aolconsent

UNITED STATES OF AMERICA BEFORE FEDERAL TRADE COMMISSION ____________________________________ ) In the matter of ) ) America Online, Inc., ) a corporation, ) ) File No. 001 0105 and ) ) Time Warner Inc., ) a corporation. ) ____________________________________) AGREEMENT CONTAINING CONSENT ORDERS The Federal Trade Commission (“Commission”), having initiated an investigation of the proposed merger of Respondent America Online, Inc. (“AOL”) and Respondent Time Warner Inc. (“Time Warner”), and it now appearing that AOL and Time Warner, sometimes referred to as “Proposed Respondents,” are willing to enter into this Agreement Containing Consent Orders (“Consent Agreement”) to enter into certain agreements and providing for other relief: IT IS HEREBY AGREED by and between Proposed Respondents, by their duly authorized officers and attorneys, and counsel for the Commission that: 1. Proposed Respondent America Online, Inc., is a corporation organized, existing and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business located at 22000 AOL Way, Dulles, Virginia 20166. 2. Proposed Respondent Time Warner Inc. is a corporation organized, existing and doing business under and by virtue of the laws of the State of Delaware, with its office and principal place of business located at 75 Rockefeller Plaza, New York, New York 10019. 3. Proposed Respondents admit all the jurisdictional facts set forth in the draft of Complaint here attached. 4. Proposed Respondents waive: a. any further procedural steps; Page 2 b. the requirement that the Commission's Decision and Order and Order to Hold Separate, attached hereto and made a part hereof, contain a statement of findings of fact and conclusions of law; c. all rights to seek judicial review or otherwise to challenge or contest the validity of the Decision and Order or the Order to Hold Separate entered pursuant to this Consent Agreement; and d. any claim under the Equal Access to Justice Act. 5. Proposed Respondents shall submit an initial report within thirty (30) days after they execute this Consent Agreement and every thirty (30) days thereafter until the Decision and Order becomes final, pursuant to Section 2.33 of the Commission’s Rules, 16 C.F.R. § 2.33, signed and verified by the Proposed Respondents setting forth in detail the manner in which the Proposed Respondents have prepared to comply, are complying, and will comply with the Decision and Order and Order to Hold Separate. Such reports will not become part of the public record unless and until the Consent Agreement, Decision and Order, and Order to Hold Separate are accepted by the Commission for public comment. 6. Because there may be interim competitive harm, the Commission may issue its Complaint and Order to Hold Separate in this matter at any time after it accepts the Consent Agreement for public comment. 7. This Consent Agreement shall not become part of the public record of the proceeding unless and until it is accepted by the Commission. If this Consent Agreement is accepted by the Commission, it, together with the draft of Complaint contemplated hereby, will be placed on the public record for a period of thirty (30) days and information in respect thereto publicly released. The Commission thereafter may either withdraw its acceptance of this Consent Agreement and so notify Proposed Respondents, in which event it will take such action as it may consider appropriate, or issue or amend its Complaint (as the circumstances may require) and issue its Decision and Order, in disposition of the proceeding. 8. This Consent Agreement is for settlement purposes only and does not constitute an admission by Proposed Respondents that the law has been violated as alleged in the draft of Complaint here attached, or that the facts as alleged in the draft Complaint, other than jurisdictional facts, are true. 9. This Consent Agreement contemplates that, if it is accepted by the Commission, the Commission may (1) issue and serve its Complaint corresponding in form and substance with the draft of Complaint here attached, (2) issue and serve its Order to Hold Separate, and (3) make information public with respect thereto. If such acceptance is not Page 3 subsequently withdrawn by the Commission pursuant to the provisions of § 2.34 of the Commission's Rules, 16 C.F.R. § 2.34, the Commission may, without further notice to Proposed Respondents, issue the attached Decision and Order, in disposition of this proceeding. When final, the Decision and Order and the Order to Hold Separate shall have the same force and effect and may be altered, modified or set aside in the same manner and within the same time provided by statute for other orders. The Decision and Order and Order to Hold Separate shall become final upon service. Delivery of the Complaint, Decision and Order, and Order to Hold Separate to Proposed Respondents by any means specified in Commission Rule 4.4(a), 16 C.F.R. § 4.4(a), shall constitute service. The Proposed Respondents waive any right they may have to any other manner of service. The Complaint may be used in construing the terms of the Decision and Order and Order to Hold Separate, and no agreement, understanding, representation, or interpretation not contained in the Consent Agreement, Decision and Order, or Order to Hold Separate may be used to vary or contradict the terms of the Decision and Order or the Order to Hold Separate. 10. By signing this Consent Agreement, Proposed Respondents represent and warrant that they can comply with the provisions of the attached Decision and Order and Order to Hold Separate, and that all subsidiaries, affiliates, and successors necessary to effectuate the full relief contemplated by this Consent Agreement, the Decision and Order, and the Order to Hold Separate are parties to the Consent Agreement. 11. Proposed Respondents have read the proposed Complaint, Decision and Order, and Order to Hold Separate contemplated hereby. Proposed Respondents understand that once the Decision and Order has been issued, they will be required to file one or more compliance reports showing that they have fully complied with the orders. Proposed Respondents agree to comply with the proposed Decision and Order from the date they sign this Consent Agreement. Proposed Respondents understand that they may be liable for civil penalties in the amount provided by law for each violation of the Decision and Order and Order to Hold Separate after they have become final. Page 4 Signed this ____ day of ______, 2000 AMERICA ONLINE, INC. By: ______________________________ Stephen M. Case Chairman and Chief Executive Officer ______________________________ Joe Sims Counsel for America Online, Inc. TIME WARNER INC. ______________________________ Gerald M. Levin Chairman and Chief Executive Officer _____________________________ _ Robert D. Joffe Counsel for Time Warner Inc. _____________________________ _ George Cary Counsel for Time Warner Inc. FEDERAL TRADE COMMISSION By: _____________________________ _ Jill M. Frumin Attorney Mergers III Bureau of Competition Approved: _____________________________ Catharine M. Moscatelli Deputy Assistant Director Mergers III Bureau of Competition ______________________________ Phillip L. Broyles Assistant Director Mergers III Bureau of Competition ______________________________ Michael E. Antalics Deputy Director Bureau of Competition ______________________________ Richard G. Parker Director Bureau of Competition