) of such Fair Market Value in the case of an option
grant to a 10% Stockholder or (iii) eighty-five percent (85%) of such
Fair Market Value in the case of all other grants.
LOANS
The Plan Administrator may assist any optionee, other than a
non-employee director, in the exercise of one or more options granted
to the optionee by:
authorizing the extension of a loan from the Corporation to
the optionee, or
permitting the optionee to pay the exercise price in
installments over a period of years.
The terms of any loan or installment method of payment (including the
interest rate and terms of repayment) shall be established by the Plan
Administrator in its sole discretion. Loans or installment payments may
be authorized with or without security or collateral. The maximum
credit available to each optionee may not exceed the sum of (i) the
aggregate exercise price payable for the purchased shares (less the par
value of such shares) plus (ii) any Federal, state and local income and
employment tax liability incurred by the optionee in connection with
such exercise.
The Plan Administrator may, in its absolute discretion, determine that
one or more loans extended under this Article X shall be subject to
forgiveness by the Corporation in whole or in part upon such terms and
conditions as the Plan Administrator may in its discretion deem
appropriate.
NO EMPLOYMENT OR SERVICE RIGHTS
Nothing in the Plan shall confer upon the optionee any right to
continue in Service for any period of specific duration or interfere
with or otherwise restrict in any way the rights of the Corporation (or
any Parent or Subsidiary) or of the optionee, which rights are hereby
expressly reserved by each, to terminate the optionee's Service at any
time for any reason, with or without cause.
AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and authority to
amend or modify the Plan in any or all respects whatsoever. However, no
such amendment or modification shall, without the consent of the
holders, adversely affect their rights and obligations under their
outstanding options. In addition, the Board shall not, without the
approval of the Corporation's stockholders, (i) increase the maximum
number of shares issuable under the Plan, except for permissible
adjustments under Article V, (ii) materially modify the eligibility
requirements for option grants or (iii) otherwise materially increase
the benefits accruing to option holders.
Options may be granted under this Plan to purchase shares of Common
Stock in excess of the number of shares then available for issuance
under the Plan, provided an amendment sufficiently increasing the
number of shares of Common Stock available for issuance under the Plan
is approved by the Corporation's stockholders within twelve (12) months
after the date the excess grants are first made.
EFFECTIVE DATE AND TERM OF PLAN
The Plan shall become effective when adopted by the Board, but no
option granted under the Plan shall become exercisable unless and until
the Plan shall have been approved by the Corporation's stockholders. If
such stockholder approval is not obtained within twelve (12) months
after the date of the Board's adoption of the Plan, then all options
previously granted under the Plan shall terminate and no further
options shall be granted. Subject to such limitation, the Plan
Administrator may grant options under the Plan at any time after the
effective date and before the date fixed herein for termination of the
Plan.
The Plan shall terminate upon the earliest of (i) the expiration of the ten (10)
year period measured from the date the Plan is adopted by the Board, (ii) the
date on which all shares available for issuance under the Plan shall have been
issued. Upon such Plan termination, each option and unvested share issuance
outstanding under the Plan shall continue to have full force and effect in
accordance with the provisions of the agreements evidencing that option or share
issuance.
USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares
pursuant to options granted under the Plan shall be used for general
corporate purposes.
WITHHOLDING
The Corporation's obligation to deliver shares upon the exercise of any
options granted under the Plan shall be subject to the satisfaction by
the optionee of all applicable Federal, state and local income and
employment tax withholding requirements.
REGULATORY APPROVALS
The implementation of the Plan, the granting of any option hereunder
and the issuance of Common Stock upon the exercise of any option shall
be subject to the Corporation's procurement of all approvals and
permits required by regulatory authorities having jurisdiction over the
Plan, the options granted under it and the Common Stock issued pursuant
to it.
FINANCIAL REPORTS
The Corporation shall deliver at least annually to each individual
holding an outstanding option under the Plan financial statements
concerning the Corporation, unless the optionee is a key employee whose
duties in connection with the Corporation assure such individual access
to equivalent information.
Exhibit 5.1
March 17, 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 614,250 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
Netscape Communications Corporation 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.
Acting General Counsel
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-______) pertaining to the Netscape Communications Corporation 1994
Stock Option Plan of 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, filed with the Securities and
Exchange Commission on February 17, 1999.
/S/ ERNST & YOUNG LLP
Ernst & Young LLP
Vienna, Virginia
March 16, 1999
