<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
AMENDMENT NO. 1
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998.
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from . . . . . . . . . . . . to . . . . . . . . . . .
Commission file number 0-27890.
MINDSPRING ENTERPRISES, INC.
----------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 58-2113290
- --------------------------------------------- --------------------------
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
1430 West Peachtree Street, Suite 4000, Atlanta, Georgia 30309
--------------------------------------------------------------
(Address of principal executive offices)
(Zip Code)
(404) 815-0770
---------------------------------
(Registrant's telephone number, including area code)
--------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
<PAGE> 2
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
OUTSTANDING AT AUGUST 13, 1998
------------------------------
Common Stock at $.01 par value 25,789,623 Shares
=================
PART II--OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3.1 Amended and Restated Certificate of Incorporation
of MindSpring Enterprises, Inc.
3.2 Certificate of Amendment to Amended and Restated
Certificate of Incorporation of MindSpring
Enterprises, Inc.
27. Financial Data Schedule (for SEC use only).
(b) Report on Form 8-K
On June 25, 1998, the Company filed a Current Report on
Form 8-K to report that, on June 24, 1998, the Company's Board of Directors
had declared a three-for-one stock split to be effected in the form of a
stock dividend.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MINDSPRING ENTERPRISES, INC.
----------------------------
(Registrant)
Date: December 7, 1998 By: /s/ Michael S. McQuary
---------------------------------
Michael S. McQuary,
President and Chief Operating Officer
Date: December 7, 1998 By: /s/ Michael G. Misikoff
---------------------------------
Michael G. Misikoff, Executive Vice
President and Chief Financial Officer
<PAGE> 4
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER EXHIBIT DESCRIPTION SEQUENTIALLY NUMBERED PAGE
- -------------- ------------------- --------------------------
<S> <C> <C>
3.1 Amended and Restated Certificate of Incorporation of MindSpring
Enterprises, Inc.
3.2 Certificate of Amendment to Amended and Restated Certificate of
Incorporation of MindSpring Enterprises, Inc.
27. Financial Data Schedule (for SEC use only).
</TABLE>
<PAGE> 1
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MINDSPRING ENTERPRISES, INC.
MindSpring Enterprises, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The Corporation was originally incorporated on December 21, 1995, and
its original Certificate of Incorporation was filed with the Secretary of the
State of Delaware on the same date.
2. The Board of Directors of the Corporation, at a meeting duly called and
held in accordance with the By-laws of the Corporation and Section 141 of the
General Corporation Law of the State of Delaware (the "Delaware General
Corporation Law"), duly adopted resolutions proposing and declaring advisable
the adoption of the Amended and Restated Certificate of Incorporation of the
Corporation in the form hereof.
3. Holders of at least a majority of the outstanding shares of capital
stock of the Corporation, in accordance with the By-laws of the Corporation and
Section 228 of the Delaware General Corporation Law, duly approved the Amended
and Restated Certificate of Incorporation of the Corporation in the form hereof.
4. Having been duly adopted pursuant to Sections 242 and 245 of the
Delaware General Corporation Law, this Amended and Restated Certificate of
Incorporation restates and integrates and further amends the provisions
previously filed with the Secretary of the State of Delaware on December 21,
1995.
5. The text of the Certificate of Incorporation of the Corporation hereby
is amended and restated to read in its entirety as follows:
ARTICLE 1. NAME
The name of this corporation is MINDSPRING ENTERPRISES, INC.
ARTICLE 2. REGISTERED OFFICE AND AGENT
The registered office of the Corporation shall be located at 1013 Centre
Road, Wilmington, Delaware 19805 in the County of New Castle. The registered
agent of the Corporation at such address shall be Corporation Service Company.
<PAGE> 2
ARTICLE 3. PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General Corporation
Law. The Corporation shall have all power necessary or convenient to the
conduct, promotion or attainment of such acts and activities.
ARTICLE 4. CAPITAL STOCK
4.1. AUTHORIZED SHARES
The total number of shares of capital stock that the Corporation shall be
authorized to issue is 21,000,000 divided into three classes as follows: (i)
15,000,000 shares of common stock having a par value of $.01 per share ("Common
Stock"); (ii) 5,000,000 shares of Class C preferred stock having a par value of
$.01 per share ("Class C Preferred Stock"); and (iii) One Million (1,000,000)
shares of serial preferred stock in series having a par value of $.01 per share
(the "Preferred Stock").
4.2. COMMON STOCK
4.2.1. RELATIVE RIGHTS
The Common Stock shall be subject to all of the rights, privileges,
preferences and priorities of the Preferred Stock and Class C Preferred Stock as
set forth herein and in the certificate of designations filed to establish the
respective series of Preferred Stock. Each share of Common Stock shall have the
same relative rights as and be identical in all respects to all the other shares
of Common Stock.
4.2.2. DIVIDENDS
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Common Stock as to the payment of dividends, the full amount of dividends
and of sinking fund or retirement payments, if any, to which such holders are
respectively entitled in preference to the Common Stock, then dividends may be
paid on the Common Stock and on any class or series of stock entitled to
participate therewith as to dividends, out of any assets legally available for
the payment of dividends thereon, but only when and as declared by the Board of
Directors of the Corporation.
4.2.3. DISSOLUTION, LIQUIDATION, WINDING UP
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock,
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<PAGE> 3
and holders of any class or series of stock entitled to participate therewith,
in whole or in part, as to the distribution of assets in such event, shall
become entitled to participate in the distribution of any assets of the
Corporation remaining after the Corporation shall have paid, or provided for
payment of, all debts and liabilities of the Corporation and after the
Corporation shall have paid, or set aside for payment, to the holders of any
class of stock having preference over the Common Stock in the event of
dissolution, liquidation or winding up the full preferential amounts (if any) to
which they are entitled.
4.2.4. VOTING RIGHTS
Each holder of shares of Common Stock shall be entitled to attend
all special and annual meetings of the stockholders of the Corporation and,
share for share and without regard to class, together with the holders of all
other classes of stock entitled to attend such meetings and to vote (except any
class or series of stock having special voting rights), to cast one vote for
each outstanding share of Common Stock so held upon any matter or thing
(including, without limitation, the election of one or more directors) properly
considered and acted upon by the stockholders.
4.3. CLASS C PREFERRED STOCK
The Class C Preferred Stock shall rank, both as to dividends and upon
liquidation, senior and prior to the Corporation's Common Stock and to all other
classes or series of stock issued by the Corporation. The rights, preferences,
privileges, and restrictions granted to and imposed upon the Class C Preferred
Stock are as follows:
4.3.1. RIGHTS ON LIQUIDATION
In the event of any dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of shares of Class C
Preferred Stock shall be entitled to receive out of the assets of the
Corporation legally available for distribution to stockholders (whether
representing capital or surplus), before any payment or distribution shall be
made on the Common Stock or any other class of stock of the Corporation ranking
junior to the Class C Preferred Stock as to liquidation preference, cash in the
amount of $6.38 per share (the "Class C Preferred Liquidation Distribution").
After the Class C Preferred Liquidation Distribution has been made and after the
holders of shares of any other class or series of stock having preference over
the Common Stock in the event of dissolution, liquidation or winding up have
received the full preferential amounts to which they are entitled, the holders
of shares of Common Stock and any other class or series of stock entitled to
participate with the Common Stock in the event of dissolution, liquidation or
winding up shall be entitled to receive out of the assets of the Corporation
legally available for distribution to stockholders (whether representing
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<PAGE> 4
capital or surplus) cash in an aggregate amount equal to the amount of the Class
C Preferred Liquidation Distribution. Thereafter, the holders of shares of Class
C Preferred Stock shall participate equally with the holders of shares of Common
Stock and any other class or series of stock of the Corporation in the
distribution of any remaining assets of the Corporation. If the assets
distributable upon such dissolution, liquidation or winding up (as provided
above) shall be insufficient to pay cash in an amount equal to the amount of the
Class C Preferred Liquidation Distribution to the holders of shares of Class C
Preferred Stock, then such assets or the proceeds thereof shall be distributed
among the holders of the Class C Preferred Stock ratably in proportion to the
respective amounts of the Class C Preferred Liquidation Distribution to which
they otherwise would be entitled. Neither a consolidation nor a merger of the
Corporation with or into any other corporation or corporations, nor the sale of
transfer of all or any part of the assets of the Corporation, shall be deemed to
be a dissolution, liquidation or winding up within the meaning of this
paragraph.
4.3.2. VOTING RIGHTS
Except as otherwise required by law, the holders of shares of Class
C Preferred Stock shall be entitled to attend all special and annual meetings of
the stockholders of the Corporation and, share for share and without regard to
class, together with the holders of all other classes of stock entitled to
attend such meetings and to vote (except any class or series of stock having
special voting rights), to cast one vote for each share registered in the name
of each such holder upon any matter or thing (including, without limitation, the
election of one or more directors) properly considered and acted upon by the
stockholders.
4.3.3. CONVERSION
The shares of Class C Preferred Stock shall automatically be
converted into fully paid and nonassessable shares of Common Stock of the
Corporation at the rate of one share of Common Stock for each share of Class C
Preferred Stock (as adjusted for any stock split or reclassification) on the
earliest of the following (the "Class C Conversion Date"): (a) if the Securities
and Exchange Commission issues in calendar year 1996 an order of effectiveness
(or evidence thereof satisfactory to the Corporation) as to any registration
statement for the sale of shares of Common Stock of the Corporation under the
Securities Act of 1933, as amended (or any successor law), other than an order
relating to an offering made primarily or exclusively to employees) (an
"Effectiveness Order"), the 190th day after the day of such issuance; (b) the
date of issuance after December 31, 1996 of an Effectiveness Order; or (c)
December 19, 2000. The Corporation shall give notice of such conversion, in such
form as may be approved by the Board of Directors of the Corporation, by
first-class mail, postage prepaid, to each holder of record of shares of Class C
Preferred Stock at the holder's address as recorded in the stock records of the
Corporation, within 90 days before or after the Class C Conversion Date
-4-
<PAGE> 5
(although the failure to give such notice shall not affect the validity or
effectiveness of such conversion). On and after the Class C Conversion Date,
each holder of shares of Class C Preferred Stock shall be entitled to receive a
certificate for the appropriate number of shares of Common Stock and shall
thereafter have the same relative rights as each other holder of shares of
Common Stock. All shares of Class C Preferred Stock outstanding on the Class C
Conversion Date shall, whether or not the certificates for such shares shall
have been surrendered for cancellation, be deemed to be no longer outstanding
for any purpose and all rights with respect to such shares (except the right of
the holders of the certificates for such shares to receive certificates for
shares of Common Stock) shall thereupon cease and terminate.
The issuance of any certificates for Common Stock on conversion of
any share or shares of Class C Preferred Stock shall be made without charge to
the holder of the shares of Class C Preferred Stock so converted or any tax in
respect to the issuance of such certificates. The Corporation covenants that (i)
all shares of Common Stock which may be issued upon conversion of the shares of
Class C Preferred Stock will upon issuance be fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issuance thereof;
(ii) the Corporation will not close its books against the transfer of shares of
Class C Preferred Stock or of Common Stock issued or issuable upon conversion of
the shares of Class C Preferred Stock in any manner which would interfere with
the timely conversion of the shares of the Class C Preferred Stock; and (iii)
the Corporation will at all times reserve and keep available out of its
authorized Common Stock, solely for the purpose of effecting the conversion of
shares of the Class C Preferred Stock, the full number of shares of Common Stock
which would be deliverable upon the conversion of all outstanding shares of the
Class C Preferred Stock. Shares of Class C Preferred Stock converted pursuant to
this paragraph shall be canceled and retired and shall not be reissued.
4.4. PREFERRED STOCK
The Board of Directors is authorized, subject to limitations prescribed by
the Delaware General Corporation Law and the provisions of this Amended and
Restated Certificate of Incorporation to provide, by resolution or resolutions
from time to time and filing a certificate pursuant to the applicable provision
of the Delaware General Corporation Law, for the issuance of the shares of
Preferred Stock in series, to establish from time to time the number of shares
to be included in each such series, to fix the powers, designation, preferences,
relative, participating, optional or other special rights of the shares of each
such series and the qualifications, limitations and restrictions thereof.
-5-
<PAGE> 6
ARTICLE 5. BOARD OF DIRECTORS
5.1. INITIAL DIRECTORS; NUMBER; ELECTION
The following persons, having the following mailing addresses and class
designations, shall serve as the initial board of directors of the Corporation:
<TABLE>
<CAPTION>
NAME CLASS MAILING ADDRESS
<S> <C> <C>
Charles M. Brewer III 1430 West Peachtree,
Suite 400
Atlanta, Georgia 30309
Campbell B. Lanier, III III 910 First Avenue
West Point, Georgia 31833
Michael S. McQuary II 1430 West Peachtree
Suite 400
Atlanta, Georgia 30309
William H. Scott, III II 910 First Avenue
West Point, Georgia 31833
O. Gene Gabbard I 910 First Avenue
West Point, Georgia 31833
Michael G. Misikoff I 1430 West Peachtree,
Suite 400
Atlanta, Georgia 30309
</TABLE>
The number of directors of the Corporation shall be such number as from
time to time shall be fixed by, or in the manner provided in, the bylaws of the
Corporation. Unless and except to the extent that the bylaws of the Corporation
shall otherwise require, the election of directors of the Corporation need not
be by written ballot. Except as otherwise provided in this Amended and Restated
Certificate of Incorporation, each director of the Corporation shall be entitled
to one vote per director on all matters voted or acted upon by the Board of
Directors.
The Board of Directors shall be divided into three classes (designated as
Class I, Class II, and Class III), as nearly equal in number as possible. The
initial term of Class I directors shall expire at the annual meeting of
stockholders in 1996, that of Class II shall expire at the annual meeting in
1997, and that of Class III directors shall expire at the annual meeting in
1998, and in all cases as to each director until his or her successor shall be
elected and shall qualify, or until his or her earlier resignation, removal from
office, death or incapacity.
-6-
<PAGE> 7
Subject to the foregoing, at each annual meeting of stockholders the
successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding annual
meeting and until their successors shall be elected and qualified. Except as set
forth below with respect to vacancies and newly created directorships, directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors.
If the number of directors is changed by resolution of the Board of
Directors pursuant to this Article 5, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in each
class as nearly equal as possible, but in no case shall a decrease in the number
of directors shorten the term of an incumbent director.
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors elected by all of the stockholders having the
right to vote as a single class may be filled by a majority of the directors
then in office, although fewer than a quorum, or by a sole remaining director.
Whenever the holders of any class or classes of stock or series thereof are
entitled to elect one or more directors by the provisions of this Amended and
Restated Certificate of Incorporation, vacancies and newly created directorships
of such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof in office, or by a sole
remaining director so elected. Each director so chosen shall hold office until
the next election of directors, and until such director's successor is elected
and qualified, or until the director's earlier death, resignation or removal. In
the event that one or more directors resigns from the board, effective at a
future date, a majority of the directors then in office, including those who
have so resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office until the next election
of directors, and until such director's successor is elected and qualified, or
until the director's earlier death, resignation or removal.
5.2. MANAGEMENT OF BUSINESS AND AFFAIRS OF THE CORPORATION
The business and affairs of the Corporation shall be managed by or under
the directors of the Board of Directors.
5.3. LIMITATION OF LIABILITY
No director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that this provision shall not eliminate or limit the liability of a
director (a) for any breach of the director's duty of loyalty to the Corporation
or its stockholders;
-7-
<PAGE> 8
(b) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (c) under Section 174 of the Delaware
General Corporation Law; or (d) for any transaction from which the director
derived an improper personal benefit. Any repeal or modification of this Article
5.3. shall be prospective only and shall not adversely affect any right or
protection of, or any limitation of the liability of, a director of the
Corporation existing at, or arising out of facts or incidents occurring prior
to, the effective date of such repeal or modification.
ARTICLE 6. INDEMNIFICATION
Each person who was or is a party or is threatened to be made a party to
or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
by or in the right of the Corporation or otherwise (a "proceeding"), by reason
of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee,
partner (limited or general) or agent of another corporation or of a
partnership, joint venture, limited liability company, trust or other
enterprise, including service with respect to an employee benefit plan, shall be
(and shall be deemed to have a contractual right to be) indemnified and held
harmless by the Corporation (and any successor to the Corporation by merger or
otherwise) to the fullest extent authorized by, and subject to the conditions
and (except as provided in the Corporation's Bylaws) procedures set forth in the
Delaware General Corporation Law, as the same exists or may hereinafter be
amended (but such amendment shall not be deemed to limit or prohibit the rights
of indemnification hereunder for past acts or omissions of any such person
insofar as such amendment limits or prohibits the indemnification rights that
said law permitted the corporation to provide prior to such amendment) against
all expenses, liabilities and losses (including attorney's fees, judgments,
fines, ERISA taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith.
ARTICLE 7. COMPROMISE OR ARRANGEMENTS
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or any creditor or stockholder thereof, or on the application of any
receiver or receivers appointed for the Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of
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<PAGE> 9
creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of the Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all of the creditors or class of creditors, and/or
on all the stockholders or class of stockholders, of the Corporation, as the
case may be, and also on the Corporation.
ARTICLE 8. AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right, at any time and from time to time, to
amend, alter, change, or repeal any provision contained in this Amended and
Restated Certificate of Incorporation, and other provisions authorized by the
laws for the State of Delaware at the time in force may be added or inserted, in
the manner now or hereafter prescribed by law, except that Sections 5.1
(Election of Directors), 5.3 (Limitation of Liability), and 6. (Indemnification)
and this Article 8 may not be altered, amended or repealed except by the
affirmative vote of at least two-thirds of the shares entitled to vote thereon
and the affirmative vote of a majority of the members of the entire Board of
Directors; and all rights, preferences, and privileges of any nature conferred
upon stockholders, directors, or any other persons whomsoever by and pursuant to
this Amended and Restated Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in this Article 8.
ARTICLE 9. AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by the
Delaware General Corporation Law, the Board of Directors of the Corporation is
expressly authorized and empowered to adopt, amend and repeal the bylaws of the
Corporation.
-9-
<PAGE> 10
IN WITNESS WHEREOF, MindSpring Enterprises, Inc. has caused this Amended
and Restated Certificate of Incorporation to be signed and attested by its duly
authorized officers, this 14th day of March, 1996.
MindSpring Enterprises, Inc.
By: /s/ CHARLES M. BREWER
--------------------------------
Name: Charles M. Brewer
------------------------------
Title: President & CEO
-----------------------------
ATTEST:
/s/ MICHAEL MISIKOFF
- ------------------------------
Name: Michael Misikoff
-------------------------
Title: CFO, Sec.
------------------------
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<PAGE> 1
EXHIBIT 3.2
CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MINDSPRING ENTERPRISES, INC.
MindSpring Enterprises, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The Corporation was originally incorporated on December 21, 1995, and
its original Certificate of Incorporation was filed with the Secretary of State
of the State of Delaware on the same date. The original Certificate of
Incorporation was duly amended by the Board of Directors of the Corporation and
a majority of the stockholders of the Corporation, and an amended and restated
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on March 14, 1996 (as so amended and restated, the "Certificate of
Incorporation").
2. The Board of Directors of the Corporation, at a meeting duly called
and held in accordance with the By-laws of the Corporation and Section 141 of
the General Corporation Law of the State of Delaware (the "Delaware General
Corporation Law"), duly adopted resolutions proposing and declaring advisable
the adoption of an amendment to the Certificate of Incorporation as set forth
herein (the "Amendment").
3. Holders of at least a majority of the outstanding shares of capital
stock of the Corporation, in accordance with the By-laws of the Corporation and
Section 242 of the Delaware General Corporation Law, duly approved the
Amendment.
4. Having been duly authorized pursuant to Section 242 of the Delaware
General Corporation Law, this Certificate of Amendment amends Article 4 of the
Certificate of Incorporation to read in its entirety as follows:
ARTICLE 4. CAPITAL STOCK
4.1. AUTHORIZED SHARES
The total number of shares of capital stock that the Corporation shall be
authorized to issue is 61,000,000 divided into two classes as follows: (i) Sixty
million (60,000,000) shares of common stock having a par value of $.01 per share
("Common
<PAGE> 2
Stock"), and (ii) One Million (1,000,000) shares of serial preferred stock in
series having a par value of $.01 per share (the "Preferred Stock").
4.2. COMMON STOCK
4.2.1. RELATIVE RIGHTS
The Common Stock shall be subject to all of the rights, privileges,
preferences and priorities of the Preferred Stock as set forth herein and in the
certificate of designations filed to establish the respective series of
Preferred Stock. Each share of Common Stock shall have the same relative rights
as and be identical in all respects to all the other shares of Common Stock.
4.2.2. DIVIDENDS
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of shares of any class of stock having preference over
the Common Stock as to the payment of dividends, the full amount of dividends
and of sinking fund or retirement payments, if any, to which such holders are
respectively entitled in preference to the Common Stock, then dividends may be
paid on the Common Stock and on any class or series of stock entitled to
participate therewith as to dividends, out of any assets legally available for
the payment of dividends thereon, but only when and as declared by the Board of
Directors of the Corporation.
4.2.3. DISSOLUTION, LIQUIDATION, WINDING UP
In the event of any dissolution, liquidation, or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock,
and holders of any class or series of stock entitled to participate therewith,
in whole or in part, as to the distribution of assets in such event, shall
become entitled to participate in the distribution of any assets of the
Corporation remaining after the Corporation shall have paid, or provided for
payment of, all debts and liabilities of the Corporation and after the
Corporation shall have paid, or set aside for payment, to the holders of any
class of stock having preference over the Common Stock in the event of
dissolution, liquidation or winding up the full preferential amounts (if any) to
which they are entitled.
4.2.4. VOTING RIGHTS
Each holder of shares of Common Stock shall be entitled to attend
all special and annual meetings of the stockholders of the Corporation and,
share for share and without regard to class, together with the holders of all
other classes of stock entitled to attend such meetings and to vote (except any
class or series of stock having special voting rights), to cast one vote for
each outstanding share of
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<PAGE> 3
Common Stock so held upon any matter or thing (including, without limitation,
the election of one or more directors) properly considered and acted upon by the
stockholders.
4.3. PREFERRED STOCK
The Board of Directors is authorized, subject to limitations prescribed by
the Delaware General Corporation Law and the provisions of this Amended and
Restated Certificate of Incorporation to provide, by resolution or resolutions
from time to time and filing a certificate pursuant to the applicable provision
of the Delaware General Corporation Law, for the issuance of the shares of
Preferred Stock in series, to establish from time to time the number of shares
to be included in each such series, to fix the powers, designation, preferences,
relative, participating, optional or other special rights of the shares of each
such series and the qualifications, limitations and restrictions thereof.
IN WITNESS WHEREOF, MindSpring Enterprises, Inc. has caused this
Certificate of Amendment to Amended and Restated Certificate of Incorporation to
be signed by its duly authorized officer, this 24th day of June, 1998.
MindSpring Enterprises, Inc.
By: /s/ Michael G. Misikoff
-----------------------------------
Name: Michael G. Misikoff
---------------------------------
Title: CFO, Secretary, Treasurer
--------------------------------
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