Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AOL TIME WARNER INC.
(Exact name of registrant as specified in charter)
Delaware 13-4099534
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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75 ROCKEFELLER PLAZA, NEW YORK, NEW YORK 10019
(Address of principal executive offices)
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AOL Europe S.A. Stock Option Plan
(Full Title of the Plan)
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PAUL T. CAPPUCCIO
Executive Vice President, General Counsel and Secretary
AOL Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
(212) 484-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered (1) share (2) price (2) registration fee
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Common Stock,
$.01 par value per share 8,779,595 $40.800270 $358,209,846.40 $32,955.31
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(1) The number of shares of common stock, par value $.01 per share ("Common
Stock"), stated above consists of the aggregate number of shares which may
be sold upon exercise of options which have been granted under the option
plan listed above (the "Plan"). The maximum number of shares which may be
sold upon exercise of options granted under the Plan are subject to
adjustment in accordance with certain anti-dilution and other provisions of
such Plans. Accordingly, pursuant to Rule 416 under the Securities Act of
1933, as amended (the "Securities Act"), this Registration Statement
covers, in addition to the number of shares stated above, an indeterminate
number of shares which may be subject to grant or otherwise issuable after
the operation of any such anti-dilution and other provisions.
(2) Estimated solely for purposes of determining the registration fee pursuant
to the provisions of Rule 457(h) under the Securities Act based upon the
price at which the options may be exercised.
EXPLANATORY NOTE
AOL Time Warner Inc. (the "Registrant") hereby files this Registration Statement
on Form S-8 relating to its Common Stock, par value $.01 per share, which may be
sold upon the exercise of options granted under the AOL Europe S.A.
Stock Option Plan (the "Plan"), which Plan was assumed by the Registrant prior
to the date hereof.
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 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.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
by the Registrant, AOL Time Warner Inc. (File No. 1-15062) pursuant to the
Securities Exchange Act of 1934 or as otherwise indicated, are hereby
incorporated by reference in this Registration Statement and shall be deemed to
be a part hereof:
(a) The Registrant's Report on Form 10-K for the year
ended December 31, 2001 (filing date March 25, 2002).
All documents subsequently filed by the Registrant or 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 have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated herein by reference and shall be deemed a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein and to be a part
hereof shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable
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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, because the person 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 the person in connection with such action, suit or
proceeding, if the person acted in good faith and in a manner the person
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
person did not have reasonable cause to believe the person's 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 because the person is or was a director or officer of the corporation,
against any expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
be indemnified for such expenses which the Court of Chancery or such other court
shall deem proper.
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 the person in any such capacity, or arising out of
the person's status as such, whether or not the corporation would have the power
to indemnify the person against such liability under the provisions of the law.
Article VI of the Registrant's By-laws requires indemnification to the
fullest extent permitted under Delaware law of any person who is or was a
director or officer of the Registrant who is or was involved or threatened to be
made so involved in any proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was serving as a
director, officer, employee or agent of the Registrant or was serving at the
request of the Registrant as a director, officer, employee or agent of any other
enterprise.
The foregoing statements are subject to the detailed provisions of Section
145 of the Delaware Corporation Law and Article VI of the By-laws of the
Registrant.
The Registrant's Directors' and Officers' Liability and Reimbursement
Insurance Policy is designed to reimburse the Registrant for any payments made
by it pursuant to the foregoing indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
Item 9. Undertakings
(a) The 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 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 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.
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(h) 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.
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
4.1 Restated Certificate of Incorporation of the Registrant as *
filed with the Secretary of State of the State of Delaware
on January 11, 2001 (which is incorporated herein by reference
to Exhibit 3.1 to the Registrant's Current Report on Form 8-K
dated January 11, 2001 (the "January 2001 Form 8-K")).
4.2 Certificate of the Voting Powers, Designations, Preferences *
and Relative, Participating, Optional or Other Special
Rights, and Qualifications, Limitations or Restrictions
Thereof, of Series LMC Common Stock of the Registrant as filed
with the Secretary of State of the State of Delaware on
January 11, 2001 (which is incorporated herein by reference to
Exhibit 3.2 to the Registrant's January 2001 Form 8-K).
4.3 Certificate of the Voting Powers, Designations, Preferences *
and Relative, Participating, Optional or Other Special
Rights, and Qualifications, Limitations, or Restrictions
Thereof, of Series LMCN-V Common Stock of the Registrant as
filed with the Secretary of State of the State of Delaware on
January 11, 2001 (which is incorporated herein by reference to
Exhibit 3.3 to the Registrant's January 2001 Form 8-K).
4.4 By-laws of the Registrant as of March 21, 2002 (which is *
incorporated herein by reference to Exhibit 3(ii) of the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 2001).
5 Opinion of Brenda C. Karickhoff, Vice President of the Registrant.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brenda C. Karickhoff, Vice President of the Registrant *
(included in Opinion filed as Exhibit 5).
24 Powers of Attorney.
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* incorporated by reference
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this Registration Statement on Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on March 25, 2002.
AOL TIME WARNER INC.
By: /s/ Wayne H. Pace
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Name: Wayne H. Pace
Title: Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons on March 25, 2002 in the
capacities indicated.
Signature Title
(i) Principal Executive Officer Director and
Chief Executive Officer
/s/ Gerald M. Levin
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Gerald M. Levin
(ii) Principal Financial Officer Executive Vice President
and Chief Financial Officer
/s/ Wayne H. Pace
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Wayne H. Pace
(iii) Principal Accounting Officer Vice President and Controller
/s/ James W. Barge
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James W. Barge
(iv) Directors:
/s/ Daniel F. Akerson
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Daniel F. Akerson
/s/ James L. Barksdale
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James L. Barksdale
/s/ Stephen F. Bollenbach
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Stephen F. Bollenbach
/s/ Stephen M. Case
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Stephen M. Case
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(iv) Directors - continued:
/s/ Frank J. Caufield
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Frank J. Caufield
/s/ Miles R. Gilburne
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Miles R. Gilburne
/s/ Carla A. Hills
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Carla A. Hills
/s/ Reuben Mark
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Reuben Mark
/s/ Michael A. Miles
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Michael A. Miles
/s/ Kenneth J. Novack
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Kenneth J. Novack
/s/ Richard D. Parsons
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Richard D. Parsons
/s/ Robert W. Pittman
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Robert W. Pittman
/s/ Franklin D. Raines
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Franklin D. Raines
/s/ R. E. Turner
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R.E. Turner
/s/ Francis T. Vincent Jr.
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Francis T. Vincent Jr.
By: /s/ Wayne H. Pace
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Name: Wayne H. Pace
Attorney-In-Fact
* Pursuant to Powers of Attorney dated as of January 17, 2002.
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