<PAGE>
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICA ONLINE LATIN AMERICA, INC.
Pursuant to Sections 241 and 245
of the Corporation Law of the
State of Delaware
____________________
(Originally incorporated under the same name on November 22, 1999)
FIRST: The name of the corporation is America Online Latin America, Inc.
(the "Corporation").
SECOND: The initial registered office of the Corporation is to be located
at 1013 Centre Road, City of Wilmington, County of New Castle; and the name of
the initial registered agent of the Corporation in the State of Delaware is The
Prentice-Hall Corporation System, Inc.
THIRD: (a) Purpose. Subject to the provisions of Clause (d) of this
Article THIRD and Clause (b)(i)(B) of Article FOURTH, the purpose of the
Corporation is to engage in any lawful act or activity for which a corporation
may be organized under the General Corporation Law of the State of Delaware (the
"GCL"); provided, however, that until all outstanding shares of High Vote Stock
(as defined below) of the Corporation have been converted into shares of Class A
Common Stock (as defined below) in accordance with Clause (b)(iii) of Article
FOURTH of this Certificate of Incorporation or are otherwise no longer issued
and outstanding, the Corporation shall not, and shall not have the power to,
engage directly or indirectly, including without limitation through any
Subsidiary (as defined below) or Affiliate (as defined below), in any business
other than providing Interactive Services (as defined below) in the Territory
(as defined below) and engaging in ancillary activities necessary or desirable
to conduct such business.
(b) Definitions. As used herein, the following terms shall have the
following meanings:
"Action" shall mean any claim, action, suit, arbitration, mediation,
inquiry, proceeding or investigation by or before any Governmental Authority (or
arbitrator or mediator, as the case may be), whether at law or in equity.
"Additional Shares of Common Stock" shall have the meaning given in Clause
(c) of Article FOURTH.
"Advancement of Expenses" shall have the meaning given in Clause (e) of
this Article THIRD.
"Affiliate" of any Person shall mean any other Person that, directly or
indirectly, controls, is under common control with or is controlled by that
Person. For purposes of this definition, "control" (including, with its
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
"AOL" shall mean America Online, Inc., a Delaware corporation.
"AOL-branded" shall mean, with respect to any internet or online service
that such service includes the words "AOL" or "America Online" as an integral
part of the name of such internet or online service. For the avoidance of
doubt, a reference to an internet or online service being available on or
through "AOL" or "America Online" internet or online service shall not itself
make such service "AOL-
1
<PAGE>
branded", nor would the description of, for example, Netscape, an AOL company.
By way of illustration, the "AOL Latin America regional internet portal service"
and the "America Online Brasil online service" are "AOL-branded" services, while
"Netscape Online" is not an AOL-branded service.
"Board" shall mean the Corporation's Board of Directors.
"Business Plan" shall mean, with respect to each country within the
Territory, an annual capital, revenue and expense plan, including pro forma
statements of income/loss, financial condition and cash flows, the projected
cash funding requirements of the applicable Operating Entity on a quarterly
basis, and such other information as the Board shall require from time to time,
together with a quarterly cash funding plan with dates of funding, plus
marketing, operational and other business strategies, reflecting the financial
objectives and requirements of the applicable Operating Entity.
"By-laws" shall mean the By-laws of the Corporation, as the same may be
amended or restated from time to time.
"Cisneros Family" shall mean Ricardo Cisneros, Gustavo Cisneros and/or
their lineal descendants, individually or collectively and/or any trusts for the
exclusive benefit of any one or more of such persons.
"Class A Common Stock" shall have the meaning given in Clause (a) of
Article FOURTH.
"Class A Director" shall have the meaning given in Clause (b) of Article
FOURTH.
"Class B Common Stock" shall have the meaning given in Clause (a) of
Article FOURTH.
"Class B Director" shall have the meaning given in Clause (b) of Article
FOURTH.
"Class B Securities" shall mean collectively the Series B Preferred Stock
and/or the Class B Common Stock, as the same may be outstanding from time to
time.
"Class B Triggering Event" shall have the meaning given in Clause (b) of
Article FOURTH.
"Class C Common Stock" shall have the meaning given in Clause (a) of
Article FOURTH.
"Class C Director" shall have the meaning given in Clause (b) of Article
FOURTH.
"Class C Securities" shall mean collectively the Series C Preferred Stock
and/or the Class C Common Stock, as the same may be outstanding from time to
time.
"Class C Triggering Event" shall have the meaning given in Clause (b) of
Article FOURTH.
"Common Stock" shall have the meaning given in Clause (a) of Article
FOURTH.
"Communication Services" includes chat, e-mail, message boards, online
transactions and other forms of online interaction.
"Content" shall mean either (i) text or (ii) multimedia information which
contains any combination of any of the following in digital form or such other
forms as may become available in the future: text, graphics, video, sound,
still images, or the like.
"Conversion Date" shall have the meaning given in Clause (c) of Article
FOURTH.
2
<PAGE>
"Conversion Ratio" shall mean collectively, the Series B Conversion Ratio
and the Series C Conversion Ratio.
"Corporate Opportunity" shall mean an investment or business opportunity or
prospective economic or competitive advantage in which the Corporation could,
but for the provisions of this Article THIRD, have an interest or expectancy.
Notwithstanding the foregoing, "Corporate Opportunity" shall not include any
Special Power.
"Corporation" shall have the meaning given in Article FIRST.
"Damages" shall mean any and all costs, losses, claims, liabilities, fines,
penalties, damages and expenses (including interest which may be incurred in
connection therewith), court costs, and reasonable fees and expenses of counsel,
consultants and expert witnesses, incurred by a Person indemnified pursuant to
the provisions of paragraph (e) of this Article THIRD.
"Employee" shall mean, with respect to a Parent Entity as of any date, any
then current employee of such Parent Entity or of any Wholly-Owned Affiliate of
such Parent Entity.
"Encumbrance" shall mean any mortgage, pledge, security interest, lien or
restriction on use or transfer, voting agreement, adverse claim or encumbrance
or charge of any kind (including any agreement to give any of the foregoing),
any conditional sale or other title retention agreement, any lease in the nature
thereof, and the filing of, or any agreement to give, any financing statement
under the Uniform Commercial Code or similar law of any jurisdiction.
"Executive Committee" shall have the meaning given in Clause (e) of Article
FIFTH.
"Fair Market Value" shall mean, as of any date, the average closing price
for the Class A Common Stock as quoted on any national securities exchange or on
the NASDAQ National Market System for the fifteen trading days ending on the
second trading day prior to such date as reported in the Eastern Edition of The
Wall Street Journal. If the Class A Common Stock shall not be listed on any such
exchange or traded on any such automated quotation system on all such trading
days during such 15-trading day period, the closing or latest reported price for
Class A Common Stock in the over-the-counter market on each trading day on which
such shares are not so listed or traded as reported by NASDAQ or, if not so
reported, then the last sale price for each such day, as reported by the
National Quotation Bureau Incorporated, or if such organization is not in
existence, by an organization providing similar services (as determined by the
Board), shall be deemed to be the closing price on such trading day. If, at a
time when the Class A Common Stock is trading other than on such an exchange,
there shall not have been a sale on any such trading day, the mean of the last
reported bid and asked quotations as reported in the Eastern Edition of The Wall
Street Journal for Class A Common Stock on such day shall be deemed to be the
closing price. If the shares of Class A Common Stock shall not be so reported
on any of such trading days, then the Fair Market Value per share of such Class
A Common Stock shall be the fair market value thereof as determined in the
reasonable judgment of the Board of Directors. For the purpose hereof, "trading
day" shall mean a day on which the securities exchange or automated quotation
system specified herein shall be open for business or, if the shares of Class A
Common Stock shall not be listed on such exchange or automated quotation system
for such period, a day with respect to which quotations of the character
referred to in the next preceding sentence shall be reported.
"Final Adjudication" shall have the meaning given in Clause (e) of this
Article THIRD.
"GCL" shall have the meaning given in Clause (a) of this Article THIRD.
3
<PAGE>
"Governmental Authority" shall mean any United States federal, state or
local or any foreign government, governmental, regulatory or administrative
authority, or commission or any court, tribunal or agency.
"High Vote Common Stock" shall mean, collectively, the Class B Common Stock
and the Class C Common Stock.
"High Vote Preferred Stock" shall mean, collectively, the Series B
Preferred Stock and the Series C Preferred Stock.
"High Vote Stock" shall mean, collectively, the High Vote Common Stock and
the High Vote Preferred Stock.
"Interactive Services" shall mean the provision of Content or Communication
Services which may be provided through the use of any protocols, standards, or
platforms (including Internet or Internet derivative protocols, standards, and
platforms) for remote access by narrowband or broadband infrastructure,
including without limitation POTS, ISDN, ADSL, satellite, cable, fiber optics,
wireless and hybrid CD-ROM.
"Internet Portal Services" shall mean a comprehensive collection of AOL-
branded, Spanish and/or Portuguese language, internet or online services
intended to aggregate and market all material consumer relevant segments of web-
based Content targeted to consumers in one or more specific countries within the
Territory and accessible to all Persons, regardless of whether they are
Subscribers within such countries. By way of illustration, in Brazil, the
americaonline.com.br is an Internet Portal Service, while individual websites
devoted to e-commerce, vertical markets or specific subjects (e.g., personal
finance) would not be Internet Portal Services.
"Launch" shall mean the first commercial availability of an Interactive
Service to potential Subscribers in the Territory or a country in the Territory,
as applicable.
"Liquidation Preference" shall have the meaning given in Clause (c) of
Article FOURTH .
"Mandatory Redemption" shall have the meaning given in Clause (c) of
Article FOURTH.
"ODC" shall mean Riverview Media Corp., a British Virgins Islands
corporation.
"Operating Entity" shall mean an Affiliate of the Corporation formed for
the purpose of operating and/or marketing and supporting the business of the
Corporation in one or more jurisdictions in the Territory.
"Original Issue Date" shall have the meaning given in Clause (c) of Article
FOURTH.
"Parent Entity" shall mean each of AOL and ODC.
"PC Access Services" shall mean the provision by any Person of physical
network access (irrespective of bandwidth or type of physical infrastructure
such as cable, fiber optics, copper, fixed wireless or satellite) to online
and/or internet services to end users of personal computers.
"Permitted Encumbrances" shall mean (i) liens for taxes, assessments and
other governmental charges or levies not due and payable, or which currently are
being contested in good faith by appropriate proceedings, (ii) mechanics',
workmen's, repairmen's, materialmen's, warehousemen's, vendors' and carriers'
liens, and other similar liens arising in the ordinary course of business for
charges which are not
4
<PAGE>
delinquent, or which currently are being contested in good faith by appropriate
proceedings and have not proceeded to judgment, and (iii) liens in respect of
judgments or awards with respect to which there shall be a good faith current
prosecution of an appeal or proceedings for review which is secured by an
appropriate bond or a stay of execution pending such appeal or proceedings for
review.
"Permitted Transferee" shall mean AOL, ODC, each of their Wholly-Owned
Affiliates, Employees of AOL and ODC, and members of the Cisneros Family.
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust, unincorporated organization, or other legal entity, or
a Governmental Authority, or their equivalent under the applicable legal system.
"Preferred Stock" shall have the meaning given in Clause (a) of Article
FOURTH.
"Redemption Date" shall have the meaning given in Clause (c) of Article
FOURTH.
"Redemption Notice" shall have the meaning given in Clause (c) of Article
FOURTH.
"Redemption Price" shall have the meaning given in Clause (c) of Article
FOURTH.
"Registration Rights Agreement" means the Registration Rights Agreement by
and among the Corporation, AOL and ODC dated ____________, 2000.
"Section 141(a)" shall have the meaning given in Clause (c) of Article
FIFTH.
"Series B Conversion Ratio" shall have the meaning given in Clause (c) of
Article FOURTH.
"Series B Preferred Stock" shall have the meaning given in Clause (a) of
Article FOURTH.
"Series C Conversion Ratio" shall have the meaning given in Clause (c) of
Article FOURTH.
"Series C Preferred Stock" shall have the meaning given in Clause (a) of
Article FOURTH.
"Special Committee" shall have the meaning given in Clause (d) of Article
FIFTH.
"Special Power" shall mean any investment or business opportunity or
prospective economic or competitive advantage that (i) is presented to or
becomes known to an officer of the Corporation who is not also an officer or
director of AOL or ODC or any of their Subsidiaries or Affiliates (other than
the Corporation), (ii) occurs or arises solely in the Territory and (iii)
involves opportunities, activities or operations of a type or nature which the
Corporation is then pursuing or conducting (i.e., accepting advertising from a
local provider of products or services, or advertising directed solely in the
Territory from an international provider of products or services as opposed to
advertising by an international provider of products or services directed both
within and outside of the Territory) as opposed to opportunities, activities or
operations of a type which the Corporation is not then conducting (i.e.,
offering a new product, technology or service not then being offered by the
Corporation).
"Stockholders' Agreement" shall mean the Stockholders' Agreement by and
among the Corporation, AOL and ODC, dated as of ______________, 2000.
"Strategic Partner" shall mean any Person who acquires 25% or more of the
equity of the Corporation and who provides a strategic benefit to the
Corporation in the form of a contractual relationship or contribution of
material, in-kind assets.
5
<PAGE>
"Subscriber" shall mean, as of any date of determination and with respect
to any Interactive Service, any Person who has opened an account with or
otherwise registered as a user of such Interactive Service.
"Subsidiary" shall mean, with respect to any Person, any corporation,
limited liability company, partnership, association, joint venture or other
business entity of which (i) if a corporation, (x) ten percent (10%) or more of
the total voting power of shares of stock entitled to vote in the election of
directors thereof or (y) ten percent (10%) or more of the value of the equity
interests is at the time owned or controlled, directly or indirectly, by the
Person or one or more of its other Subsidiaries, or (ii) if a limited liability
company, partnership, association or other business entity, ten percent (10%) or
more of the partnership or other similar ownership interests thereof is at the
time owned or controlled, directly or indirectly, by the Person or one or more
of its subsidiaries. The Person shall be deemed to have ten percent (10%) or
greater ownership interest in a limited liability company, partnership,
association or other business entity if the Person is allocated ten percent
(10%) or more of the limited liability company, partnership, association or
other business entity gains or losses or shall be or control the Person managing
such limited liability company, partnership, association or other business
entity.
"Territory" shall mean the following countries:
Anguilla Haiti
Antigua Honduras
Argentina Jamaica
Aruba Martinique
Bahamas Mexico
Barbados Netherlands Antilles
Barbuda Nevis Montserrat
Belize Nicaragua
Bolivia Panama
Brazil Paraguay
Caicos Islands Peru
Cayman Islands Puerto Rico
Chile St. Kitts
Colombia St. Lucia
Costa Rica St. Maarten
Cuba St. Martin
Dominica St. Vincent
Dominican Republic Suriname
Ecuador The Grenadines
El Salvador Tobago
French Guiana Trinidad
Grenada Turks Islands
Guadeloupe Uruguay
Guatemala Venezuela
Guyana Virgin Islands
"Transfer Agent" shall have the meaning given in Clause (b) of Article
FOURTH.
"TV Access Services" shall mean the provision by any Person of network
access (irrespective of bandwidth or transmission media, including, without
limitation, cable, fiber optics and satellite) to online and/or internet
services to end users of the television platform by means of cable or satellite
transmission.
"Undertaking" shall have the meaning given in Clause (e) of Article THIRD.
6
<PAGE>
"Voting Stock" shall have the meaning given in Clause (a) of Article
FOURTH.
"Wholly Owned Affiliate" shall mean with respect to any Person any other
Person which is directly or indirectly wholly owned by such Person, directly or
indirectly wholly owns such Person or is directly or indirectly wholly owned by
the same Person as such Person, with such ownership to mean possession of both
100% of the equity interest and 100% of the voting interest, except for
directors' qualifying shares, if any. Any Person that is directly or indirectly
wholly owned by the Cisneros Family shall be deemed a Wholly Owned Affiliate of
ODC.
"Wireless Access Services" shall mean the provision by any Person of
network access by use of electromagnetic waves (irrespective of bandwidth or
transmission protocol) to online and/or internet services to end users of mobile
wireless access devices, which access services are acquired or developed by AOL
for Launch anywhere on or prior to _____, 2004. "Wireless Access Services"
shall not include any PC Access Services or TV Access Services, notwithstanding
their use of electromagnetic waves or otherwise. For the avoidance of doubt, the
fact that an end user of a PC Access Service or TV Access Service shall transmit
information to his or her personal computer or television by means of an
infrared or other wireless keyboard or similar input device shall not make such
PC Access Service or TV Access Service a Wireless Access Service.
(c) Competing Activities and Corporate Opportunities. The stockholders of
the Corporation, including, without limitation, AOL, ODC, and their respective
officers, directors, agents, shareholders, members, partners, Affiliates and
Subsidiaries (other than the Corporation and its Subsidiaries), may engage or
invest in, independently or with others, any business activity of any type or
description, including without limitation those that might be the same as or
similar to the Corporation's business or the business of any Subsidiary or
Affiliate of the Corporation and that might be in direct or indirect competition
with the Corporation or any Subsidiary or Affiliate of the Corporation,
including, without limitation, any business of the Corporation conducted
pursuant to any Special Power, and neither the Corporation, any Subsidiary or
Affiliate of the Corporation (other than the Corporation and its Subsidiaries)
nor any other stockholder of the Corporation shall have any right in or to such
other ventures or activities or to receive or share in any income or proceeds
derived therefrom. If either AOL or ODC (or, except as to any matter the
Corporation has the corporate power to exploit pursuant to Clause (d) of Article
THIRD, any of their respective officers, directors, agents, shareholders,
members, partners, Affiliates or Subsidiaries) acquires knowledge of a potential
transaction or matter which may be a Corporate Opportunity or otherwise is then
exploiting any Corporate Opportunity, the Corporation shall have no interest in,
and no expectation that, such Corporate Opportunity be offered to it, any such
interest or expectation being hereby renounced, so that such Person (1) shall
have no duty to communicate or present such Corporate Opportunity to the
Corporation, shall have the right to hold any such Corporate Opportunity for its
(and its officers', directors', agents', shareholders', members', partners',
Affiliates' or Subsidiaries') own account or to recommend, sell, assign or
otherwise transfer such Corporate Opportunity to Persons other than the
Corporation or any Subsidiary of the Corporation, and (2) shall not be liable to
the Corporation or its stockholders for breach of any fiduciary duty as a
stockholder of the Corporation or otherwise by reason of the fact that such
Person pursues or acquires such Corporate Opportunity for itself, directs,
sells, assigns or otherwise transfers such Corporate Opportunity to another
Person, or does not communicate information regarding such Corporate Opportunity
to the Corporation.
(d) Limitation on Corporate Powers.
------------------------------
(1) The Corporation shall not have the corporate power to take any
action, or to cause or permit any Subsidiary or Affiliate to take any
action, to exploit in any manner any Corporate Opportunity (other than a
Special Power) unless and until exploitation of such Corporate Opportunity
is rejected by AOL and by ODC (in each case by each of AOL and ODC
7
<PAGE>
on their own behalf and on behalf of their respective Subsidiaries and
Affiliates) as set forth herein. The Corporation shall not have the
corporate power to take any action, or to cause or permit any Subsidiary or
Affiliate to (or to own any Subsidiary or Affiliate that does) take any
action, to exploit in any manner any Corporate Opportunity, knowledge of
which is obtained by any person who is an officer, director, employee or
agent of the Corporation and who is neither (1) a Class B or Class C
Director nor (2) an officer or director of AOL or ODC or any of their
Subsidiaries or Affiliates (other than the Corporation) unless and until
(A) such Corporate Opportunity shall be presented to AOL and ODC (in each
case to AOL and ODC on their own behalf and on behalf of their respective
Subsidiaries and Affiliates) and (B) AOL determines that AOL shall not and
ODC determines that ODC shall not (in each case by each of AOL and ODC on
their own behalf and on behalf of their respective Subsidiaries and
Affiliates) pursue such Corporate Opportunity. The Corporation shall not
have the corporate power to take any action, or to cause or permit any
Subsidiary or Affiliate to take any action, to exploit in any manner any
Corporate Opportunity, knowledge of which is obtained by any person who is
a director or officer of the Corporation and who is either (1) a Class B
Director or (2) a director or officer of AOL or any of its Subsidiaries or
Affiliates (other than the Corporation) unless and until exploitation of
such Corporate Opportunity is rejected by AOL on its own behalf and on
behalf of its Subsidiaries and Affiliates. The Corporation shall not have
the corporate power to take any action, or to cause or permit any
Subsidiary or Affiliate to (or to own any Subsidiary or Affiliate that
does) take any action, to exploit in any manner any Corporate Opportunity,
knowledge of which is obtained by any person who is a director or officer
of the Corporation and who is either (1) a Class C Director or (2) a
director or officer of ODC or any of its Subsidiaries or Affiliates (other
than the Corporation) unless and until exploitation of such Corporate
Opportunity is rejected by ODC on its own behalf and on behalf of its
Subsidiaries and Affiliates. Notwithstanding the foregoing, each or both of
AOL and ODC, and each of their Subsidiaries and Affiliates, may exploit any
Corporate Opportunity that may become or is a Special Power of the
Corporation regardless of whether the Corporation is then exploiting or
attempting to exploit such Special Power.
(2) For purposes of Clause (d)(1) of this Article THIRD, if any Person
entitled to exploit a Corporate Opportunity does not, within 180 calendar
days after becoming aware of such Corporate Opportunity, begin to pursue,
or thereafter continue to pursue, such Corporate Opportunity, the
Corporation shall then have the corporate power to take any action or cause
or permit any Subsidiary to take any action to exploit in any manner any
such Corporate Opportunity; provided that the 180 calendar days within
which a Person must begin to or continue to pursue a Corporate Opportunity
shall not be deemed to have elapsed with respect to a Person until the day
after the date reasonably determined by the Board of Directors of the
Corporation to be the 180th calendar day after such Person became aware of
the Corporate Opportunity as set forth in a written notice from the
Corporation to the Person or Persons entitled to exploit the Corporate
Opportunity; and provided further that each recipient of such notice does
not object to such determination in writing to the Corporation within ten
(10) business days following the receipt of such written notice. In the
case of an objection by a recipient of the date set forth in the written
notice provided in the preceding sentence, the 180th calendar day shall be
the date mutually agreed upon by the Corporation and the Person or Persons
entitled to exploit the Corporate Opportunity.
(3) Except as specifically provided in Clause (d)(1) of this Article
THIRD, for purposes of Clause (d) of this Article THIRD only (A) the term
"Corporation" shall mean the Corporation and all Subsidiaries and
Affiliates of the Corporation and (B) the terms AOL and ODC shall mean, as
applicable, AOL, ODC, and each of their Subsidiaries and Affiliates other
than the Corporation.
8
<PAGE>
(e) Indemnification.
---------------
(i) If, and to the extent that, the Corporation, any stockholder of
the Corporation or any other Person brings any Action against AOL or ODC
(or any of their officers, directors, agents, shareholders, members,
partners, Affiliates or Subsidiaries) seeking any Damages or injunctive or
other equitable relief based on, arising out of or relating to any breach
or alleged breach of any fiduciary or other duty based on any action or
inaction which is permitted by the provisions of this Article THIRD or
which is otherwise taken in reliance upon the provisions of this Article
THIRD, the Corporation shall, to the fullest extent permitted by law,
indemnify and hold such Persons harmless from and against all Damages
arising out of or in connection with any such Action. The right to
indemnification conferred herein 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 Action in advance of its final disposition (an "Advancement of
Expenses"); provided, however, that if, but only if and then only to the
extent, the GCL requires, an Advancement of Expenses incurred by an
indemnitee hereunder shall be made only upon delivery to the Corporation of
an undertaking (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 (a "Final
Adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Article THIRD or otherwise. The rights to
indemnification and to the Advancement of Expenses conferred herein shall
be contract rights and, as such, shall inure to the benefit of the
indemnitee's successors, assigns, heirs, executors and administrators.
(ii) If a claim for indemnification under this Article THIRD 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 such suit. In (A) any suit brought by
an indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by an indemnitee to enforce a right to an Advancement of
Expenses) it shall be a defense that, and (B) 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
only upon a Final Adjudication that, the indemnitee has not met the
applicable standard for indemnification, if any, 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 herein or in the GCL, nor an actual
determination by the Corporation (including its directors, or a committee
thereof, 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 THIRD or otherwise, shall be on the Corporation.
(iii) The rights to indemnification and to the Advancement of
Expenses conferred in this Article THIRD shall not be exclusive of any
other right which any person may have or hereafter
9
<PAGE>
acquire by any statute, this Certificate of Incorporation, the
Corporation's By-laws, or any agreement, vote of stockholders or
disinterested directors or otherwise.
(f) Notice to Holders. Any person purchasing or otherwise acquiring any
interest in shares of the capital stock of the Corporation, or any other
securities, rights, warrants, options or debt instruments of the Corporation
convertible into or exchangeable for, capital stock of the Corporation shall be
deemed to have notice of and to have consented to the provisions of this Article
THIRD.
FOURTH: (a) Authorized Capital Stock.
------------------------
(i) Authorized Shares. The total number of shares of stock that the
Corporation shall have the authority to issue is 2,250,000,000 shares,
comprised of 1,750,000,000 shares of Common Stock, par value $.01 per
share, issuable in three classes, as set forth below, and 500,000,000
shares of Preferred Stock, par value $.01 per share, issuable in one or
more series as hereinafter provided.
(ii) Common Stock. The authorized shares of Common Stock shall be
comprised of (1) 1,250,000,000 shares of Class A Common Stock (the "Class A
Common Stock"); (2) 250,000,000 shares of Class B Common Stock (the "Class
B Common Stock"); and (3) 250,000,000 shares of Class C Common Stock (the
"Class C Common Stock."). The Class A Common Stock, the Class B Common
Stock and the Class C Common Stock shall hereinafter collectively be called
the "Common Stock."
(iii) Preferred Stock. Of the 500,000,000 shares of Preferred Stock
authorized for issuance, (1) 150,000,000 shares shall be designated and
known as the "Series B Redeemable Convertible Preferred Stock"
(hereinafter, the "Series B Preferred Stock"), (2) 150,000,000 shares shall
be designated and known as the "Series C Redeemable Convertible Preferred
Stock" (hereinafter, the "Series C Preferred Stock") and (3) 200,000,000
shares shall be reserved for issuance by the Board in accordance with the
provisions of Clause (c) of this Article FOURTH. The Series B Preferred
Stock and Series C Preferred Stock shall have the rights, privileges and
obligations set forth in Clause (c) of this Article FOURTH. The rights,
privileges and obligations of each other series of Preferred Stock shall be
as set forth in the resolution or resolutions adopted in the manner set
forth in Clause (c) of this Article FOURTH. The Series B Preferred Stock,
the Series C Preferred Stock and each other series of Preferred Stock
created by the Corporation in accordance with the provisions of this
Certificate of Incorporation shall hereinafter collectively be called the
"Preferred Stock."
(iv) Increases and Decreases in Size. The number of authorized
shares of any class or classes or series of capital stock of the
Corporation may be increased or decreased (but not below the number of
shares thereof then outstanding) only after receiving each of the following
votes: (x) the affirmative vote of the holders of at least seventy five
percent (75%) of the voting power of the stock of the Corporation entitled
to vote generally in the election of Class A Directors ("Voting Stock")
irrespective of the provisions of Section 242(b)(2) of the GCL or any
corresponding provision hereinafter enacted and without a separate class
vote of the holders of such class or classes, except as provided in clauses
(y) and (z) hereof; (y) if there are one or more shares of Class B
Securities then outstanding, the affirmative vote of the holders of a
majority of the Class B Securities then outstanding voting together as a
single class; and (z) if there are one or more shares of Class C Securities
then outstanding, the affirmative vote of the holders of a majority of the
Class C Securities then outstanding voting together as a single class.
10
<PAGE>
(b) Terms of Common Stock; Voting; Directors.
----------------------------------------
(i) Rights and Privileges; Voting Rights.
------------------------------------
(A) The holders of shares of Common Stock shall have the
following voting rights:
(1) Each share of Class A Common Stock shall be entitled to
one (1) vote per share in person or by proxy on all matters
submitted to a vote of the stockholders of the Corporation on
which the holders of the Class A Common Stock are entitled to
vote.
(2) Each share of High Vote Common Stock shall be entitled
to ten (10) votes per share in person or by proxy on all matters
submitted to a vote of the stockholders of the Corporation on
which the holders of such High Vote Common Stock are entitled to
vote.
(3) Except as provided in Clause (c) of Article FOURTH and
as may be provided pursuant to resolutions of the Board adopted
pursuant to the provisions of this Certificate of Incorporation
and the By-laws, establishing any series of Preferred Stock and
granting to the holders of such shares of Preferred Stock rights
to elect additional directors under specified circumstances, and
subject to Article FOURTH, Clause (b)(iii)(C) and (D) and Article
FIFTH, Clause (a) below, the Board shall consist of fourteen (14)
directors. Subject to Article FOURTH, Clauses (b)(iii)(C) and (D)
and Article FIFTH, Clause (a) below: (x) the holders of the Class
B Securities, voting separately as a class, shall be entitled to
elect five (5) of the fourteen (14) directors of the Board (each
a "Class B Director"); (y) the holders of the Class C Securities,
voting separately as a class, shall be entitled to elect five (5)
of the fourteen (14) directors of the Board (each a "Class C
Director"); and (z) the remaining four (4) directors (each a
"Class A Director"), shall be elected by the vote of the holders
of the Common Stock, voting as one class (or if any holders of
shares of Preferred Stock are entitled to vote together with the
holders of Common Stock, as a single class with such holders of
shares of Preferred Stock).
(4) Except as provided in Clause (c) of Article FOURTH or as
otherwise required in this Certificate of Incorporation, the By-
laws or by applicable law, the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation generally (or if any
holders of shares of Preferred Stock are entitled to vote
together with the holders of Common Stock, as a single class with
such holders of shares of Preferred Stock).
(B)(1) Notwithstanding anything in this Certificate of
Incorporation to the contrary, so long as any shares of High Vote
Stock are outstanding, except as otherwise required by Section
242(b)(2) of the GCL, only the holder or holders, as the case may be,
of the High Vote Stock shall be entitled to vote generally on the
matters set forth in clauses (I) through (VII) of this Clause
(b)(i)(B)(1), and the vote of holders of a majority of the outstanding
Class B Securities and Class C Securities, each voting separately as a
class, or if only one of the Class B Securities or Class C Securities
is then outstanding,
11
<PAGE>
the vote of holders of a majority of such Class B Securities or Class
C Securities shall be required to:
(I) Approve any amendment or repeal of Article THIRD of this
Certificate of Incorporation or adopt any provision inconsistent
therewith;
(II) Approve any amendment or repeal of Article FOURTH of this
Certificate of Incorporation or adopt any provision inconsistent
therewith;
(III) Approve any amendment or repeal of Article FIFTH of this
Certificate of Incorporation or adopt any provision inconsistent
therewith;
(IV) Approve any amendment or repeal of Articles III (including
Schedule 3.1(b) thereto), IV, X, or XI or Section 5.2 of the By-
laws;
(V) Approve any expansion of the business of the Corporation
beyond the provision of PC Access Services, AOL-branded TV Access
Services, AOL-branded Wireless Access Services and AOL-branded
Internet Portal Services in the Territory;
(VI) Approve the creation of any Operating Entity in any country
within the Territory; and
(VII) Approve the commencement of any Action (without regard to
the amount in controversy) or settlement of any Action to which
the Corporation or any Subsidiary is a party or the subject
thereof, which Action could materially adversely affect the
rights of AOL or ODC or any of their Subsidiaries or Affiliates.
(2) Notwithstanding anything in this Certificate of Incorporation
to the contrary, so long as any shares of High Vote Stock are outstanding, the
vote of holders of a majority of the outstanding Class B Securities (except to
the extent that the holders of a majority of the outstanding Class B Securities
have waived such voting right) and Class C Securities (except to the extent that
the holders of a majority of the outstanding Class C Securities have waived such
voting right), each voting separately as a class, or, if only one of the Class B
Securities or Class C Securities is then outstanding, the vote of the holders of
a majority of such Class B Securities or Class C Securities, shall be required
to approve:
(I) The merger, consolidation, dissolution or liquidation of the
Corporation or any Subsidiary, or any transaction having the same
effect;
(II) Except pursuant to (1) employee stock option and similar
incentive plans approved by the Board and the holders of a
majority of each class of High Vote Stock or (2) a conversion or
exchange right set forth in this Certificate of Incorporation or
similar constitutive documents of any Subsidiary, or in the
Stockholders' Agreement, the issuance, authorization,
cancellation, alteration, modification, redemption or any change
in, of, or to, any Common Stock, Preferred Stock or other equity
security of the Corporation or any Subsidiary, or any option,
put, call or warrant with respect to the foregoing;
12
<PAGE>
(III) 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);
(IV) Any transaction involving (i) 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 (ii) any related series or combination of transactions having or
which will have, directly or indirectly, the same effect as any of
the foregoing;
(V) 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;
(VI) The adoption of any Business Plan for an Operating Entity
and the approval of any modification of any line item or
other provision in any Business Plan in respect of any
Operating Entity.
(VII) The 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;
(VIII) The establishment of, or making any significant
modification to, the investment and/or cash management policies
of the Corporation or any Subsidiary;
(IX) The approval of the discontinuation of any material
activity engaged in from time to time by the Corporation or any
Subsidiary;
(X) The approval of the entering into of any partnership,
joint venture or consortium with any other Person by the Corporation
or any Subsidiary;
(XI) The entry into agreements by the Corporation or any
Subsidiary outside of the ordinary course of business; and
(XII) The 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.
(ii) Dividends and Distributions.
---------------------------
(A) Subject to the preferences applicable to the Preferred Stock
outstanding at any time, if any, the holders of shares of Common Stock
shall be entitled to receive such dividends and other distributions in
cash, property or shares of stock of the Corporation as may be
declared thereon by the Board from time to time out of assets or funds
of the Corporation legally available therefor; provided, that, subject
to the provisions of this Section, the Corporation shall not pay
dividends or make distributions to any holders of any class of Common
Stock unless simultaneously with such dividend
13
<PAGE>
or distribution, as the case may be, the Corporation makes the same
dividend or distribution with respect to each outstanding share of
Common Stock regardless of class.
(B) In the case of dividends or other distributions payable in
Class A Common Stock, Class B Common Stock or Class C Common Stock,
including distributions pursuant to stock splits or divisions of Class
A Common Stock, Class B Common Stock or Class C Common Stock which
occur after the first date upon which the Corporation has issued
shares of any of Class A Common Stock, Class B Common Stock or Class C
Common Stock, only shares of Class A Common Stock shall be distributed
with respect to Class A Common Stock, only shares of Class B Common
Stock shall be distributed with respect to Class B Common Stock, and
only shares of Class C Common Stock shall be distributed with respect
to Class C Common Stock. In the case of any such dividend or
distribution payable in shares of Class A Common Stock, Class B Common
Stock or Class C Common Stock, the number of shares of each class of
Common Stock payable per share of each such class of Common Stock
shall be equal in number.
(C) In the case of dividends or other distributions consisting of
other voting securities of the Corporation or of voting securities of
any Person that is a Wholly Owned Affiliate of the Corporation, the
Corporation shall declare and pay such dividends in three separate
classes of such voting securities, identical in all respects, except
that: (1) the voting rights of each such security paid to the holders
of Class B Common Stock and Class C Common Stock, when compared to the
voting rights of each such security paid to the holders of Class A
Common Stock, shall have voting rights determined pursuant to the same
formula as provided in Clause (b)(i)(A) of Article FOURTH above; (2)
such security paid to the holders of Class B Common Stock shall
convert into the security paid to the holders of Class A Common Stock
upon the same terms and conditions then applicable to the conversion
of Class B Common Stock into Class A Common Stock and shall have the
same restrictions on transfer and ownership applicable to the transfer
and ownership of Class B Common Stock; and (3) such security paid to
the holders of Class C Common Stock shall convert into the security
paid to the holders of Class A Common Stock upon the same terms and
conditions then applicable to the conversion of Class C Common Stock
into Class A Common Stock and shall have the same restrictions on
transfer and ownership applicable to the transfer and ownership of
Class C Common Stock. In the case of any such dividend or
distribution payable in other voting securities of the Corporation or
any Wholly Owned Affiliate of the Corporation, the number of shares or
other interest of such voting securities payable per share of each
such class of Common Stock shall be equal in number.
(D) In the case of dividends or other distributions consisting of
securities convertible into, or exchangeable for, voting securities of
the Corporation or voting securities of any Person that is a Wholly
Owned Affiliate of the Corporation, the Corporation shall provide that
such convertible or exchangeable securities and the underlying
securities be identical in all respects (including, without
limitation, the conversion or exchange rate), except that: (1) the
voting rights of each security underlying the convertible or
exchangeable security paid to the holders of Class B Common Stock and
Class C Common Stock, when compared to the voting rights of each
security underlying the convertible or exchangeable security paid to
the holders of the Class A Common Stock, be determined pursuant to the
same formula as provided in Clause (b)(i)(A) of Article FOURTH above;
(2) such underlying securities paid to the holders of the Class B
Common Stock shall convert into the underlying securities paid to the
holders of Class A Common Stock upon the same terms and conditions
then
14
<PAGE>
applicable to the conversion of Class B Common Stock into Class A
Common Stock and shall have the same restrictions on transfer and
ownership applicable to the transfer and ownership of the Class B
Common Stock; and (3) such underlying securities paid to the holders
of the Class C Common Stock shall convert into the underlying
securities paid to the holders of Class A Common Stock upon the same
terms and conditions then applicable to the conversion of Class C
Common Stock into Class A Common Stock and shall have the same
restrictions on transfer and ownership applicable to the transfer and
ownership of the Class C Common Stock. In the case of any such
dividend or distribution payable in other voting securities of the
Corporation or any Wholly Owned Affiliate of the Corporation, the
number of shares or other interest of such voting securities payable
per share of each such class of Common Stock shall be equal in number.
(iii) Conversion of High Vote Common Stock.
------------------------------------
(A) Optional Conversion by the Holder. Each holder of High Vote
Common Stock shall be entitled to convert, at any time and from time
to time, any or all of the shares of such holder's High Vote Common
Stock on a one-for-one basis, into the same number of fully paid and
non-assessable shares of Class A Common Stock. Such right shall be
exercised by the surrender to the Corporation of the certificate or
certificates representing the shares of High Vote Common Stock to be
converted at any time during normal business hours at the principal
executive offices of the Corporation or at the office of the
Corporation's transfer agent (the "Transfer Agent"), accompanied by a
written notice of the holder of such shares stating that such holder
desires to convert such shares, or a stated number of the shares
represented by such certificate or certificates, into an equal number
of shares of Class A Common Stock, and (if so required by the
Corporation or the Transfer Agent) by instruments of transfer, in form
satisfactory to the Corporation and to the Transfer Agent, duly
executed by such holder or such holder's duly authorized attorney, and
transfer tax stamps or funds therefor, if required pursuant to Article
FOURTH, Clause (b)(iii)(H) below.
(B) Automatic Conversion Upon Transfer.
----------------------------------
(1) Each share of High Vote Common Stock transferred,
directly or indirectly, by one or more Parent Entities (or any
Permitted Transferee) to one or more Persons other than a
Permitted Transferee shall automatically convert into one (1)
fully paid and non-assessable share of Class A Common Stock upon
such disposition, provided that no such conversion shall occur
solely as a result of the pledge, hypothecation or other similar
financing transaction of any High Vote Common Stock by a Parent
Entity so long as the transferring Parent Entity continues to
have the sole and exclusive authority and right to vote the
shares subject to such pledge, hypothecation or other financing
transaction. Notwithstanding the foregoing, any share of High
Vote Common Stock transferred by a Parent Entity (or any
Permitted Transferee) pursuant to the provisions of the preceding
sentence shall, if such transfer is to any Person other than a
Parent Entity or a Wholly Owned Affiliate of a Parent Entity,
automatically convert into one (1) fully paid and non-assessable
share of Class A Common Stock (A) upon such transfer, unless the
applicable Parent Entity obtains from such transferee a voting
agreement and voting proxy, each in form and substance
satisfactory to the Corporation and the other Parent Entity (if
such other Parent Entity then holds any High Vote Stock),
pursuant to which the transferee agrees to grant to the
appropriate Parent Entity the right to vote all shares of High
Vote Common Stock transferred to such Person, such vote to be at
15
<PAGE>
the sole discretion of the appropriate Parent Entity, (B) upon
the termination of, or the occurrence of any event invalidating
or modifying in any material respect the voting provisions
contained in, any voting agreement or voting proxy entered into
pursuant to the provisions of the preceding Clause (A), and (C)
solely with respect to a transfer to an Employee of a Parent
Entity and/or one or more Cisneros Family members, if (i) such
transfer, either individually or when aggregated with all prior
transfers of High Vote Common Stock to Employees of such Parent
Entity and/or Cisneros Family members, exceeds 20% of the number
of shares of High Vote Common Stock issuable upon conversion of
the shares of High Vote Preferred Stock originally issued to such
Parent Entity or (ii) such person ceases to be an Employee of the
transferring Parent Entity. For purposes of the foregoing, AOL
shall be the appropriate Parent Entity with respect to any
transfers of Class B Common Stock and ODC shall be the
appropriate Parent Entity with respect to any transfers of Class
C Common Stock. A copy of every voting agreement and voting proxy
entered into in accordance with the provisions hereof, and all
amendments thereto or modifications thereof, must be filed with
the Corporation promptly after its execution. Notwithstanding the
foregoing, (y) if any Permitted Transferee ceases to qualify as a
Permitted Transferee at anytime following the transfer of the
High Vote Common Stock, then each share of the High Vote Common
Stock transferred to such Permitted Transferee shall
automatically convert, at the time that the transferee ceases to
so qualify, into one (1) fully paid and non-assessable share of
Class A Common Stock; and (z) no transfer of High Vote Common
Stock may be made, and any such transfer shall not be deemed to
be valid by the Corporation, if such transfer would, when
combined with all other transfers of such High Vote Common Stock
previously consummated, require the Corporation to register the
Class B Common Stock and/or Class C Common Stock under the
Securities Exchange Act of 1934, as amended. Determinations as
to the occurrence of events listed in this Clause (b)(iii)(B) of
Article FOURTH shall be made by a majority of the Board of
Directors, subject to the provisions of Clause (c) of Article
FOURTH regarding the approval of actions with stockholders.
(2) In addition, if any Person other than a Permitted
Transferee otherwise acquires any direct or indirect ownership
interest in a share of High Vote Common Stock, such share of High
Vote Common Stock automatically shall convert into one (1) fully
paid and non-assessable share of Class A Common Stock upon such
Person acquiring such ownership interest, provided that no such
conversion shall occur solely as a result of the pledge,
hypothecation or other similar financing transaction of any Class
B Common Stock or Class C Common Stock by a Parent Entity or any
Permitted Transferee so long as the appropriate Parent Entity
continues to have the sole and exclusive authority and right to
vote the shares subject to such pledge, hypothecation or other
financing transaction. For purposes of the foregoing, AOL shall
be the appropriate Parent Entity with respect to any pledges,
hypothecations or other similar financing transactions with
respect to any Class B Common Stock and ODC shall be the
appropriate Parent Entity with respect to any pledges,
hypothecations or other similar financing transactions with
respect to any Class C Common Stock.
(C) If at any time the number of shares of Class B Common Stock
owned by AOL, its Wholly Owned Affiliates and its Employees in the
aggregate (including shares of Class B Common Stock issuable upon
conversion of then outstanding shares of Series B Preferred Stock)
constitutes less than fifty percent (50%) of the number of shares of
16
<PAGE>
Class B Common Stock issuable to AOL upon the conversion of the Series
B Preferred Stock originally issued to AOL (in each case as adjusted
to negate any reduction in the number of shares of Class B Common
Stock and/or Series B Preferred Stock owned by AOL resulting from the
admission of a Strategic Partner approved by the Special Committee
pursuant to Article FIFTH, Clause (d) and equitably adjusted for any
stock split, stock dividend, reverse stock split, reclassification or
similar transaction) (a "Class B Triggering Event"), then each share
of Class B Common Stock then issued and outstanding, including shares
issuable upon the conversion of Series B Preferred Stock in connection
with the occurrence of the Class B Triggering Event, shall thereupon
be converted automatically as of such date into one (1) fully paid and
non-assessable share of Class A Common Stock. Upon the determination
by the Corporation that such automatic conversion has occurred, notice
of such automatic conversion shall be given by the Corporation as soon
as practicable thereafter by means of a press release and written
notice to all holders of Class B Common Stock, and the Secretary of
the Corporation shall be instructed to, and shall promptly, request
from each holder of Class B Common Stock that each such holder
promptly deliver, and each such holder shall promptly deliver, the
certificate representing each such share of Class B Common Stock to
the Corporation for exchange hereunder, together with instruments of
transfer, in form satisfactory to the Corporation and the Transfer
Agent, duly executed by such holder or such holder's duly authorized
attorney, and together with transfer tax stamps or funds therefor, if
required pursuant to Article FOURTH, Clause (b)(iii)(H) below.
Effective upon a Class B Triggering Event, the term of any then
serving Class B Directors shall terminate, and the size of the Board
and any committee of the Board on which any such director serves shall
be decreased by the number of Class B Directors then serving thereon.
(D) If at any time the number of shares of Class C Common Stock
owned by ODC, its Wholly Owned Affiliates, members of the Cisneros
Family and ODC Employees in the aggregate (including shares of Class C
Common Stock issuable upon conversion of then outstanding shares of
Series C Preferred Stock) constitutes less than fifty percent (50%) of
the number of shares of Class C Common Stock issuable to ODC upon the
conversion of the Series C Preferred Stock originally issued to ODC
(in each case as adjusted to negate any reduction in the number of
shares of Class C Common Stock and/or Series C Preferred Stock owned
by ODC resulting from the admission of a Strategic Partner approved by
the Special Committee pursuant to Article FIFTH, Clause (d) and
equitably adjusted for any stock split, stock dividend, reverse stock
split, reclassification or similar transaction) (a "Class C Triggering
Event"), then each share of Class C Common Stock then issued and
outstanding, including shares issuable upon the conversion of Series C
Preferred Stock in connection with the occurrence of the Class C
Triggering Event, shall thereupon be converted automatically as of
such date into one (1) fully paid and non-assessable share of Class A
Common Stock. Upon the determination by the Corporation that such
automatic conversion has occurred, notice of such automatic conversion
shall be given by the Corporation as soon as practicable thereafter by
means of a press release and written notice to all holders of Class C
Common Stock, and the Secretary of the Corporation shall be instructed
to, and shall promptly, request from each holder of Class C Common
Stock that each such holder promptly deliver, and each such holder
shall promptly deliver, the certificate representing each such share
of Class C Common Stock to the Corporation for exchange hereunder,
together with instruments of transfer, in form satisfactory to the
Corporation and the Transfer Agent, duly executed by such holder or
such holder's duly authorized attorney, and together with transfer tax
stamps or funds therefor, if required pursuant to Article FOURTH,
Clause (b)(iii)(H) below. Effective upon a Class C Triggering Event,
the term of any then serving Class C
17
<PAGE>
Directors shall terminate, and the size of the Board and any committee
of the Board on which any such director serves shall be decreased by
the number of Class C Directors then serving thereon.
(E) As promptly as practicable following the surrender for
conversion of a certificate representing shares of High Vote Common
Stock in the manner provided in Article FOURTH, Clauses (b)(iii)(A),
(B), (C) or (D) above, and the payment in cash of any amount required
by the provisions of Article FOURTH, Clause (b)(iii)(H) below, the
Corporation will deliver or cause to be delivered at the office of the
Transfer Agent, a certificate or certificates representing the number
of full shares of Class A Common Stock issuable upon such conversion,
issued in such name or names as such holder may direct. Such
conversion shall be deemed to have been effected immediately prior to
the close of business on the date on which the event causing the
conversion occurs. Upon the date any such conversion is deemed made or
effected, all rights of the holder of such shares of High Vote Common
Stock as such holder shall cease, and the person or persons in whose
name or names the certificate or certificates representing the shares
of Class A Common Stock are to be issued shall be treated for all
purposes as having become the record holder or holders of such shares
of Class A Common Stock; provided, however, that if any such surrender
and payment occurs on any date when the stock transfer books of the
Corporation shall be closed, the person or persons in whose name or
names the certificate or certificates representing shares of Class A
Common Stock are to be issued shall be deemed the record holder or
holders thereof for all purposes immediately prior to the close of
business on the next succeeding day on which the stock transfer books
are open.
(F) Upon any reclassification or other similar transaction that
results in the shares of Class A Common Stock being converted into or
exchanged for another security, holders of High Vote Common Stock
shall be entitled to receive upon conversion or exchange of such High
Vote Common Stock the amount of such security that such holder would
have received if such conversion or exchange had occurred immediately
prior to the record date of such reclassification or other similar
transaction. No adjustments in respect of dividends shall be made upon
the conversion or exchange of any share of High Vote Common Stock;
provided, however, that if a share of High Vote Common Stock shall be
converted or exchanged subsequent to the record date for the payment
of a dividend or other distribution on shares of High Vote Common
Stock but prior to such payment, then the registered holder of such
share at the close of business on such record date shall be entitled
to receive the dividend or other distribution payable on such share on
such date notwithstanding the conversion or exchange thereof or the
default in payment of the dividend or distribution due on such date.
(G) The Corporation covenants that it shall at all times reserve
and keep available out of its authorized but unissued shares of Class
A Common Stock solely for the purpose of issuance upon conversion of
the outstanding shares of High Vote Stock, such number of shares of
Class A Common Stock that shall be issuable upon the conversion of all
such outstanding shares of High Vote Stock; provided that nothing
contained herein shall be construed to preclude the Corporation from
satisfying its obligations in respect of the conversion of the
outstanding shares of High Vote Stock by delivery of purchased shares
of Class A Common Stock which are held in the treasury of the
Corporation. The Corporation covenants that if any shares of Class A
Common Stock require registration with or approval of any Governmental
Authority under any federal or state law before such shares of Class A
Common Stock may be issued upon conversion of any High Vote Stock, the
Corporation shall cause such shares to be duly registered or
18
<PAGE>
approved, as the case may be. The Corporation shall use its best
efforts to list or otherwise qualify for trading the shares of Class A
Common Stock required to be delivered upon conversion or exchange
prior to such delivery upon each national securities exchange,
automated quotation system or other market upon which the outstanding
Class A Common Stock is listed or qualified for trading at the time of
such delivery. The Corporation covenants that all shares of Class A
Common Stock that shall be issued upon conversion of the shares of
High Vote Stock will, upon issue, be validly issued, fully paid and
non-assessable.
(H) The issuance of certificates for shares of Class A Common
Stock upon conversion of shares of High Vote Common Stock shall be
made without charge to the holders of such shares for any stamp or
other similar tax in respect of such issuance; provided, however, that
if any such certificate is to be issued in a name other than that of
the holder of the share or shares of High Vote Common Stock being
converted, then the Person or Persons requesting the issuance thereof
shall pay to the Corporation the amount of any tax that may be payable
in respect of any transfer involved in such issuance or shall
establish to the satisfaction of the Corporation that such tax has
been paid or is not payable.
(I) Shares of High Vote Common Stock that are converted into
shares of Class A Common Stock as provided herein shall continue to be
authorized shares of Class B Common Stock or Class C Common Stock, as
the case may be, and available for reissue by the Corporation;
provided, however, that no shares of High Vote Common Stock shall be
reissued except as expressly permitted by Article FOURTH, Clause
(b)(ii) above or Article FOURTH, Clause (b)(iv) below.
(iv) Stock Splits. The Corporation shall not in any manner subdivide
(by any stock split, stock dividend, reclassification, recapitalization or
otherwise) or combine (by reverse stock split, reclassification,
recapitalization or otherwise) the outstanding shares of one class of
Common Stock unless the outstanding shares of all classes of Common Stock
shall be proportionately subdivided or combined.
(v) Liquidation Rights. Upon any dissolution, liquidation or winding-
up of the affairs of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities
of the Corporation and after making provision for the holders of the High
Vote Preferred Stock and each additional series of Preferred Stock, if any
then outstanding, the remaining assets and funds of the Corporation, if
any, shall be divided among and paid to the respective holders of the
Common Stock and High Vote Preferred Stock ratably in proportion to the
number of shares of Common Stock they then hold assuming, for purposes of
such calculation, that all outstanding shares of High Vote Preferred Stock
are converted into shares of High Vote Common Stock at the then applicable
Conversion Ratio as of the date immediately preceding such distribution.
(vi) No Preemptive Rights. The holders of shares of Common Stock are
not entitled to any preemptive right to subscribe for, purchase or receive
any part of any new or additional issue of stock of any class, whether now
or hereafter authorized, or of bonds, debentures or other securities
convertible into or exchangeable for stock.
(c) Preferred Stock. Subject to the voting and approval procedures set
forth in Article FOURTH, clause (b) and Article FIFTH, Clause (d) of this
Certificate of Incorporation and in Article III of the By-laws, the Board is
hereby expressly granted authority to authorize in accordance with law from time
to time the issue of one or more series of Preferred Stock in addition to the
Series B Preferred Stock
19
<PAGE>
and Series C Preferred Stock, and with respect to any such series to fix by
resolution or resolutions the numbers of shares, powers, designations,
preferences and relative, participating, optional or other special rights of
such series and the qualifications, limitations or restrictions thereof and to
establish the price and consideration to be received therefor, as well as all
other matters applicable thereto as may be fixed or established pursuant to any
such resolution in accordance with the provisions of the GCL.
The preferences, privileges and restrictions granted to or imposed upon the
Series B Preferred Stock and Series C Preferred Stock, or the holders thereof,
are as follows:
(i) Designation and Amount.
----------------------
(A) Series B Preferred Stock. The number of shares constituting the
Series B Preferred Stock shall be 150,000,000 (One Hundred Fifty
Million). Such number of shares may be increased or decreased in
accordance with the other provisions of this Article FOURTH, provided,
however, that no decrease shall reduce the number of shares of Series
B Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation and
convertible into or exchangeable for Series B Preferred Stock.
(B) Series C Preferred Stock. The number of shares constituting the
Series C Preferred Stock shall be 150,000,000 (One Hundred Fifty
Million). Such number of shares may be increased or decreased in
accordance with the other provisions of this Article FOURTH, provided,
however, that no decrease shall reduce the number of shares of Series
C Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation and
convertible into or exchangeable for Series C Preferred Stock.
(ii) Dividends and Distributions.
---------------------------
(A) Preferred Stock Dividends. Subject to the GCL and the provisions
of this Certificate of Incorporation, the holders of shares of High
Vote Preferred Stock, in preference to the holders of shares of Common
Stock and of any other capital stock of the Corporation ranking junior
to the High Vote Preferred Stock as to payment of dividends, shall be
entitled to receive, when and as declared by the Board, out of funds
legally available therefor, cumulative dividends at the annual per
share rate of three percent (3%) of the per share Liquidation
Preference. Dividends on the High Vote Preferred Stock shall accrue
daily from the date of issuance of the High Vote Preferred Stock, and
shall be payable annually in arrears; provided, that such dividend
shall not be payable in cash, and instead shall be payable solely in
additional shares of the Corporation's Series B Preferred Stock and
Series C Preferred Stock, as applicable, with the value of such
additional shares equal, for such purposes, to the Fair Market Value,
on the date of such dividends, of a share of Class A Common Stock
which is ultimately issuable upon conversion of the High Vote Common
Stock issuable upon conversion of the High Vote Preferred Stock. The
amount of dividends payable for the initial dividend period and any
period shorter than a full quarterly period during which shares are
outstanding shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in the period in
which payable. No fractional shares of High Vote Preferred Stock shall
be issued in respect of any such dividend, and the number of shares
issuable to any holder who otherwise would be issued a fractional
share shall be rounded down to the nearest whole number of shares and
the Corporation shall make a cash payment to such Holder in an amount
equal to such fraction
20
<PAGE>
multiplied by the Fair Market Value of one share.
(B) Dividend Restrictions. Unless all accrued dividends on the High
Vote Preferred Stock pursuant to this Clause (c)(ii) of Article FOURTH
shall have been paid or declared, no dividend shall be paid or
declared, and no distribution shall be made on any Common Stock or any
class or series of capital stock ranking junior to the High Vote
Preferred Stock. If dividends are declared with respect to the Common
Stock or any class or series of capital stock ranking junior to the
High Vote Preferred Stock and the foregoing condition is satisfied,
then holders of High Vote Preferred Stock shall be entitled to receive
a dividend equivalent to that which would have been payable had the
High Vote Preferred Stock been converted into shares of Common Stock
immediately prior to the record date for payment of the dividends on
the Common Stock and no such dividend on Common Stock shall be paid
unless and until such dividend also shall have been paid on the High
Vote Preferred Stock. No dividends or other distributions shall be
authorized, declared, paid or set apart for payment on any class or
series of the Corporation's stock heretofore or hereafter issued
ranking, as to dividends, on a parity with or junior to the High Vote
Preferred Stock for any period unless full cumulative dividends have
been, or contemporaneously are, authorized, declared or paid on the
High Vote Preferred Stock.
(iii) Liquidation, Dissolution or Winding-Up.
--------------------------------------
(A) Preferred Preference. In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, after
payment of all amounts owing to holders of capital stock ranking
senior to the High Vote Preferred Stock, the holders of shares of High
Vote Preferred Stock then outstanding shall be entitled to be paid out
of the assets of the Corporation available for distribution to its
stockholders, before any payment shall be made to the holders of the
Common Stock or any class or series of capital stock ranking junior to
the High Vote Preferred Stock by reason of their ownership thereof, an
amount of $2.4544 per share (collectively, the "Liquidation
Preference"), in each case plus an amount equal to all accrued but
unpaid dividends, if any, to the date of winding up, whether or not
declared, on the High Vote Preferred Stock. If upon such liquidation,
distribution or winding-up of the Corporation, whether voluntary or
involuntary, the assets available to be distributed to the holders of
High Vote Preferred Stock are insufficient to permit payment in full
to such holders, then such assets shall be distributed ratably among
the holders of High Vote Preferred Stock.
(B) Remaining Liquidating Distribution. After payment has been made in
full pursuant to Clause (c)(iii)(A) of Article FOURTH above, and to
holders of capital stock of the Corporation ranking senior to the High
Vote Preferred Stock, if any, or the Corporation shall have set aside
funds sufficient for such payments in trust for the account of such
holders so as to be available for such payment, all remaining assets
available for distribution (after payment or provision for payment of
all debts and liabilities of the Corporation) shall be distributed to
the respective holders of any capital stock ranking junior to the High
Vote Preferred Stock but senior to the Common Stock ratably in
proportion to the number of shares of such stock they then hold, if
any such stock is then outstanding, and thereafter to the respective
holders of the Common Stock and High Vote Preferred Stock ratably in
proportion to the number of shares of Common Stock they then hold and
to any other stock ranking on a parity with the Common Stock,
assuming, for purposes of such calculation, that all outstanding
shares of High Vote Preferred Stock are converted into shares of High
Vote Common Stock at the then applicable Conversion Ratio as of the
date immediately preceding such distribution.
21
<PAGE>
(iv) Voting Rights. Each holder of shares of High Vote Preferred Stock
shall be entitled to notice of every stockholders' meeting and to vote
on any and all matters on which the Common Stock and/or High Vote
Common Stock may be voted. Each share of High Vote Preferred Stock
shall be entitled at any such meeting (or in connection with any
consent to be executed in lieu of any such meeting) to the number of
votes per share determined as if such share of High Vote Preferred
Stock had been converted into shares of the class of High Vote Common
Stock into which such High Vote Preferred Stock is then convertible at
the then applicable Conversion Ratio. Unless otherwise provided in
this Certificate of Incorporation or required by law, each holder of
each series of High Vote Preferred Stock shall:
(A) vote together with the holders of the class of High Vote Common
Stock into which such High Vote Preferred Stock is then convertible,
if any shares of such class of High Vote Common Stock are then
outstanding, as a single class on all matters submitted to a vote of
the holders of such class of High Vote Common Stock, including,
without limitation the election of directors and with respect to the
matters set forth in Clause (b)(i)(B) of this Article FOURTH,
(B) vote as a separate class on all matters that would be submitted to
a vote of the holders of the class of High Vote Common Stock into
which such High Vote Preferred Stock is then convertible, if no shares
of such class of High Vote Common Stock are then outstanding, and
(C) vote together with the holders of Common Stock as a single class
on all matters submitted to a vote of the holders of Common Stock
generally.
(v) Conversion. The holders of High Vote Preferred Stock shall have
conversion rights as follows:
(A) Right of Holder to Convert; Automatic Conversion.
------------------------------------------------
(1) Series B Preferred Stock. Each issued and outstanding share of
Series B Preferred Stock shall initially be convertible, at the option
of the holder thereof, at any time and without the payment of any
additional consideration therefor, into one (1) fully paid and
nonassessable share of Class B Common Stock (the "Series B Conversion
Ratio"). The initial Series B Conversion Ratio shall be subject to
adjustment (in order to adjust the number of shares of Class B Common
Stock into which the Series B Preferred Stock is convertible) as
herein provided. In addition, each issued and outstanding share of
Series B Preferred Stock automatically shall be converted into shares
of Class B Common Stock at the then applicable Series B Conversion
Ratio upon the occurrence of a Class B Triggering Event.
(2) Series C Preferred Stock. Each issued and outstanding share of
Series C Preferred Stock shall initially be convertible, at the option
of the holder thereof, at any time and without the payment of any
additional consideration therefor, into one (1) fully paid and
nonassessable share of Class C Common Stock (the "Series C Conversion
Ratio"). The initial Series C Conversion Ratio shall be subject to
adjustment (in order to adjust the number of shares of Class C Common
Stock into which the Series C Preferred Stock is convertible) as
herein provided. In addition, each issued and outstanding share of
Series C Preferred Stock automatically shall be converted into shares
of Class C Common Stock at the then
22
<PAGE>
applicable Series C Conversion Ratio upon the occurrence of a Class C
Triggering Event.
(3) Automatic Conversion Upon Transfer. Each share of High Vote
Preferred Stock transferred, directly or indirectly, by one or more
Parent Entities (or any Permitted Transferee) to one or more Persons
other than a Permitted Transferee shall automatically upon such
transfer convert into that number of fully paid and non-assessable
shares of the High Vote Common Stock into which it is then
convertible, at the then applicable Conversion Ratio, and each such
share of High Vote Common Stock immediately and automatically
thereafter shall convert into one (1) fully paid and non-assessable
share of Class A Common Stock, provided that no such conversion shall
occur solely as a result of the pledge, hypothecation or other similar
financing transaction of any High Vote Preferred Stock by a Parent
Entity or any Permitted Transferee so long as the transferring Parent
Entity continues to have the sole and exclusive authority and right to
vote the shares subject to such pledge, hypothecation or other
financing transaction. Notwithstanding the foregoing, any share of
High Vote Preferred Stock transferred by a Parent Entity (or any
Permitted Transferee) pursuant to the provisions of the preceding
sentence shall, if such transfer is to any Person other than a Parent
Entity or a Wholly Owned Affiliate of a Parent Entity, automatically
convert into that number of fully paid and non-assessable shares of
the High Vote Common Stock into which it is then convertible at the
then applicable Conversion Ratio, and each such share of High Vote
Common Stock immediately and automatically thereafter shall convert
into one (1) fully paid and non-assessable share of Class A Common
Stock (A) upon such transfer, unless the applicable Parent Entity
obtains from such transferee a voting agreement and voting proxy, each
in form and substance satisfactory to the Corporation and the other
Parent Entity (if such other Parent Entity then holds any High Vote
Stock), pursuant to which the transferee agrees to grant to the
appropriate Parent Entity the right to vote all shares of High Vote
Preferred Stock transferred to such Person at the sole discretion of
the appropriate Parent Entity, (B) upon the termination of, or the
occurrence of any event invalidating or modifying in any material
respect the voting provisions contained in, any voting agreement or
voting proxy entered into pursuant to the provisions of the preceding
Clause (A), and (C) solely with respect to a transfer to an Employee
of a Parent Entity and/or Cisneros Family members, if (i) such
transfer, either individually or when aggregated with all prior
transfers of High Vote Preferred Stock to Employees of such Parent
Entity and/or Cisneros Family members, exceeds 20% of the number of
shares of High Vote Common Stock issuable upon conversion of the
shares of High Vote Preferred Stock originally issued to such Parent
Entity or (ii) such person ceases to be an Employee of the
transferring Parent Entity. For purposes of the foregoing, AOL shall
be the appropriate Parent Entity with respect to any transfers of
Series B Preferred Stock and ODC shall be the appropriate Parent
Entity with respect to any transfers of Series C Preferred Stock. A
copy of every voting agreement and voting proxy entered into in
accordance with the provisions hereof, and all amendments thereto or
modifications thereof, must be filed with the Corporation promptly
after the execution thereof. Notwithstanding the foregoing, (y) if any
Permitted Transferee ceases to qualify as a Permitted Transferee at
anytime following the transfer of the High Vote Preferred Stock, then
each share of the High Vote Preferred Stock transferred to such
Permitted Transferee shall automatically convert, at the time that the
transferee ceases to so qualify, into that number of fully paid and
non-assessable shares of the High Vote Common Stock into which it is
then convertible at the then applicable Conversion Ratio, and each
such share of High Vote Common Stock immediately and automatically
thereafter shall convert into one (1) fully paid and non-assessable
share of Class A Common Stock; and (z) no transfer of High Vote
Preferred Stock may be made, and any such transfer shall not be deemed
to be valid by the Corporation, if such transfer would, when combined
with all other transfers of such High Vote Preferred Stock previously
consummated, require the Corporation to register any of the Class B
Securities and/or Class C Securities under the Securities Exchange Act
of 1934, as amended. Determinations as to the occurrence of events
listed in this Clause (c)(v)(A)(3) of Article FOURTH shall be made by
a majority of the Board of Directors, subject to the provisions of
Clause (c) of Article FOURTH regarding the approval of actions with
stockholders. In addition, if any Person other than a Parent Entity,
its Wholly Owned Affiliate, a Cisneros Family member or an Employee of
ODC or AOL otherwise acquires any direct or indirect ownership
interest in a share of High Vote Preferred Stock, such share of High
Vote Preferred Stock automatically shall convert into that number of
fully paid and non-assessable shares of the High
23
<PAGE>
Vote Common Stock into which it is then convertible at the then
applicable Conversion Ratio, and each such share of High Vote Common
Stock immediately and automatically thereafter shall convert into one
(1) fully paid and non-assessable share of Class A Common Stock, in
any event, upon such Person acquiring such ownership interest;
provided that no such conversion shall occur solely as a result of the
pledge, hypothecation or other similar financing transaction of any
High Vote Preferred Stock by a Parent Entity or any Permitted
Transferee so long as the appropriate Parent Entity continues to have
the sole and exclusive authority and right to vote the shares subject
to such pledge, hypothecation or other financing transaction. For
purposes of the foregoing, AOL shall be the appropriate Parent Entity
with respect to any pledges, hypothecations or other similar financing
transactions with respect to any Series B Preferred Stock and ODC
shall be the appropriate Parent Entity with respect to any pledges,
hypothecations or other similar financing transactions with respect to
any Series C Preferred Stock.
(B) Fractional Shares. No fractional shares of Class B Common Stock or
Class C Common Stock shall be issued upon conversion of the Series B
Preferred Stock or Series C Preferred Stock. In lieu of any fractional
shares to which the holder would otherwise be entitled, the Corporation
shall pay cash equal to the product of such fraction multiplied by the then
applicable Series B Conversion Ratio or Series C Conversion Ratio (rounded
to the nearest whole cent), as the case may be, multiplied by the Fair
Market Value.
(C) Mechanics of Conversion.
-----------------------
(1) In order for a holder of High Vote Preferred Stock to
voluntarily convert shares of High Vote Preferred Stock into shares of
High Vote Common Stock, such holder shall surrender the certificate or
certificates for such shares of High Vote Preferred Stock, at the
office of the transfer agent for the High Vote Preferred Stock (or at
the principal office of the Corporation if the Corporation serves as
its own transfer agent), together with written notice that such holder
elects to convert all or any number of the shares of the High Vote
Preferred Stock represented by such certificate or certificates. Such
notice shall state such holder's name or the names of the nominees in
which such holder wishes the certificate or
24
<PAGE>
certificates for shares of High Vote Common Stock to be issued and the
number of shares of High Vote Preferred Stock to be converted. If
required by the Corporation, certificates surrendered for conversion
shall be endorsed or accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Corporation, duly
executed by the registered holder or his, her or its attorney duly
authorized in writing. The date of receipt of such certificates and
notice by the transfer agent (or by the Corporation if the Corporation
serves as its own transfer agent) shall be the conversion date for a
voluntary conversion, and the date of the Class B or Class C
Triggering Event or other automatic conversion, as applicable, shall
be the conversion date for an automatic conversion (each, a
"Conversion Date") and each conversion shall be deemed effective as of
the close of business on the applicable Conversion Date. The
Corporation shall, as soon as practicable after a Conversion Date,
issue and deliver at such office to such holder of converted High Vote
Preferred Stock, or to his, her or its nominees, a certificate or
certificates for the number of shares of High Vote Common Stock to
which such holder shall be entitled, together with cash in lieu of any
fraction of a share or, if a Class B or Class C Triggering Event or
other automatic conversion has occurred, a certificate or certificates
for the number of shares of Class A Common Stock to which such holder
shall be entitled, together with cash in lieu of any fraction of a
share. In case the number of shares of High Vote Preferred Stock
represented by the certificate or certificates surrendered pursuant to
Clause (c)(v)(A) of Article FOURTH exceeds the number of shares
converted, the Corporation shall, upon such conversion, execute and
deliver to the holder, at the expense of the Corporation, a new
certificate or certificates for the number of shares of Series B
Preferred Stock or Series C Preferred Stock represented by such
certificate or certificates surrendered but not converted.
Notwithstanding anything to the contrary contained herein, at any time
that shares of Class A Common Stock are to be issued as a result of an
event causing the conversion of High Vote Preferred Stock, the
affected shares of High Vote Preferred Stock shall automatically
convert into the applicable class of High Vote Common Stock and
immediately thereafter convert into Class A Common Stock without the
necessity of the Corporation delivering to the holder a certificate to
evidence the issuance of the High Vote Common Stock being
automatically converted into Class A Common Stock and the Corporation
shall only be required to deliver the certificate evidencing such
shares of Class A Common Stock.
(2) The Corporation shall at all times when the High Vote
Preferred Stock shall be outstanding, reserve and keep available out
of its authorized but unissued stock, for the purpose of effecting the
conversion of the High Vote Preferred Stock, such number of its duly
authorized shares of High Vote Common Stock as shall from time to time
be sufficient to effect the conversion of all outstanding High Vote
Preferred Stock; provided that nothing contained herein shall be
construed to preclude the Corporation from satisfying its obligations
in respect of the conversion or exchange of the outstanding shares of
High Vote Preferred Stock by delivery of purchased shares of High Vote
Common Stock which are held in the treasury of the Corporation.
(3) All shares of High Vote Preferred Stock surrendered for
conversion or deemed automatically converted, as applicable, as herein
provided shall no longer be deemed to be outstanding and all rights
with respect to such shares, including the rights, if any, to receive
notices, to vote and to accrual of dividends shall immediately cease
and terminate at the close of business on the Conversion Date
25
<PAGE>
(except only the right of the holders thereof to receive shares of the
applicable class of Common Stock in exchange therefor) and any shares
of High Vote Preferred Stock so converted shall be retired and
canceled and shall not be reissued, and the Corporation from time to
time shall take appropriate action to reduce the authorized shares of
High Vote Preferred Stock accordingly.
(D) Adjustments to Conversion Ratio.
-------------------------------
(1) Special Definitions:
-------------------
(aa) "Original Issue Date" shall mean the date on which
shares of High Vote Preferred Stock were first issued.
(bb) "Additional Shares of Common Stock" shall mean all
shares of Common Stock issued (or, pursuant to Clause (c)(v)(D)(2)
of Article FOURTH, deemed to be issued) by the Corporation after
the Original Issue Date.
(2) Issue of Securities Deemed Issue of Additional Shares of
Common Stock. If the Corporation at any time or from time to time after
the Original Issue Date shall declare or pay any dividend or make any
other distribution on the Common Stock payable in Common Stock or
effect a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in Common
Stock), then and in any such event, Additional Shares of Common Stock
shall be deemed to have been issued:
(y) in the case of any such dividend or distribution,
immediately after the close of business on the record date
for the determination of holders of any class of securities
entitled to receive such dividend or distribution, or
(z) in the case of any such subdivision, at the close of
business on the date immediately prior to the date upon
which such corporate action becomes effective.
If such record date shall have been fixed and such dividend shall not
have been fully paid on the date fixed therefor, the adjustment
previously made in the Conversion Ratio which became effective on such
record date shall be cancelled as of the close of business on such
record date, and thereafter the Conversion Ratio shall be adjusted
pursuant to this Clause (c)(v)(D) of Article FOURTH as of the time of
actual payment of such dividend.
(3) Adjustment for Dividends, Distributions, Subdivisions,
------------------------------------------------------
Combinations or Consolidations of Common Stock.
----------------------------------------------
(aa) Stock Dividends, Distributions or Subdivisions. If the
Corporation shall issue Additional Shares of Common Stock in the
manner described in Clause (c)(v)(D)(2) of Article FOURTH in a
stock dividend, stock distribution or subdivision, the Conversion
Ratio in effect immediately prior to such stock dividend, stock
distribution or subdivision shall, concurrently with the
effectiveness of such stock dividend, stock distribution or
subdivision, be proportionately increased.
26
<PAGE>
(bb) Combinations or Consolidations. If the outstanding
shares of Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of
Common Stock, the Conversion Ratio in effect immediately prior to
such combination or consolidation shall, concurrently with the
effectiveness of such combination or consolidation, be
proportionately decreased.
(E) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Ratio pursuant to Clause
(c)(v)(D) of Article FOURTH, the Corporation at its expense shall promptly
compute such adjustment or readjustment in accordance with the terms hereof
and furnish to each holder of High Vote Preferred Stock a certificate
setting forth such adjustment or readjustment and showing in detail the
facts upon which such adjustment or readjustment is based. The Corporation
shall, upon the written request at any time of any holder of High Vote
Preferred Stock, furnish or cause to be furnished to such holder a similar
certificate setting forth (1) such adjustments and readjustments, (2) the
Conversion Price then in effect, and (3) the number of shares of Class B
Common Stock and/or Class C Common Stock and the amount, if any, of other
property, that then would be received upon the conversion of a share of High
Vote Preferred Stock.
(F) Notice of Record Date. If any of the following events occur:
---------------------
(1) the Corporation declares a dividend (or any other distribution)
on its Common Stock payable in Common Stock or other securities
of the Corporation;
(2) the Corporation subdivides or combines its outstanding shares
of Common Stock;
(3) there occurs or is proposed to occur any reorganization,
recapitalization or reclassification of the Common Stock of the
Corporation (other than a subdivision or combination of its outstanding
shares of Common Stock or a stock dividend or stock distribution
thereon), or of any consolidation or merger of the Corporation into or
with another corporation, or of the sale of all or substantially all of
the assets of the Corporation; or
(4) the involuntary or voluntary liquidation, dissolution, or
winding-up of the Corporation;
then the Corporation shall cause to be filed at its principal office or
at the office of the transfer agent of the Preferred Stock, and shall
cause to be mailed to the holders of the High Vote Preferred Stock at
their addresses as shown on the records of the Corporation or such
transfer agent, at least fifteen (15) days prior to the record date
specified in (aa) below or thirty days before the date specified in
(bb) below, a notice stating the following information:
(aa) the record date of such dividend, distribution,
subdivision or combination, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, subdivision, or
combination are to be determined, or
(bb) the date on which such reclassification, consolidation,
merger, sale, liquidation, dissolution or winding-up is
expected to become
27
<PAGE>
effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger,
sale, liquidation, dissolution or winding-up.
(vi) Redemption.
----------
(A) Mandatory Redemption by the Corporation. On the fifth anniversary
of the Original Issue Date the Corporation shall redeem all of the then
outstanding shares of High Vote Preferred Stock pursuant to this Clause
(c)(vi)(A) of Article FOURTH at the Redemption Price (the "Mandatory
Redemption"). The "Redemption Price" per share of High Vote Preferred
Stock to be redeemed shall mean an amount in cash or shares of Class A
Common Stock (valued at its then Fair Market Value), at the Corporation's
option, equal to the sum of the Liquidation Value attributable to such
share plus an amount equal to all accrued but unpaid dividends
attributable to such share.
(B) Mechanics of Redemption.
-----------------------
(1) Mandatory Redemption. In order to exercise its right to
effect the Mandatory Redemption, the Corporation shall send a notice
(a "Redemption Notice") to the address of record for all holders of
shares of High Vote Preferred Stock, which Redemption Notice shall:
(aa) state that the Corporation is commencing the Mandatory
Redemption,
(bb) state that all of the outstanding shares of High Vote
Preferred Stock will be redeemed,
(cc) state the Redemption Price, including the amount of
accrued but unpaid dividends included in the Redemption Price and
whether the Redemption Price will be paid in cash or shares of
Class A Common Stock, and
(dd) set forth the date upon which the Mandatory Redemption
shall occur, which date shall not be less than thirty (30) days
nor more than sixty (60) days after the date of the Redemption
Notice (the "Redemption Date").
Once the Redemption Notice is mailed to the holders at their addresses
of record, all of the shares of High Vote Preferred Stock not
converted on or prior to the Redemption Date shall be subject to
redemption on the Redemption Date. On the Redemption Date the holders
of shares of High Vote Preferred Stock then outstanding shall
surrender the certificate or certificates evidencing such shares of
High Vote Preferred Stock, duly endorsed, at the office of the
Corporation or of any transfer agent for the High Vote Preferred
Stock, and the Corporation shall pay such holders the applicable
Redemption Price. All shares of High Vote Preferred Stock shall no
longer be deemed to be outstanding and all rights with respect to such
shares, including without limitation the right to accrual of
dividends, shall immediately cease and terminate at the close of
business of the Corporation on the Redemption Date (except only the
right of the holders thereof to receive the Redemption Price in
exchange therefor), notwithstanding that the certificates representing
such shares of High Vote Preferred Stock shall not have
28
<PAGE>
been surrendered at the office of the Corporation or, if the
Redemption Price is to be paid in shares of Class A Common Stock, that
the certificates evidencing such shares of Class A Common Stock shall
not then be actually delivered to such holder. If the Redemption Price
is to be paid in shares of Class A Common Stock, each holder of shares
of High Vote Preferred Stock shall give written notice to the
Corporation that shall state therein the name of such holder or the
name or names of the nominees of such holder in which such holder
wishes the certificate or certificates for shares of Class A Common
Stock to be issued, and the person or persons entitled to receive the
shares of Class A Common Stock issuable upon redemption shall be
treated for all purposes as the record holder or holders of such
shares of Class A Common Stock on the Redemption Date. No fractional
shares of Class A Common Stock shall be issued upon redemption of any
shares of High Vote Preferred Stock and cash in lieu of any fraction
of a share will be paid to the holder thereof. The Corporation shall,
as soon as practicable thereafter, issue and deliver at such office to
such holder of High Vote Preferred Stock, or to such holder's nominee
or nominees, a certificate or certificates for the number of shares of
Class A Common Stock to which such holder shall be entitled as
aforesaid.
(2) Election to Convert. Notwithstanding the issuance of any
Redemption Notice by the Corporation or the receipt of any Redemption
Notice by any holder of High Vote Preferred Stock, such holder may
elect to convert such High Vote Preferred Stock into the applicable
class of High Vote Common Stock at any time prior to close of business
of the Corporation on the Redemption Date. Any such conversion shall
be at the then applicable Conversion Ratio and on the other terms and
conditions set forth in Article FOURTH, Clause (c)(v).
(vii) Reacquired Shares. Any shares of High Vote Preferred Stock
converted, redeemed, purchased, or otherwise acquired by the Corporation in
any manner whatsoever shall be retired promptly after the acquisition thereof,
and shall not be reissued and shall, upon the filing of a certificate of
retirement, return to the status of authorized but undesignated shares of
Preferred Stock.
FIFTH: Directors.
---------
(a) Vacancies in the Board; Transaction of Business. Except as provided in
Article FOURTH, Clause (b)(iii)(C) and (D), any vacancies resulting from death,
resignation, disqualification, removal or other cause with respect to a Class A
Director shall be filled by the affirmative vote of the remaining Class A
Directors then in office, even if less than a quorum of the Board, subject to
the approval of the Special Committee of the person or persons selected to fill
the vacancy or vacancies. Any vacancies resulting from death, resignation,
disqualification, removal or other cause with respect to a Class B Director
shall be filled only by the affirmative vote of the remaining Class B Directors
then in office, even if less than a quorum of the Board, or by the sole
remaining Class B Director, if there is only one then in office. In the absence
of a sole remaining Class B Director, such vacancies shall be filled by a
majority vote of the holders of the Class B Securities, voting together as a
single class. Any vacancies resulting from death, resignation, disqualification,
removal or other cause with respect to a Class C Director shall be filled only
by the affirmative vote of a majority of the remaining Class C Directors then in
office, even if less than a quorum of the Board, or by the sole remaining Class
C Director, if there is only one then in office. In the absence of a sole
remaining Class C Director, such vacancies shall be filled by a majority vote of
the holders of the Class C Securities, voting together as a single class. Any
director elected in accordance with this Clause (a) shall hold office until the
next annual meeting of stockholders. Notwithstanding any provision in the By-
laws to the contrary, the Board may not transact business at any meeting of the
Board unless a majority of the Class B Directors and a majority of the Class C
Directors
29
<PAGE>
are present or otherwise participate at such meeting. Notwithstanding
the foregoing, the preceding sentence shall be of no further force and effect
upon the first to occur of (i) a Class B Triggering Event and (ii) a Class C
Triggering Event.
(b) Removal of Directors.
--------------------
(i) Any Class B Director and any Class C Director may be removed from
office for cause only by the affirmative vote of the holders of at least
seventy five percent (75%) of the voting power of the Voting Stock, voting
together as a single class.
(ii) Any Class A Director may be removed at any time, without cause,
by the affirmative vote of the holders of at least a majority of the voting
power of the Voting Stock, voting together as one class. Any Class B
Director may be removed at any time, without cause, by majority vote of the
holders of the Class B Securities, voting together as a single class. Any
Class C Director may be removed at any time, without cause, by majority
vote of the holders of the Class C Securities, voting together as a single
class.
(c) Approval of Actions with Stockholders. Notwithstanding anything to the
contrary contained herein or in the By-laws, the power to take the following
actions, as permitted by Section 141(a) of the GCL ("Section 141(a)"), is hereby
conferred upon certain members of the Board, as indicated below:
(i) The power to authorize any action by or on behalf of the
Corporation with respect to the execution, delivery, or termination in
accordance with the terms of any agreement between AOL (or any of its
Affiliates) and the Corporation is hereby conferred upon the members
of the Board other than the Class B Directors. All actions requiring
Board approval with respect to matters relating to the enforcement or
waiver of any rights granted the Corporation (or any of its
Affiliates) under any such agreement shall be taken solely pursuant to
the direction of such members of the Board without the approval,
consent or authorization of the Class B Directors. Notwithstanding
the foregoing, however, the Class B Directors shall be entitled to
vote on any matter specified in Clauses (d)(i)(K) or (d)(i)(L) of this
Article FIFTH regardless of the interest of AOL or any of its
Affiliates in such matter.
(ii) The power to authorize any action by or on behalf of the
Corporation with respect to the execution, delivery, or termination in
accordance with the terms of any agreement between ODC (or any of its
Affiliates) and the Corporation is hereby conferred upon the members
of the Board other than the Class C Directors. All actions requiring
Board approval with respect to matters relating to the enforcement or
waiver of any rights granted the Corporation (or any of its
Affiliates) under any such agreement shall be taken solely pursuant to
the direction of such members of the Board without the approval,
consent or authorization of the Class C Directors.
(d) Appointment and Powers of Special Committee.
-------------------------------------------
(i) There is hereby established a two (2) member committee (the
"Special Committee") consisting of one (1) Class B director to be elected
by a majority vote of the Class B directors (or the sole remaining Class B
director) and one Class C director to be elected by majority vote of the
Class C directors (or the sole remaining Class C director). The Special
Committee, and not the Board of Directors, shall, in accordance with
Section 141(a), have the power to select two Co-Chairmen of the board,
provided that the Class B director on the Special Committee and the Class C
Director on the Special Committee shall each be entitled to select and
30
<PAGE>
appoint one person as a Co-Chairman of the board. The Special Committee,
together with the Board of Directors, shall, pursuant to Section 141(a),
exercise the powers and duties conferred and imposed upon the board of
directors by the GCL as provided for herein. The Special Committee shall
evaluate the matters set forth in clauses (A) through (Z) of this Clause
(d)(i) of Article FIFTH and report to the Board of Directors for approval
those matters specified herein which have been approved by the two members
of the Special Committee. The Corporation shall not have the power to take
any action set forth in clauses (A) through (Z) of this Article FIFTH,
Clause (d)(i), as the same may be amended from time to time, unless and
until such action has been approved by the two members of the Special
Committee acting in good faith and the best interest of the Corporation in
accordance with Delaware law, except to the extent that both members of the
Special Committee have waived such right of approval. The powers
(including powers of delegation) and duties conferred and imposed upon the
board of directors by the GCL (i) with respect to any matter set forth in
clauses (A) through (Z) of this Article FIFTH, Clause (d)(1) that the
Special Committee has either approved or with respect to which it has
waived its right of approval, and (ii) with respect to any matter not set
forth in clauses (A) through (Z) of this Article FIFTH, Clause (d)(1),
shall be exercised by the Board of Directors. Notwithstanding any
provision in the By-laws to the contrary, the Special Committee may not
transact business at any meeting of the Special Committee unless both
members of the Special Committee are present or otherwise participate at
such meeting. Notwithstanding the foregoing, the preceding sentence shall
be of no further force and effect upon the first to occur of (i) a Class B
Triggering Event and (ii) a Class C Triggering Event.
(A) Any amendment, change or other modification or restatement of
this 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.
(B) The merger, consolidation, dissolution or liquidation of the
Corporation or any Subsidiary, or any transaction having the same
effect.
(C) Except pursuant to (1) 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, (2) a conversion or
exchange right set forth in this Certificate of Incorporation or
similar constitutive documents of any Subsidiary, or (3) 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.
(D) 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).
(E) Any transaction involving (1) 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; (2) any contracts 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; (3) any debt, loan or
borrowing of the Corporation or any Subsidiary (other than borrowings
under
31
<PAGE>
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; (4) 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; (5) any capital or other expenditures of
the Corporation or any Subsidiary (or series of related capital
expenditures) in excess of $50,000; or (6) any related series or
combination of transactions having or which will have, directly or
indirectly, the same effect as any of the foregoing.
(F) 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 Special Committee
approval under this Clause (d)(i) of Article FIFTH if such action was
by, in respect of, or otherwise involving the Corporation or any
Subsidiary.
(G) The declaration of any dividend or distribution on any class
or classes of equity securities of the Corporation.
(H) The selection of nominees to be recommended by the Board for
election as Class A Directors.
(I) The admission of any Strategic Partner as an equity holder in
the Corporation or any Operating Entity.
(J) 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.
(K) The Launch of any AOL-branded TV Access Service or Wireless
Access Service in any country within the Territory.
(L) 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.
(M) The 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.
(N) 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.
(O) The commencement of any Action (without regard to the amount
in controversy) or settlement of any Action 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 of Affiliates; provided,
however, that Actions 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.
32
<PAGE>
(P) The 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.
(Q) The adoption of any Business Plan for an Operating Entity and
the approval of any modification of any line item or other provision
in any Business Plan in respect of any Operating Entity.
(R) The establishment of, or making any significant modification
to, the investment and/or cash management policies of the Corporation
or any Subsidiary.
(S) The approval of the discontinuation of any material activity
engaged in from time to time by the Corporation or any Subsidiary.
(T) The approval of the entering into of any partnership, joint
venture or consortium with any other Person by the Corporation or any
Subsidiary.
(U) The approval of any press releases or other public statements
by the Corporation or any Subsidiary containing material non-public
information.
(V) The entry into agreements by the Corporation or any
Subsidiary outside of the ordinary course of business.
(W) The approval of the final annual audited consolidated
financial statements of any Subsidiary.
(X) The 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.
(Y) 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.
(Z) 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.
(ii) Upon the occurrence of a Class B Triggering Event or a Class C
Triggering Event, the Special Committee shall be deemed to be dissolved as
of such time, and the provisions of this Clause (d), other than those
contained in this Clause (d)(ii), shall cease to have any effect, and any
other provisions of this Certificate of Incorporation requiring the
approval of the Special Committee shall be deemed to require the approval
of the Board as a whole.
(e) Appointment of Executive Committee. Subject to Clause (d) of this
Article FIFTH, so long as there are at least one share of Class A Common Stock,
one share of either of the Class B Securities and one share of either of the
Class C Securities outstanding, the Board of Directors may, by the affirmative
vote of a majority of the Directors designate an Executive Committee of the
Board (the "Executive Committee"), which shall consist of one (1) Class A
Director, one (1) Class B Director and one (1) Class C Director. The Executive
Committee shall have such powers and duties as may be set forth in the
resolution designating the Executive Committee as the same may be amended from
time to time. If the minimum shares required for each of the Class A Common
Stock, Class B Securities and Class C
33
<PAGE>
Securities are not outstanding, the Board may establish an Executive Committee
with such members as it chooses.
(f) Removal of Committee Members. In accordance with Section 141(a),
notwithstanding anything to the contrary contained herein or in the By-laws, (i)
any member of the Special Committee appointed or elected by the Class B
Directors or the member of the Executive Committee who is a Class B Director may
be removed at any time, either with or without cause, by the affirmative vote of
(A) a majority of the Class B Directors then in office or (B) the holders of a
majority of the Class B Securities, voting together as a single class, and (ii)
any member of the Special Committee elected or appointed by the Class C
Directors or the member of the Executive Committee who is a Class C Director may
be removed at any time, either with or without cause, by the affirmative vote of
(A) a majority of the Class C Directors then in office or (B) the holders of a
majority of the Class C Securities, voting together as a single class. In
addition, any member of the Executive Committee appointed pursuant to the first
sentence of Article FIFTH, Clause (e) may be removed with or without cause after
obtaining each of the following votes: (x) the affirmative vote of a majority
of the Class A Directors (or the sole Class A Director), (y) the affirmative
vote of a majority of the Class B Directors (or the sole Class B Director) and
(z) the affirmative vote of a majority of the Class C Directors (or the sole
Class C Director), even if less than a quorum of the Board. Any member of the
Executive Committee appointed otherwise than pursuant to Article FIFTH, Clause
(e) may be removed with or without cause by the affirmative vote of all of the
directors then in office, even if less than a quorum of the Board. Any vacancies
on any committee of the Board shall be filled in the manner set forth above in
respect of the appointment of such committee or member.
SIXTH: Subject to Clause (b)(i)(B) of Article FOURTH and Clause (d) of
Article FIFTH, the Board may from time to time make, amend, supplement or repeal
the By-laws by vote of a majority of the Board. Subject to Clause (b)(i)(B) of
Article FOURTH, the stockholders may change or amend or repeal a provision of
the By-laws only after obtaining each of the following votes: (i) the
affirmative vote of the holders of a majority of the voting power of the issued
and outstanding Voting Stock, voting as one class; (ii) 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 together as a single
class; and (iii) 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 together as a single class.
SEVENTH: Unless and except to the extent that the By-laws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, provided that such action is
approved in the manner, and otherwise complies with the requirements, set forth
in this Certificate of Incorporation, and all rights conferred upon stockholders
herein are granted subject to this reservation. Notwithstanding the foregoing,
but subject to Clause (b)(i)(B) of Article FOURTH, the affirmative vote of the
holders of at least seventy five percent (75%) of the voting power of the issued
and outstanding Voting Stock, voting as one class, shall be required to amend or
repeal this Certificate of Incorporation.
NINTH: A director of the Corporation, including a director acting pursuant
to Clauses (c) through (f) of Article FIFTH, shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability: (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 174 of the GCL; or (iv) for any
transaction from which the director derived an improper personal benefit. If the
GCL is amended to authorize corporate action further eliminating or limiting the
personal liability of directors,
34
<PAGE>
then the liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the GCL, as so amended. Any repeal or
modification of this provision shall be prospective only and shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification.
TENTH: The Corporation, to the fullest extent permitted by Section 145 of
the GCL, as the same may be amended and supplemented, shall indemnify all
directors and officers of the Corporation, and may indemnify any and all other
persons whom it shall have power to indemnify under said section, in any such
event from and against any and all of the expenses, liabilities or other matters
referred to in or covered by said section, and the indemnification provided for
herein shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
ELEVENTH: The provisions of Section 203 of the GCL shall not be
applicable to the Corporation.
35
<PAGE>
IN WITNESS WHEREOF, America Online Latin America, Inc. has caused its
corporate seal to be affixed hereto and this Restated Certificate of
Incorporation, which restates, integrates and further amends the Certificate of
Incorporation of the Corporation, and which has been duly adopted in accordance
with Sections 241 and 245 of the GCL, to be signed by its President and Chief
Executive Officer as of the ____ day of _________, 2000, who by his signature
below hereby certifies that, pursuant to the provisions of Section 241 of the
GCL, the Corporation has not received payment for any of its stock prior to the
date hereof.
AMERICA ONLINE LATIN AMERICA, INC.
By:______________________________
Name: Charles M. Herington
Title: President and Chief Executive Officer
[SEAL]
36
