SEC Filings

S-4/A
TIME WARNER INC. filed this Form S-4/A on 03/24/2000
Entire Document
 
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by America Online and its Subsidiaries does not infringe on or otherwise
violate the rights of any Person, (c) the use of the Intellectual Property is
in accordance with applicable licenses pursuant to which America Online or any
Subsidiary acquired the right to use any Intellectual Property; and (d) to the
knowledge of America Online, no Person is challenging, infringing on or
otherwise violating any right of America Online or any of its Subsidiaries with
respect to any Intellectual Property owned by and/or licensed to America Online
or its Subsidiaries. As of the date of this Agreement, except as would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect on America Online, neither America Online nor any of its
Subsidiaries has knowledge of any pending claim, order or proceeding with
respect to any Intellectual Property used by America Online and its
Subsidiaries and to its knowledge no Intellectual Property owned and/or
licensed by America Online or its Subsidiaries is being used or enforced in a
manner that would reasonably be expected to result in the abandonment,
cancellation or unenforceability of such Intellectual Property. For purposes of
this Agreement, "Intellectual Property " shall mean trademarks, service marks,
brand names, certification marks, trade dress and other indications of origin,
the goodwill associated with the foregoing and registrations in any
jurisdiction of, and applications in any jurisdiction to register, the
foregoing, including any extension, modification or renewal of any such
registration or application; inventions, discoveries and ideas, whether
patentable or not, in any jurisdiction; patents, applications for patents
(including, without limitation, divisions, continuations, continuations in part
and renewal applications), and any renewals, extensions or reissues thereof, in
any jurisdiction; nonpublic information, trade secrets and confidential
information and rights in any jurisdiction to limit the use or disclosure
thereof by any Person; writings and other works, whether copyrightable or not,
in any jurisdiction; and registrations or applications for registration of
copyrights in any jurisdiction, and any renewals or extensions thereof; any
similar intellectual property or proprietary rights.
 
   (ii) Prior to the date of this Agreement, America Online and its
Subsidiaries have undertaken a concerted effort to ensure that all of the
computer software, computer firmware, computer hardware, and other similar or
related items of automated, computerized, and/or software system(s) that are
used or relied on by America Online or any or its Subsidiaries in the conduct
of their respective businesses will not malfunction, will not cease to
function, will not generate incorrect data, and will not provide incorrect
results when processing, providing and/or receiving (a) date-related data into
and between the years 1999 and 2000 and (b) date-related data in connection
with any valid date in the twentieth and twenty-first centuries. As of the date
of this Agreement, except as would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect on America Online, America
Online reasonably believes that such effort will be successful.
 
   (k) Brokers or Finders. No agent, broker, investment banker, financial
advisor or other firm or Person is or will be entitled to any broker's or
finder's fee or any other similar commission or fee in connection with any of
the transactions contemplated by this Agreement based upon arrangements made by
or on behalf of America Online, except Salomon Smith Barney, Inc., whose fees
and expenses will be paid by America Online.
 
   (l) Opinion of America Online Financial Advisor. America Online has received
the opinion of Salomon Smith Barney, Inc., dated the date of this Agreement, to
the effect that, as of such date, the Exchange Ratio is fair to America Online,
from a financial point of view, a copy of which opinion will be made available
to Time Warner promptly after the date of this Agreement.
 
   (m) Taxes. Each of America Online and its Subsidiaries has filed all Tax
Returns (as defined below) required to have been filed (or extensions have been
duly obtained) and has paid all Taxes (as defined below) required to have been
paid by it, except where failure to file such Tax Returns or pay such Taxes
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on America Online. For purposes of this Agreement: (i)
"Tax" (and, with correlative meaning, "Taxes") means any federal, state, local
or foreign income, gross receipts, property, sales, use, license, excise,
franchise, employment, payroll, withholding, alternative or add on minimum, ad
valorem, transfer or excise tax, or any other tax, custom, duty, governmental
fee or other like assessment or charge of any kind whatsoever, together with
any interest or penalty, imposed by any governmental authority or any
obligation to pay Taxes imposed on any entity for which a party to this
Agreement is liable as a result of any indemnification provision or other
contractual
 
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