<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
AOL TIME WARNER INC.
AOL TIME WARNER INC., a corporation organized and existing under the
laws of the State of Delaware, DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the corporation is AOL TIME WARNER INC. The original
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on February 4, 2000.
2. This Restated Certificate of Incorporation, having been duly adopted
in accordance with Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware and by the written consent of the stockholders of AOL Time
Warner Inc., restates and integrates and further amends the provisions of the
Certificate of Incorporation as amended or supplemented heretofore. As so
restated and integrated and further amended, the Restated Certificate of
Incorporation (hereinafter, this "Restated Certificate of Incorporation") reads
as follows:
ARTICLE I
The name of the corporation (hereinafter called the
"Corporation") is AOL TIME WARNER INC.
ARTICLE II
The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. The name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be
<PAGE>
2
organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
SECTION 1. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 27.55 billion shares,
consisting of (1) 750 million shares of Preferred Stock, par value $0.10 per
share ("Preferred Stock"), (2) 25 billion shares of Common Stock, par value
$0.01 per share("Common Stock"), and (3) 1.8 billion shares of Series Common
Stock, par value $0.01 per share ("Series Common Stock"). The number of
authorized shares of any of the Preferred Stock, the Common Stock or the Series
Common Stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a majority
in voting power of the stock of the Corporation entitled to vote thereon
irrespective of the provisions of Section 242(b)(2) of the General Corporation
Law of the State of Delaware (or any successor provision thereto), and no vote
of the holders of any of the Preferred Stock, the Common Stock or the Series
Common Stock voting separately as a class shall be required therefor.
SECTION 2. The Board of Directors of the Corporation (the
"Board of Directors") is hereby expressly authorized, by resolution or
resolutions, to provide, out of the unissued shares of Preferred Stock, for
series of Preferred Stock and, with respect to each such series, to fix the
number of shares constituting such series and the designation of such series,
the voting powers (if any) of the shares of such series, and the preferences and
relative, participating, optional or other special rights, if any, and any
qualifications, limitations or restrictions thereof, of the shares of such
series. The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding.
SECTION 3. The Board of Directors is hereby expressly
authorized, by resolution or resolutions, to provide, out of the unissued shares
of Series Common Stock, for series of Series Common Stock and, with respect to
each such series, to fix the number of shares constituting such series and the
designation of such series, the voting powers (if any) of the shares of such
series, and the preferences and relative, participating, optional or other
special rights, if any, and any qualifications, limitations or
<PAGE>
3
restrictions thereof, of the shares of such series. The powers, preferences and
relative, participating, optional and other special rights of each series of
Series Common Stock, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any time
outstanding.
SECTION 4. (a) Each holder of Common Stock, as such, shall be
entitled to one vote for each share of Common Stock held of record by such
holder on all matters on which stockholders generally are entitled to vote;
provided, however, that, except as otherwise required by law, holders of Common
Stock, as such, shall not be entitled to vote on any amendment to this Restated
Certificate of Incorporation (including any Certificate of Designation relating
to any series of Preferred Stock or Series Common Stock) that relates solely to
the terms of one or more outstanding series of Preferred Stock or Series Common
Stock if the holders of such affected series are entitled, either separately or
together with the holders of one or more other such series, to vote thereon
pursuant to this Restated Certificate of Incorporation (including any
Certificate of Designation relating to any series of Preferred Stock or Series
Common Stock) or pursuant to the General Corporation Law of the State of
Delaware.
(b) Except as otherwise required by law, holders of a series
of Preferred Stock or Series Common Stock, as such, shall be entitled only to
such voting rights, if any, as shall expressly be granted to such holders by
this Restated Certificate of Incorporation (including any Certificate of
Designation relating to such series).
(c) Subject to applicable law and the rights, if any, of the
holders of any outstanding series of Preferred Stock or Series Common Stock or
any class or series of stock having a preference over or the right to
participate with the Common Stock with respect to the payment of dividends,
dividends may be declared and paid on the Common Stock at such times and in such
amounts as the Board of Directors in its discretion shall determine.
(d) Upon the dissolution, liquidation or winding up of the
Corporation, subject to the rights, if any, of the holders of any outstanding
series of Preferred Stock or Series Common Stock or any class or series of stock
having a preference over or the right to participate with the Common Stock with
respect to the distribution of assets of the Corporation upon such dissolution,
liquidation or winding up of the Corporation, the holders of the Common Stock,
as such, shall be entitled to receive the assets of the
<PAGE>
4
Corporation available for distribution to its stockholders ratably in proportion
to the number of shares held by them.
SECTION 5. Notwithstanding any other provision of this
Restated Certificate of Incorporation to the contrary, but subject to the
provisions of any resolution or resolutions of the Board of Directors adopted
pursuant to this Article IV creating (i) any series of Preferred Stock, (ii) any
other class or series of stock having a preference over the Common Stock as to
dividends or upon dissolution, liquidation or winding up or (iii) any series of
Series Common Stock, outstanding shares of Common Stock, Series Common Stock,
Preferred Stock or any other class or series of stock of the Corporation shall
always be subject to redemption by the Corporation, by action of the Board of
Directors, if in the judgment of the Board of Directors such action should be
taken, pursuant to Section 151(b) of the General Corporation Law of the State of
Delaware (or by any other applicable provision of law), to the extent necessary
to prevent the loss or secure the reinstatement of any license or franchise from
any governmental agency held by the Corporation or any Subsidiary to conduct any
portion of the business of the Corporation or such Subsidiary, which license or
franchise is conditioned upon some or all of the holders of the Corporation's
stock of any class or series possessing prescribed qualifications. The terms and
conditions of such redemption shall be as follows:
(a) the redemption price of the shares to be redeemed pursuant
to this Section 5 shall be equal to the Fair Market Value of such
shares;
(b) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(c) if less than all the shares held by Disqualified Holders
are to be redeemed, the shares to be redeemed shall be selected in such
manner as shall be determined by the Board of Directors, which may
include selection first of the most recently purchased shares thereof,
selection by lot or selection in any other manner determined by the
Board of Directors;
(d) at least 30 days' written notice of the Redemption Date
shall be given to the record holders of the shares selected to be
redeemed (unless waived in writing by any such holder); provided that
the Redemption Date may be the date on which written notice shall be
given to record holders if the cash or Redemption Securities necessary
to effect the
<PAGE>
5
redemption shall have been deposited in trust for the benefit of such
record holders and subject to immediate withdrawal by them upon
surrender of the stock certificates for their shares to be redeemed;
(e) from and after the Redemption Date, any and all rights of
whatever nature in respect of the shares selected for redemption
(including without limitation any rights to vote or participate in
dividends declared on stock of the same class or series as such
shares), shall cease and terminate and the holders of such shares shall
thenceforth be entitled only to receive the cash or Redemption
Securities payable upon redemption; and
(f) such other terms and conditions as the Board of Directors
shall determine.
For purposes of this Section 5:
(i) "Disqualified Holder" shall mean any holder of shares of
stock of the Corporation of any class or series whose holding of such
stock may result in the loss of any license or franchise from any
governmental agency held by the Corporation or any Subsidiary to
conduct any portion of the business of the Corporation or any
Subsidiary.
(ii) "Fair Market Value" of a share of the Corporation's stock
of any class or series shall mean the average (unweighted) Closing
Price for such a share for each of the 45 most recent days on which
shares of stock of such class or series shall have been traded
preceding the day on which notice of redemption shall be given pursuant
to paragraph (d) of this Section 5; provided, however, that if shares
of stock of such class or series are not traded on any securities
exchange or in the over-the-counter market, "Fair Market Value" shall
be determined by the Board of Directors in good faith; and provided
further, however, that "Fair Market Value" as to any stockholder who
purchased his stock within 120 days of a Redemption Date need not
(unless otherwise determined by the Board of Directors) exceed the
purchase price paid by him. "Closing Price" on any day means the
reported last sales price regular way or, in case no such sale takes
place, the average of the reported closing bid and asked prices regular
way on the New York Stock Exchange Composite Tape, or, if stock of the
class or series in question is not quoted on such Composite Tape, on
the New York Stock Exchange, or, if such stock is not
<PAGE>
6
listed on such exchange, on the principal United States registered
securities exchange on which such stock is listed, or, if such stock is
not listed on any such exchange, the highest closing sales price or bid
quotation for such stock on The Nasdaq Stock Market or any system then
in use, or if no such prices or quotations are available, the fair
market value on the day in question as determined by the Board of
Directors in good faith.
(iii) "Redemption Date" shall mean the date fixed by the Board
of Directors for the redemption of any shares of stock of the
Corporation pursuant to this Section 5.
(iv) "Redemption Securities" shall mean any debt or equity
securities of the Corporation, any Subsidiary or any other corporation
or other entity, or any combination thereof, having such terms and
conditions as shall be approved by the Board of Directors and which,
together with any cash to be paid as part of the redemption price, in
the opinion of any nationally recognized investment banking firm
selected by the Board of Directors (which may be a firm which provides
other investment banking, brokerage or other services to the
Corporation), has a value, at the time notice of redemption is given
pursuant to paragraph (d) of this Section 5, at least equal to the Fair
Market Value of the shares to be redeemed pursuant to this Section 5
(assuming, in the case of Redemption Securities to be publicly traded,
such Redemption Securities were fully distributed and subject only to
normal trading activity).
(v) "Subsidiary" shall mean any corporation, partnership,
limited liability company or other entity more than 50% of whose
outstanding stock (or similar interests) having ordinary voting power
in the election of directors (or similar persons) is owned by the
Corporation, by a Subsidiary or by the Corporation and one or more
Subsidiaries.
ARTICLE V
SECTION 1. Except as otherwise fixed by or pursuant to the
provisions of Article IV of this Restated Certificate of Incorporation relating
to the rights of the holders of any series of Preferred Stock or Series Common
Stock or any class or series of stock having a preference over the Common Stock
as to dividends or upon dissolution,
<PAGE>
7
liquidation or winding up, the number of the directors of the Corporation shall
be fixed from time to time by or pursuant to the By-laws of the Corporation. The
directors, other than those who may be elected by the holders of any series of
Preferred Stock or Series Common Stock or any class or series of stock having a
preference over the Common Stock as to dividends or upon dissolution,
liquidation or winding up pursuant to the terms of this Restated Certificate of
Incorporation or any resolution or resolutions providing for the issue of such
class or series of stock adopted by the Board of Directors, shall be elected by
the stockholders entitled to vote thereon at each annual meeting of stockholders
and shall hold office until the next annual meeting of stockholders and until
each of their successors shall have been elected and qualified. The election of
directors need not be by written ballot. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
SECTION 2. Advance notice of nominations for the election of
directors shall be given in the manner and to the extent provided in the By-laws
of the Corporation.
SECTION 3. Except as otherwise provided for or fixed by or
pursuant to the provisions of Article IV of this Restated Certificate of
Incorporation relating to the rights of the holders of any series of Preferred
Stock or Series Common Stock or any class or series of stock having a preference
over the Common Stock as to dividends or upon dissolution, liquidation or
winding up, newly created directorships resulting from any increase in the
number of directors may be filled by the Board of Directors, or as otherwise
provided in the By-laws of the Corporation, and any vacancies on the Board of
Directors resulting from death, resignation, removal or other cause shall only
be filled by the Board of Directors, and not by the stockholders, by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors, or by a sole remaining
director, or as otherwise provided in the By-laws of the Corporation. Any
director elected in accordance with the preceding sentence of this Section 3
shall hold office until the next annual meeting of stockholders and until such
director's successor shall have been elected and qualified.
ARTICLE VI
Subject to the rights of the holders of any series of
Preferred Stock or Series Common Stock or any class or
<PAGE>
8
series of stock having a preference over the Common Stock as to dividends or
upon dissolution, liquidation or winding up, any action required or permitted to
be taken by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of stockholders of the Corporation and may not
be effected by any consent in writing by such stockholders. Except as otherwise
required by law and subject to the rights of the holders of any series of
Preferred Stock or Series Common Stock or any class or series of stock having a
preference over the Common Stock as to dividends or upon dissolution,
liquidation or winding up, special meetings of stockholders of the Corporation
may be called only by the Board of Directors pursuant to a resolution approved
by a majority of the entire Board of Directors or as otherwise provided in the
By-laws of the Corporation.
ARTICLE VII
In furtherance and not in limitation of the powers conferred
upon it by law, the Board of Directors is expressly authorized to adopt, repeal,
alter or amend the By-laws of the Corporation by the vote of a majority of the
entire Board of Directors or such greater vote as shall be specified in the
By-laws of the Corporation. In addition to any requirements of law and any other
provision of this Restated Certificate of Incorporation or any resolution or
resolutions of the Board of Directors adopted pursuant to Article IV of this
Restated Certificate of Incorporation (and notwithstanding the fact that a
lesser percentage may be specified by law, this Restated Certificate of
Incorporation or any such resolution or resolutions), the affirmative vote of
the holders of 80% or more of the combined voting power of the then outstanding
shares of all classes and series of capital stock of the Corporation entitled
generally to vote in the election of directors of the Corporation ("Voting
Stock"), voting together as a single class, shall be required for stockholders
to adopt, amend, alter or repeal any provision of the By-laws of the
Corporation.
ARTICLE VIII
In addition to any requirements of law and any other
provisions of this Restated Certificate of Incorporation or any resolution or
resolutions of the Board of Directors adopted pursuant to Article IV of this
Restated Certificate of Incorporation (and notwithstanding the fact that a
lesser percentage may be specified by law, this
<PAGE>
9
Restated Certificate of Incorporation or any such resolution or resolutions),
the affirmative vote of the holders of 80% or more of the combined voting power
of the then outstanding shares of Voting Stock, voting together as a single
class, shall be required to amend, alter or repeal, or adopt any provision
inconsistent with, this Article VIII, Article IX or Article VII, or Section 5 of
Article IV, of this Restated Certificate of Incorporation. Subject to the
foregoing provisions of this Article VIII, the Corporation reserves the right to
amend, alter or repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are subject to this reservation.
ARTICLE IX
To the fullest extent that the General Corporation Law of the
State of Delaware or any other law of the State of Delaware as it exists or as
it may hereafter be amended permits the limitation or elimination of the
liability of directors, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. No amendment to or repeal of this Article IX shall apply to
or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
This Restated Certificate of Incorporation shall not become
effective until and shall become effective at 8:15 p.m., on January 11, 2001.
<PAGE>
10
IN WITNESS WHEREOF, I, Paul T. Cappuccio, Vice President and Assistant
Secretary of AOL TIME WARNER INC., have executed this Restated Certificate of
Incorporation as of the 11th day of January, 2001, and DO HEREBY CERTIFY under
the penalties of perjury that the facts stated in this Restated Certificate of
Incorporation are true.
/s/ Paul T. Cappuccio
-----------------------------------------------------
Paul T. Cappuccio
Vice President and
Assistant Secretary
