9.10 Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.
9.11 Definitions. As used in this Agreement:
(a) "beneficial ownership" or "beneficially own" shall have the meaning
under Section 13(d) of the Exchange Act and the rules and regulations
(b) "Benefit Plans" means, with respect to any Person, each employee benefit
plan, program, arrangement and contract (including, without limitation, any
"employee benefit plan," as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and any bonus, deferred
compensation, stock bonus, stock purchase, restricted stock, stock option,
employment, termination, stay agreement or bonus, change in control and
severance plan, program, arrangement and contract) in effect on the date of
this Agreement or disclosed on the Time Warner Disclosure Schedule or the
America Online Disclosure Schedule, as the case may be, to which such Person or
its Subsidiary is a party, which is maintained or contributed to by such
Person, or with respect to which such Person could incur material liability
under Sections 4069, 4201 or 4212(c) of ERISA.
(c) "Board of Directors" means the Board of Directors of any specified
Person and any committees thereof.
(d) "Business Day" means any day on which banks are not required or
authorized to close in the City of New York.
(e) "known" or "knowledge" means, with respect to any party, the knowledge
of such party's executive officers after reasonable inquiry.
(f) "Material Adverse Effect" means, with respect to any entity any event,
change, circumstance or effect that is or is reasonably likely to be materially
adverse to (i) the business, financial condition or results of operations of
such entity and its Subsidiaries taken as a whole, other than any event,
change, circumstance or effect relating (x) to the economy or financial markets
in general or (y) in general to the industries in which such entity operates
and not specifically relating to (or having the effect of specifically relating
to or having a materially disproportionate effect (relative to most other
industry participants) on) such entity or (ii) the ability of such entity to
consummate the transactions contemplated by this Agreement.
(g) "the other party" means, with respect to Time Warner, America Online and
means, with respect to America Online, Time Warner.
(h) "Person" means an individual, corporation, limited liability company,
partnership, association, trust, unincorporated organization, other entity or
group (as defined in the Exchange Act).
(i) "Subsidiary" when used with respect to any party means any corporation
or other organization, whether incorporated or unincorporated, at least a
majority of the securities or other interests of which having by their terms
ordinary voting power to elect a majority of the Board of Directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such party or by
any one or more of its Subsidiaries, or by such party and one or more of its
Subsidiaries. For the avoidance of doubt, TWE and TWE-AN Partnership shall each
be considered a Subsidiary of Time Warner.