EXECUTION COPY
VOTING AGREEMENT
Voting Agreement, dated as of March 8, 2002 (this "Agreement"), by
and among AOL Time Warner Inc. ("AOLTW"), Banco Itau S.A., Banco Itau
S.A.--Cayman Branch and Itau Bank Limited (each, an "Stockholder" and
collectively, the "Stockholders").
WHEREAS, America Online Latin America, Inc., a Delaware
corporation ("Company") and AOLTW have, contemporaneously with the
execution and delivery of this Agreement, entered into a Note Purchase
Agreement dated as of March 8, 2002 (the "Note Purchase Agreement")
providing for the purchase by AOLTW or its assigns of an aggregate
principal amount of up to $160 million of the Company's 11% Senior
Convertible Notes due 2007 pursuant to the terms and conditions thereof
(capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Note Purchase Agreement);
WHEREAS, in connection with the Note Purchase Agreement, AOLTW,
America Online, Inc., Aspen Investments LLC and Atlantis Investments LLC
have, contemporaneously with the execution and delivery of this Agreement,
entered into a Voting Agreement, dated as of March 8, 2002, a copy of which
has been made available to the Stockholders.
Now, therefore, in consideration of the foregoing and the mutual
covenants and agreements contained herein and in the Note Purchase
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, each of the Stockholders agree as follows:
ARTICLE I: REPRESENTATIONS AND WARRANTIES
1.1 Voting Control. The number of shares of capital stock of the
Company to which each Stockholder has power to instruct the voting thereof
(pursuant to, and subject to the terms and conditions of, the repurchase
transactions and related documentation described in the Schedule 13D and
the amendments thereto under the Exchange Act filed by the Stockholders
(the "Repos") as of the date hereof (collectively, the "Shares"; together
with all of the capital stock of the Company to which such Stockholder
acquires voting power after the date hereof, the "Subject Shares") is set
forth opposite such Stockholder's name on Exhibit A. Each Stockholder has
the power to instruct the voting of the applicable Shares pursuant to, and
subject to the terms and conditions of, the Repos, free and clear of all
liens, encumbrances, options, rights of first refusal and other similar
rights and restrictions, in each case, other than as set forth under this
Agreement, the Itau Stockholder Agreement and the Repos.
1.2 Power; Authority; Validity of Agreement. Each party hereto
represents and warrants to the other parties that (a) it has the power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder, (b) this Agreement has been duly executed and
delivered and constitutes a legal, valid and binding obligation of such
party enforceable against such party in accordance with its terms, except
as the enforceability thereof may be limited by (x) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (y) general
principles of equity (whether considered in a proceeding in equity or at
law) and (c) the execution, delivery and performance by such party of this
Agreement does not and will not (i) require such party to obtain any
consent or approval from any Governmental Authority or third-party (other
than any consent or approval or action under the Repos) or (ii) conflict
with such party's organizational documents.
ARTICLE II: VOTING OF SHARES
2.1 Voting Obligations. Subject to the satisfaction (or waiver in
writing by the applicable Stockholders) of each of the conditions set forth
in Section 2.2, and, so long as no default has occurred and is continuing
under any of the Repos, each Stockholder shall: (a) instruct (and use
reasonable efforts to employ any rights it has under the Repos to cause)
the holders of record of any applicable Subject Shares on any applicable
record date (the "Record Holder") to appear, in person or by proxy, so that
all the applicable Subject Shares are counted for the purpose of obtaining
a quorum at a meeting of shareholders of the Company (currently
contemplated to be the Company's annual meeting of shareholders for the
year 2002), and at any adjournment or adjournments thereof, at which (i) a
proposal to approve and adopt the Amendment to Restated Certificate of
Incorporation of the Company attached hereto as Attachment 1 (the "Charter
Amendments"), (ii) a proposal to approve (t) the issuance of the Initial
Notes under the Note Purchase Agreement, (u) the issuance of PIK Notes or
Applicable Shares as interest on the Notes in accordance with the terms of
the Notes, (v) the issuance of any shares of capital stock of the Company
pursuant to the conversion of the Notes or the conversion or redemption of
the Applicable Shares in accordance their respective terms, (w) the
issuance of Class A Common Stock pursuant to the conversion of Class B
Common Stock in accordance with its terms (x) the issuance of capital stock
of the Company as dividends on the Series F Preferred Stock and the Series
B Preferred Stock in accordance with the terms of such securities, (y) the
adjustment of the conversion price of the Notes pursuant to the
anti-dilution provisions of the Notes, in the case of each of clauses (t)
through (y), in accordance with the terms contemplated by the Note Purchase
Agreement and the Notes, and (z) any other term or provision of the Note
Purchase Agreement, Notes, Charter Amendments, Certificate of Designation
that would require shareholder approval under Rule 4350 of the Marketplace
Rules of the Nasdaq Stock Market to be effective and (iii) the filing of a
Certificate of Elimination in respect of the Series F Preferred Stock after
the filing of the Charter Amendments (the matters described in the
foregoing clauses, (i) through (iii), the "Covered Matters") and (b)
instruct (and use reasonable efforts to employ any rights it has under the
Repos to cause) the Record Holder to vote, in person or by proxy, all of
such Stockholder's Subject Shares in favor of each of the Covered Matters
(it being understood by the parties hereto that, in accordance with the
terms of the Repos, the Stockholders will require at least eight (8)
Business Days' notice to the vote on any Covered Matter in order to so
instruct the Record Holders of the Shares with respect to any action,
document, meeting or vote contemplated by clauses (a) and (b) of this
Section 2.1). In the event that any Subject Shares of any Stockholder are
not subject to a Repo, subject to the satisfaction (or waiver in writing by
such Stockholder) of each of the conditions set forth in Section 2.2, such
Stockholder agrees to appear, in person or by proxy, with and vote such
Subject Shares as provided above.
2.2 Conditions to Voting Obligations. The obligations of each
Stockholder under Section 2.1 of this Agreement are subject to the
fulfillment (or waiver in writing by such Stockholder) of each of the
following conditions at the time any shareholder action on any of the
Covered Matters is otherwise to be taken: (a) any governmental approvals
(other than filings and the expiration of any waiting period under the HSR
Act) necessary to permit the filing of the Charter Amendments and the
consummation of the transactions contemplated by the Note Purchase
Agreement and the Notes shall have been duly obtained and shall be in full
force and effect; (b) no restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or
other legal or regulatory restraint or provision (whether temporary or
permanent) preventing or challenging the Covered Matters or the filing of
the Charter Amendments or the consummation of the transactions contemplated
by the Note Purchase Agreement, the Notes or this Agreement shall be in
effect, nor shall any proceeding have been brought or threatened in writing
by a Governmental Authority seeking any of the foregoing; (c) no Federal,
state, local or foreign statute, rule or regulation shall have been enacted
which prohibits or restricts the Covered Matters or the filing of the
Charter Amendments or the consummation of the transactions contemplated by
the Note Purchase Agreement, the Notes or this Agreement; (d) Aspen
Investments LLC and Atlantis Investments LLC shall have executed and
delivered the Other Voting Agreement, such agreement shall be in full force
and effect and such shareholders shall have approved or be approving the
Covered Matters contemporaneously with the approvals of the Covered Matters
hereunder; (e) no amendment or modification or waiver of the terms of the
Charter Amendments, the Note Purchase Agreement or the Notes shall have
occurred (i) which relates to the economic terms of the transactions
contemplated hereby or (ii) which in any other case is material and adverse
to such Stockholder or the holders of shares of Class A Common Stock (in
either case directly or through their interest in the Company), and no
default by any party thereto that is material and adverse to such
Stockholder or the holders of shares of Class A Common Stock (in either
case directly or through their interest in the Company) shall have
occurred; (f) no actions, suits or proceedings by or before any
Governmental Authority shall be pending or threatened by a Governmental
Authority against or affecting the Stockholders (or their officers,
directors, employees, controlling persons or affiliates) with respect to
the Charter Amendments, the Note Purchase Agreement, the Notes, this
Agreement or any of the transactions contemplated hereby and thereby; and
(g) the delivery of the Fairness Opinion to the Special Committee of the
Board of Directors of the Company. For purposes of this Section 2.2,
"threatened" means that one or more relevant parties have been advised by
an authorized person of a Governmental Authority that such Governmental
Authority intends to proceed with an administrative or legal action, suit
or proceeding.
2.3 Transfer of Ownership of Control. In the event that any
Stockholder intends to hereafter transfer ownership or voting control
(including through any amendment to the Repos) of any of the applicable
Subject Shares owned of record and/or beneficially by such Stockholder to a
Person that is not then a Stockholder, as a condition to the effectiveness
of such transfer, such Stockholder shall cause the transferee to agree, by
executing and delivering to the other parties hereto a joinder agreement in
form and substance reasonably satisfactory to each of the Stockholders, to
become a party to this Agreement from and after the time such transfer is
effected; provided that no Stockholder will be restricted from amending any
existing Repos or entering into new Repo transactions substantially similar
to its existing Repos, so long as such Stockholder retains the right to
control the voting of the Subject Shares subject thereto on terms
substantially similar to the existing Repos.
ARTICLE III: MISCELLANEOUS
3.1 Enforcement of Agreement. The parties hereto agree that
immediate, substantial and irreparable harm for which monetary damages will
be inadequate will occur in the event that any of the provisions of this
Agreement are not performed in accordance with its terms by another party
hereto or this Agreement is otherwise breached by another party hereto.
Accordingly, it is agreed that each of the Stockholders hereto will be
entitled, in addition to any other remedy to which such party is entitled
at law or in equity, to (a) an injunction or injunctions to prevent
breaches or continuing breaches of this Agreement by any other Stockholder
and (b) an order of specific performance of the provisions hereof.
Notwithstanding the foregoing, none of the Stockholders (and none of their
officers, directors, employees, controlling persons or affiliates) shall be
liable to any other party hereto, the Company or any other person for
failure of the Record Holders to appear at the meeting of shareholders of
the Company or vote on any of the Covered Matters in accordance with the
instructions provided by the Stockholders; so long as the ability to
instruct the Record Holders to vote in accordance with the terms of the
Repos shall not be limited through the amendment, waiver or other
modification of the terms of such Repos and the Stockholders shall have
used their reasonable efforts to cause such Record Holders to so appear and
vote.
3.2 Several Obligations. The obligations of the Stockholders
hereunder shall be "several" and not "joint" or "joint and several."
Without limiting the generality of the foregoing, under no circumstances
shall any Stockholder have any liability or obligation with respect to any
misrepresentation or breach of covenant or agreement of any other
Stockholder.
3.3 Termination. This Agreement shall terminate and be of no
further force and effect, and all obligations of the parties hereunder
shall cease, upon the earlier to occur of (a) a determination not to seek
the Charter Amendments and a termination of the Note Purchase Agreement and
(b) September 25, 2002.
3.4 Governing Law. This Agreement shall be governed by, and
construed in accordance with, Delaware law, regardless of any law that
might otherwise govern under applicable principles of conflicts of law.
3.5 Miscellaneous. As used herein, the term "affiliate" when used
with respect to the Stockholders shall have the meaning ascribed to such
term in the Note Purchase Agreement, but shall exclude the Company to the
extent it might be deemed an affiliate.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting
Agreement as of the date set forth in the first paragraph hereof.
AOL TIME WARNER INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:
BANCO ITAU S.A.
By: /s/ Xxxxxx Xxxx Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxx Xxxxx Xxxxxxxx
Title: Executive Vice President
By: /s/ Marco Xxxxxxx Xxxxxxx
-------------------------------------
Name: Marco Xxxxxxx Xxxxxxx
Title: Manager Director
BANCO ITAU S.A. - CAYMAN BRANCH
By: /s/ Xxxxxx Xxxx Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxx Xxxxx Xxxxxxxx
Title: Executive Vice President
By: /s/ Marco Xxxxxxx Xxxxxxx
--------------------------------
Name: Marco Xxxxxxx Xxxxxxx
Title: Manager Director
ITAU BANK LIMITED
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxx Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx Xxxxx Xxxxxxxx
Title: Director
EXHIBIT A
Shares of the Company over which the Stockholders have Voting Power
--------------------------------------------------------------------
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Stockholder Shares of the Company
-------------------------------------------------------------------------------
Banco Itau S.A. 23,775,000 Shares of Class A Common Stock
-------------------------------------------------------------------------------
Banco Itau S.A.--Cayman Branch 4,237,840 Shares of Class A Common Stock
-------------------------------------------------------------------------------
Itau Bank Limited 7,925,000 Shares of Class A Common Stock
-------------------------------------------------------------------------------
Attachment 1
Amendment to Restated Certificate of Incorporation
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 definitions of "ODC," "Permitted Transferee"
and "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."
"Majority Owned Subsidiary" of any Person means any corporation,
association, partnership, joint venture, limited liability company or other
business entity of which more than 50% of the total voting power of shares of
capital stock or other interests (including partnership and joint venture
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by, or the managing member,
general partner or other solely controlling affiliate of such corporation,
association, partnership, joint venture, limited liability company or other
business entity is, (i) such Person, (ii) such Person and one or more
Majority Owned Subsidiaries of such Person or (iii) one or more Majority
Owned Subsidiaries of such Person. Any Person that is a Majority Owned
Subsidiary of the Xxxxxxxx Family shall be deemed a Majority Owned Subsidiary
of ODC.
"ODC" shall mean, individually and collectively, Riverview Media
Corp., a British Virgin Islands corporation, and Aspen and Atlantis, for so
long as each of Aspen and Atlantis is directly or indirectly at least a
Majority Owned Subsidiary of the Xxxxxxxx Family, and, any Permitted
Transferee(s) for so long as such Permitted Transferee(s) are directly or
indirectly at least a Majority Owned Subsidiary of member(s) of the Xxxxxxxx
Family, or is a or are, member(s) of the Xxxxxxxx Family. Notwithstanding the
foregoing, in each instance in this Certificate where ODC is required to (i)
provide any consent to any action or inaction by the Corporation or any other
Person, (ii) reject or otherwise determine not to pursue any Corporate
Opportunity, or (iii) hold or vote any proxy required to be delivered
hereunder, the term "ODC" shall mean, (A) Aspen and/or Atlantis, if Aspen
and/or Atlantis then collectively hold at least a majority of the voting
power of the High Vote Stock and Common Stock then held by ODC and its
Permitted Transferees, in the aggregate, and (B) if Aspen and/or Atlantis do
not then collectively hold at least a majority of the voting power of the
High Vote Stock and Common Stock then held by ODC and its Permitted
Transferees, in the aggregate, such Person or Persons as the Corporation may,
in its sole discretion based on the stock record books of the Corporation,
determine then holds at least a majority of the voting power of the High Vote
Stock and Common Stock then held by ODC and its Permitted Transferees, in the
aggregate.
"Permitted Transferee" shall mean AOL, ODC, each of their
Wholly-Owned Affiliates, Majority Owned Subsidiaries of such Wholly-Owned
Affiliates, Employees of AOL and ODC, and members of the Xxxxxxxx Family.
(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 stock 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 Clause (b)(i)(B)(1) of Article FOURTH thereof
and by substituting in lieu of said Clause (b)(i)(B)(1) of said Article the
following new Clause:
"(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 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, 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."
(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 or a Majority Owned Subsidiary of such Wholly Owned
Affiliate, 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 or Majority Owned Subsidiaries of 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 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
Xxxxxxxx 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 Xxxxxxxx
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 the transferring 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)(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 Permitted Transferees
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."
(F) 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 Permitted Transferees,
members of the Xxxxxxxx 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, directly
or indirectly, issuable upon conversion, exercise or exchange
of (i) then outstanding shares of Series C Preferred Stock,
(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.
(G) 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."
(H) 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:
"(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."
(I) 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."
(J) 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."
(K) 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 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
"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.
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
$66,334,778.74 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."
(L) 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 or a Majority Owned Subsidiary of such Wholly
Owned Affiliate, 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 or its Wholly Owned Affiliates
or Majority Owned Subsidiaries of 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 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 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 Xxxxxxxx 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 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 Xxxxxxxx
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 a Permitted Transferee
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 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."
(M) 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.
(N) 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;
(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 the 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") 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.
(O) 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 __ day of __________, 2002.
By: ______________________________
Name:
Title:
