As filed with the Securities and Exchange Commission on January 20, 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)
Option Assumption Agreement between America Online, Inc.
and Robert D. Lord
(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 44,544 $.07 $3,118.08 $.82
</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 as follows: for the 44,544 shares of Common
Stock which may be purchased upon exercise of outstanding options, the fee
is based on the exercise price of $.07 at which the option may be
exercised.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents(s) containing the information specified in Part I will be
sent or given to Robert D. Lord 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 Company's Current Report on Form 8-K dated January 10, 2000 (File
No. 001-12143 and filing date of January 14, 2000).
(g) 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.
(h) 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 Amendments 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 Option Assumption Agreement between America Online, Inc. and
Robert D. Lord dated August 12, 1999
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 20th day
of January, 2000.
AMERICA ONLINE, INC.
By: /s/J. Michael Kelly
J. Michael Kelly, Senior Vice
President, Chief Financial Officer
and Assistant Secretary
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.
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, Paul T. Cappuccio, 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 each Registration Statement on Form S-8 to be
filed in connection with the Robert D. Lord Option Assumption Agreement, and any
required amendments (including post-effective amendments) or supplements
thereto, 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 20, 2000
/s/Stephen M. Case Chairman of the Board and Chief
Stephen M. Case Executive Officer (principal executive
officer)
January 20, 2000
/s/Robert W. Pittman President, Chief Operating Officer and
Robert W. Pittman Director
January 20, 2000
/s/J. Michael Kelly Senior Vice President, Chief Financial
J. Michael Kelly Officer and Assistant Secretary (principal
financial officer)
January 20, 2000
/s/James F. MacGuidwin Vice President, Controller, Chief
James F. MacGuidwin Accounting and Budget Officer (principal
accounting officer)
January 20, 2000
/s/Daniel F. Akerson Director
Daniel F. Akerson
January 20, 2000
/s/James L. Barksdale Director
James L. Barksdale
January 20, 2000
/s/Frank J. Caufield Director
Frank J. Caufield
/s/Miles R. Gilburne Director January 20, 2000
Miles R. Gilburne
January 20, 2000
/s/Alexander M. Haig, Jr. Director
Alexander M. Haig, Jr.
January 20, 2000
/s/Thomas Middelhoff Director
Thomas Middelhoff
January 20, 2000
/s/Colin L. Powell Director
Colin L. Powell
January 20, 2000
/s/Franklind D. Raines Director
Franklin D. Raines
/s/Marjorie M. Scardino Director January 20, 2000
Marjorie M. Scardino
</TABLE>
Exhibit Index
Exhibit No. Description
4.5 Option Assumption Agreement between America Online, Inc. and
Robert D. Lord dated August 12, 1999
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 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 Power of Attorney (included in the Signature Page to the
Registration Statement)
Exhibit 4.5
NEITHER THIS OPTION NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY
MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF A
REGISTRATION, OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION,
UNDER SAID ACT.
OPTION ASSUMPTION AGREEMENT
AGREEMENT dated as of August 12, 1999, by and between AMERICA ONLINE,
INC., a Delaware corporation with its principal office at 22000 AOL Way, Dulles,
Virginia 20166 (the "Company"), and Robert D. Lord, an individual currently
residing at 710 Agave Court, Sedona, Arizona 86336 (the "Holder").
1. Existing Stock Option. The Company hereby acknowledges that Holder
was granted an option (the "Option") to acquire 300,000 shares of the common
stock of Nullsoft, Inc. ("Nullsoft"), for an aggregate exercise price of $3,000,
pursuant to Section 1(d) of the Employment Agreement dated October 1, 1998
between Nullsoft, Inc. and Holder. The Company further acknowledges that the
consummation of the acquisition of Nullsoft by the Company constituted the sale
or transfer of majority ownership of Nullsoft and, consequently, the Option
automatically vested by its terms. The Company further acknowledges that the
Option has been assumed by the Company and converted to an option to purchase
shares of the Company's common stock, $.01 par value (the "Common Stock"), in
accordance with the provisions of the Agreement and Plan of Reorganization
related to the acquisition and, following such conversion, that the Holder is
entitled, subject to the terms set forth below, to purchase an aggregate of
22,272 shares of the Common Stock at an exercise price equal to $0.14 per share
(the "Assumed Option").
2. Assumed Option.
(a) The Assumed Option shall be exercisable by the Holder at
any time, or from time to time, in whole or in part, upon submitting a Notice of
Exercise signed by the Holder, together with payment of the exercise price to
the Company by cash, check or wire transfer.
(b) Any unexercised portion of the Assumed Option shall expire
at the close of business on October 1, 2008 (the "Expiration Date"). The Holder
may exercise the Assumed Option by notice to the Company signed by the Holder
and setting forth the number of shares of Common Stock to which the exercise
relates, accompanied by payment of the exercise price therefor plus the amount
required to be withheld by the Company in connection with such exercise under
federal, state and local tax laws. The Company shall deliver to the Holder one
or more certificates registered in the name of the Holder representing the
shares of Common Stock purchased by the Holder.
(c) If, prior to the Expiration Date, there shall occur any
stock dividend, stock split, combination of shares, reclassification or
recapitalization with respect to the Common Stock or a consolidation or merger
as to which the Company is not the surviving corporation, then to the extent the
Assumed Option is unexercised, the number of shares of Common Stock and the
exercise price shall be equitably adjusted.
(d) The shares of Common Stock received upon exercise of the
Option shall not be transferable by the Holder except in compliance with the
Securities Act of 1933, as amended, and any applicable state laws. All
certificates for shares of Common Stock purchased under this Agreement in an
unregistered transaction shall bear the following legend (and such other
restrictive legends as are required or deemed advisable under any state statute)
to reflect such restriction:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), HAVE BEEN
ACQUIRED FOR INVESTMENT, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS
IN EFFECT WITH REGARD THERETO OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
3. Nonassignability. No right or benefit under this Agreement,
including the Assumed Option, shall be assigned, transferred, pledged, or
encumbered by the Holder.
4. Notices. Any notice, request, or other communication given
hereunder, other than a notice of exercise of the Assumed Option, shall be in
writing and if given by the Holder to the Company, shall be sent by certified
registered mail, postage prepaid, addressed to the Company at 22000 AOL Way,
Dulles, VA 20166, Attn: Vice President of Human Resources, and if given by the
Company to the Holder shall be delivered personally or sent by certified or
registered mail, postage prepaid, addressed to the Holder at his address set
forth above. Notices, requests and other communications shall be deemed to be
given when received, which, in the case of notice given by mail, shall be the
time indicated on the receipt therefor.
5. Notice of Exercise of Assumed Option. The Holder shall submit the
Notice of Exercise of the Assumed Option to the Manager, Stock Group, AOL Human
Resources Department, in accordance with the procedures established and then in
place for the exercise of options by employees or former employees of the
Company, as applicable. The Holder may address questions related to such
procedure to "Stock Help" at (703) 265-2516.
6. Entire Agreement. This Agreement contains the entire agreement among
the parties hereto with respect to the assumption and terms of stock options
issued by Nullsoft to Holder and supersedes all prior agreements or
understandings, written or oral, among the parties with respect thereto. The
parties hereto acknowledge that this Agreement does not modify or supersede in
any respect the Agreement and Plan of Reorganization related to the acquisition
of Nullsoft by the Company. The parties further agree that any agreement between
the parties with respect to the issuance of options in substitution of the
Option, including the Option Agreement (the "First Option Agreement") by and
between the Company and Holder, dated as of May 28, 1999 which may have been
mistakenly entered into and which mistakenly provided for the issuance to Holder
of an option to purchase 22,286 shares of the Common Stock, is now deemed null
and void. This provision is not intended to and does not supersede or modify the
terms of any agreement between the parties entered into in connection with
options granted by the Company to the Holder under the Company's 1992 Employee,
Director and Consultant Stock Option Plan on or after the date of this
Agreement.
7. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
conflict of law principles thereof.
IN WITNESS WHEREOF, this Agreement has been duly executed by the Holder
and on behalf of the Company by its duly authorized officer, all as of the day
and year first above written.
AMERICA ONLINE, INC.
By:________________________
HOLDER:
/s/ ROBERT D. LORD
Robert D. Lord
Exhibit 5.1
January 20, 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 44,544 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 an
Option Assumption Agreement between America Online, Inc. and Robert D. Lord
dated August 12, 1999 (the "Option 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 Option 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 Option
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 Option 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 exercise of the
options under the Option 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 Option Agreement, and
against receipt of the exercise price therefor, and assuming the
continued updating and effectiveness of the Registration Statement and
the completion of any necessary action to permit such issuance to be
carried out in accordance with applicable securities laws, such shares
of Common Stock will be validly issued, fully-paid and nonassessable,
and the accompanying Preferred Stock Purchase Rights, if the Company's
Preferred Stock Purchase Rights have not expired or been redeemed in
accordance with the terms of the Rights Agreement, will be validly
issued.
You acknowledge that I am admitted to practice only in Massachusetts,
Texas and the District of Columbia and am not an expert in the laws of any other
jurisdiction. No one other than the addressees and their assigns are permitted
to rely on or distribute this opinion without the prior written consent of the
undersigned.
This opinion is limited to the General Corporation Law of the State of
Delaware and federal law, although the Company acknowledges that I am not
admitted to practice in the State of Delaware and am not an expert in the laws
of that jurisdiction. We express no opinion with respect to the laws of any
other jurisdiction.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and further consent to the use of my name wherever
appearing in the Registration Statement and any amendment thereto.
Very truly yours,
/s/ SHEILA A. CLARK, ESQ.
Sheila A. Clark, Esq.
Senior Vice President, 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 Option Assumption Agreement between America
Online, Inc. and Robert D. Lord 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 17, 2000
