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 Time Warner Savings Plan
AOL Time Warner Thrift Plan
TWC Savings 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 Proposed
maximum 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 30,000,000 $13.64 $409,200,000.00 $37,646.40
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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 purchased and/or issued pursuant to the benefit plans listed above
(collectively, the "Plans"). The maximum number of shares which may be
purchased and/or issued pursuant to the Plans 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 purchased and/or issued pursuant to the Plans after the
operation of any such anti-dilution and other provisions. In addition,
pursuant to the Rule 416(c) under the Securities Act, this Registration
Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to such Plans.
(2) Estimated solely for purposes of determining the registration fee pursuant
to the provisions of Rules 457(c) and (h) under the Securities Act based on
the average of high and low prices of the Common Stock as reported on the
New York Stock Exchange Composite Tape for January 28, 2003, on which day
such average was $13.64.
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, issuable
under each of the employee benefit plans listed below (collectively, the
"Plans"). The contents of the Registration Statement on Form S-8 (Registration
No. 333-53574) as filed with the Securities and Exchange Commission on January
11, 2001, as it relates to the Plans, is hereby incorporated by reference to the
extent not replaced hereby.
This Registration Statement relates to the Common Stock of the Registrant
issuable under the following Plans:
o 16,000,000 shares issuable under the AOL Time Warner Savings Plan,
o 8,000,000 shares issuable under the AOL Time Warner Thrift Plan,
o 6,000,000 shares issuable under the TWC Savings Plan
and an indeterminate amount of interests issuable under each of the Plans.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(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 of 1933.
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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 (File No. 1-15062) pursuant to the Securities Exchange Act of
1934 (the "Exchange Act") 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 Annual Report on Form 10-K for the year ended
December 31, 2001 (filing date March 25, 2002), as amended by
Amendment No. 1 on Form 10-K/A (filing date March 26, 2002),
Amendment No. 2 on Form 10-K/A (filing date June 28, 2002) and
Amendment No. 3 on Form 10-K/A (filing date January 28, 2003).
(b) The Annual Report on Form 11-K of the AOL Time Warner Savings
Plan for the year ended December 31, 2001 (filing date June 28,
2002).
(c) The Annual Report on Form 11-K of the AOL Time Warner Thrift Plan
for the year ended December 31, 2001 (filing date June 28, 2002).
(d) The Annual Report on Form 11-K of the TWC Savings Plan for the
year ended December 31, 2001 (filing date June 28, 2002).
(e) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended:
o March 31, 2002 (filing date May 6, 2002), as amended by
Amendment No. 1 on Form 10-Q/A (filing date January 28,
2003)
o June 30, 2002 (filing date August 14, 2002), as amended by
Amendment No. 1 on Form 10-Q/A (filing date January 28,
2003)
o September 30, 2002 (filing date November 14, 2002)
(f) The Registrant's Current Reports on Form 8-K dated:
o June 24, 2002 (filing date June 24, 2002)
o July 8, 2002 (filing date July 11, 2002)
o August 21, 2002 (filing date August 21, 2002)
o October 23, 2002 (filing date October 23, 2002)
(Item 5 only)
o December 31, 2002 (filing date January 14, 2003)
o January 12, 2003 (filing date January 14, 2003)
o January 16, 2003 (filing date January 23, 2003)
(g) Current Report on Form 8-K dated January 11, 2001 (filing date
January 12, 2001) in which it is reported that the Common Stock
of the Registrant is deemed registered pursuant to Rule 12g-3(c)
under the Exchange Act.
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.
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Item 4. Description of Securities.
Not applicable.
tem 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, 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.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this Registration Statement.
The Registrant hereby undertakes that it will submit or has submitted each
of the Plans and any amendments thereto to the Internal Revenue Service in a
timely manner and has made or will make all changes required by the Internal
Revenue Service in order to qualify such Plans under Section 401 of the Internal
Revenue Service Code 1986, as amended.
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 a 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.
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(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.
(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
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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 July 18, 2002 (which are *
incorporated herein by reference to Exhibit 3 of the Registrant's
Quarterly Report on Form 10-Q for quarter ended June 30, 2002, as
amended).
5 Opinion of Brenda C. Karickhoff, Vice President of the
Registrant.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Ernst & Young LLP, Independent Auditors (with
respect to Time Warner Telecom Inc.).
23.3 Consent of Ernst & Young LLP, Independent Auditors (with
respect to the TWC Savings Plans).
23.4 Consent of Brenda C. Karickhoff, Vice President of the *
Registrant (included in Opinion filed as Exhibit 5).
24.1 Powers of Attorney.
24.2 Powers of Attorney for the Administrative Committees of the
AOL Time Warner Savings Plan and the AOL Time Warner Thrift
Plan.
24.3 Powers of Attorney for the Administrative Committee of the
TWC Savings Plan.
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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 January 29, 2003.
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 January 29, 2003 in
the capacities indicated.
Signature Title
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(i) Principal Executive Officer Director and
Chief Executive Officer
*
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Richard D. Parsons
(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 Senior Vice President and
Controller
/s/ James W. Barge
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James W. Barge
(iv) Directors:
*
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Daniel F. Akerson
*
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James L. Barksdale
*
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Stephen F. Bollenbach
*
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Stephen M. Case
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(iv) Directors - continued:
*
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Frank J. Caufield
*
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Miles R. Gilburne
*
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Carla A. Hills
*
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Reuben Mark
*
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Michael A. Miles
*
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Kenneth J. Novack
*
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Franklin D. Raines
*
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R.E. Turner
*
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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 November 21, 2002.
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Pursuant to the requirements of the Securities Act of 1933, the administrators
of the AOL Time Warner Savings Plan and the AOL Time Warner Thrift Plan have
duly caused this Registration Statement on Form S-8 to be signed on their behalf
by the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on January 29, 2003.
AOL TIME WARNER SAVINGS PLAN
By: /s/ Pascal Desroches
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Name: Pascal Desroches
Title: Attorney-in-Fact
AOL TIME WARNER THRIFT PLAN
By: /s/ Pascal Desroches
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Name: Pascal Desroches
Title: Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on January 29, 2003 in
the capacities indicated.
Members of the Committee Administering the AOL Time Warner Savings Plan and the
AOL Time Warner Thrift Plan.
Pascal Desroches
Peter R. Haje
John A. LaBarca
Shelley D. Fischel
By /s/ Pascal Desroches
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Name: Pascal Desroches
Title: Attorney-in-Fact
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Pursuant to the requirements of the Securities Act of 1933, the administrators
of the TWC Savings Plan have duly caused this Registration Statement on Form S-8
to be signed on their behalf by the undersigned, thereunto duly authorized, in
the City of Stamford, State of Connecticut, on January 29, 2003.
TWC SAVINGS PLAN
By: /s/ Landel C. Hobbs
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Name: Landel C. Hobbs
Title: Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on January 29, 2003 in
the capacities indicated.
Members of the Committee administering the TWC Savings Plan
Glenn A. Britt
Charles W. Ellis
Landel C. Hobbs
Beth A. Wann
By: /s/ Landel C. Hobbs
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Name: Landel C. Hobbs
Title: Attorney-in-Fact
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