EXHIBIT 14
AMENDMENT NO. 1 TO THE NOTE PURCHASE AGREEMENT
AMENDMENT NO. 1, dated as of May 20, 2002 (this "Amendment") between AOL
Time Warner Inc., a Delaware corporation ("AOLTW") and America Online Latin
America, Inc., a Delaware corporation ("AOLA"), to the NOTE PURCHASE AGREEMENT
dated as of March 8, 2002 (the "Note Purchase Agreement") between the parties to
this Amendment.
WHEREAS, AOLTW and AOLA have entered into the Note Purchase Agreement; and
WHEREAS, AOLTW and AOLA desire to amend the Note Purchase Agreement as set
forth below.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Defined terms used in this Amendment have the
meanings ascribed to them in the Note Purchase Agreement.
Section 2. Amendment to Substitute a New Exhibit C. Exhibit C to the Note
Purchase Agreement is hereby deleted and Attachment 1 to this Amendment is and
shall be substituted in lieu thereof as a new Exhibit C to the Note Purchase
Agreement.
Section 3. Miscellaneous. (a) Except as otherwise expressly modified by
this Amendment, the Note Purchase Agreement is and shall continue to be in full
force and effect in accordance with its terms.
(b) This Amendment may be executed by the parties hereto on one or more
counterparts, and all of such counterparts shall be deemed to constitute one and
the same instrument. This Amendment may be delivered by facsimile transmission
of the relevant signature pages hereof.
(C) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
[REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
AOL TIME WARNER INC.
By: ________________________
Name:
Title:
AMERICA ONLINE LATIN AMERICA, INC.
By: ________________________
Name:
Title
ATTACHMENT 1
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICA ONLINE LATIN AMERICA, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
America Online Latin America, Inc.
2. The Restated Certificate of Incorporation of the Corporation filed on
February 14, 2002 is hereby amended by:
(A) striking out the definition of "Voting Stock" in Clause (b) of Article
THIRD thereof and inserting the following definitions in said Article in their
proper alphabetical order:
"AOLTW" shall mean AOL Time Warner Inc., a Delaware corporation.
"Voting Stock" shall have the meaning given in Clause (b) of Article
FIFTH."
(B) striking out Clause (a) of Article FOURTH thereof and by substituting
in lieu of said Clause (a) of said Article the following new Clauses:
"(a) AUTHORIZED CAPITAL STOCK.
(i) AUTHORIZED SHARES. The total number of shares of stock that
the Corporation shall have the authority to issue is 3,250,000,000
shares, comprised of 2,250,000,000 shares of Common Stock, par value
$.01 per share, issuable in three classes, as set forth below, and
1,000,000,000 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) 1,400,000,000 shares of Class A Common Stock (the
"Class A Common Stock"); (2) 450,000,000 shares of Class B Common
Stock (the "Class B Common Stock"); and (3) 400,000,000 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 1,000,000,000 shares of Preferred
Stock authorized for issuance, (1) 350,000,000 shares shall be
designated and known as the "Series B Redeemable Convertible Preferred
Stock" (hereinafter, the "Series B Preferred Stock"), (2) 300,000,000
shares shall be designated and known as the "Series C Redeemable
Convertible Preferred Stock" (hereinafter, the "Series C Preferred
Stock") and (3) the remaining 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, 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 (but not below the number of shares thereof then
outstanding) after receiving each of the following votes: (x) 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, (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."
(C) striking out the word "generally" appearing in the first paragraph
of Clause (b)(i)(B)(1) of Article FOURTH.
(D) striking out Clause (b)(iii)(B)(1) of Article FOURTH thereof and by
substituting in lieu of said Clause (b)(iii)(B)(1) of said Article the following
new Clause:
"(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 or any Permitted Transferee so long as the transferring
Parent Entity or Permitted Transferee 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 or its Wholly Owned Affiliates 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 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
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pursuant to the provisions of the preceding Clause (A), and (C)
solely with respect to a transfer to an Employee of AOL, ODC
and/or one or more ▇▇▇▇▇▇▇▇ Family members, if (i) such transfer
(1) with respect to transfers by AOL and its Permitted
Transferees, either individually or when aggregated with all
prior transfers of Series F Preferred Stock and High Vote Stock
to Employees of AOL, exceeds 20,371,667 shares (as such number
shall be equitably adjusted for any stock split, stock dividend,
reverse stock split, reclassification or similar transaction, and
assuming for purposes of such calculation that (x) all shares of
Series F Preferred Stock so transferred are converted into High
Vote Common Stock at the Series F Conversion Ratio and (y) all
shares of High Vote Preferred Stock so transferred are converted
into High Vote Common Stock at the applicable Conversion Ratio)
and (2) with respect to transfers by ODC and its Permitted
Transferees, either individually or when aggregated with all
prior transfers of High Vote Stock to Employees of ODC and
▇▇▇▇▇▇▇▇ Family members, exceeds 19,972,382 shares (as such
number shall be equitably adjusted for any stock split, stock
dividend, reverse stock split, reclassification or similar
transaction, and assuming for purposes of such calculation that
all shares of High Vote Preferred Stock so transferred are
converted into High Vote Common Stock at the applicable
Conversion Ratio) or (ii) such person ceases to be an Employee of
AOL or ODC, as the case may be. 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
FIFTH regarding the approval of actions with stockholders."
(E) striking out Clause (b)(iii)(B)(2) of Article FOURTH thereof and by
substituting in lieu of said Clause (b)(iii) (B)(2) of said Article the
following new Clause:
"(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
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Stock or Class C Common Stock by a Parent Entity or any Permitted
Transferee so long as the appropriate Parent Entity or Permitted
Transferee 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."
(F) striking out Clause (b)(iii)(C) of Article FOURTH thereof and by
substituting in lieu of said Clause (b)(iii)(C) of said Article the following
new Clause:
"(C) If at any time AOL, its Wholly Owned Affiliates and its
Employees own less than 50,929,167 shares of Class B Common Stock in
the aggregate (including shares of Class B Common Stock issuable
directly or indirectly upon conversion, exercise or exchange of (i)
then outstanding shares of any Series B Preferred Stock and Series F
Preferred Stock, (ii) then outstanding 11% Senior Convertible Notes
(the "Initial Notes") issued under the Note Purchase Agreement dated
as of March 8, 2002 between the Corporation and AOLTW (as amended,
supplemented, or modified or restated from time to time (the "Note
Purchase Agreement")) or 11% Senior Convertible Notes issued as
interest on the Initial Notes or any other 11% Senior Convertible
Notes (collectively, the "PIK Notes"; together with the Initial Notes,
the "Notes"), or (iii) any other securities convertible into or
exchangeable or exercisable for, directly or indirectly, Class B
Common Stock (other than the warrant issued to AOL dated August 7,
2000 to purchase 16,541,250 shares of Series B Preferred Stock, but
including any shares, directly or indirectly issued upon the exercise
thereof), and 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."
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(G) striking out Clause (b)(iii)(D) of Article FOURTH thereof and by
substituting in lieu of said Clause (b)(iii)(D) of said Article the following
new Clause:
(D) If at any time ODC, its Wholly Owned Affiliates, members of
the ▇▇▇▇▇▇▇▇ Family and ODC Employees own less than 49,930,955 shares
of Class C Common Stock in the aggregate (including shares of Class C
Common Stock issuable directly or indirectly upon conversion, exercise
or exchange of (i) then outstanding shares of Series C Preferred
Stock, or (ii) any other securities convertible into or exchangeable
or exercisable for, directly or indirectly, Class C Common Stock, and
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 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.
(H) striking out Clause (c)(i)(A) of Article FOURTH thereof and by
substituting in lieu of said Clause (c)(i)(A) of said Article the following new
Clause:
"(i) DESIGNATION AND AMOUNT.
(A) SERIES B PREFERRED STOCK. The number of shares constituting
the Series B Preferred Stock shall be 350,000,000 (Three 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."
(I) striking out Clause (c)(i)(B) of Article FOURTH thereof and by
substituting in lieu of said Clause (c)(i)(B) of said Article the following new
Clause:
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"(B) SERIES C PREFERRED STOCK. The number of shares constituting
the Series C Preferred Stock shall be 300,000,000 (Three Hundred
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."
(J) adding the following new sentence immediately after the existing text
of Clause (c)(ii)(A) of Article FOURTH thereof:
"Without limiting the terms of Clause (c)(ii)(B) below, 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 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 dividend 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."
(K) striking out Clause (c)(ii)(B) of Article FOURTH thereof and by
substituting in lieu of said Clause(c)(ii)(B) of said Article the following new
Clause:
"DIVIDEND RESTRICTIONS. Unless all accrued dividends on the High Vote
Preferred Stock pursuant to Clause (c)(ii)(A) 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. 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. The restrictions contained in this Clause
(c)(ii)(B) and in Clause (c)(ii)(A) above shall not apply to any dividend
or distribution in respect of which an adjustment has been, or
simultaneously is being, made pursuant to the provisions of Clause
(c)(v)(D) of this Article FOURTH."
(L) striking out Clause (c)(iii)(A) of Article FOURTH thereof and by
substituting in lieu of said Clause (c)(iii)(A) of said Article the following
new Clause:
"(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
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thereof, an amount equal to the Weighted Average B Liquidation Amount
per share of Series B Preferred Stock and the Weighted Average C
Liquidation Preference per share of Series C Preferred Stock
(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 ("Accrued Dividends"), on the
High Vote Preferred Stock.
As used herein, the Weighted Average B Liquidation Amount at any time
shall be determined (subject to equitable adjustment for stock splits,
including stock splits by way of a dividend but excluding dividends
paid pursuant to Clause (c)(ii)(A) of this Article FOURTH) according
to the following formula:
Weighted Average B Liquidation Amount = $316,337,311.4 + B Proceeds
--------------------------
116,010,456 + New B Shares
Where:
"New B Shares" equals the number of shares of Series B Preferred Stock
that were issued after March 8, 2002 for actual consideration received
by the Corporation in the form of cash or other property or through
the conversion or exercise of convertible or other securities of the
Corporation and shall include the number of shares of Series B
Preferred Stock then outstanding that were issued upon conversion of
(i) any of the Notes (including any Notes issued by the Corporation in
order to satisfy any interest payments due under such Notes) issued
pursuant to the Note Purchase Agreement, and (ii) any of the Series F
Preferred Stock, but, in each case, excluding shares of Series B
Preferred Stock issued as dividends on Series B Preferred Stock or
interest on Notes or received upon conversion of Series F Preferred
Stock received as interest or dividends on Series F Preferred Stock or
interest on Notes; and
"B Proceeds" means the aggregate dollar amount of cash proceeds and
the aggregate dollar value, as determined by the Board in good faith,
of other consideration directly or indirectly received by the
Corporation in connection with the issuance of any Series B Preferred
Stock issued after March 8, 2002 (including (without duplication) in
connection with the issuance and exercise, exchange or conversion of
securities or other rights that are exercisable or exchangeable for or
convertible into Series B Preferred Stock and specifically including
the aggregate amount of principal and interest retired by the
Corporation under the Notes upon conversion thereof and the aggregate
liquidation preference (but not accrued dividends) of any Preferred
Stock that is converted into Series B Preferred Stock).
As used herein, the Weighted Average C Liquidation Amount at any time
shall be determined (subject to equitable adjustment for stock splits,
including stock splits by way of a dividend but excluding dividends
paid pursuant to Clause (c)(ii)(A) of this Article FOURTH) according
to the following formula:
Weighted Average C Liquidation Amount = $303,848,244.44 + C Proceeds
----------------------------
111,413,994 + New C Shares
Where:
"New C Shares" equals the number of shares of Series C Preferred Stock
that were issued after March 8, 2002 for actual consideration received
by the Corporation in the form of cash or other property or through
the conversion or exercise of convertible or other securities of the
Corporation; and
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"C Proceeds" means the aggregate dollar amount of cash proceeds and
the aggregate dollar value, as determined by the Board in good faith,
of other consideration directly or indirectly received by the
Corporation in connection with the issuance of any Series C Preferred
Stock issued after March 8, 2002 (including (without duplication) in
connection with the issuance and exercise, exchange or conversion of
securities or other rights that are exercisable or exchangeable for or
convertible into Series C Preferred Stock including the aggregate
liquidation preference (but not accrued dividends) of any Preferred
Stock that is converted into Series C 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 of the Liquidation Preference
together with Accrued Dividends on the High Vote Preferred Stock to
such holders, then such assets shall be distributed first, ratably
among the holders of the Series B Preferred Stock until such time as
they shall have received a per share amount equal to the Series B
Priority, and thereafter ratably among all of the holders of High Vote
Preferred Stock in the ratio of (A) the Weighted Average B Liquidation
Amount minus the Series B Priority plus the Accrued Dividends on the
Series B Preferred Stock for each share of Series B Preferred Stock to
(B) the Weighted Average C Liquidation Amount plus Accrued Dividends
on the Series C Preferred Stock for each share of Series C Preferred
Stock. As used herein "Series B Priority" means $66,338,075 divided by
the sum of 116,010,456 plus the number of New B Shares. Promptly
following any change in the number of New B Shares or New C Shares or
in the amount of B Proceeds or C Proceeds or upon request of any
stockholder, the Chief Financial Officer of the Corporation will
provide a certificate setting forth the B Proceeds, the New B Shares,
the C Proceeds and the New C Shares."
(M) striking out Clause (c)(v)(A)(3) of Article FOURTH thereof and by
substituting in lieu of said Clause (c)(v)(A)(3) of said Article the following
new Clause:
"(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 or Permitted Transferee 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
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voting agreement and voting proxy, each in form and substance
satisfactory to the Corporation and the other Parent Entity (if such
other Parent Entity or its Wholly Owned Affiliates 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 Stocktransferred to such Person, such vote to be 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 AOL, ODC and/or one or more ▇▇▇▇▇▇▇▇ Family members, if
(i) such transfer (1) with respect to transfers by AOL and its
Permitted Transferees, either individually or when aggregated with all
prior transfers of Series F Preferred Stock and High Vote Stock to
Employees of AOL, exceeds 20,371,667 shares (as such number shall be
equitably adjusted for any stock split, stock dividend, reverse stock
split, reclassification or similar transaction, and assuming for
purposes of such calculation that (x) all shares of Series F Preferred
Stock so transferred are converted into High Vote Common Stock at the
Series F Conversion Ratio and (y) all shares of High Vote Preferred
Stock so transferred are converted into High Vote Common Stock at the
applicable Conversion Ratio) and (2) with respect to transfers by ODC
and its Permitted Transferees, either individually or when aggregated
with all prior transfers of High Vote Stock to Employees of ODC and
▇▇▇▇▇▇▇▇ Family members, exceeds 19,972,382 shares (as such number
shall be equitably adjusted for any stock split, stock dividend,
reverse stock split, reclassification or similar transaction, and
assuming for purposes of such calculation that all shares of High Vote
Preferred Stock so transferred are converted into High Vote Common
Stock at the applicable Conversion Ratio) or (ii) such person ceases
to be an Employee of AOL or ODC, as the case may be. 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 FIFTH regarding the approval of
actions with stockholders. In addition, if any Person other than a
Parent Entity, or Wholly Owned Affiliate of a Parent Entity, a
▇▇▇▇▇▇▇▇ 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 Vote Common Stock
9
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 or Permitted Transferee 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."
(N) striking out Clause (c)(v)(C)(4) of Article FOURTH thereof and by
substituting in lieu of said Clause (c)(v)(C)(4) of said Article the following
new Clause (c)(v)(C)(4):
(4) Upon any such conversion, no adjustment to the then
applicable Conversion Ratio shall be made for any declared but unpaid
dividends on the shares of High Vote Preferred Stock surrendered for
conversion or on the shares of Common Stock delivered upon conversion,
provided that such dividend shall be paid in cash or in shares of
capital stock into which the shares of such High Vote Preferred Stock
have been converted.
(O) striking out Clause (c)(vi)(A) of Article FOURTH thereof and by
substituting in lieu of said Clause (c)(vi)(A) of said Article the following new
Clause:
"(A) MANDATORY REDEMPTION BY THE CORPORATION. Subject to the last
sentence of this Clause (c)(vi)(A), the Corporation shall redeem out of
funds legally available therefore 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 Redemptions") pursuant to
the following schedule:
For the Series B Preferred Stock:
(1) on August 7, 2005, the Corporation shall redeem a
percentage of the shares of Series B Preferred Stock outstanding
as of such date equal to 100 multiplied by the quotient of (a)
101,858,334 divided by (b) the sum of 116,010,456 plus the number
of shares of Series B Preferred Stock that were previously issued
(i) upon conversion of the Notes and any of the Series F
Preferred Stock and (ii) as interest on the Senior Convertible
Notes (collectively, the "Third Tranche Shares") and the number
of shares of Series B Preferred Stock previously issued after
March 8, 2002 other than the Third Tranche Shares or shares of
Series B Preferred Stock issued as a dividend on the Series B
Preferred Stock pursuant to Clause (c)(ii)(A) of this Article
FOURTH ("Series B Additional Shares");
(2) on April 2, 2006, the Corporation shall redeem a
percentage of the shares of Series B Preferred Stock outstanding
as of such date equal to 100 multiplied by the quotient of (a)
14,152,122 divided by (b) the sum of 14,152,122 plus the number
of Third Tranche Shares and Series B Additional Shares;
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(3) on March 8, 2007 or such later date upon which the
holders of the Notes who have delivered a notice of conversion of
all or a portion of their Notes shall have received their shares
of Series B Preferred Stock issuable upon such conversion, the
Corporation shall redeem a percentage of the shares of Series B
Preferred Stock outstanding as of such date equal to 100
multiplied by the quotient of (a) the number of Third Tranche
Shares divided by (b) the sum of the number of Third Tranche
Shares plus the number of Series B Additional Shares. In the
event there are no Series B Additional Shares outstanding as of
such date, then all remaining shares of Series B Preferred Stock
then outstanding, if any, will be redeemed on such date; and
(4) if any shares of Series B Preferred Stock are
outstanding after March 8, 2007, the Corporation shall redeem, on
a date 30 days following the fifth anniversary (a "Series B Fifth
Anniversary Date") of the agreement pursuant to which any Series
B Additional Shares were issued, a percentage of the shares of
Series B Preferred Stock outstanding as of such date equal to 100
multiplied by the quotient of (a) the number of Series B
Preferred Stock previously issued as contemplated by such
agreement (including pursuant to the conversion of any securities
contemplated thereby) (the "Series B Fifth Anniversary Shares")
divided by (b) the sum of the number of Series B Fifth
Anniversary Shares plus the number of any Series B Additional
Shares that are not, and were not, on a previous Series B Fifth
Anniversary Date, Series B Fifth Anniversary Shares. On the final
Series B Fifth Anniversary Redemption Date all shares of Series B
Preferred Stock then outstanding will be redeemed.
For the Series C Preferred Stock:
(1) on August 7, 2005, the Corporation shall redeem a
percentage of the shares of Series C Preferred Stock outstanding
as of such date equal to 100 multiplied by the quotient of (a)
97,803,960 divided by (b) the sum of 111,413,994 plus the number
of shares of Series C Preferred Stock that were previously issued
after March 8, 2002 pursuant to Clause (c)(ii)(A) of this Article
FOURTH ("Series C Additional Shares");
(2) on April 2, 2006, the Corporation shall redeem a
percentage of the shares of Series C Preferred Stock outstanding
as of such date equal to 100 multiplied by the quotient of (a)
13,610,034 divided by (b) the sum of 13,610,034 plus the number
of Series C Additional Shares. In the event that there are no
Series C Additional Shares outstanding as of such date then all
remaining shares of Series C Preferred Stock then outstanding, if
any, will be redeemed on such date; and
(3) if any shares of Series C Preferred Stock are
outstanding after April 2, 2006, the Corporation shall redeem, on
a date 30 days following the fifth anniversary (a "Series C Fifth
Anniversary Date") of the agreement pursuant to which any Series
C Additional Shares were issued, a percentage of the shares of
Series C Preferred Stock outstanding as of such date equal to 100
multiplied by the quotient of (a) the number of Series C
Preferred Stock previously issued as contemplated by such
agreement (including pursuant to the conversion of any securities
contemplated thereby) (the "Series C Fifth Anniversary Shares")
11
divided by (b) the sum of the number of Series C Fifth
Anniversary Shares plus the number of any Series C Additional
Shares that are not, and were not, on a previous Series C Fifth
Anniversary Date, Series C Fifth Anniversary Shares. On the final
Series C Fifth Anniversary Date all shares of Series C Preferred
Stock then outstanding will be redeemed.
Each such date is referred to herein as a "Redemption Date." Upon any
Mandatory Redemption, the Corporation shall redeem from each holder of
High Vote Preferred Stock then outstanding the applicable percentage
or amount of each Series of High Vote Preferred Stock then held by
such holder. The "Redemption Price" per share of High Vote Preferred
Stock to be redeemed at each Mandatory Redemption 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
Weighted Average Liquidation Amount attributable to such share plus an
amount equal to all accrued but unpaid dividends attributable to such
share as of the applicable Redemption Date. Notwithstanding anything
in this Clause (c)(vi) no Mandatory Redemption shall take place on any
Redemption Date with respect to the number of shares of the applicable
High Vote Preferred Stock that have been converted with respect to
which a conversion notice has been delivered pursuant to Clause (c)(v)
and which have not previously resulted in a reduction in the number of
shares of such High Vote Preferred Stock on a previous Redemption date
pursuant to this sentence.
(P) striking out Clause (b)(i) of Article FIFTH thereof and by substituting
in lieu of said Clause (b)(i) of said Article the following new Clause:
"(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 stock
of the Corporation entitled to vote generally in the election of Class
A Directors ("Voting Stock"), voting together as a single class."
3. The amendment of the restated certificate of incorporation
herein certified has been duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
Signed this 28th day of August, 2002.
By: ______________________________
Name:
Title:
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