SEC Filings

S-4/A
TIME WARNER INC. filed this Form S-4/A on 03/24/2000
Entire Document
 
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   (d) If America Online or Time Warner shall terminate this Agreement pursuant
to Section 8.1(d) and the basis for such termination is the failure of Time
Warner's stockholders to adopt this Agreement, then Time Warner shall promptly,
but in no event later than the date of such termination, pay America Online an
amount equal to one percent of the Time Warner Amount, payable by wire transfer
of immediately available funds; provided that no payment shall be made pursuant
to this sentence if the Time Warner Termination Fee has been paid pursuant to
Section 8.2(b). If America Online or Time Warner shall terminate this Agreement
pursuant to Section 8.1(d) and the basis for such termination is the failure of
America Online's stockholders to adopt this Agreement, then America Online
shall promptly, but in no event later than the date of such termination, pay
Time Warner an amount equal to one percent of the America Online Amount,
payable by wire transfer of immediately available funds; provided that no
payment shall be made pursuant to this sentence if the America Online
Termination Fee has been paid pursuant to Section 8.2(c).
 
   (e) The parties acknowledge that the agreements contained in this Section
8.2 are an integral part of the transactions contemplated by this Agreement,
and that, without these agreements, none of the parties would enter into this
Agreement; accordingly, if either America Online or Time Warner fails promptly
to pay any amount due pursuant to this Section 8.2, and, in order to obtain
such payment, the other party commences a suit which results in a judgment
against such party for the fee set forth in this Section 8.2, such party shall
pay to the other party its costs and expenses (including attorneys' fees and
expenses) in connection with such suit, together with interest on the amount of
the fee at the prime rate of Citibank, N.A. in effect on the date such payment
was required to be made notwithstanding the provisions of Section 6.6. The
parties agree that any remedy or amount payable pursuant to this Section 8.2
shall not preclude any other remedy or amount payable hereunder and shall not
be an exclusive remedy for any breach of any representation, warranty, covenant
or agreement contained in this Agreement.
 
   8.3 Amendment. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, at any time
before or after approval of the matters presented in connection with the
Mergers by the stockholders of Time Warner and America Online, but, after any
such approval, no amendment shall be made which by law or in accordance with
the rules of any relevant stock exchange requires further approval by such
stockholders without such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
 
   8.4 Extension; Waiver. At any time prior to the Effective Time, the parties
hereto, by action taken or authorized by their respective Boards of Directors,
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive
any inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto and (iii) waive compliance with any of
the agreements or conditions contained herein. Any agreement on the part of a
party hereto to any such extension or waiver shall be valid only if set forth
in a written instrument signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
 
                                   ARTICLE IX
 
                               GENERAL PROVISIONS
 
   9.1 Non-Survival of Representations, Warranties and Agreements. None of the
representations, warranties, covenants and other agreements in this Agreement
or in any instrument delivered pursuant to this Agreement, including any rights
arising out of any breach of such representations, warranties, covenants,
agreements and other provisions, shall survive the Effective Time, except for
those covenants, agreements and other provisions contained herein (including
Section 6.7, Section 6.2 and Schedule 6.2(a)) that by their terms apply or are
to be performed in whole or in part after the Effective Time and this Article
IX.
 
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