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EXHIBIT 3.2
Adopted as of July 31, 2000
BY-LAWS
OF
AMERICA ONLINE LATIN AMERICA, INC.
ARTICLE I
OFFICES
SECTION 1.1 Delaware Office. The office of America Online Latin America,
Inc. (the "Corporation") within the State of Delaware shall be in the City of
Dover, County of Kent.
SECTION 1.2 Other Offices. The Corporation may also have an office or
offices and keep the books and records of the Corporation, except as otherwise
may be required by law, in such other place or places, either within or without
the State of Delaware, as the Board of Directors of the Corporation (the
"Board") may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1 Place of Meetings. All meetings of holders of shares of
capital stock of the Corporation shall be held at the office of the Corporation
in the State of Delaware or at such other place, within or without the State of
Delaware, as may from time to time be fixed by the Board or specified or fixed
in the respective notices or waivers of notice thereof.
SECTION 2.2 Annual Meetings. An annual meeting of stockholders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before the meeting (an "Annual Meeting") shall be
held at such place, on such date, and at such time as the Board shall each year
fix, which date shall be within thirteen (13) months of the last annual meeting
of stockholders or, if no such meeting has been held, the date of incorporation.
SECTION 2.3 Special Meetings. Except as required by law and subject to
the rights of holders of any series of Preferred Stock (as defined below),
special meetings of stockholders may be called at any time only by either Co-
Chairman of the Board, a member of the Special Committee (as defined below) or
by the Board pursuant to a resolution approved by a majority of the directors
then in office. Any such call must specify the matter or matters to be acted
upon at such meeting and only such matter or matters shall be acted upon
thereat.
SECTION 2.4 Notice of Meetings. Except as otherwise may be required by
law, notice of each meeting of stockholders, whether an Annual Meeting or a
special meeting, shall state the purpose or purposes of the meeting, the place,
if any, date and hour of the meeting and, unless it is an Annual Meeting, shall
indicate that the notice is being issued by or at the direction of the person or
persons calling the meeting, and a copy thereof shall be delivered or sent by
mail, not less than ten (10) or more than sixty (60) days before the date of
said meeting, to each stockholder entitled to vote at such meeting. If mailed,
such notice shall be directed to such stockholder at such stockholder's address
as it appears on the stock records of the Corporation, unless the stockholder
shall have filed with the Secretary of the
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Corporation a written request that notices to such stockholder be mailed to some
other address, in which case it shall be directed to such stockholder at such
other address. Notice of an adjourned meeting need not be given if the time and
place, if any, to which the meeting is to be adjourned was announced at the
meeting at which the adjournment was taken, unless (i) the adjournment is for
more than thirty (30) days, or (ii) the Board shall fix a new record date for
such adjourned meeting after the adjournment.
SECTION 2.5 Quorum. At each meeting of stockholders of the Corporation,
the holders of shares having a majority of the voting power of the capital stock
of the Corporation issued and outstanding and entitled to vote thereat shall be
present or represented by proxy to constitute a quorum for the transaction of
business, except as otherwise provided by law. Where a separate vote by a class
or classes or series is required, a majority of the shares of such class or
classes or series in person or represented by proxy shall constitute a quorum
entitled to take action with respect to that vote on that matter.
SECTION 2.6 Adjournments. In the absence of a quorum at any meeting of
stockholders or any adjournment or adjournments thereof, either Co-Chairman of
the Board or holders of shares having a majority of the voting power of the
capital stock present or represented by proxy at the meeting may adjourn the
meeting from time to time until a quorum shall be present or represented by
proxy. At any such adjourned meeting at which a quorum shall be present or
represented by proxy, any business may be transacted which might have been
transacted at the meeting as originally called if a quorum had been present or
represented by proxy thereat.
SECTION 2.7 Order of Business.
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(a)(i) Nominations of persons for election to the Board as Class A
Directors and the proposal of other business to be transacted by the
stockholders may be made at an annual meeting of stockholders (A) pursuant
to the Corporation's notice with respect to such meeting, (B) by or at the
direction of the Board or (C) by any stockholder of record of the
Corporation who was a stockholder of record at the time of the giving of
the notice provided for in the following paragraph, who is entitled to vote
at the meeting and who has complied with the notice procedures set forth in
this section.
(ii) For nominations of Class A Directors or other business to
be properly brought before an annual meeting by a stockholder pursuant to
clause (C) of the foregoing paragraph (b)(i), (1) the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation,
(2) such business must be a proper matter for stockholder action under the
General Corporation Law of the State of Delaware (the "GCL"), (3) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation
Notice, as that term is defined in subclause (c)(iii) of this paragraph,
such stockholder or beneficial owner must, in the case of a proposal, have
delivered a proxy statement and form of proxy to holders of at least the
percentage of the Corporation's voting shares required under applicable law
to carry any such proposal, or, in the case of a nomination or nominations,
have delivered a proxy statement and form of proxy to holders of a
percentage of the Corporation's voting shares reasonably believed by such
stockholder or beneficial holder to be sufficient to elect the nominee or
nominees proposed to be nominated by such stockholder, and must, in either
case, have included in such materials the Solicitation Notice and (4) if no
Solicitation Notice relating thereto has been timely provided pursuant to
this section, the stockholder or beneficial owner proposing such business
or nomination must not have solicited a number of proxies sufficient to
have required the delivery of such a Solicitation
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Notice under this section. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Corporation not less than 45 or more than 75 days prior to the first
anniversary (the "Anniversary") of the date on which the Corporation first
mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if no such materials were mailed, or
if the date of the annual meeting is advanced more than 30 days prior to or
delayed by more than 30 days after the anniversary of the preceding year's
annual meeting, notice by the stockholder to be timely must be so delivered
not later than the close of business on the later of (i) the 90th day prior
to such annual meeting or (ii) the 10th day following the day on which
Public Announcement (as defined below) of the date of such meeting is first
made. Such stockholder's notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a
director all information relating to such person as would be required to be
disclosed in solicitations of proxies for the election of such nominees as
directors pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and such person's written consent to
serve as a director if elected; (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of
such business, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; (c) as to
the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the name and address of
such stockholder, as they appear on the Corporation's books, and of such
beneficial owner, (ii) the class and number of shares of the Corporation
that are owned beneficially and of record by such stockholder and such
beneficial owner, and (iii) whether either such stockholder or beneficial
owner intends to deliver a proxy statement and form of proxy to holders of,
in the case of a proposal, at least the percentage of the Corporation's
voting shares required under applicable law to carry the proposal or, in
the case of a nomination or nominations, a sufficient number of holders of
the Corporation's voting shares to elect such nominee or nominees (an
affirmative statement of such intent, a "Solicitation Notice").
(iii) Notwithstanding anything in the second sentence of
paragraph (b)(ii) of this Section 2.7 to the contrary, if the number of
Class A Directors to be elected to the Board is increased and there is no
Public Announcement naming all of the nominees for director or specifying
the size of the increased Board made by the Corporation at least 55 days
prior to the Anniversary, a stockholder's notice required by this By-law
shall also be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later
than the close of business on the 10th day following the day on which such
Public Announcement is first made by the Corporation.
(iv) Only persons nominated in accordance with the procedures set
forth in this Section 2.7 and in Article FIFTH, Clause (d) of the
Certificate of Incorporation (as defined below) shall be eligible to serve
as Class A Directors and only such business shall be conducted at an annual
meeting of stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this section. The co-chairs of
the meeting shall have the power and the duty to determine whether a
nomination or any business proposed to be brought before the meeting has
been made in accordance with the procedures set forth in these By-laws and,
if any proposed nomination or business is not in compliance with these
By-laws, to declare that such defective proposed business or nomination
shall not be presented for stockholder action at the meeting and shall be
disregarded.
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(v) Only such business shall be conducted at a special meeting
of stockholders as shall have been brought before the meeting pursuant to
the Corporation's notice of meeting. Nominations of persons for election to
the Board as Class A Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board or
(b) by any stockholder of record of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this paragraph, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 2.7. Nominations by stockholders of
persons for election to the Board as Class A Directors may be made at such
a special meeting of stockholders if the stockholder's notice required by
the paragraph (b)(ii) of this Section 2.7 shall be delivered to the
Secretary at the principal executive offices of the Corporation not later
than the close of business on the later of the 90th day prior to such
special meeting or the 10th day following the day on which Public
Announcement is first made of the date of the special meeting and of the
nominees proposed by the Board to be elected at such meeting.
(vi) For purposes of this section, "Public Announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 2.7, a stockholder
shall also comply with all applicable requirements of the Exchange Act and
the rules and regulations thereunder with respect to matters set forth in
this Section 2.7. Nothing in this Section 2.7 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
SECTION 2.8 Proxies and Voting. At each meeting of stockholders, all
matters (except as otherwise provided in Section 3.3 of these By-laws and except
in cases where a larger vote is required by law or by the Certificate of
Incorporation or these By-laws) shall be decided by a majority of the votes cast
affirmatively or negatively at such meeting by the holders of shares of capital
stock present or represented by proxy and entitled to vote thereon, a quorum
being present. At any meeting of the stockholders, every stockholder entitled to
vote may vote in person or by proxy authorized by an instrument in writing or by
a transmission permitted by law filed in accordance with the procedure
established for the meeting. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to this
Section 2.8 may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
SECTION 2.9 Inspectors. For each election of directors by the
stockholders and in any other case in which it shall be advisable, in the
opinion of the Board, that the voting upon any matter shall be conducted by
inspectors of election, the Board shall appoint an inspector or inspectors of
election. If, for any such election of directors or the voting upon any such
other matter, any inspector appointed by the Board shall be unwilling or unable
to serve, or if the Board shall fail to appoint inspectors, the chairman of the
meeting shall appoint the necessary inspector or inspectors. The inspector(s) so
appointed, before entering upon the discharge of their duties, shall be sworn
faithfully to execute the duties of inspectors with strict impartiality, and
according to the best of their ability, and the oath so taken shall be
subscribed by them. Such inspectors shall determine the number of shares of
capital stock of the Corporation outstanding and the voting power of each of the
shares represented at the meeting, the existence of a quorum, and the validity
and effect of proxies, and shall receive votes, ballots or consents,
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hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote.
SECTION 2.10 Consent of Stockholders in Lieu of Meeting. Any action
required to be taken at any Annual Meeting or special meeting of stockholders of
the Corporation, or any class thereof, or any action which may be taken at any
Annual Meeting or special meeting of the stockholders, or any class thereof, may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock, or class thereof, having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be made by hand or by certified or registered mail,
return receipt requested. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within
sixty (60) days of the date the earliest dated consent is delivered to the
Corporation, a written consent or consents signed by a sufficient number of
holders to take action are delivered to the Corporation in the manner prescribed
in this Section 2.10. A telegram, cablegram or other electronic transmission
consenting to an action to be taken and transmitted by a stockholder or
proxyholder, or by a person or persons authorized to act for a stockholder or
proxyholder, shall be deemed to be written, signed and dated for purposes of
this section and Section 7.4 hereof to the extent permitted by law.
ARTICLE III
DIRECTORS
SECTION 3.1 Powers.
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(a) Subject to the provisions of Clause (d) of Article FIFTH of the
Certificate of Incorporation and Section 4.1 hereof, the business of the
Corporation shall be managed under the direction of the Board. The Board
may, subject to the approval procedures of Articles FOURTH and FIFTH of the
Certificate of Incorporation and Sections 3.1(b) and 4.1 hereof, except as
otherwise required by law, exercise all such powers and do all such acts
and things as may be exercised or done by the Corporation.
(b) Subject to the provisions of Clause (d) of Article FIFTH of the
Certificate of Incorporation and Section 4.1 hereof, the Corporation shall
not, and shall not permit any Subsidiary or Affiliate (each as defined
below in Section 9.6) to, and no officer, employee or agent of the
Corporation or any Subsidiary shall, take any of the actions specified in
Schedule 3.1(b), without the prior approval of the Board and/or
stockholders of the Corporation, as applicable.
SECTION 3.2 Number; Terms and Vacancies. The Corporation shall have the
number of directors as is set forth in the Certificate of Incorporation. Each
director shall hold office for the term set forth in the Certificate of
Incorporation. Any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause shall be filled in the manner provided
in the Certificate of Incorporation.
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SECTION 3.3 Nominations; Election.
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(a) Nominations for the election of Class A Directors may be made by
the Special Committee of the Board established pursuant to Clause (d) of
Article Fifth of the Certificate of Incorporation, or by any stockholder
entitled to vote generally in the election of directors who complies with
the procedures set forth in Section 2.7. Nominations for the election of
Class B Directors shall be made only by holders of a majority of the Class
B Common Stock and/or the Series B Preferred Stock (as the case may be)
then outstanding. Nominations for the election of Class C Directors shall
be made only by holders of a majority of the Class C Common Stock and/or
the Series C Preferred Stock (as the case may be) then outstanding.
Directors shall be at least 21 years of age. Directors need not be
stockholders. At each meeting of stockholders for the election of directors
at which a quorum is present, the persons receiving a plurality of the
votes cast by the stockholders entitled to vote for such directors shall be
elected directors.
(b) All nominations for Class B Directors or Class C Directors
shall be made pursuant to written notice submitted to the Corporation on or
prior to the date on which any vote for the election thereof is to be taken
and signed by the holders of a majority of the Class B Common Stock and/or
Series B Preferred Stock then outstanding or the Class C Common Stock
and/or Series C Preferred Stock then outstanding, as applicable.
(c) At the request of the Board, any person nominated by the Board
for election as a director shall furnish to the Secretary of the
Corporation the information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee.
SECTION 3.4 Place of Meetings. Meetings of the Board shall be held at the
Corporation's office in the State of Delaware or at such other places, within or
without such State, as the Board may from time to time determine or as shall be
specified or fixed in the notice or waiver of notice of any such meeting.
SECTION 3.5 Regular Meetings. Regular meetings of the Board shall be held
in accordance with a yearly meeting schedule as determined by the Board; or such
meetings may be held on such other days and at such other times as the Board may
from time to time determine. Regular meetings of the Board shall be held not
less frequently than quarterly.
SECTION 3.6 Special Meetings. Special meetings of the Board may be called
by a majority of the directors then in office or by either Co-Chairman of Board
or any member of the Special Committee and shall be held at such place, on such
date, and at such time as they, he or she shall fix.
SECTION 3.7 Notice of Meetings. Notice of each special meeting of the
Board stating the time, place and purposes thereof, shall be (i) sent by
overnight delivery through an internationally recognized courier service to each
director not less than five (5) days prior to the meeting, addressed to such
director at his or her residence or usual place of business, or (ii) shall be
sent to him or her by facsimile, telex, cable or telegram so addressed, or shall
be given personally or by telephone, on twenty four (24) hours' notice.
SECTION 3.8 Quorum and Manner of Acting. Subject to Clause (a) of Article
FIFTH of the Certificate of Incorporation, the presence of at least a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business at any meeting of
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the Board. If a quorum shall not be present at any meeting of the Board, a
majority of the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. Except where a different vote is required or permitted by law,
the Certificate of Incorporation or these By-laws or otherwise, the act of a
majority of the directors present at any meeting at which a quorum shall be
present shall be the act of the Board. Any action required or permitted to be
taken by the Board may be taken without a meeting if all the directors consent
in writing to the adoption of a resolution authorizing the action. The
resolution and the written consents thereto by the directors shall be filed with
the minutes of the proceedings of the Board. Any one or more directors may
participate in any meeting of the Board by means of a conference telephone or
similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time. Participation by such means shall
be deemed to constitute presence in person at a meeting of the Board.
SECTION 3.9 Resignation. Any director may resign at any time by giving
notice in writing or by electronic transmission to the Corporation; provided,
however, that notice in writing or by electronic transmission to the Board,
either Co-Chairman of the Board, the Chief Executive Officer of the Corporation
or the Secretary of the Corporation shall be deemed to constitute notice to the
Corporation. Such resignation shall take effect upon receipt of such notice or
at any later time specified therein and, unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it effective.
SECTION 3.10 Removal of Directors. Subject to the rights of holders of
Preferred Stock to elect directors under circumstances specified in a resolution
of the Board, adopted pursuant to the provisions of the Certificate of
Incorporation or these By-laws establishing such series, any Director may be
removed from office in the manner set forth in the Certificate of Incorporation.
SECTION 3.11 Compensation of Directors. The Board may provide for the
payment to any of the directors, other than officers or employees of the
Corporation, of a specified amount for services as director or member of a
committee of the Board, or of a specified amount for attendance at each regular
or special Board meeting or committee meeting, or of both, and all directors
shall be reimbursed for expenses of attendance at any such meeting; provided,
however, that nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.1 Appointment and Powers of Special Committee. In accordance
with Section 141(a) of the GCL, there is established a Special Committee (the
"Special Committee") in the manner and with the powers set forth in Clause (d)
of Article FIFTH of the Certificate of Incorporation. The Special Committee
shall have the power to evaluate the matters set forth in Clause (d) of Article
FIFTH of the Certificate of Incorporation and to recommend to the Board for
approval only those matters specified therein which have been unanimously
approved by the Special Committee or as to which the Special Committee shall, by
unanimous vote, waived such right of approval. The Board shall not have the
power to consider any action set forth in Clause (d) of Article FIFTH of the
Certificate of Incorporation unless and until such action has been unanimously
approved by the Special Committee or the Special Committee has waived such right
of approval.
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SECTION 4.2 Appointment and Powers of Executive Committee. The Executive
Committee of the Board (the "Executive Committee") may be appointed in
accordance with, and, except as provided by resolution of the Board creating the
Executive Committee or a subsequent resolution modifying the powers granted
thereby, shall have the powers set forth in, this Section 4.2, subject to
Clauses (d) and (e) of Article FIFTH of the Certificate of Incorporation.
Except as provided by Delaware law or in the Certificate of Incorporation,
during the interval between the meetings of the Board, the Executive Committee
shall possess and may exercise all the powers of the Board in the management and
direction of all the business and affairs of the Corporation (except the matters
hereinafter assigned to any other Committee of the Board), in such manner as the
Executive Committee shall deem in the best interests of the Corporation in all
cases in which specific directions shall not have been given by the Board. The
Executive Committee may determine its manner of acting and fix the time and
place of its meetings, unless the Board shall otherwise provide. Either Co-
Chairman of the Board or any member of the Executive Committee may call the
meetings of the Executive Committee.
SECTION 4.3 Appointment and Powers of Audit Committee. The Board may,
subject to the provisions of clause (d) of Article FIFTH of the Certificate of
Incorporation, by resolution adopted by the affirmative vote of a majority of
the authorized number of directors, designate an Audit Committee of the Board
(the "Audit Committee"), which shall consist of such number of members as the
Board shall determine. The Audit Committee shall, subject to the provisions of
the Audit Committee Charter as may be in effect from time-to-time: (i) make
recommendations to the Board as to the independent accountants to be appointed
by the Board; (ii) review with the independent accountants the scope of their
examinations; (iii) receive the reports of the independent accountants and meet
with representatives of such accountants for the purpose of reviewing and
considering questions relating to their examination and such reports; (iv)
review, either directly or through the independent accountants, the internal
accounting and auditing procedures of the Corporation; (v) review related party
transactions; and (vi) perform such other functions as may be assigned to it
from time to time by the Board. The Audit Committee may determine its manner of
acting and fix the time and place of its meetings, unless the Board shall
otherwise provide. A majority of the members of the Audit Committee shall
constitute a quorum for the transaction of business by the committee and the act
of a majority of the members of the committee present at a meeting at which a
quorum shall be present shall be the act of the committee.
SECTION 4.4 Compensation Committee; Other Committees. The Board may,
subject to the provisions of clause (d) of Article FIFTH of the Certificate of
Incorporation, by resolution adopted by the affirmative vote of a majority of
the authorized number of directors, designate members of the Board to constitute
a Compensation Committee and such other committees of the Board as the Board may
determine. Such committees shall in each case consist of such number of
directors as the Board may determine, and shall have and may exercise, to the
extent permitted by law, such powers as the Board may delegate to them in the
respective resolutions appointing them. Each such committee may determine its
manner of acting and fix the time and place of its meetings, unless the Board
shall otherwise provide. A majority of the members of any such committee shall
constitute a quorum for the transaction of business by the committee and the act
of a majority of the members of such committee present at a meeting at which a
quorum shall be present shall be the act of the committee.
SECTION 4.5 Action by Consent; Participation by Telephone or Similar
Equipment. Unless the Board shall otherwise provide, any action required or
permitted to be taken by any committee, including, without limitation, the
Special Committee, may be taken without a meeting if all members of the
committee consent in writing or by electronic transmission to the adoption of a
resolution authorizing the action and the writing or writings or electronic
transmission or transmissions are filed with the minutes of the proceedings of
the committee. Such filing shall be in paper form if the minutes are maintained
in
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paper form and shall be in electronic form if the minutes are maintained in
electronic form. Unless the Board shall otherwise provide, any one or more
members of any such committee may participate in any meeting of the committee by
means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other.
Participation by such means shall constitute presence in person at a meeting of
the committee.
SECTION 4.6 Quorum and Manner of Acting. Subject to Clause (d) of Article
FIFTH of the Certificate of Incorporation, the presence of at least a majority
of the members of any committee of the Board shall be necessary and sufficient
to constitute a quorum for the transaction of business at any meeting of such
committee. If a quorum shall not be present at any meeting of a committee, a
majority of the members of such committee present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present. Except where a different vote is
required or permitted by law, the Certificate of Incorporation or these By-laws
or otherwise, the act of a majority of the members of a committee present at any
meeting at which a quorum shall be present shall be the act of such committee.
SECTION 4.7 Resignations; Removals. Any member of any committee may
resign at any time by giving notice to the Corporation; provided, however, that
notice to the Board, either Co-Chairman of the Board, the Chief Executive
Officer of the Corporation, the chairman of such committee or the Secretary of
the Corporation shall be deemed to constitute notice to the Corporation. Such
resignation shall take effect upon receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective. Any member of any such
committee may be removed at any time, either with or without cause, by the
affirmative vote of a majority of the authorized number of directors at any
meeting of the Board called for that purpose. Members of the Special Committee
and Executive Committee may be removed in the manner set forth in the
Certificate of Incorporation.
ARTICLE V
OFFICERS
SECTION 5.1 Number and Qualification. The Corporation shall have such
officers as may be necessary or desirable for the business of the Corporation.
The officers of the Corporation shall consist of two Co-Chairmen of the Board, a
Chief Executive Officer, one or more Vice Presidents, a Secretary, a Treasurer
and such other officers as may from time to time be appointed by the Board.
Officers shall be elected by the Board, which shall consider that subject at its
first meeting after every Annual Meeting of stockholders. Each officer shall
hold office until his or her successor is elected and qualified or until his or
her earlier resignation or removal. Any number of offices may be held by the
same person. The failure to elect the Co-Chairmen of the Board, Chief Executive
Officer, Vice President, Secretary or Treasurer shall not affect the existence
of the Corporation.
SECTION 5.2 Co-Chairman of the Board. Each Co-Chairman of the Board shall
also be a director and shall preside jointly or singly, as they may agree from
time to time, at all meetings of the stockholders and directors. The Chief
Executive Officer shall report to the Co-Chairmen of the Board.
SECTION 5.3 Chief Executive Officer. The Chief Executive Officer shall
supervise the daily operations of the business of the Corporation, shall have
general and active responsibility for the management of the business of the
Corporation, shall be responsible for implementing all orders and resolutions of
the Board, and shall report to the Co-Chairmen of the Board. Subject to the
provisions of these By-laws and to the direction of the Board, he or she shall
perform all duties and have all powers
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which are commonly incident to the office of Chief Executive Officer or which
are delegated to him or her by the Board. He or she shall have power to sign all
stock certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation.
SECTION 5.4 Vice President. Each Vice President shall have such powers
and duties as may be delegated to him or her jointly by the Chief Executive
Officer or the Board.
SECTION 5.5 Treasurer. The Treasurer shall have the responsibility for
maintaining the financial records of the Corporation. He or she shall make such
disbursements of the funds of the Corporation as are authorized and shall render
from time to time an account of all such transactions and of the financial
condition of the Corporation. The Treasurer shall also perform such other duties
as the Chief Executive Officer or the Board may from time to time prescribe.
SECTION 5.6 Secretary. The Secretary shall issue all authorized notices
for, and shall keep minutes of, all meetings of the stockholders and the Board.
He or she shall have charge of the corporate books and shall perform such other
duties as the Chief Executive Officer or the Board may from time to time
prescribe.
SECTION 5.7 Delegation of Authority. The Chief Executive Officer or the
Board may from time to time delegate the powers or duties of any officer to any
other officers or agents, notwithstanding any provision hereof.
SECTION 5.8 Removal. Any officer of the Corporation other than the Chief
Executive Officer may be removed at any time, with or without cause, by the
Chief Executive Officer or the Board. The Chief Executive Officer of the
Corporation other may be removed at any time, with or without cause, by the
Board.
SECTION 5.9 Resignations. Any officer may resign at any time by giving
written notice to the Corporation; provided, however, that notice to the Board,
either Co-Chairman of the Board, the Chief Executive Officer or the Secretary
shall be deemed to constitute notice to the Corporation. Such resignation shall
take effect upon receipt of such notice or at any later time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 5.10 Vacancies. Any vacancy among the officers, whether caused by
death, resignation, removal or any other cause, shall be filled in the manner
prescribed for election or appointment to such office.
SECTION 5.11 Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board, and subject to the provisions of the
Certificate of Incorporation, the then Chief Executive Officer or any officer of
the Corporation authorized by the then Chief Executive Officer or the Board
shall have the power to vote and otherwise act on behalf of the Corporation, in
person or by proxy, at any meeting of stockholders of or with respect to any
action of stockholders of any other corporation in which this Corporation may
hold securities and otherwise to exercise any and all rights and powers which
this Corporation may possess by reason of its ownership of securities in such
other corporation.
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SECTION 5.12 Bonds of Officers. If required by the then Chief Executive
Officer or the Board, any officer of the Corporation shall give a bond for the
faithful discharge of his or her duties in such amount and with such surety or
sureties as the Board may require.
SECTION 5.13 Compensation. The salaries of the officers shall be fixed
from time to time by the Board, unless and until the Board appoints a
Compensation Committee.
ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
SECTION 6.1 Contracts. Subject to the approval procedures of Sections
3.1(b) and 4.1 hereof, the Board may authorize any officer or officers, agent or
agents, in the name and on behalf of the Corporation, to enter into any contract
or to execute and deliver any instrument, which authorization may be general or
confined to specific instances; and, unless so authorized by the Board, no
officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable pecuniarily for any purpose or for any amount.
SECTION 6.2 Checks, etc. Subject to the approval procedures of Sections
3.1(b) and 4.1 hereof, all checks, drafts, bills of exchange or other orders for
the payment of money out of the funds of the Corporation, and all notes or other
evidences of indebtedness of the Corporation, shall be signed in the name and on
behalf of the Corporation in such manner as shall from time to time be
authorized by the Board, which authorization may be general or confined to
specific instances.
SECTION 6.3 Loans. Subject to the approval procedures of Sections 3.1(b)
and 4.1 hereof, no loan shall be contracted on behalf of the Corporation, and no
negotiable paper shall be issued in its name, unless authorized by the Board,
which authorization may be general or confined to specific instances, and bonds,
debentures, notes and other obligations or evidences of indebtedness of the
Corporation issued for such loans shall be made, executed and delivered as the
Board shall authorize.
SECTION 6.4 Deposits. Subject to the approval procedures of Sections
3.1(b) and 4.1 hereof, all funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as may be selected by or in the manner
designated by the Board. The Board or its designees may make such special rules
and regulations with respect to such bank accounts, not inconsistent with the
provisions of the Certificate of Incorporation or these By-laws, as they may
deem advisable.
ARTICLE VII
CAPITAL STOCK
SECTION 7.1 Certificates of Stock. Each stockholder shall be entitled to
a certificate signed by, or in the name of the Corporation by, either Co-
Chairman of the Board, the Chief Executive Officer or a Vice President, and by
the Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer, certifying the number of shares owned by him or her. Any or all of
the signatures on the certificate may be by facsimile.
SECTION 7.2 Stock List. A complete list of stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
of the Corporation which are registered in such stockholder's
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name, shall be open to the examination of any such stockholder in the manner
provided by law. The stock list shall also be open to the examination of any
stockholder during the whole time of the meeting as provided by law. This list
shall presumptively determine the identity of the stockholders entitled to vote
at the meeting and the number of shares held by each of them.
SECTION 7.3 Transfers of Stock. Transfers of stock shall be made only
upon the transfer books of the Corporation kept at an office of the Corporation
or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section 7.5
of these By-laws, an outstanding certificate for the number of shares involved
shall be surrendered for cancellation before a new certificate is issued
therefor.
SECTION 7.4 Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders, or
to receive payment of any dividend or other distribution or allotment of any
rights or to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board may
fix a record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted and which record date shall not be
more than sixty (60) nor less than ten (10) days before the date of any meeting
of stockholders, nor more than sixty (60) days prior to the time for such other
action as hereinbefore described; provided, however, that if no record date is
fixed by the Board, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held, and, for determining stockholders entitled to receive
payment of any dividend or other distribution or allotment of rights or to
exercise any rights of change, conversion or exchange of stock or for any other
purpose, the record date shall be at the close of business on the day on which
the Board adopts a resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board may fix a
record date, which shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and which record date shall be not more
than ten (10) days after the date upon which the resolution fixing the record
date is adopted. If no record date has been fixed by the Board and no prior
action by the Board is required by the GCL, the record date shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner prescribed by
Section 2.10 hereof. If no record date has been fixed by the Board and prior
action by the Board is required by the GCL with respect to the proposed action
by written consent of the stockholders, the record date for determining
stockholders entitled to consent to corporate action in writing shall be at the
close of business on the day on which the Board adopts the resolution taking
such prior action.
SECTION 7.5 Lost, Stolen or Destroyed Certificates. In the event of the
loss, theft or destruction of any certificate of stock, another may be issued in
its place pursuant to such regulations as the Board may establish concerning
proof of such loss, theft or destruction and concerning the giving of
satisfactory bond or bonds of indemnity.
SECTION 7.6 Regulations. The issue, transfer, conversion and registration
of certificates of stock shall be governed by such other regulations as the
Board may establish.
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ARTICLE VIII
NOTICES
SECTION 8.1 Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder may in
every instance be effectively given by hand delivery to the recipient thereof,
by depositing such notice in the mails, postage paid, or with a recognized
overnight delivery service or by sending such notice by prepaid telegram,
mailgram or by facsimile transmission. Any such notice shall be addressed to the
Corporation or such stockholder at such person's last known address as the same
appears on the books of the Corporation. Notices given to stockholders may be
given by electronic transmission in the manner provided by law. The time when
such notice is received, if hand delivered, or dispatched, if delivered through
the mails or by overnight delivery service, or by telegram, mailgram or
facsimile, shall be the time of the giving of the notice.
SECTION 8.2 Waivers. A written waiver of any notice, signed by a
stockholder or director, or waiver by electronic transmission by such person,
whether given before or after the time of the event for which notice is to be
given, shall be deemed equivalent to the notice required to be given to such
person. Neither the business nor the purpose of any meeting need be specified in
such a waiver.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these By-laws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board or a committee thereof.
SECTION 9.2 Corporate Seal. The Board may provide a suitable seal,
containing the name of the Corporation, which seal shall be in the charge of the
Secretary of the Corporation. If and when so directed by the Board or a
committee thereof, duplicates of the seal may be kept and used by the
Corporation's Treasurer or by an Assistant Secretary or Assistant Treasurer.
SECTION 9.3 Reliance Upon Books, Reports and Records. Each director, each
member of any committee designated by the Board, and each officer of the
Corporation shall, in the performance of his or her duties, be fully protected
in relying in good faith upon the books of account or other records of the
Corporation and upon such information, opinions, reports or statements presented
to the Corporation by any of its officers or employees, or committees of the
Board so designated, or by any other person as to matters which such director or
committee member reasonably believes are within such other person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Corporation.
SECTION 9.4 Fiscal Year. The fiscal year of the Corporation shall be as
fixed by the Board.
SECTION 9.5 Time Periods. In applying any provision of these By-laws
which requires that an act be done or not be done a specified number of days
prior to an event or that an act be done during a period of a specified number
of days prior to an event, calendar days shall be used, the day of the doing of
the act shall be excluded, and the day of the event shall be included.
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SECTION 9.6 Definitions. Terms with initial capital letters used herein
without definition shall have the respective meanings given to them in the
Certificate of Incorporation of the Corporation, as the same may be amended or
restated from time-to-time (the "Certificate of Incorporation").
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 10.1 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "proceeding"), by reason of the fact that he or
she is or was a director or an officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter, an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the GCL, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however, that,
except as provided in Section 10.3 hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board.
SECTION 10.2 Right to Advancement of Expenses. The right to
indemnification conferred in Section 10.1 hereof shall include the right to be
paid by the Corporation the expenses (including attorneys', accountants',
experts', and other professionals' fees, costs and expenses) incurred in
defending any such proceeding in advance of its final disposition (hereinafter,
an "advancement of expenses"); provided, however, that, if the GCL requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter, an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter, a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section 10.2 or otherwise. The rights to
indemnification and to the advancement of expenses conferred in Sections 10.1
and 10.2 hereof shall be contract rights and such rights shall continue as to an
indemnitee who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and administrators.
SECTION 10.3 Right of Indemnitee to Bring Suit. If a claim under Section
10.1 or 10.2 hereof is not paid in full by the Corporation within sixty (60)
days after a written claim has been received by the Corporation, except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending
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such suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) any suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
any applicable standard for indemnification set forth in the GCL. Neither the
failure of the Corporation (including its Board, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the GCL, nor an actual determination by the Corporation (including its Board,
independent legal counsel, or its stockholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article X or otherwise shall be on the
Corporation.
SECTION 10.4 Non-Exclusivity of Rights. The rights to indemnification and
to the advancement of expenses conferred in this Article X shall not be
exclusive of any other right which any person may have or hereafter acquire by
any statute, the Certificate of Incorporation or By-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 10.5 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the GCL.
SECTION 10.6 Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the Board,
grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation to the fullest extent of the provisions of
this Article X with respect to the indemnification and advancement of expenses
of directors and officers of the Corporation.
ARTICLE XI
AMENDMENTS
Subject to the provisions of the Certificate of Incorporation, including
without limitation Clause (b)(i)(B)(1)(IV) of Article FOURTH thereof, and the
approval procedures in Sections 3.1(b) and 4.1 hereof, the Board may from time
to time make, amend, supplement or repeal these By-laws by vote of a majority of
the Board; provided, however, that the stockholders may change or amend or
repeal any provision of these By-laws upon receipt of each of: (a) the
affirmative vote of the holders of a majority of the Voting Stock, voting as one
class; (b) if a Class B Director is then entitled to be a member of the Special
Committee, the affirmative vote of the holders of a majority of the Class B
Securities, voting separately as a class; and (c) if a Class C Director is then
entitled to be a member of the Special Committee, the affirmative vote of the
holders of a majority of the Class C Securities, voting separately as a class.
For purposes hereof, "Voting Stock" shall mean the Common Stock, Class B
Securities and Class C Securities, and any Preferred Stock entitled to vote
generally in the election of directors of the Corporation.
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SCHEDULE 3.1(b)
ACTIONS REQUIRING BOARD APPROVAL
1. Subject to the provisions of the Certificate of Incorporation, any
amendment, change or other modification or restatement of the Certificate of
Incorporation or By-laws of the Corporation or similar constitutive documents of
any Subsidiary, or the Stockholders' Agreement or the Registration Rights
Agreement.
2. The merger, consolidation, dissolution or liquidation of the
Corporation or any Subsidiary, or any transaction having the same effect.
3. Except pursuant to (a) employee stock option and similar incentive
plans approved by the Board and the holders of a majority of each class of High
Vote Stock then outstanding, (b) a conversion or exchange right set forth in
this Certificate of Incorporation or similar constitutive documents of any
Subsidiary, or (c) the Stockholders' Agreement, the issuance, authorization,
cancellation, alteration, modification, redemption or any change in, of, or to,
any equity security of the Corporation or any Subsidiary, or any option, put,
call or warrant with respect to the foregoing.
4. The transfer or other disposition of, or placing any Encumbrance (other
than Permitted Encumbrances) on, any material asset of the Corporation or any
Subsidiary (other than disposition of inventory or obsolete assets of the
Corporation or any Subsidiary).
5. Any transaction involving (a) the acquisition of any interest in, or
the making of any loan or extension of credit to, another person or entity by
the Corporation or any Subsidiary for or in an amount in excess of $50,000
except for short-term cash management with recognized money market institutions;
(b) any contract having a term in excess of one year (including network,
customer, marketing or advertising services) and involving payments by the
Corporation or any Subsidiary, or rendering of services by the Corporation or
any Subsidiary with a value, in excess of $50,000; (c) any debt, loan or
borrowing of the Corporation or any Subsidiary (other than borrowings under
revolving credit facilities approved by the Board) $50,000 outstanding in the
aggregate at any time, or any revolving credit facility of the Corporation or
any Subsidiary permitting aggregate borrowings at any one time outstanding to
exceed $50,000; (d) the Corporation or any Subsidiary as a result of which the
Corporation or any Subsidiary, alone or with its Affiliates, acquires control
over any other person or entity; (e) any capital or other expenditures of the
Corporation or any Subsidiary (or series of related capital expenditures) in
excess of $50,000; or (f) any related series or combination of transactions
having or which will have, directly or indirectly, the same effect as any of the
foregoing.
6. Other than involving an amount below $50,000, any transaction or
agreement between the Corporation or any Subsidiary on the one hand and either
AOL, ODC or their respective Affiliates on the other hand, or any amendment or
modification of, or waiver with respect to, any such agreement or transaction.
7. Adoption and approval of any periodic Business Plan for the Corporation
or any Subsidiary and approval of any modification of any line item or other
provision in any such Business Plan.
8. Adoption of any strategic plan and business projections for the
Corporation or any Subsidiary and approval, rescission or amendment of any
strategic decision material to the conduct of the business of the Corporation or
any Subsidiary.
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9. Adoption of any incentive or other employee benefit plan, or any
executive compensation plan or severance payment, by the Corporation or any
Subsidiary or any material amendment to any such existing plan.
10. Hiring or firing any personnel of the Corporation or any Subsidiary
with an annual salary in excess of $100,000 or increasing the compensation of
any such personnel above $100,000.
11. Appointment or dismissal of auditors for the Corporation or any
Subsidiary or change or adoption of any material accounting principle or
practice to be applied by the Corporation or any Subsidiary.
12. The establishment of any entity (or the creation of any entity owned
jointly with any other party) by the Corporation or any Subsidiary and the
adoption of, and any material changes to, any Subsidiary's method of doing
business.
13. Commencement of any litigation (without regard to the amount in
controversy) or settlement of any litigation or claim to which the Corporation
or any Subsidiary is a party or the subject thereof (i) involving amounts in
excess of $100,000 (or its equivalent in any other currency) or (ii) which could
materially adversely affect the rights of AOL or ODC or any of their
Subsidiaries or Affiliates; provided, however, that litigation relating to the
collections of amounts due to the Corporation or any Subsidiary by third parties
may be commenced or settled in the discretion of management.
14. Establishment of, or making any significant modification to, the
investment and/or cash management policies of the Corporation or any Subsidiary.
15. Approval of the discontinuation of any material activity engaged in
from time to time by the Corporation or any Subsidiary.
16. Approval of the entering into of any partnership, joint venture or
consortium with any other Person by the Corporation or any Subsidiary.
17. Any press releases or other public statements by the Corporation or
any Subsidiary containing material non-public information.
18. Entry into agreements by the Corporation or any Subsidiary outside of
the ordinary course of business.
19. Approval of the final annual audited consolidated financial statements
of any Subsidiary.
20. Approval of the filing for bankruptcy of or any decision not to take
action to prevent a filing for bankruptcy or not to oppose an involuntary filing
for bankruptcy or other winding up of the Corporation or any Subsidiary
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21. The transfer or other disposition of, or placing any Encumbrance
(other than Permitted Encumbrances) on, any material asset of the Corporation or
any Subsidiary (other than disposition of inventory or obsolete assets of the
Corporation or any Subsidiary).
22. The declaration of any dividend or distribution on any class or
classes of equity securities of the Corporation.
23. The selection of nominees to be recommended by the Board for election
as Class A Directors.
24. The admission of any Strategic Partner as an equity holder in the
Corporation or any Operating Entity.
25. The establishment and maintenance of an Executive Committee and the
establishment and maintenance of, or appointment or removal of any member of,
any other committee of the Board of Directors.
26. The Launch of any AOL-branded TV Access Services or Wireless Access
Services in any country within the Territory.
27. The terms and conditions of any agreements with, or any other
transactions with, and the conduct and settlement of any Action involving, any
third parties relating to TV Access Services or Wireless Access Services in the
Territory.
28. Any action by, in respect of or otherwise involving any entity in
which the Corporation or any Subsidiary has or acquires a controlling equity
interest which would require Board approval under Section 3.1(b) if such action
was by, in respect of or otherwise involving the Corporation or any Subsidiary,
as described above.
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