As filed with the Securities and Exchange Commission on January 7, 2000
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)
Restricted Stock Agreement between America Online, Inc. and
William J. Raduchel
(Full Title of the Plan)
SHEILA A. CLARK, ESQ.
Senior Vice President, Legal
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166-9323
(703) 265-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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,
$.01 par value per share 133,332 $73.50 $9,799,902 $2,587.17
</TABLE>
(1) Common Stock being registered hereby includes associated Preferred Stock
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 based on the average of the high and low
prices of $73.50 as quoted on the New York Stock Exchange within five (5)
business days prior to the above filing date.
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 William J. Raduchel 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, 1999, as filed with the Commission on August 13, 1999
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (File No. 001-12143).
(b)The Company's Quarterly Report on Form 10-Q, for the quarterly
period ended September 30, 1999, as filed with the Commission on
November 2, 1999, pursuant to the Exchange Act (File No. 001-12143).
(c)The Company's Proxy Statement on Schedule 14A for the Company's 1999
Annual Meeting (File No. 001-12143 and filing date of September 24,
1999).
(d)The Company's Current Report on Form 8-K dated December 1, 1999 (File
No. 001-12143 and filing date of December 2, 1999).
(e)The Company's Current Report on Form 8-K dated December 21, 1999
(File No. 001-12143 and filing date of January 3, 2000).
(f)The descriptions of the Company's Common Stock, including preferred
stock 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.
(g)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 the "Right to Indemnification" section of this Article shall
include the right to be paid by the Corporation the expenses (including
attorney's fees) incurred in defending any such proceeding in advance of its
final disposition; provided, however, that, if the Delaware General Corporation
Law requires, an advancement of expenses incurred by an Indemnitee in his
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such Indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such Indemnitee is
not entitled to be indemnified for such expenses under this section or
otherwise. The rights to indemnification and to the advancement of expenses
conferred in this section and the section "Right to Indemnification" of this
Article shall be contract rights and such rights shall continue as to an
Indemnitee who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the Indemnitee's heirs, executors and administrators.
Any repeal or modification of any of the provisions of this Article shall not
adversely affect any right or protection of an Indemnitee existing at the time
of such repeal or modification.
Right of Indemnitees to Bring Suit. If a claim under the sections
"Right to Indemnification" and "Right to Advancement of Expenses" of this
Article is not paid in full by the Corporation within sixty (60) days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty (20) days, the Indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Indemnitee shall also be entitled to be paid the expenses of prosecuting or
defending such suit. In (i) any suit brought by the Indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the Indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) in any suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the Indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its board of directors, independent legal counsel, or its
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
Non-Exclusivity of Rights. The rights to indemnification and to
the advancement of expenses conferred in this Article shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Corporation's Certificate of Incorporation as amended from time to
time, these By-Laws, any agreement, any vote of stockholders or disinterested
directors or otherwise.
Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the board of
directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the provisions
of this Article with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
The directors and officers of the Registrant are covered by a
policy of liability insurance.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Description
4.1 Amendment of Section A of Article 4 of the Restated Certificate of
Incorporation of America Online, Inc. (filed as Exhibit 4.1 to
Registrant's Registration Statement on Form S-3, Registration No.
333-46633 and as Exhibit 3.1 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1999, both of
which are 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 Form of Restricted Stock Agreement between America Online, Inc.
and William J. Raduchel
5.1 Opinion of Sheila A. Clark, Senior Vice President, Legal of the
Company, regarding the legality of securities being offered
23.1 Consent of Sheila A. Clark, Senior Vice President, Legal of 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 (included in the signature page to the
Registration Statement)
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, Commonwealth of Virginia, on this 7th day
of January, 2000.
AMERICA ONLINE, INC.
By: /s/J. Michael Kelly
J. Michael Kelly, Senior Vice
President, Chief Financial Officer
and Assistant Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Stephen M. Case, Kenneth J. Novack, J.
Michael Kelly, Sheila A. Clark and James F. MacGuidwin and each of them, his
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
or supplements to this registration statement and to file the same with all
exhibits thereto, and all 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 and necessary to be done, as fully to all intents and purposes
as he 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 substitute or
substitutes, may lawfully do or cause to be done by virtue hereof. This power of
attorney may be executed in counterparts.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated in one or more counter-parts.
<TABLE>
<S> <C> <C>
SIGNATURE TITLE DATE
January 7, 2000
/s/Stephen M. Case Chairman of the Board and Chief
Stephen M. Case Executive Officer (principal executive
officer)
January 7, 2000
/s/Robert W. Pittman President, Chief Operating Officer and
Robert W. Pittman Director
January 7, 2000
/s/Miles R. Gilburne Senior Vice President, Corporate
Miles R. Gilburne Development and Director
January 7, 2000
/s/J. Michael Kelly Senior Vice President, Chief Financial
J. Michael Kelly Officer and Assistant Secretary (principal
financial officer)
January 7, 2000
/s/James F. MacGuidwin Vice President, Controller, Chief
James F. MacGuidwin Accounting and Budget Officer (principal
accounting officer)
January 7, 2000
/s/Daniel F. Akerson Director
Daniel F. Akerson
January 7, 2000
/s/James L. Barksdale Director
James L. Barksdale
January 7, 2000
/s/Frank J. Caufield Director
Frank J. Caufield
January 7, 2000
/s/Alexander M. Haig, Jr. Director
Alexander M. Haig, Jr.
January 7, 2000
/s/Thomas Middelhoff Director
Thomas Middelhoff
January 7, 2000
/s/Colin L. Powell Director
Colin L. Powell
January 7, 2000
/s/Franklin D. Raines Director
Franklin D. Raines
January 7, 2000
/s/Marjorie M. Scardino Director
Marjorie M. Scardino
</TABLE>
Exhibit Index
Exhibit No. Description
4.5 Form of Restricted Stock Agreement between America Online, Inc.
and William J. Raduchel
5.1 Opinion of Sheila A. Clark, Senior Vice President, Legal of the
Company, regarding the legality of securities being offered
23.1 Consent of Sheila A. Clark, Senior Vice President, Legal of 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 (included in the signature page to the
Registration Statement)
Exhibit 4.5
RESTRICTED STOCK AGREEMENT
This AGREEMENT is made as of the ____ day of ________ 1999 (the "Grant
Date") by and between America Online, Inc., a Delaware corporation having a
principal place of business in Dulles, Virginia ("AOL" or the "Company"), and
William Raduchel (the "Officer").
W I T N E S S E T H
WHEREAS, the Company has made an offer of employment to the Officer
that the Officer has accepted pursuant to the terms of an offer letter dated
September 2, 1999 (the "Offer Letter"), and the Company desires to offer and
grant to the Officer shares of Company common stock, par value $.01 per share
(the "Common Stock"), in accordance with the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein and for other good and valuable consideration, the
parties hereby agree as follows:
1. Terms of Purchase. The Officer hereby accepts the offer of the
Company to issue to the Officer, in accordance with the terms of this Agreement,
sixty-six thousand six hundred sixty-six (66,666) shares of the Company's Common
Stock (such shares, subject to adjustment pursuant to Subsections 2(i) and (j)
hereof, the "Shares") at a purchase price per share of one cent ($.01) (the
"Purchase Price"), receipt of which is hereby acknowledged by the Company.
2. Company's Lapsing Repurchase Right.
(a) Lapsing Repurchase Right. Except as set forth in Subsections 2(b),
2(c) and 2(d), in the event for any reason the Officer ceases to be an employee
of the Company prior to the third anniversary of the Grant Date, the Company or
its designee shall have the option, but not the obligation, to purchase from the
Officer (or his successor in interest), and the Officer (or his successor in
interest) shall be obligated to sell to the Company or its designee, at a price
per Share equal to the Purchase Price, all or any part of the Shares set forth
in clauses (i), (ii) and (iii) below (the "Lapsing Repurchase Right"). The
Company's Lapsing Repurchase Right shall be valid for a period of six (6) months
commencing with the date of such termination. Notwithstanding any other
provision hereof, in the event the Company is prohibited during such six (6)
months from exercising its Lapsing Repurchase Right by Section 160 of the
Delaware General Corporation Law as amended from time to time (or any successor
provision) then the time period such Lapsing Repurchase Right may be exercised
shall be extended until twenty (20) days after the Company is first not so
prohibited.
(i) If such termination of employment is prior to the first
anniversary of the Grant Date, the Company shall have the option to
repurchase all of the Shares acquired by the Officer hereunder.
(ii) If such termination of employment is on or after the
first anniversary of the Grant Date and prior to the second anniversary
of the Grant Date, the Company shall have the option to repurchase
44,444 of the Shares; if such termination of employment is on or after
the second anniversary of the Grant Date and prior to the third
anniversary of the Grant Date, the Company shall have the option to
repurchase 22,222 of the Shares, as provided in this Agreement.
(iii) Notwithstanding anything to the contrary contained in
this Agreement, except as otherwise provided in Subsection 2(b) below,
in the event the Company terminates the Officer's employment for Cause
(as defined below) or in the event the Administrator determines,
subsequent to the Officer's termination of service but during the
ninety (90) days after the termination of service (or if the Officer
shall die during such period, during the one year period following such
termination of service) that either prior or subsequent to the
Officer's termination the Officer engaged in conduct that would
constitute Cause, the Company shall have the option to repurchase all
of the Shares acquired by the Officer hereunder.
(b) Effect of Termination for Disability or upon Death. Notwithstanding
the provisions of clauses (i), (ii) and (iii) immediately above, if such
termination of employment is as a result of the Officer's Disability or death,
then the Company's Lapsing Repurchase Right shall terminate, and the Officer's
(or the Officer's Survivors') ownership of all Shares then owned by him shall
become vested.
(c) Effect of Termination without Cause or for Good Reason. The
Company's Lapsing Repurchase Right shall terminate, and the Officer's ownership
of all Shares then owned by him shall become vested, if the Company terminates
the Officer's employment other than for Cause or if the Officer terminates his
employment with the Company for Good Reason; provided that the Officer shall
deliver to the Company a valid release of all claims against the Company.
(d) Effect of Change in Control. The Company's Lapsing Repurchase Right
shall terminate, and the Officer's ownership of all Shares then owned by him
shall become vested, in the event of a Change in Control upon the first to occur
of (x) the date the Lapsing Repurchase Right otherwise expires under the terms
of this Agreement, (y) the first anniversary of the date such Corporate Change
in Control is determined to have occurred, and (z) the occurrence of an
Involuntary Employment Action.
(e) Closing. In the event that the Company exercises the Lapsing
Repurchase Right, the Company shall notify the Officer, or, in the case of his
death, his representative, in writing of its intent to repurchase the Shares.
Such notice may be mailed by the Company up to and including the last day of the
time period provided for above for exercise of the Lapsing Repurchase Right. The
notice shall specify the place, time and date for payment of the repurchase
price (the "Closing"). The date specified shall be not less than ten (10) days
nor more than sixty (60) days from the date of mailing of the notice, and the
Officer or his successor in interest with respect to the Shares which the
Company elects to repurchase shall have no further rights as the owner thereof
from and after the date specified in the notice. At the Closing, the repurchase
price shall be delivered to the Officer or his successor in interest and the
Shares being purchased, duly endorsed for transfer, shall, to the extent that
they are not in the possession of the Company, be delivered to the Company by
the Officer or his successor in interest.
(f) Escrow. The certificates representing all Shares acquired by the
Officer hereunder which from time to time are subject to the Lapsing Repurchase
Right shall be delivered to the Company and the Company shall hold such Shares
in escrow as provided in this Subsection 2(f). Promptly following a request from
the Officer, the Company shall release from escrow and deliver to the Officer a
certificate for the number of Shares, if any, as to which the Lapsing Repurchase
Right has lapsed. In the event of a repurchase by the Company of Shares subject
to the Lapsing Repurchase Right, the Company shall release from escrow and
cancel a certificate for the number of Shares so repurchased. Any securities
distributed in respect of the Shares held in escrow, including, without
limitation, shares issued as a result of stock splits, stock dividends or other
recapitalizations, shall also be held in escrow in the same manner as the
Shares.
(g) Prohibition on Transfer. The Officer recognizes and agrees that all
Shares which are subject to the Lapsing Repurchase Right may not be sold,
transferred, assigned, hypothecated, pledged, encumbered or otherwise disposed
of, whether voluntarily or by operation of law (other than to the Company or its
designee). The Company shall not be required to transfer any Shares on its books
which shall have been sold, assigned or otherwise transferred in violation of
this Subsection 2(g), or to treat as the owner of such Shares, or to accord the
right to vote as such owner or to pay dividends to, any person or organization
to which any such Shares shall have been so sold, assigned or otherwise
transferred, in violation of this Subsection 2(g).
(h) In the event that the Officer or his successor in interest fails to
deliver the Shares to be repurchased by the Company under this Agreement, the
Company may elect (i) to establish a segregated account in the amount of the
repurchase price, such account to be turned over to the Officer or his successor
in interest upon delivery of such Shares, and (ii) immediately to take such
action as is appropriate to transfer record title of such Shares from the
Officer to the Company and to treat the Officer and such Shares in all respects
as if delivery of such Shares had been made as required by this Agreement. The
Officer hereby irrevocably grants the Company a power of attorney which shall be
coupled with an interest for the purpose of effectuating the preceding sentence.
The Officer agrees as a condition to the performance by the Company of this
Agreement to execute and deliver the Stock Power attached hereto as Exhibit A.
(i) If the Company shall pay a stock dividend or declare a stock split
on or with respect to any of its Common Stock, or otherwise distribute
securities of the Company to the holders of its Common Stock, the number of
shares of stock or other securities of the Company issued with respect to the
Shares then subject to the restrictions contained in this Agreement shall be
added to the Shares subject to the Company's rights of repurchase pursuant to
this Agreement. If the Company shall distribute to its stockholders securities
of another corporation, the securities of such other corporation, distributed
with respect to the Shares then subject to the restrictions contained in this
Agreement, shall be added to the Shares subject to the Company's rights to
repurchase pursuant to this Agreement.
(j) If the outstanding shares of the Company's Common Stock shall be
subdivided into a greater number of shares or combined into a smaller number of
shares, or in the event of a reclassification of the outstanding shares of the
Company's Common Stock, or if the Company shall be a party to a merger,
consolidation or capital reorganization, there shall be substituted for the
Shares then subject to the restrictions contained in this Agreement such amount
and kind of securities as are issued in such subdivision, combination,
reclassification, merger, consolidation or capital reorganization in respect of
the Shares subject immediately prior thereto to the Company's rights of
repurchase pursuant to this Agreement.
3. Legend. All certificates representing the Shares to be issued to the
Officer pursuant to this Agreement shall have endorsed thereon a legend
substantially as follows:
"The shares represented by this certificate are subject to
restrictions set forth in a Restricted Stock Agreement dated
__________, 1999 with America Online, Inc., a copy of which
Agreement is available for inspection at the offices of the
Company or will be made available upon request."
4. Defined Terms. Capitalized terms not otherwise defined herein shall
have the following meanings:
"Board of Directors" means the Board of Directors of the Company.
"Cause" shall mean (a) the Officer's conviction of a felony
involving moral turpitude, (b) his willful and continued failure substantially
to perform his required duties under the Offer Letter, (c) his intentional or
repeated violation of the Confidentiality, Non-Competition, and Proprietary
Rights Agreement, or (d) his intentional or improper conduct substantially
prejudicial to the business of the Company or any of its affiliates.
"Change in Control" means a Corporate Change in Control or a
Transactional Change in Control.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Corporate Change in Control" means the happening of any of the
following events:
(1) the acquisition by any individual, entity or group (an
"Entity"), including any "person" within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act, of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 30% or more of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding Company Common
Stock") or (ii) the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); excluding, however, the following: (A) any
acquisition directly from the Company (excluding any acquisition
by virtue of the exercise of an exercise, conversion or exchange
privilege unless the security being so exercised, converted or
exchanged was itself acquired directly from the Company), (B) any
acquisition by the Company, or (C) any acquisition by an employee
benefit plan (or related trust) sponsored or maintained by the
Company or by any corporation controlled by the Company; or
(2) a change in the composition of the Board since the Grant Date,
such that the individuals who, as of such date, constituted the
Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of such Board; provided that any
individual who becomes a director of the Company subsequent to the
Grant Date whose election, or nomination for election by the
Company's stockholders, was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board
shall be deemed a member of the Incumbent Board; and provided
further, that any individual who was initially elected as a
director of the Company as a result of an actual or threatened
election contest, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act, or any other
actual or threatened solicitation of proxies or consents by or on
behalf of any person or Entity other than the Board shall not be
deemed a member of the Incumbent Board.
"Disability" or "Disabled" means permanent and total disability
as defined in Section 22(e)(3) of the Code.
A termination by the Officer for "Good Reason" shall mean a
termination by the Officer, upon 60 days' notice following the
Officer's transfer to an office outside the Company's headquarters, or
a change by the Company in the Officer's reporting relationship or his
authority which causes the Officer's position with the Company to
become of materially less responsibility than the Officer's position
immediately following the Grant Date, provided that such material
change is not in connection with a termination of the Officer's
employment by the Company, and provided further, that the Company shall
not have taken action within 30 days of such notice of termination such
that the circumstances constituting a Good Reason shall have ceased.
"Involuntary Employment Action" shall mean any change in the
terms and conditions of the Officer's employment with the Company or any
successor, without Cause, to such extent that:
(1) the Officer shall fail to be vested with power,
authority and resources analogous to the Officer's title
and/or office prior to the Change in Control, or
(2) the Officer shall lose any significant duties or
responsibilities attending such office, or
(3) there shall occur a reduction in the Officer's
base compensation, or
(4) the Officer's employment with the Company, or its
successor, is terminated without Cause.
"Survivors" means a deceased Officer's legal representatives
and/or any person or persons who acquired the Officer's rights to a Stock Grant
by will or by the laws of descent and distribution.
"Transactional Change in Control" shall mean any of the following
transactions to which the Company is a party:
(1) a reorganization, recapitalization, merger or consolidation (a
"Corporate Transaction") of the Company, unless securities
representing 60% or more of either the outstanding shares of
common stock or the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors of the Company or the corporation resulting from such
Corporate Transaction (or the parent of such corporation) are held
subsequent to such transaction by the person or persons who were
the beneficial holders of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Corporate Transaction, in substantially the same proportions as
their ownership immediately prior to such Corporate Transaction;
or
(2) the sale, transfer or other disposition of all or
substantially all of the assets of the Company.
5. Tax Liability of the Officer and Payment of Taxes. The Officer
acknowledges and agrees that any income or other taxes due from him with respect
to the Shares issued pursuant to this Agreement, including, without limitation,
the lapsing of the Company's right of repurchase, shall be the Officer's
responsibility. Without limiting the foregoing, the Officer agrees that, to the
extent that the lapsing of restrictions on disposition of any of the Shares or
the declaration of dividends on any such shares before the lapse of such
restrictions on disposition results in the Officer's being deemed to be in
receipt of earned income under the provisions of the Code, the Company shall be
entitled to immediate payment from the Officer of the amount of any tax required
to be withheld by the Company.
6. Securities Law Compliance. The Officer represents that any sales of
Shares at a time when the Officer may be deemed an "affiliate" of the Company
for purposes of the Securities Act of 1933, as amended (the "Act"), shall be
made in accordance with the requirements of Rule 144 under the Act (or any
successor rule) applicable to sales by an "affiliate" of shares registered under
the Act or in a transaction otherwise exempt from the registration requirements
of the Act and as to which the Company shall have received an opinion of counsel
satisfactory to it confirming such exemption.
7. Equitable Relief and Consent to Jurisdiction. The Officer
specifically acknowledges and agrees that in the event of a breach or threatened
breach of the provisions of this Agreement, including the attempted transfer of
the Shares by the Officer, monetary damages may not be adequate to compensate
the Company, and, therefore, in the event of such a breach or threatened breach,
in addition to any right to damages, the Company shall be entitled to equitable
relief in any court having competent jurisdiction. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies available
to it for any such breach or threatened breach.
The Officer specifically consents to the jurisdiction of the courts of
the Commonwealth of Virginia in any action, whether at law or in equity, brought
by the Company to protect any of its rights hereunder.
8. No Obligation to Employ. The Company is not by this Agreement
obligated to continue the Officer as an employee of the Company or of any
Affiliate of the Company.
9. Notices. Any notices required or permitted by the terms of this
Agreement shall be given by recognized courier service, registered or certified
mail, return receipt requested, postage prepaid, or facsimile, addressed as
follows:
If to the Company:
America Online, Inc.
22000 AOL Way
Dulles, Virginia 20166
Attention: General Counsel
If to the Officer:
to the Officer's last address as set forth in the records of
the Company,
or to such other address(es) of which notice in the same manner has previously
been given. Any such notice shall be deemed to have been given on the earliest
of receipt, one (1) business day following delivery by the sender to a
recognized courier service, or three (3) business days following mailing by
registered or certified mail.
10. Binding Effect. This Agreement shall be for the benefit of and
shall be binding upon the parties hereto, upon their respective successors and
assigns and upon the Officer's heirs, executors and administrators.
11. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware without giving effect to the
conflict of law principles thereof.
12. Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, then such
provision or provisions shall be modified to the extent necessary to make such
provision valid and enforceable, and to the extent that this is impossible, then
such provision shall be deemed to be excised from this Agreement, and the
validity, legality and enforceability of the rest of this Agreement shall not be
affected thereby.
13. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement not expressly set forth in this Agreement shall affect or
be used to interpret, change or restrict the express terms and provisions of
this Agreement.
14. Modifications and Amendments; Waivers and Consents. The terms and
provisions of this Agreement may not be modified, amended, renewed, or
terminated, nor may any term, condition or breach of any term or condition be
waived, except by a writing signed by the person or persons sought to be bound
by such modification, amendment, renewal, termination or waiver. Any waiver of
any term, condition or breach hereof shall not be a waiver of any other term or
condition or of the same term or condition for the future, or of any subsequent
breach.
15. Consent of Spouse. If the Officer is married as of the date of this
Agreement, the Officer's spouse shall execute a Consent of Spouse in the form of
Exhibit B hereto, effective as of the date hereof. Such consent shall not be
deemed to confer or convey to the spouse any rights in the Shares that do not
otherwise exist by operation of law or the agreement of the parties. If the
Officer marries or remarries subsequent to the date hereof, the Officer shall,
not later than sixty (60) days thereafter, obtain his new spouse's
acknowledgement of and consent to the existence and binding effect of all
restrictions contained in this Agreement by such spouse's executing and
delivering a Consent of Spouse in the form of Exhibit B.
16. Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
AMERICA ONLINE, INC.
By:
Printed Name:
Title:
OFFICER:
William Raduchel
EXHIBIT A
STOCK POWER
For value received, I hereby sell, assign, and transfer to America
Online, Inc. ______________ shares of Common Stock of America Online, Inc.,
standing in the undersigned's name on the books and records of the aforesaid
Company, represented by Certificate No(s). ___________________________, and do
hereby irrevocably constitute and appoint the Corporate Secretary of America
Online, Inc. attorney, with full power of substitution, to transfer this stock
on the books and records of the aforesaid Company.
William Raduchel
Dated As Of:
______________, 2000
In the presence of:
Printed Name:
EXHIBIT B
CONSENT OF SPOUSE
I, , spouse of William Raduchel, acknowledge that I have read the
RESTRICTED STOCK AGREEMENT dated as of ___________________, 1999 (the
"Agreement") to which this Consent is attached as Exhibit B and that I know its
contents. Capitalized terms used and not defined herein shall have the meanings
assigned to such terms in the Agreement. I am aware that by its provisions the
Shares granted to my spouse pursuant to the Agreement are subject to a Lapsing
Repurchase Right in favor of America Online, Inc. (the "Company") and that,
accordingly, the Company has the right to repurchase up to all of the Shares of
which I may become possessed as a result of a gift from my spouse, operation of
law or a court decree and/or any property settlement in any domestic litigation.
I hereby agree that my interest, if any, in the Shares subject to the
Agreement shall be irrevocably bound by the Agreement and further understand and
agree that any community property interest I may have in the Shares shall be
similarly bound by the Agreement.
I agree to the Lapsing Repurchase Right described in the Agreement and
I hereby consent to the repurchase of the Shares by the Company and the sale of
the Shares by my spouse or his legal representative in accordance with the
provisions of the Agreement. Further, as part of the consideration for the
Agreement, I agree that at my death, if I have not disposed of any interest of
mine in the Shares by an outright bequest of the Shares to my spouse, then the
Company shall have the same rights against my legal representative to exercise
its rights of repurchase with respect to any interest of mine in the Shares as
it would have had pursuant to the Agreement if I had acquired the Shares
pursuant to a court decree in domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN
THE AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL
GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH
GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I
WILL WAIVE SUCH RIGHT.
Dated as of the day of 1999.
Printed name:
Exhibit 5.1
January 7, 2000
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 133,332 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
Restricted Stock Agreement to be entered into between America Online, Inc. and
William J. Raduchel (the "Agreement").
I am Senior Vice President, Legal of 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 Agreement.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. We have also assumed that: (i) all
of the Shares will be issued for the consideration permitted under the Agreement
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 Agreement by the Board of
Directors of the Company have been or will be taken by the Board of Directors of
the Company; and (iii) at the time of the award of the shares under the
Agreement, 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 Agreement 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, Legal
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 Restricted Stock Agreement between America
Online, Inc. and William J. Raduchel of our report dated July 21, 1999, with
respect to the consolidated financial statements of America Online, Inc.
included in its Annual Report (Form 10-K) for the year ended June 30, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
McLean, Virginia
January 5,2000
