Exhibit 4.1
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of January 10, 2000 (the
"Amendment"), between America Online, Inc., a Delaware corporation (the
"Company"), and BankBoston, N.A., a national banking association, as rights
agent (the "Rights Agent"), to the Rights Agreement, dated as of May 12, 1998
(the "Rights Agreement"; capitalized terms used without definition herein shall
have the meanings given to them in the Rights Agreement).
WHEREAS, the Company and Time Warner (as defined below) shall
enter into the Merger Agreement (as defined below), pursuant to which, among
other things, the Company and Time Warner shall effect a business combination
through a merger of equals;
WHEREAS, as one of certain conditions and as an inducement to
Time Warner's willingness to enter into the Merger Agreement, the Company and
Time Warner shall enter into the America Online Stock Option Agreement (as
defined below) contemporaneously with the Merger Agreement, pursuant to which
the Company shall grant to Time Warner an option, subject to certain conditions,
to acquire shares of common stock, par value $0.01, of the Company;
WHEREAS, no Person (as defined in the Rights Agreement) is an
Acquiring Person (as originally defined in the Rights Agreement and as amended
below) as of the date hereof, and the Company deems it necessary and desirable
to amend the Rights Agreement in accordance with Section 27 thereof;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment to Section 1(a). Section 1(a) of the Rights Agreement is hereby
amended by inserting the following sentence immediately after the first sentence
thereof:
"Notwithstanding anything in this Agreement to the contrary,
none of Holdco (as such term is hereinafter defined), Time
Warner (as such term is hereinafter defined) nor any of their
respective Affiliates or Associates shall be deemed to be an
Acquiring Person solely by reason of the approval, execution
or delivery of, or consummation of the transactions
contemplated under, (i) the Agreement and Plan of Merger dated
as of January 10, 2000 (the "Merger Agreement"), between the
Company and Time Warner Inc., a Delaware corporation ("Time
Warner"), pursuant to which the Company and Time Warner would,
at closing, become wholly owned subsidiaries of a newly
organized Delaware corporation ("Holdco"), as more fully
described therein, or (ii) the stock option agreement
("America Online Stock Option Agreement"), dated as of January
10, 2000, entered into between the Company and Time Warner
contemporaneously with the Merger Agreement, as each of the
Merger Agreement and the America Online Stock Option Agreement
may be amended from time to time in accordance with their
terms."
2. Amendment to Section 3(a). Section 3(a) of the Rights Agreement is hereby
amended by inserting the following sentence immediately after the last sentence
thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely
by reason of the approval, execution or delivery of, or
consummation of the transactions contemplated under, the
Merger Agreement or the America Online Stock Option Agreement,
as each of the Merger Agreement and the America Online Stock
Option Agreement may be amended from time to time in
accordance with their terms."
3. Amendment to Section 7(a). Section 7(a) of the Rights Agreement is hereby
amended by deleting the subsection heading "(iii)" and replacing such subsection
heading with subsection heading "(i)"; by deleting the subsection heading "(iv)"
and replacing such subsection heading with subsection heading "(ii)"; by
deleting the subsection heading "(v)" and replacing such subsection heading with
subsection heading "(iii)"; and by adding the following immediately before the
period at the end of such Section 7(a):
"or (iv) the Effective Time of the Mergers (each, as defined
in the Merger Agreement)."
4. Effectiveness. This Amendment shall be deemed to be in force and effect
immediately prior to the execution and delivery of each of the Merger Agreement
and the America Online Stock Option Agreement. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
5. Counterparts. This Amendment may be executed in any number of counterparts
and each of such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
AMERICA ONLINE, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Senior Vice President and
Chief Financial Officer
BANKBOSTON, N.A., as Rights Agent
By: /s/ Xxxxx Xxxxxx-Xxxx
Name: Xxxxx Xxxxxx-Xxxx
Title: Director-Client Services
