28712
America Online, Inc.
4% Convertible Subordinated Notes
due November 15, 2002
Registration Rights Agreement
Dated as of
November 17, 1997
Xxxxxxx, Xxxxx & Co.
BT Alex. Xxxxx
Xxxxxx Brothers Inc.
Xxxxx & Company
c/o Goldman Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
America Online, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the Purchasers (as
defined herein) upon the terms set forth in a purchase
agreement dated November 12, 1997 (the "Purchase Agreement")
between the Purchasers and the Company, its 4% Convertible
Subordinated Notes due November 15, 2002 (the "Securities").
As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company agrees
with the Purchasers (i) for the benefit of the Purchasers
and (ii) for the benefit of the holders from time to time of
the Securities and the Common Stock, par value $.01 per
share (the "Stock"), of the Company issuable upon conversion
of the Securities (collectively, the "Registrable
Securities"), including the Purchasers (each of the
foregoing a "Holder" and, together, the "Holders"), as
follows:
1. Definitions. (a) Capitalized terms used herein
without definition shall have their respective meanings set
forth in or pursuant to the Purchase Agreement or the
Offering Circular, dated November 12, 1997 in respect of the
Securities. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Act" or "Securities Act" means the United States
Securities Act of 1933, as amended.
"Affiliate" of any specified person means any other
person which, directly or indirectly, is in control of, is
controlled by, or is under common control with such
specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of
such person whether by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
"Commission" means the United States Securities and
Exchange Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in
Section 2 hereof.
"Electing Holder" has the meaning assigned thereto in
Section 3(a)(3) hereof.
"Exchange Act" means the United States Securities and
Exchange Act of 1934, as amended.
"Indenture" means the Indenture, dated as of October
14, 1997, between the Company and State Street Bank and
Trust Company, as amended and supplemented from time to time
in accordance with is terms.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall
administer an underwritten offering, if any, as set forth in
Section 6 hereof.
"Notice and Questionnaire" means a Notice of
Registration Statement and Selling Securityholder
Questionnaire substantially in the form of Exhibit A hereto.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the
Registrable Securities.
"Purchasers" means the Purchasers named in Schedule I
to the Purchase Agreement.
"Registrable Securities" means all or any portion of
the Securities issued from time to time under the Indenture
in registered form and the shares of Stock issuable upon
conversion of such Securities, including any Securities
initially issued in bearer form and constituting the unsold
allotment of a distributor (within the meaning of
Regulation S under the Securities Act) of such Securities
and later exchanged for Securities in registered form;
provided, however, that a security ceases to be a
Registrable Security when it is no longer a Restricted
Security.
"Restricted Security" means any Security or share of
Stock issuable upon conversion thereof except any such
Security or share of Stock which (i) has been effectively
registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has
been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto),
(iii) has been sold in compliance with Regulation S under
the Securities Act (or any successor thereto) and does not
constitute the unsold allotment of a distributor within the
meaning of Regulation S under the Securities Act, or
(iv) has otherwise been transferred and a new Security or
share of Stock not subject to transfer restrictions under
the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 3.05 of the Indenture.
"Shelf Registration" means a registration effected
pursuant to Section 2 hereof.
"Shelf Registration Statement" means a shelf regis
tration statement of the Company pursuant to the provisions
of Section 2 hereof filed with the Commission which covers
some or all of the Registrable Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission,
amendments and supplements to such registration statement,
including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"underwriter" means any underwriter of Registrable
Securities in connection with an offering thereof under a
Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to
a percentage of the "principal amount" of Registrable
Securities, Common Stock shall be treated as representing
the principal amount of Securities which was surrendered for
conversion or exchange in order to receive such number of
shares of Common Stock.
2. Shelf Registration. (a) The Company shall, within
90 days following the date of original issuance (the "Issue
Date") of the Securities, file with the Commission a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement
and, thereafter, shall use its best efforts to cause such
Shelf Registration Statement to be declared effective under
the Act within 180 calendar days after the Issue Date;
provided, however, that no Holder shall be entitled to have
the Registrable Securities held by it covered by such Shelf
Registration unless such Holder is an Electing Holder.
(b) If (i) on or prior to 90 days following the date
of original issuance of the Securities, a Shelf
Registration Statement has not been filed with the
Commission, or (ii) on or prior to the 180th day
following the date of original issuance of the
Securities, such Shelf Registration Statement is not
declared effective (each, a "Registration Default"),
additional interest ("Liquidated Damages") will accrue
on the Securities from and including the day following
such Registration Default to but excluding the day on
which such Registration Default has been cured.
Liquidated Damages will be paid semi-annually in
arrears, with the first semi-annual payment due on the
first Interest Payment Date in respect of the
Securities following the date on which such Liquidated
Damages begin to accrue, and will accrue at a rate per
annum equal to an additional one-quarter of one percent
(0.25%) of the principal amount of the Securities
outstanding to and including the 90th day following
such Registration Default and at a rate per annum equal
to one-half of one percent (0.50%) thereof from and
after the 90th day following such Registration Default.
In the event that the Shelf Registration Statement
ceases to be effective prior to the second annual
anniversary of the initial effective date of the Shelf
Registration Statement or such earlier date as is
provided in this Agreement for a period in excess of 60
days, whether or not consecutive, during any 12-month
period, then the interest rate borne by the Securities
shall increase by an additional one-half of one percent
(0.50%) per annum on the 61st day of the applicable
12-month period such Shelf Registration Statement
ceases to be effective to but excluding the day on
which the Shelf Registration Statement again becomes
effective.
(c) The Company shall use its best efforts:
(i) To keep the Shelf Registration Statement con
tinuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a
period of two years from the date the Shelf
Registration Statement is declared effective or such
shorter period that will terminate upon the earlier of
the following: (A) when all the Securities covered by
the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, (B) when
all shares of Stock issued upon conversion of any such
Securities that had not been sold pursuant to the Shelf
Registration Statement have been sold pursuant to the
Shelf Registration Statement and (C) when, in the
written opinion of independent counsel to the Company,
all outstanding Registrable Securities held by persons
that are not affiliates of the Company may be resold
without registration under the Act pursuant to Rule
144(k) under the Act or any successor provision thereto
(in any such case, such period being called the
"Effectiveness Period"); and
(ii) After the date the Shelf Registration
Statement becomes effective, within 30 days after the
request of any holder of Registrable Securities that is
not then an Electing Holder, to take any action
necessary and required by law to enable such holder to
use the Prospectus forming a part thereof for resales
of Registrable Securities, including, without
limitation, any action necessary to identify such
holder as a selling securityholder in the Shelf
Registration Statement; provided, however, that nothing
in this subparagraph shall relieve such holder of the
obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with
Section 3(a)(2) hereof; and
(iii) If at any time, the Securities, pursuant to
Article VIII of the Indenture, are convertible into
securities other than Common Stock, the Company shall,
or shall cause any successor under the Indenture to,
cause such securities to be included in the Shelf
Registration Statement no later than the date on which
the Securities may then be convertible into such
securities.
The Company shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective
during the requisite period if the Company voluntarily takes
any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell
any such Registrable Securities during that period, unless
(i) such action is required by applicable law, or (ii) the
continued effectiveness of the Shelf Registration Statement
would require the Company to disclose a material financing,
acquisition or other corporate transaction, or other
material event or development and the Board of Directors
shall have determined in good faith that such disclosure is
not in the best interests of the Company and its
stockholders; provided that in the case of clause (i) above,
the Company thereafter must promptly comply with the
requirements of paragraph 3(i) below, if applicable and in
the case of clauses (i) and (ii) above, the Company shall be
entitled to suspend the use of any prospectus forming a part
of an effective Registration Statement under this Section 2
for a reasonable period of time (a "Delay Period"), except
that the aggregate number of days included in all Delay
Periods during any consecutive 12 months shall not exceed
the aggregate of 120 days (whether or not consecutive).
3. Registration Procedures. In connection with any
Shelf Registration Statement, the following provisions shall
apply:
(a) (1) Not less than 30 calendar days prior to
the Effective Time of the Shelf Registration Statement,
the Company shall mail the Notice and Questionnaire to
the holders of Registrable Securities. No holder shall
be entitled to be named as a selling securityholder in
the Shelf Registration Statement as of the Effective
Time, and no holder shall be entitled to use the
Prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder
has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for
response set forth therein; provided, however, holders
of Registrable Securities shall have at least 28
calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return
a completed and signed Notice and Questionnaire to the
Company.
(2) After the Effective Time of the Shelf
Registration Statement, the Company shall, upon the
request of any holder of Registrable Securities that is
not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder. The Company shall not be
required to take any action to name such holder as a
selling securityholder in the Shelf Registration
Statement or to enable such holder to use the
Prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the
Company.
(3) The term "Electing Holder" shall mean any
holder of Registrable Securities that has returned a
completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(a)(1) or 3(a)(2)
hereof.
(b) The Company shall furnish to the Purchasers,
prior to the filing thereof with the Commission, a copy
of any Shelf Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to
the Prospectus included therein.
(c) Subject to Section 3(j), the Company shall
promptly take such action as may be necessary so that
(i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto (and each report or
other document incorporated therein by reference in
each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective
rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not misleading
and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any amendment or supplement
to such Prospectus, does not include an untrue
statement of a material fact or omit to state a
material fact necessary in order to make the
statements, in the light of the circumstances under
which they were made, not misleading.
(d) (1) The Company shall advise the Purchasers
and, in the case of clause (i), the Electing Holders,
and, if requested by the Purchasers or any such
Electing Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission
and when the Shelf Registration Statement or any
post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for
amendments or supplements to the Shelf Registration
Statement or the Prospectus included therein or for
additional information.
(2) The Company shall advise the Purchasers and
the Electing Holders and, if requested by the
Purchasers or any such Electing Holder, confirm such
advice in writing of:
(i) the issuance by the Commission of any stop
order suspending effectiveness of the Shelf
Registration Statement or the initiation of any
proceedings for that purpose;
(ii) the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for
sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(iii) the occurrence of any event that requires
the making of any changes in the Shelf Registration
Statement or the Prospectus so that, as of such
date, the Shelf Registration Statement and the
Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material
fact required to be stated therein or necessary to
make the statements therein (in the case of the
Prospectus, in light of the circumstances under
which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite
changes have been made).
(e) The Company shall use its best efforts to
prevent the issuance and, if issued, to obtain the
withdrawal, of any order suspending the effectiveness
of any Shelf Registration Statement at the earliest
possible time.
(f) The Company shall furnish to each Electing
Holder included within the coverage of any Shelf
Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-
effective amendment thereto, including financial
statements and schedules, and, if the Electing Holder
so requests in writing, all reports, other documents
and exhibits that are filed with or incorporated by
reference in the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness
Period, deliver to each Electing Holder of Registrable
Securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies
of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as
such Electing Holder may reasonably request; and the
Company consents (except during the continuance of any
event described in Section 3(c)(2)(iii)) to the use of
the Prospectus or any amendment or supplement thereto
by each of the Electing Holders of Registrable
Securities in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or
any amendment or supplement thereto during the Shelf
Registration Period.
(h) Prior to any offering of Registrable
Securities pursuant to any Shelf Registration
Statement, the Company shall register or qualify or
cooperate with the Electing Holders of Registrable
Securities included therein and their respective
counsel in connection with the registration or quali
fication of such Registrable Securities for offer and
sale under the securities or blue sky laws of such
jurisdictions in the United States as any such Electing
Holders reasonably request in writing and do any and
all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the
Registrable Securities covered by such Shelf
Registration Statement; provided, however, that in no
event shall the Company be obligated to (i) qualify as
a foreign corporation or as a broker or dealer in
securities in any jurisdiction where it would not
otherwise be required to so qualify but for this Sec
tion 3(h), (ii) file any general consent to service of
process in any jurisdiction where it is not as of the
date hereof then so subject or (iii) subject itself to
taxation in any such jurisdiction if it is not so
subject.
(i) Unless any Registrable Securities shall be in
book-entry only form, the Company shall cooperate with
the Electing Holders of Registrable Securities to
facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be
delivered after sale pursuant to any Shelf Registration
Statement free of any restrictive legends and in such
permitted denominations and registered in such names as
Electing Holders may request in connection with the
sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(j) Upon the occurrence of any event contemplated
by paragraph 3(d)(2)(iii) above, the Company shall
promptly prepare a post-effective amendment to any
Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to
purchasers of the Registrable Securities included
therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading (except, in each case, for an
untrue statement of a material fact or omission of a
material fact made in reliance on and in conformity
with written information furnished to the Company by or
on behalf of Electing Holders specifically for use
therein); provided, however, subject to Section 2, if
the Company determines that it is advisable to disclose
in the Shelf Registration Statement a financing,
acquisition or other corporate transaction, or other
material event or development and the Board of
Directors of the Company shall have determined in good
faith that such disclosure would not be in the best
interests of the Company and its stockholders, the
Company shall not be required to prepare and file such
amendment, supplement or document for such period as
the Board of Directors of the Company shall have
determined in good faith is in the best interests of
the Company. If the Company notifies the Electing
Holders of the occurrence of any event contemplated by
paragraph 3(d)(2)(iii) above, the Electing Holders
shall suspend the use of the Prospectus until the
requisite changes to the Prospectus have been made.
(k) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company shall
provide a CUSIP number for the Securities registered
under such Shelf Registration Statement.
(l) The Company shall use its best efforts to
comply with all applicable rules and regulations of the
Commission, and to make generally available to its secu
rityholders as soon as practicable, but in any event
not later than eighteen months after (i) the effective
date (as defined in Rule 158(c) under the Securities
Act) of the Shelf Registration Statement, (ii) the
effective date of each post-effective amendment to the
Shelf Registration Statement, and (iii) the date of
each filing by the Company with the Commission of an
Annual Report on Form 10-K that is incorporated by
reference in the Shelf Registration Statement, an
earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf
Registration Statement, the Company shall cause the
Indenture to be qualified under the Trust Indenture
Act; in connection with such qualification, the Company
shall cooperate with the Trustee under the Indenture
and the Electing Holders to effect such changes to the
Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the Trust
Indenture Act; and the Company shall execute, and shall
use all reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect
such changes and all other forms and documents required
to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner. In
the event that any such amendment or modification
referred to in this Section 3(m) involves the
appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant
to the applicable provisions of the Indenture.
(n) The Company may require each Electing Holder
of Registrable Securities to be sold pursuant to any
Shelf Registration Statement to furnish to the Company
such information regarding the Electing Holder and the
distribution of such Registrable Securities as may be
required by applicable law or regulation for inclusion
in such Shelf Registration Statement and the Company
may exclude from such registration the Registrable
Securities of any Electing Holder that fails to furnish
such information within a reasonable time after
receiving such request.
(o) The Company shall, if requested, promptly
include or incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration
Statement, such information as the Managing
Underwriters reasonably agree should be included
therein and to which the Company does not reasonably
object and shall make all required filings of such
Prospectus supplement or post-effective amendment as
soon as practicable after they are notified of the
matters to be included or incorporated in such
Prospectus supplement or post-effective amendment.
(p) The Company shall, to the extent applicable,
enter into such customary agreements (including
underwriting agreements in customary form containing a
provision for indemnity by the underwriters) to take
all other appropriate actions in order to expedite or
facilitate the registration or the disposition of the
Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the
same to contain indemnification provisions and
procedures substantially identical to those set forth
in Section 5 (or such other provisions and procedures
acceptable to the Managing Underwriters, if any) with
respect to all parties to be indemnified pursuant to
Section 5.
(q) The Company shall:
(i) make reasonably available for inspection by
the Electing Holders of Registrable Securities to be
registered thereunder, any underwriter participating
in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant
or other agent retained by such Electing Holders or
any such underwriter all relevant financial and
other records which are material to such Shelf
Registration, pertinent corporate documents which
are material to such Shelf Registration and
properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and
employees to make reasonably available for
inspection all relevant information reasonably
requested by such Electing Holders or any such
underwriter, attorney, accountant or agent in
connection with any such Shelf Registration
Statement, in each case, as is customary for similar
due diligence examinations; provided, however, that
any information that is designated in writing by the
Company, in good faith, as confidential at the time
of delivery of such information shall be kept confi
dential by such Electing Holders or any such
underwriter, attorney, accountant or agent, unless
such disclosure is made in connection with a court
proceeding or required by law, or such information
becomes available to the public generally or through
a third party without an accompanying obligation of
confidentiality; and provided further that the
foregoing inspection and information gathering
shall, to the greatest extent possible, be
coordinated on behalf of the Electing Holders and
the other parties entitled thereto by one counsel
designated by and on behalf of such Electing Holders
and other parties reasonably acceptable to the
Company;
(iii) make such representations and warranties to
the Electing Holders of Registrable Securities
registered thereunder and the underwriters, if any,
in form, substance and scope as are customarily made
by the Company to underwriters in primary
underwritten offerings and covering matters
including, but not limited to, those set forth in
the Purchase Agreement;
(iv) obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any)
in customary form addressed to each Electing Holder
and the underwriters, if any, covering such matters
as are customarily covered in opinions requested in
underwritten offerings and such other matters as may
be reasonably requested by such Electing Holders and
underwriters (it being agreed that the matters to be
covered by such opinion or written statement by such
counsel delivered in connection with such opinions
shall include in customary form, without limitation,
as of the date of the opinion and as of the
effective date of the Shelf Registration Statement
or most recent post-effective amendment thereto, as
the case may be, the absence from such Shelf
Registration Statement and the prospectus included
therein, as then amended or supplemented, including
the documents incorporated by reference therein, of
an untrue statement of a material fact or the
omission to state therein a material fact required
to be stated therein or necessary to make the state
ments therein not misleading);
(v) obtain "cold comfort" letters and updates
thereof from the independent public accountants of
the Company (and, if necessary, any other
independent public accountants of any subsidiary of
the Company or of any business acquired by the
Company for which financial statements and financial
data are, or are required to be, included in the
Shelf Registration Statement), addressed to each
such Electing Holder of Registrable Securities
registered thereunder and the underwriters, if any,
in customary form and covering matters of the type
customarily covered in "cold comfort" letters in
connection with primary underwritten offerings;
(vi) deliver such documents and certificates as
may be reasonably requested by any such Electing
Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section
3(i) and with any customary conditions contained in
the underwriting agreement or other agreement
entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 3(q) shall be performed at
each closing under any underwritten offering to the
extent required thereunder.
(r) The Company will use its best efforts to cause
the Stock issuable upon conversion thereof to be listed
for quotation on the NYSE or other stock exchange or
trading system on which the Stock primarily trades on
or prior to the effective date of any Shelf
Registration Statement hereunder.
(s) In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an
underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Conduct
Rules and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as
an Electing Holder of such Registrable Securities or as
an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company
shall assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including,
without limitation, by (A) such Rules or By-Laws,
including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule
2720) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable
Securities and to exercise usual standards of due
diligence in respect thereto, (B) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5
hereof and (C) providing such information to such
broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the
Rules of Fair Practice of the NASD.
(t) The Company shall use its best efforts to take
all other steps necessary to effect the registration,
offering and sale of the Registrable Securities covered
by the Shelf Registration Statement contemplated
hereby.
4. Registration Expenses. Except as otherwise provided
in Section 6, the Company shall bear all fees and expenses
incurred in connection with the performance of its
obligations under Sections 2, 3 and 6 hereof.
5. Indemnification and Contribution. (a) In
connection with any Shelf Registration Statement, the
Company shall indemnify and hold harmless the Purchasers,
each Electing Holder, each underwriter who participates in
an offering of Registrable Securities, each person, if any,
who controls any of such parties within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act and each of their respective directors,
officers, employees, trustees and agents (each such person
being sometimes referred to as an "Indemnified Person"),
against any losses, claims, damages or liabilities, joint or
several, to which such Indemnified Person may become subject
under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which
such Registrable Securities are to be registered under the
Securities Act, or any Prospectus contained therein or
furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the
Company hereby agrees to reimburse such Indemnified Person
for any reasonable legal or other expenses incurred by them
in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, how
ever, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission
made in such Shelf Registration Statement or Prospectus in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Indemnified
Person expressly for use therein; and provided further that
the Company shall not be liable to any Indemnified Person
under the indemnity agreement in this subsection (a) with
respect to any Shelf Registration or Prospectus to the
extent that any such loss, claim, damage or liability of
such Indemnified Person results from the fact that such
Indemnified Person sold Securities to a person as to whom it
shall be established that there was not sent or given, at or
prior to the written confirmation of such sale, a copy of
the Shelf Registration Statement or Prospectus in any case
if the Company had previously furnished copies thereof in
sufficient quantity to such Indemnified Person and to the
extent the loss, claim, damage or liability of such
Indemnified Person results from an untrue statement or
omission of a material fact contained in the Shelf
Registration Statement or Prospectus which was identified in
writing to such Indemnified Person and subsequently
corrected in the Shelf Registration Statement or Prospectus
and such loss, claim, damage or liability would have been
eliminated by the delivery of such corrected Shelf
Registration Statement or Prospectus.
(b) Each Electing Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company, the
Purchasers, each underwriter who participates in an offering
of Registrable Securities and the other Electing Holders and
each of their respective directors, officers (including each
officer of the Company who signed the Shelf Registration
Statement), employees, trustees and agents and each Person,
if any, who controls the Company, the Purchasers, any under
writer or any other Electing Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all loss, liability,
claim, damage and expense whatsoever described in the
indemnity contained in Section 5(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf
Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company by such Electing Holder expressly
for use in the Shelf Registration Statement (or any amend
ment thereto) or any Prospectus (or any amendment or supple
ment thereto); provided, however, that, no such Electing
Holder shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Electing Holder
from the sale of Registrable Securities pursuant to the
Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice
to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder,
enclosing a copy of all papers served on such indemnified
party, but failure to so notify an indemnifying party shall
not relieve it of any liability which it may have to the
indemnified party otherwise than on account of this
indemnity agreement. An indemnifying party may participate
at its own expense in the defense of any such action. If an
indemnifying party so elects within a reasonable time after
receipt of such notice, such indemnifying party, jointly
with any other indemnifying party, may assume the defense of
such action with counsel chosen by it and approved by the
indemnified party or parties defendant in such action,
provided that if any such indemnified party reasonably
determines that there may be legal defenses available to
such indemnified party which are different from or in
addition to those available to such indemnifying party or
that representation of such indemnifying party and any
indemnified party by the same counsel would present a
conflict of interest, then such indemnifying party or
parties shall not be entitled to assume such defense. If an
indemnifying party is not entitled to assume the defense of
such action as a result of the proviso to the preceding
sentence, counsel for such indemnifying party shall be
entitled to conduct the defense of such indemnifying party
and counsel for each indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of an
action in accordance with and as permitted by the provisions
of this paragraph, such indemnifying party shall not be
liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from its
own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general
allegations or circumstances. In no event shall an
indemnifying party be liable with respect to any action or
claim settled without its written consent.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity
provision agreement provided for in this Section 5 is for
any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the
Company, the Purchasers and the Electing Holders shall
contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company, the Purchasers
and the Electing Holders, as incurred; provided that no
Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person that was not guilty
of such fraudulent misrepresentation. As between the C
ompany, the Purchasers and the Electing Holders, such
parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion
as shall be appropriate to reflect the relative fault of the
Company, on the one hand, and the Purchasers and the
Electing Holders, on the other hand, with respect to the
statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect
thereof, as well as any other relevant equitable consider
ations. The relative fault of the Company, on the one hand,
and of the Purchasers and the Electing Holders, on the other
hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the
Company, on the one hand, or by or on behalf of the
Purchasers or the Electing Holders, on the other, and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or
omission; including with respect to any Purchaser or
Electing Holder, the extent to which such losses, claims,
damages or liabilities with respect to any Shelf
Registration Statement or Prospectus results from the fact
that the Purchaser or Electing Holder sold Securities to a
person to whom there was not sent or given a copy of the
Shelf Registration Statement or Prospectus, where the
Company had previously furnished copies thereof in
sufficient quantity to such Purchaser or Electing Holder and
to the extent the loss, claim, damage or liability of such
Purchaser or Electing Holder results from an untrue
statement or omission of a material fact contained in the
Shelf Registration Statement or Prospectus which was
identified in writing to such Purchaser or Electing Holder
and subsequently corrected in the Shelf Registration
Statement or Prospectus and such loss, claim, damage or
liability would have been eliminated by the delivery of such
corrected Shelf Registration Statement or Prospectus. The
Company, the Purchasers and the Electing Holders of the
Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 5 were to
be determined by pro rata allocation or by any other method
of allocation that does not take into account the relevant
equitable considerations. For purposes of this Section
5(d), each director, officer, employee, trustee, agent and
Person, if any, who controls the Purchasers or an Electing
Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Purchasers or such Electing
Holder, and each director, officer, employee, trustee and
agent of the Company, and each Person, if any, who controls
the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company. No party
shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written
consent.
(e) Notwithstanding any other provision of this
Section 5, in no event will any (i) Electing Holder be
required to undertake liability to any person under this
Section 5 for any amounts in excess of the dollar amount of
the proceeds to be received by such holder from the sale of
such holder's Registrable Securities (after deducting any
fees, discounts and commissions applicable thereto) pursuant
to any Shelf Registration Statement under which such
Registrable Securities are to be registered under the
Securities Act and (ii) underwriter, selling agent or other
securities professional be required to undertake liability
to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such
underwriter, selling agent or other securities professional
with respect to the Registrable Securities underwritten by
it and distributed to the public.
(f) The obligations of the Company under this Section
5 shall be in addition to any liability which the Company
may otherwise have and shall extend, or not extend, as the
case may be, to any Indemnified Person, and the obligations
of any Indemnified Person under this Section 5 shall be in
addition to any liability which such Indemnified Person may
otherwise have and shall extend, or not extend, as the case
may be, to the Company. The remedies provided in this
Section 5 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to an
indemnified party at law or in equity.
6. Underwritten Offering. The Electing Holders of
Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell such Registrable
Securities in an underwritten offering in accordance with
the conditions set forth below. In any such underwritten
offering, the investment banker or bankers and manager or
managers that will administer the offering will be selected
by, and the underwriting arrangements with respect thereto
will be approved by the Electing Holders of a majority of
the Registrable Securities to be included in such offering;
provided, however, that (i) with respect to the investment
bankers and managers, such investment bankers and managers
will be selected by the Company from a list of nationally
recognized firms to be provided by the Electing Holders and
(ii) the Company shall not be obligated to arrange for more
than one underwritten offering during the Effectiveness
Period. No Electing Holder may participate in any
underwritten offering contemplated hereby unless such
Electing Holder (a) agrees to sell such Electing Holder's
Registrable Securities in accordance with any approved
underwriting arrangements, (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting
arrangements and (c) at least 25% of the outstanding
Registrable Securities are included in such underwritten
offering. The Electing Holders participating in any
underwritten offering shall be responsible for any expenses
customarily borne by selling securityholders, including
underwriting discounts and commissions and fees and expenses
of counsel to the selling securityholders and shall
reimburse the Company for the fees and disbursements of
their counsel, their independent public accountants and any
printing expenses incurred in connection with such
underwritten offerings. Notwithstanding the foregoing or
the provisions of Section 3(n) hereof, upon receipt of a
request from the Managing Underwriter or a representative of
Electing Holders of a majority of the Registrable Securities
outstanding to prepare and file an amendment or supplement
to the Shelf Registration Statement and Prospectus in connec
tion with an underwritten offering, the Company may delay
the filing of any such amendment or supplement for up to 90
days if the Company in good faith has a valid business
reason for such delay.
7. Miscellaneous.
(a) Other Registration Rights. From the date of this
Agreement, the Company may grant registration rights that
would permit any Person that is a third party the right to
piggy-back on any Shelf Registration Statement, provided
that if the Managing Underwriter, if any, of such offering
delivers an opinion to the Electing Holders that the total
amount of securities which they and the holders of such
piggy-back rights intend to include in any Shelf Regis
tration Statement is so large as to materially adversely
affect the success of such offering (including the price at
which such securities can be sold), then only the amount,
the number or kind of securities to be offered for the
account of holders of such piggy-back rights granted after
the date of this agreement will be reduced to the extent
necessary to reduce the total amount of securities to be
included in such offering to the amount, number or kind
recommended by the Managing Underwriter prior to any
reduction in the amount of Registrable Securities to be
included.
(b) Amendments and Waivers. This Agreement,
including this Section 7(b), may be amended, and waivers or
consents to departures from the provisions hereof may be
given, only upon the written consent of Xxxxxxx, Xxxxx & Co.
on behalf of the Purchasers or by a written instrument duly
executed by the Company and the holders of a majority in
aggregate principal amount of Registrable Securities then
outstanding. Each holder of Registrable Securities
outstanding at the time of any such amendment, waiver or
consent or thereafter shall be bound by any amendment,
waiver or consent effected pursuant to this Section 7(b),
whether or not any notice, writing or marking indicating
such amendment, waiver or consent appears on the Registrable
Securities or is delivered to such holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be given as
provided in the Indenture.
(d) Parties in Interest. The parties to this
Agreement intend that all holders of Registrable Securities
shall be entitled to receive the benefits of this Agreement
and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with
respect to the Registrable Securities which are included in
a Shelf Registration Statement. All the terms and
provisions of this Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto and
any holder from time to time of the Registrable Securities
to the aforesaid extent. In the event that any transferee
of any holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of
any kind, be entitled to receive the benefits of and, if an
Electing Holder, be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(e) Counterparts. This agreement may be executed in
any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed
by and construed in accordance with the laws of the State of
New York.
(h) Severability. In the event that any one or more
of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall
not be in any way impaired or affected thereby, it being
intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted
by law.
(i) Survival. The respective indemnities,
agreements, representations, warranties and other provisions
set forth in this Agreement or made pursuant hereto shall
remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof)
made by or on behalf of any Electing Holder, any director,
officer or partner of such holder, any agent or underwriter,
any director, officer or partner of such agent or
underwriter, or any controlling person of any of the
foregoing, and shall survive the transfer and registration
of the Registrable Securities of such holder. Upon
termination of the Effectiveness Period, this Agreement
shall terminate except for Sections 3(l), 4, 5 and 7, which
shall survive termination.
Please confirm that the foregoing correctly sets forth
the agreement between the Company and you.
Very truly yours,
AMERICA ONLINE, INC.
By:/S/LENNERT J. LEADER
Name: Lennert J. Leader
Title: Senior Vice President,
Chief Financial Officer,
Treasurer, Chief Accounting Officer and
Assistant Secretary
The foregoing Registration Rights Agreement is hereby confirmed
and accepted as of the date first above written:
Xxxxxxx, Sach & Co.
BT Alex, Xxxxx
Xxxxxx Brothers Inc.
Xxxxx & Company
/S/Xxxxxxx, Xxxxx & Co.
(Xxxxxxx, Sach & Co.)
Exhibit A
AMERICA ONLINE, INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a
DTC Participant through which beneficial interests in the
America Online, Inc. (the "Company") 4% Convertible
Subordinated Notes due November 15, 2002 (the "Securities")
are held.
The Company is in the process of registering the Securities
under the Securities Act of 1933 for resale by the
beneficial owners thereof. In order to have their
Securities included in the registration statement,
beneficial owners must complete and return the enclosed
Notice of Registration Statement and Selling Securityholder
Questionnaire.
It is important that beneficial owners of the Securities
receive a copy of the enclosed materials as soon as possible
as their rights to have the Securities included in the
registration statement depend upon their returning the
Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please
forward a copy of the enclosed documents to each beneficial
owner that holds interests in the Securities through you.
If you require more copies of the enclosed materials or have
any questions pertaining to this matter, please contact
[Name, address and telephone number of contact at the
Company).
America Online, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights
Agreement (the "Registration Rights Agreement") between America
Online, Inc. (the "Company") and the Purchasers named therein.
Pursuant to the Registration Rights Agreement, the Company has
filed with the United States Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the
"Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), of the Company's 4% Convertible Subordinated
Notes due November 15, 2002 (the "Securities") and the shares of
Common Stock, par value $.01 per share (the "Common Stock"),
issuable upon conversion thereof. A copy of the Registration
Rights Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto
in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined
below) is entitled to have the Registrable Securities
beneficially owned by it included in the Shelf Registration
Statement. In order to have Registrable Securities included in
the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the
Company's counsel at the address set forth herein for receipt ON
OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners of
Registrable Securities who do not complete, execute and return
this Notice and Questionnaire by such date (i) will not be named
as selling securityholders in the Shelf Registration Statement
and (ii) may not use the Prospectus forming a part thereof for
resales of Registrable Securities.
Certain legal consequences arise from being named as a
selling securityholder in the Shelf Registration Statement and
related Prospectus. Accordingly, holders and beneficial owners
of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named
or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
The term "Registrable Securities" is defined in the
Registration Rights Agreement to mean all or any portion of the
Securities issued from time to time under the Indenture in
registered form and the shares of Common Stock issuable upon
conversion of such Securities, including any Securities initially
issued in bearer form and constituting the unsold allotment of a
distributor (within the meaning of Regulation S under the
Securities Act) of such Securities and later exchanged for
Securities in registered form; provided, however, that a security
ceases to be a Registrable Security when it is no longer a
Restricted Security.
The term "Restricted Security" is defined in the
Registration Rights Agreement to mean any Security or share
of Common Stock issuable upon conversion thereof except any
such Security or share of Common Stock which (i) has been
effectively registered under the Securities Act and sold in
a manner contemplated by the Shelf Registration Statement,
(ii) has been transferred in compliance with Rule 144 under
the Securities Act (or any successor provision thereto) or
is transferable pursuant to paragraph (k) of such Rule 144
(or any successor provision thereto), (ii) has been sold in
compliance with Regulation S under the Securities Act (or
any successor thereto) and does not constitute the unsold
allotment of a distributor within the meaning of Regulation
S under the Securities Act, or (iv) has otherwise been
transferred and a new Security or share of Common Stock not
subject to transfer restrictions under the Securities Act
has been delivered by or on behalf of the Company in
accordance with Section 3.05 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder")
of Registrable Securities hereby elects to include in the
Shelf Registration Statement the Registrable Securities
beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such
Registrable Securities by the terms and conditions of this
Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the
Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the
Shelf Registration Statement, the Selling Securityholder
will be required to deliver to the Company and Trustee the
Notice of Transfer set forth in Appendix A to the
Prospectus. This Notice of Transfer is set forth as Exhibit
A to the Prospectus.
The Selling Securityholder hereby provides the
following information to the Company and represents and
warrants that such information is accurate and complete.
The Selling Securityholder also agrees, severally and not
jointly, with respect to the information so provided, to
indemnify and hold harmless the Company, the Purchasers,
each underwriter who participates in the offering and the
other Selling Securityholders and each of their respective
directors, officers (including each officer of the Company
who signed the Shelf Registration Statement), employees,
trustees and agents and each Person, if any, who controls
the Company, the Purchasers, any underwriter or any other
Selling Securityholders within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from
and against any and all loss, liability, claim, damage and
expense whatsoever described in the indemnity contained in
Section 5(a) of the Registration Rights Agreement, as
incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made
in the Shelf Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the written
information furnished below to the Company by such Selling
Securityholder expressly for use in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto); provided, however,
that such Selling Securityholder shall not be liable for any
claims hereunder in excess of the amount of net proceeds
received by such Selling Securityholder from the sale of
Registrable Securities pursuant to the Shelf Registration
Statement.
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the
same as in (a) above) of Registrable Securities
Listed in (3) below:
(c) Full Legal Name of DTC Participant (if applicable
and if not the same as (b) above) Through Which
Registrable Securities Listed in (3) below are
Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities and shares of Common
Stock issued upon conversion of Securities:
Except as set forth below in this Item (3), the
undersigned does not beneficially own any Securities or
shares of Common Stock issued upon conversion of any
Securities.
(a)Principal amount of Registrable Securities (as
defined in the Registration Rights Agreement)
beneficially owned:
CUSIP No(s). of such Registrable Securities:
Number of shares of Common Stock (if any) issued
upon conversion of such Registrable Securities:
(b)Principal amount of Securities other than
Registrable Securities beneficially owned:
CUSIP No(s). of such other Securities:
Number of shares of Common Stock (if any) issued
upon conversion of such other Securities:
(c)Principal amount of Registrable Securities which
the undersigned wishes to be included in the Shelf
Registration Statement:
CUSIP No(s). of such Registrable Securities to be
included in the Shelf Registration Statement:
Number of shares of Common Stock (if any) issued
upon conversion of Registrable Securities which are
to be included in the Shelf Registration Statement:
(4) Beneficial ownership of Other Securities of the
Company:
Except as set forth below in this Item (4), the
undersigned Selling Securityholder is not the beneficial or
registered owner of any shares of Common Stock or any other
securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling
Securityholder nor any of its affiliates, officers,
directors or principal equity holders (5% or more) has held
any position or office or has had any other material
relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling
Securityholder intends to distribute the Registrable
Securities listed above in Item (3) only as follows (if at
all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or
agents. Such Registrable Securities may be sold in one or
more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at
the time of sale, or at negotiated prices. Such sales may
be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange
or quotation service on which the Registered Securities may
be listed or quoted at the time of sale, (ii) in the over-
the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter
market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or
otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage
in short sales of the Registrable Securities in the course
of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution
take the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company.
By signing below, the Selling Securityholder
acknowledges that it understands its obligation to comply,
and agrees that it will comply, with the provisions of the
Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers
all or any portion of the Registrable Securities listed in
Item (3) above after the date on which such information is
provided to the Company, the Selling Securityholder agrees
to notify the transferees at the time of the transfer of its
rights and obligations under this Notice and Questionnaire
and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents
to the disclosure of the information contained herein in its
answers to Items (1) through (6) above and the inclusion of
such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands
that such information will be relied upon by the Company in
connection with the preparation of the Shelf Registration
Statement and related Prospectus.
In accordance with the Selling Securityholder's
obligation under Section 3(a) of the Registration Rights
Agreement to provide such information as may be required by
law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company
of any inaccuracies or changes in the information provided
herein which may occur subsequent to the date hereof at any
time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing, by
hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000-0000
Attention: Chief Financial Officer
(ii) With a copy to:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Deputy General Counsel
Once this Notice and Questionnaire is executed by the
Selling Securityholder and received by the Company's
counsel, the terms of this Notice and Questionnaire, and the
representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be
enforceable by the respective successors, heirs, personal
representatives, and assigns of the Company and the Selling
Securityholder (with respect to the Registrable Securities
beneficially owned by such Selling Securityholder and listed
in Item (3) above. This Agreement shall be governed in all
respects by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly
given, has caused this Notice and Questionnaire to be
executed and delivered either in person or by its duly
authorized agent.
Dated:
Selling Securityholder
(Print/type full legal
name of beneficial owner
of Registrable
Securities)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR
RESPONSE] TO THE COMPANY'S COUNSEL AT:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Deputy General Counsel
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Trustee]
Attention: Corporate Trust Services
Re:America Online, Inc. (the "Company") 4%
Convertible Subordinated Notes due November
15, 2002 (the "Notes")
Dear Sirs:
Please be advised that_____________________ has
transferred $____________ aggregate principal amount of the
above-referenced Notes pursuant to an effective Registration
Statement on Form S-3 (File No. 333-____) filed by the
Company.
We hereby certify that the prospectus delivery
requirements, if any, of the Securities Act of 1933, as
amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder"
in the Prospectus dated _____________ 19__ or in supplements
thereto, and that the aggregate principal amount of the
Notes transferred are the Notes listed in such Prospectus
opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
(Authorized Signature)
_______________________________
1This page must begin as a separate page. Insert a hard
page break as needed. Presently, the hard page break has
been deleted because of pagination. The hard page break may
have to be inserted. Please check your print out.
