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)
Tegic Communications, Inc. 1998 Director Stock Option Plan
(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>
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
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value per share 7,395 $4.99 $36,901.05 $9.74
</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 7,395 shares of Common
Stock which may be purchased upon exercise of outstanding options, the fee
is based on the average price of $4.99 at which options may be exercised.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents
are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. Such
documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by America Online, Inc., a
Delaware corporation (the "Company"), with the Commission, are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 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 Tegic Communications, Inc. 1998 Director Stock Option Plan
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 Tegic Communications, Inc. 1998 Director Stock Option Plan
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
TEGIC COMMUNICATIONS, INC.
1998 DIRECTOR STOCK OPTION PLAN
TEGIC COMMUNICATIONS, INC., a Washington corporation (the
"Company"), hereby establishes and sets forth the terms of the Tegic
Communications, Inc. 1998 Director Stock Option Plan (the "Plan") effective as
of April 2, 1998 (the "Effective Date").
1. Definitions. Capitalized terms used in the Plan have the meanings given those
terms in the attached Appendix A or in the section of the Plan referenced
therein.
2. Purpose of Plan. The purpose of the Plan is to assist the Company in
attracting and retaining outside directors of the highest caliber to serve on
the Board. The Plan seeks to achieve this purpose by providing for automatic
grants of Options to certain outside directors on each Annual Meeting Date and
at certain other times.
3. Administration of the Plan. The Board shall have full power and authority,
subject only to the provisions of the Plan (a) to administer or supervise the
administration of the Plan; (b) to interpret the provisions of the Plan and the
agreements evidencing Options; (c) to correct any defect, supply any information
and reconcile any inconsistency in such manner and to such extent as it
determines to be necessary or advisable to carry out the purpose of the Plan;
and (d) to take such other actions in connection with the Plan as it determines
to be necessary or advisable. The Board is authorized to adopt, amend and
rescind such rules, regulations and procedures not inconsistent with the
provisions of the Plan as it determines to be necessary or advisable for the
proper administration of the Plan, and each Option shall be subject to all such
rules, regulations and procedures (whether the Option was granted before or
after adoption thereof). Each action and determination made or taken by the
Board, including but not limited to any interpretation of the Plan and the
agreements evidencing Options, shall be final, conclusive and binding for all
purposes and upon all persons. The Board shall have all powers necessary or
appropriate to accomplish its duties under the Plan.
4. Shares Available for Options. The aggregate number of shares of Common Stock
reserved for issuance upon exercise of Options granted under the Plan will be
two hundred fifty thousand (250,000) (subject to any adjustment required or
permitted under Section 9 or Section 10), and Options may be granted under this
Plan only with respect to the shares so reserved. If an Option terminates for
any reason without having been exercised in full, the shares of Common Stock for
which the Option has not been exercised shall again be available for purposes of
the Plan.
5. Grants of Options.
5.1 Effective on the date that an individual first takes office as an Eligible
Director on the Board (an "Initial Grant Date"), other than on an Annual Meeting
Date, the individual will receive an Option (an "Initial Option") to acquire
that number of shares of Common Stock equal to the number obtained by
multiplying the number of shares of Common Stock covered by an Annual Option (as
defined in Section 5.2) by a fraction, the numerator of which shall be twelve
(12) minus the number of months since the last Annual Meeting Date (rounded down
to the nearest whole month assuming that a month contains exactly 30 days); and
the denominator of which shall be twelve (12); provided, however, that,
notwithstanding the quotient obtained pursuant to the foregoing calculation, in
no event shall the number of shares of Common Stock covered by an Initial Option
be less than one-twelfth (1/12) of the number of shares covered by an Annual
Option; provided, further, that if there are insufficient Available Shares for
the grant of the Initial Option as provided above, then the individual shall
instead receive an Initial Option to acquire the remaining Available Shares.
5.2 On the Annual Meeting Date in 1998 and in each subsequent year so long as
Available Shares remain under this Plan (each such date will be referred to as
an "Annual Grant Date"), each individual who is an Eligible Director on an
Annual Grant Date will receive an Option (an "Annual Option") to acquire ten
thousand (10,000) shares of Common Stock; provided, however, that if there are
insufficient Available Shares for the grant of the Annual Options as provided
above, then each such Eligible Director shall instead receive an Annual Option
to acquire the largest whole number of shares of Common Stock as can then be
granted without exceeding the Available Shares.
5.3 Each grant of an Option shall occur automatically without further action of
the Board other than, to the extent necessary, its determination of (a) the Fair
Market Value on the Grant Date, and (b) any provisions that are to be included
in the agreement evidencing the Option pursuant to Section 8.1.
6. Purchase Price. The price at which each share of Common Stock may be
purchased upon exercise of an Option shall be the Fair Market Value of the
Common Stock on the Grant Date. The purchase price shall be paid in full at the
time of exercise (a) in cash, (b) by means of a transfer to the Company of
shares of Common Stock that have been outstanding for at least one (1) year and
that have a Fair Market Value equal to the purchase price to be paid, or (c) a
combination of cash and shares of Common Stock.
7. Other Terms of Options
7.1 Each Initial Option granted to an Eligible Director will vest with respect
to all of the shares covered thereby on the earlier to occur of: (a) the day
immediately preceding the first Annual Meeting Date following its Grant Date, or
(b) twelve (12) months from its Grant Date; provided, however, that the Option
will not vest with respect to shares for which it is scheduled to vest on a
particular date as set forth above if (i) prior to the date when the Option is
scheduled to vest, the Eligible Director ceases to be a director of the Company
for any reason other than his or her death; or (ii) during the period from its
Grant Date to such Annual Meeting Date the Eligible Director does not attend at
least seventy-five percent (75%) of the combined number of meetings of the full
Board and any committee(s) of the Board of which the Eligible Director is a
member, or does not attend at least fifty percent (50%) of such combined number
of meetings in person.
7.2 An Annual Option granted to an Eligible Director will vest with respect to
all of the shares covered thereby on the earlier to occur of: (a) the day
immediately preceding the first Annual Meeting Date following its Grant Date, or
(b) twelve (12) months from its Grant date; provided, however, that the Option
will not vest if (i) prior to the date when the Option is scheduled to vest, the
Eligible Director ceases to be a director of the Company for any reason other
than his or her death; or (ii) during the period from its Grant Date to such
Annual Meeting Date the Eligible Director does not attend at least seventy-five
percent (75%) of the combined number of meetings of the full Board and any
committee(s) of the Board of which the Eligible Director is a member, or does
not attend at least fifty percent (50%) of such combined number of meetings in
person.
7.3 If an Option does not vest with respect to shares for which it is scheduled
to vest on a particular date, the Option shall automatically terminate as to all
shares of Common Stock for which it has not yet vested. After an Option vests
with respect to any shares of Common Stock, the Option may be exercised only in
accordance with the exercise provisions of Section 7.6.
7.4 For purposes of Section 7.1 and Section 7.2, if the Board takes action by
unanimous written consent, such consent shall be deemed to be a meeting of the
Board that all directors have attended in person.
7.5 Unless it terminates earlier under other provisions of this Plan, an Option
granted to an Eligible Director will terminate ten (10) years after its Grant
Date or one (1) year after the date of death of the Eligible Director, whichever
occurs first.
7.6 To the extent vested, each Option shall, subject to earlier termination
under the Plan, be exercisable only on and after the earliest to occur of the
following dates:
(a) The effective date of a registration statement filed by the Company under
the Securities Act with respect to an Initial Public Offering (or such later
date as may be required by the managing underwriter or underwriters as a
condition to entering into an underwriting agreement with the Company for such
offering);
(b) The date of any Significant Transaction, provided, however, that (i) as a
result of the Significant Transaction, together with all other similar
transactions that have occurred during the period of eighteen (18) months ending
on the date of the Significant Transaction, there has been during that period a
transfer of ownership or control of more than fifty percent (50%) of the stock,
voting power, assets or business of the Company, and (ii) at least fifty percent
(50%) of the aggregate consideration paid in the Significant Transaction and
such other similar transactions, if any, consisted of cash or marketable
securities (including securities of a class registered under the Exchange Act,
whether or not restricted); or
(c) December 31, 2000.
8. Option Agreement; Nontransferability of Options; Certificates
8.1 Each Option will be evidenced by a written agreement executed by the Company
and the Eligible Director. Such agreement shall contain the terms of the Option
as specified in this Plan, together with such other provisions not inconsistent
with such terms as the Board deems advisable.
8.2 An Option will not be transferable by an Eligible Director other than by
will or by the laws of descent and distribution, will not be involuntarily
alienable by legal process or otherwise by operation of law, and will be
exercisable during the Eligible Director's lifetime only by the Eligible
Director. If an Eligible Director dies prior to full exercise of an Option, the
Option may be exercised, to the extent it does not thereby terminate and to the
extent exercisable pursuant to Section 7.6, by the person or persons to whom the
rights of the Eligible Director under the Option pass by will or by applicable
laws of descent and distribution. The Company may at any time, by written notice
to the Eligible Director or to the then holder of an Option, release in whole or
in part the restrictions under this Section 8.2.
8.3 Each certificate evidencing Common Stock issued upon exercise of an Option
shall bear such legends as the Company, upon advice of legal counsel, determines
to be necessary or appropriate.
9. Adjustments Upon Changes in Capitalization. If the outstanding shares of
Common Stock are increased or decreased, or changed into or exchanged for a
different number or kind of shares or securities of the Company through a
reorganization, merger, recapitalization, reclassification, share exchange or
other material alteration in the capital structure of the Company, an
appropriate and proportionate adjustment shall be made to the number and/or kind
of shares or securities as to which Options will thereafter automatically be
granted. A corresponding adjustment shall be made to the number and/or kind of
shares or securities allocated to each Option outstanding at the time of such
event and to the purchase price of such shares or securities; provided, however,
that such adjustment shall be made without changing the total purchase price
applicable to the unexercised portion of the Option. For purposes of this
Section 9, neither (a) the issuance of additional shares of Common Stock or
other securities of the Company in exchange for adequate consideration
(including services) nor (b) the conversion into Common Stock of any securities
of the Company now or hereafter outstanding, shall be deemed material
alterations in the capital structure of the Company. If the Board determines
that the nature of a material alteration in the capital structure of the Company
is such that it is not feasible or advisable to make adjustments to this Plan or
to the Options granted under the Plan, such event shall be subject to Section
10.
10. Other Significant Events. In the event of (a) a reorganization, merger,
recapitalization, reclassification, share exchange or other similar event
affecting the Company and one or more other corporations following which the
Company is not a surviving corporation, (b) the acquisition by any person,
partnership or corporation of more than twenty-five percent (25%) of the
outstanding shares of Common Stock, (c) a sale of substantially all of the
assets of the Company, (d) the dissolution or liquidation of the Company, or (e)
a material change in the capital structure of the Company that is subject to
this Section 10 in accordance with the last sentence of Section 9, the Board
shall have the power to determine what effect, if any, such event shall have
upon Options outstanding under the Plan, including but not limited to the power
to cause Options to be surrendered and canceled and payments to be made to the
holders in exchange therefor and to cause adjustments to be made in the number
and/or kind of shares or securities with respect to which such Options may be
exercised and/or in the purchase prices and other terms and conditions thereof.
Upon such event, the Plan and all Options outstanding under the Plan shall
terminate, except to the extent that the Board, pursuant to its authority under
this Section 10, has made provision for the continuation of the Plan and
outstanding Options or the substitution for outstanding Options of new options
or awards covering the stock or securities of a successor entity, in which event
the Plan and outstanding Options shall be subject to the terms so provided.
11. Shareholder Approval. The Plan shall be subject to approval by holders of
shares of Common Stock constituting at least a majority of the shares of Common
Stock represented in person or by proxy at the first Annual Meeting following
the Effective Date. If such approval is not obtained, any Options granted under
the Plan after the Effective Date shall be void, and no further Options shall be
granted under the Plan. Failure to obtain such approval shall not affect an
Initial Option granted on the Effective Date, and the Plan and such Option shall
remain in full force and effect until all such Option has been exercised or has
terminated.
12. Amendment; Termination
12.1 The Board may from time to time amend the Plan in any respect whatsoever;
provided, however, that no amendment may have any material adverse effect on the
rights of any director or former director with respect to any Option granted
prior to the amendment, unless the director consents thereto.
12.2 The Board may terminate the Plan at any time. No Options shall be granted
following termination of the Plan, but the provisions of the Plan shall continue
in effect until all Options terminate or are exercised in full and all rights of
all persons with any interest in the Plan expire.
13. Governing Law. All determinations made and actions taken pursuant hereto
shall be governed by the laws of the State of Washington and construed
accordingly.
APPENDIX A
"Annual Grant Date" is defined in Section 5.2.
"Annual Option" is defined in Section 5.2.
"Annual Meeting" means an annual meeting of shareholders of the
Company.
"Annual Meeting Date" means the date of an Annual Meeting.
"Available Shares" means the number of shares of Common Stock from time
to time available under Section 4 for the grant of Options under this Plan.
"Board" means the Board of Directors of the Company.
"Common Stock" means the Common Stock, no par value, of the Company.
"Company" is defined in the preamble of the Plan.
"Effective Date" is defined in the preamble of the Plan.
"Eligible Director" means each individual who on a Grant Date meets the
following requirements:
(a) The individual is a member of the Board at the close of business on the
Grant Date; and
(b) At no time during the calendar year in which the Grant Date falls or during
the preceding calendar year has the individual been an employee of the Company
or any of its direct or indirect subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" for the Common Stock (or any other security) on any
day means, if the Common Stock (or other security) is publicly traded, the last
sales price (or, if no last sales price is reported, the average of the high bid
and low asked prices) for a share of Common Stock (or unit of the other
security) on that day (or, if that day is not a trading day, on the next
preceding trading day), as reported by the principal exchange on which the
Common Stock (or other security) is listed, or, if the Common Stock (or other
security) is publicly traded but not listed on an exchange, as reported by The
Nasdaq Stock Market, or, if such prices or quotations are not reported by The
Nasdaq Stock Market, as reported by any other available source of prices or
quotations selected by the Committee. If the Common Stock (or other security) is
not publicly traded, or if the Fair Market Value is not determinable by any of
the foregoing means, the Fair Market Value on any day shall be determined in
good faith by the Board on the basis of such considerations as the Board deems
appropriate.
"Grant Date" means the Effective Date and any Initial Grant Date or
Annual Grant Date.
"Initial Grant Date" is defined in Section 5.1.
"Initial Option" is defined in Section 5.1.
"Initial Public Offering" means an underwritten public offering of
Common Stock in which the total proceeds to the Company are at least
$10,000,000.
"Option" means an Annual Option or an Initial Option.
"Plan" is defined in the preamble hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Transaction" means any sale or exchange of Common Stock,
any sale or exchange of assets of the Company (other than in the ordinary course
of business), or any merger, statutory share exchange or other similar
transaction.
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 7,395 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
Tegic Communications, Inc. 1998 Director Stock Option Plan (the "Plan").
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 Plan.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. We have also assumed that: (i) all
of the Shares will be issued for the consideration permitted under the Plan as
currently in effect, and none of such Shares will be issued for less than $.01;
(ii) all actions required to be taken under the Plan by the Board of Directors
of the Company have been or will be taken by the Board of Directors of the
Company, respectively; and (iii) at the time of the award of the Shares under
the Plan, the Company shall continue to have sufficient authorized and unissued
shares of Common Stock reserved for issuance thereunder.
Based upon and subject to the foregoing, we are of the opinion that:
1. The shares of Common Stock and the related Preferred Stock Purchase
Rights which may be issued upon the exercise of the Rights have been
duly authorized for issuance.
2. If and when any Common Stock and the related Preferred Stock
Purchase Rights are issued in accordance with the authorization
therefor (as adjusted) established with respect to the applicable
Rights in accordance with the requirements of the Plan and 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 Tegic Communications, Inc. 1998 Director Stock
Option Plan 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
