obligation and (ii) "Tax Return" means any return, report or similar statement
required to be filed with respect to any Tax (including any attached
schedules), including, without limitation, any information return, claim for
refund, amended return or declaration of estimated Tax.
Neither America Online nor any of its Subsidiaries has taken any action or
knows of any fact that is reasonably likely to prevent the Mergers from
qualifying as exchanges within the meaning of Section 351 of the Code and as
reorganizations within the meaning of Section 368(a) of the Code.
(n) Certain Contracts. As of the date hereof, except as disclosed in Section
4.1(n) of the America Online Disclosure Schedule, neither America Online nor
any of its Subsidiaries is a party to or bound by (i) any "material contracts"
(as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with
respect to America Online and its Subsidiaries or (ii) any material agreement
that restricts the ability of America Online or Time Warner or any of their
Subsidiaries or affiliates to distribute, promote, market or otherwise offer
Internet and interactive services, Internet and interactive programming, or
Internet and interactive functionality on the cable systems owned by Time
Warner or its Subsidiaries or affiliates (collectively, "America Online
Internet Restrictions"). All contracts described in clause (i) are valid and in
full force and effect except to the extent they have previously expired in
accordance with their terms or if the failure to be in full force and effect,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on America Online. Neither America Online nor any of
its Subsidiaries has violated any provision of, or committed or failed to
perform any act which with or without notice, lapse of time or both would
constitute a default under the provisions of, any contract described in clause
(i), except in each case for those violations and defaults which, individually
or in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect on America Online.
(o) America Online Stockholder Rights Plan. The Board of Directors of
America Online has amended the America Online Rights Agreement in accordance
with its terms to render it inapplicable to the transactions contemplated by
this Agreement and the America Online Stock Option Agreement.
(p) Employee Benefits.
(i) The Benefit Plans, whether oral or written, under which any current or
former employee or director of America Online or its Subsidiaries has any
present or future right to benefits contributed to, sponsored by or maintained
by America Online or its Subsidiaries, or under which America Online or its
Subsidiaries has any present or future liability shall be collectively referred
to as the "America Online Benefit Plans."
(ii) Except as set forth in Section 4.1(p) of the America Online Disclosure
Schedule, with respect to each America Online Benefit Plan, no liability has
been incurred and there exists no condition or circumstances in connection with
which America Online or any of its Subsidiaries could be subject to any
liability that is reasonably likely, individually or in the aggregate, to have
a Material Adverse Effect on America Online, in each case under ERISA (as
defined in Section 9.11(b)), the Code, or any other applicable law, rule or
(iii) America Online and its Subsidiaries are in compliance with all
federal, state, local and foreign requirements regarding employment, except for
any failures to comply that are not reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect on America Online. As of the date
of this Agreement, there is no labor dispute, strike or work stoppage against
America Online or any of its Subsidiaries pending or, to the knowledge of
America Online, threatened which may interfere with the business activities of
America Online or any of its Subsidiaries, except where such dispute, strike or
work stoppage is not reasonably likely, individually or in the aggregate, to
have a Material Adverse Effect on America Online.
4.2 Representations and Warranties of Time Warner. Except as disclosed in
the Time Warner Filed SEC Reports (as defined in Section 4.2(d)(ii)) or as set
forth in the Time Warner Disclosure Schedule delivered