SEC Filings

S-4/A
TIME WARNER INC. filed this Form S-4/A on 03/24/2000
Entire Document
 


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                                                                     EXHIBIT 3.4

                       CERTIFICATE OF THE VOTING POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
                     RIGHTS AND QUALIFICATIONS, LIMITATIONS
                          OR RESTRICTIONS THEREOF, OF
                           SERIES LMCN-V COMMON STOCK

                                       OF

                              AOL TIME WARNER INC.

                              ____________________

                     Pursuant to Section 151 of the General
                    Corporation Law of the State of Delaware
                              ____________________


          AOL Time Warner Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), does
hereby certify that the following resolution was duly adopted by action of the
Board of Directors of the Corporation (the "Board of Directors") at a meeting
duly held on [              ], 2000.

          RESOLVED that pursuant to the authority expressly granted to and
vested in the Board of Directors by the provisions of Section 3 of Article IV of
the Restated Certificate of Incorporation of the Corporation, as amended from
time to time (the "Certificate of Incorporation"), and Section 151(g) of the
DGCL, the Board of Directors hereby creates, from the authorized shares of
Series Common Stock, par value $0.01 per share ("Series Common Stock"), of the
Corporation authorized to be issued pursuant to the Certificate of
Incorporation, a series of Series Common Stock, and hereby fixes
 the voting
powers, designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, of the
shares of such series as follows:

          The series of Series Common Stock hereby established shall consist of
210,000,000 shares designated as Series LMCN-V Common Stock.  The number of
shares constituting such series may be increased or decreased (but not below the
number of shares then outstanding) from time to time by a resolution or
resolutions of the Board of Directors of the Corporation.

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          1.   Definitions.  As used herein, the following terms shall have the
               -----------                                                     
indicated meanings:

          1.1  "Board of Directors" shall mean the Board of Directors of the
Corporation or, with respect to any action to be taken by the Board of
Directors, any committee of the Board of Directors duly authorized to take such
action.

          1.2  "Capital Stock" shall mean any and all shares of corporate stock
of a Person (however designated and whether representing rights to vote, rights
to participate in dividends or distributions upon liquidation or otherwise with
respect to such Person, or any division or subsidiary thereof, or any joint
venture, partnership, corporation or other entity).

          1.3  "Certificate" shall mean the Certificate of the Voting Powers,
Designations, Preferences and Relative, Participating, Optional or Other Special
Rights, and Qualifications, Limitations or Restrictions Thereof, of Series LMCN-
V Common Stock filed with the Secretary of State of the State of Delaware
pursuant to Section 151 of the DGCL, as amended from time to time.

          1.4  "Closing Price" of the Common Stock shall mean the last reported
sale price of the Common Stock (regular way) as shown on the Composite Tape of
the NYSE, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices on the NYSE, or, if the Common Stock is not listed
or admitted to trading on the NYSE, on the principal national securities
exchange on which such stock is listed or admitted to trading, or, if it is not
listed or admitted to trading on any national securities exchange, the last
reported sale price of the Common Stock, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, in either case as
reported by NASDAQ.

          1.5  "Common Stock" shall mean the class of Common Stock, par value
$0.01 per share, of the Corporation, or any other class of stock resulting from
(x) successive changes or reclassifications of such Common Stock consisting of
changes in par value, or from par value to no par value, (y) a subdivision or
combination or (z) any other changes for which an adjustment is made under
Section 2.4(a), together with any rights associated generally with the shares of
Common Stock.

          1.6  "Communications Laws" shall mean the Communications Act of 1934
(as amended and supplemented from 

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                                                                               3

time to time and any successor statute or statutes regulating telecommunications
companies) and the rules and regulations (and interpretations thereof and
determinations with respect thereto) promulgated, issued or adopted from time to
time by the Federal Communications Commission (the "FCC"). All references herein
to Communications Laws shall include as of any relevant date in question the
Communications Laws as then in effect (including any Communications Law or part
thereof the effectiveness of which is then stayed or promulgated with a delayed
effective date).

               1.7  "Conversion Date" shall have the meaning set forth in
Section 3.5.

               1.8  "Corporation" shall mean AOL Time Warner Inc., a Delaware
corporation, and any of its successors by operation of law, including by merger
or consolidation.

               1.9  "DGCL" shall mean the General Corporation Law of the State
of Delaware, as amended from time to time.

               1.10  "Dividend Payment Date" shall have the meaning set forth in
Section 2.1.

               1.11  "Formula Number" shall have the meaning set forth in
Section 2.1.

               1.12  "LMC Agreement" shall mean the Second Amended and Restated
LMC Agreement dated as of September 22, 1995, among a Delaware corporation known
on such date as "Time Warner Inc.", TW Inc., Liberty Media Corporation, a
Delaware corporation ("LMC Parent"), and certain subsidiaries of LMC Parent
listed under "Subsidiaries of LMC Parent" on the signature pages thereto, as
amended by Amendment No. 1 dated as of June 24, 1997, Amendment No. 2 dated as
of May 25, 1999, and as further amended from time to time.

               1.13  "Merger Agreement" shall mean the Amended and Restated
Agreement and Plan of Merger dated as of January 10, 2000, among AOL Time Warner
Inc., America Online, Inc., Time Warner Inc., America Online Merger Sub Inc. and
Time Warner Merger Sub Inc., as such agreement may be amended from time to time
in accordance with its terms.

               1.14  "NASDAQ" shall mean The Nasdaq Stock Market.

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                                                                               4

               1.15  "NYSE" shall mean the New York Stock Exchange, Inc.

               1.16  "Parity Stock" shall mean shares of Common Stock and shares
of any other class or series of Capital Stock of the Corporation that, by the
terms of the Certificate of Incorporation or of the instrument by which the
Board of Directors, acting pursuant to authority granted in the Certificate of
Incorporation, shall fix the relative rights, preferences and limitations
thereof, shall, in the event that the stated dividends thereon are not paid in
full, be entitled to share ratably with the shares of this Series in the payment
of dividends in accordance with the sums that would be payable on such shares if
all dividends were declared and paid in full, or shall, in the event that the
amounts payable thereon in liquidation are not paid in full, be entitled to
share ratably with the shares of this Series in any distribution of assets other
than by way of dividends in accordance with the sums that would be payable in
such distribution if all sums payable were discharged in full.

               1.17  "Permitted Transferee" shall mean any Liberty Party, as
such term is defined in the LMC Agreement.

               1.18  "Person" shall mean an individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization or other entity.

               1.19  "Preferred Stock" shall mean the class of Preferred Stock,
par value $0.10 per share, of the Corporation.

               1.20  "Record Date" shall have the meaning set forth in Section
2.1.

               1.21  "Senior Stock" shall mean shares of any class or series of
Capital Stock of the Corporation that, by the terms of the Certificate of
Incorporation or of the instrument by which the Board of Directors, acting
pursuant to authority granted in the Certificate of Incorporation, shall fix the
relative rights, preferences and limitations thereof, shall be senior to the
shares of this Series in respect of the right to receive dividends or to
participate in any distribution of assets other than by way of dividends.

               1.22  "Series Common Stock" shall mean the class of Series Common
Stock, par value $0.01 per share, of the Corporation.

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                                                                               5

               1.23  "Series LMC Common Stock" shall mean the series of Series
Common Stock authorized and designated as Series LMC Common Stock.

               1.24  "Series LMCN-V Common Stock" and "this Series" shall mean
the series of Series Common Stock authorized and designated as Series LMCN-V
Common Stock.

               1.25  "Trading Day" shall mean, so long as the Common Stock is
listed or admitted to trading on the NYSE, a day on which the NYSE is open for
the transaction of business, or, if the Common Stock is not listed or admitted
to trading on the NYSE, a day on which the principal national securities
exchange on which the Common Stock is listed is open for the transaction of
business, or, if the Common Stock is not so listed or admitted for trading on
any national securities exchange, a day on which the National Market System of
NASDAQ is open for the transaction of business.


          2.  Dividends.
              --------- 

          2.1  The holders of shares of this Series shall be entitled to receive
dividends, out of funds legally available therefor, payable on such dates as may
be set by the Board of Directors for payment of cash dividends on the Common
Stock (each such date being referred to herein as a "Dividend Payment Date"), in
cash, in an amount per share equal to the product of (i) the Formula Number in
effect as of such Dividend Payment Date multiplied by (ii) the amount of the
                                        ---------- --                       
regularly scheduled cash dividend to be paid on one share of Common Stock on
such Dividend Payment Date; provided, however, dividends on the shares of this
                            --------  -------                                 
Series shall be payable pursuant to this Section 2.1 only to the extent that
regularly scheduled cash dividends are declared and paid on the Common Stock.
As used herein, the "Formula Number" shall initially be 1.0000, which shall be
adjusted from time to time pursuant to Section 2.4.  The dividends payable on
any Dividend Payment Date shall be paid to the holders of record of shares of
this Series at the close of business on the record date for the related
regularly scheduled cash dividend on the Common Stock (each such date being
referred to herein as a "Record Date").  The amount of dividends that are paid
to each holder of record on any Dividend Payment Date shall be rounded to the
nearest cent.

          2.2  In case the Corporation shall at any time distribute (other than
a distribution in liquidation of the Corporation and other than a distribution
of Common 

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                                                                               6

Stock as a result of which an adjustment to the Formula Number is made pursuant
to Section 2.4 or in connection with which a dividend of shares of this Series
is paid in accordance with Section 2.4(e)) to the holders of its shares of
Common Stock any assets or property, including evidences of indebtedness or
securities of the Corporation or of any other Person (including common stock of
such Person) or cash (but excluding regularly scheduled cash dividends payable
on shares of Common Stock), or in case the Corporation shall at any time
distribute (other than a distribution in liquidation of the Corporation) to such
holders rights, options or warrants to subscribe for or purchase shares of
Common Stock (including shares held in the treasury of the Corporation), or
rights, options or warrants to subscribe for or purchase any other security or
rights, options or warrants to subscribe for or purchase any assets or property
(in each case, whether of the Corporation or otherwise, but other than any
distribution of rights to purchase securities of the Corporation if the holder
of shares of this Series would otherwise be entitled to receive such rights upon
conversion of shares of this Series for Common Stock pursuant to Section 3,
provided, however, that if such rights are subsequently redeemed by the
--------  -------                                                      
Corporation, such redemption shall be treated for purposes of this Section 2.2
as a cash dividend (but not a regularly scheduled cash dividend) on the Common
Stock), the Corporation shall simultaneously distribute such assets, property,
securities, rights, options or warrants to the holders of shares of this Series
on the record date fixed for determining the holders of Common Stock entitled to
participate in such distribution (or, if no such record date shall be
established, the effective time thereof) in an amount per share of this Series
equal to the amount that a holder of one share of this Series would have been
entitled to receive had such share of this Series been converted into Common
Stock immediately prior to such record date (or effective time). In the event of
a distribution to holders of shares of this Series pursuant to this Section 2.2,
such holders shall be entitled to receive fractional shares or interests only to
the extent that holders of Common Stock are entitled to receive the same. The
holders of shares of this Series on the applicable record date (or effective
time) shall be entitled to receive in lieu of such fractional shares or
interests the same consideration as is payable to holders of Common Stock with
respect thereto. If there are no fractional shares or interests payable to
holders of Common Stock, the holders of shares of this Series on the applicable
record date (or effective time) shall receive in lieu of such fractional shares
or interests the fair value thereof as determined by the Board of Directors.

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          2.3  In the event that the holders of Common Stock are entitled to
make any election with respect to the kind or amount of securities or other
property receivable by them in any distribution that is subject to Section 2.2,
the kind and amount of securities or other property that shall be distributable
to the holders of shares of this Series shall be based on (i) the election, if
any, made by the holder of record (as of the date used for determining the
holders of Common Stock entitled to make such election) of the largest number of
shares of this Series in writing to the Corporation on or prior to the last date
on which a holder of Common Stock may make such an election or (ii) if no such
election is timely made, an assumption that such holder failed to exercise any
such rights (provided that if the kind or amount of securities or other property
             --------                                                           
is not the same for each nonelecting holder, then the kind and amount of
securities or other property receivable by holders of shares of this Series
shall be based on the kind or amount of securities or other property receivable
by a plurality of the shares held by the nonelecting holders of Common Stock).
Concurrently with the mailing to holders of Common Stock of any document
pursuant to which such holders may make an election of the type referred to in
this Section 2.3, the Corporation shall mail a copy thereof to the holders of
record of shares of this Series as of the date used for determining the holders
of record of Common Stock entitled to such mailing, which document shall be used
by the holders of record of shares of this Series to make such an election.

          2.4  The Formula Number shall be adjusted from time to time as follows
for events occurring after the effective time of the transactions contemplated
by the Merger Agreement, whether or not any shares of this Series have been
issued by the Corporation:

               (a)  In case the Corporation shall (i) pay a dividend in shares
     of its Common Stock, (ii) combine its outstanding shares of Common Stock
     into a smaller number of shares, (iii) subdivide its outstanding shares of
     Common Stock or (iv) reclassify (other than by way of a merger or
     consolidation that is subject to Section 3.6) its shares of Common Stock,
     then the Formula Number in effect immediately before such event shall be
     appropriately adjusted so that immediately following such event the holders
     of shares of this Series shall be entitled to receive upon conversion
     thereof the kind and amount of shares of Capital Stock of the Corporation
     that they would have owned or been entitled to receive upon or by reason of
     such event if such shares of this Series had been converted 

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     immediately before the record date (or, if no record date, the effective
     date) for such event (it being understood that any distribution of cash or
     Capital Stock (other than Common Stock) that shall accompany a
     reclassification of the Common Stock, shall be subject to Section 2.2
     rather than this Section 2.4(a)). An adjustment made pursuant to this
     Section 2.4(a) shall become effective retroactively immediately after the
     record date in the case of a dividend or distribution and shall become
     effective retroactively immediately after the effective date in the case of
     a subdivision, combination or reclassification. For the purposes of this
     Section 2.4(a), in the event that the holders of Common Stock are entitled
     to make any election with respect to the kind or amount of securities
     receivable by them in any transaction that is subject to this Section
     2.4(a) (including any election that would result in all or a portion of the
     transaction becoming subject to Section 2.2), the kind and amount of
     securities that shall be distributable to the holders of shares of this
     Series shall be based on (i) the election, if any, made by the holder of
     record (as of the date used for determining the holders of Common Stock
     entitled to make such election) of the largest number of shares of this
     Series in writing to the Corporation on or prior to the last date on which
     a holder of Common Stock may make such an election or (ii) if no such
     election is timely made, an assumption that such holder failed to exercise
     any such rights (provided that if the kind or amount of securities is not
     the same for each nonelecting holder, then the kind and amount of
     securities receivable shall be based on the kind or amount of securities
     receivable by a plurality of nonelecting holders of Common Stock).
     Concurrently with the mailing to holders of Common Stock of any document
     pursuant to which such holders may make an election of the type referred to
     in this Section 2.4(a), the Corporation shall mail a copy thereof to the
     holders of record of shares of this Series as of the date used for
     determining the holders of record of Common Stock entitled to such mailing,
     which document shall be used by the holders of record of shares of this
     Series to make such an election.

               (b)  The Corporation shall be entitled to make such additional
     adjustments in the Formula Number, in addition to those required by Section
     2.4(a) as shall be necessary in order that any dividend or distribution in
     Common Stock or any subdivision, reclassification or combination of shares
     of Common Stock referred to above, shall not be taxable to the 

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                                                                               9

     holders of Common Stock for United States Federal income tax purposes, so
     long as such additional adjustments pursuant to this Section 2.4(b) do not
     decrease the Formula Number.

               (c)  All calculations under this Section 2 and Section 3 shall be
     made to the nearest cent, one-hundredth of a share or, in the case of the
     Formula Number, one hundred-thousandth.  Notwithstanding any other
     provision of this Section 2.4, the Corporation shall not be required to
     make any adjustment of the Formula Number unless such adjustment would
     require an increase or decrease of at least one percent (1%) of the Formula
     Number.  Any lesser adjustment shall be carried forward and shall be made
     at the time of and together with the next subsequent adjustment that,
     together with any adjustment or adjustments so carried forward, shall
     amount to an increase or decrease of at least one percent (1%) of the
     Formula Number.  Any adjustments under this Section 2.4 shall be made
     successively whenever an event requiring such an adjustment occurs.

               (d)  Promptly after an adjustment in the Formula Number is
     required, the Corporation shall provide written notice to each of the
     holders of shares of this Series, which notice shall state the adjusted
     Formula Number.

               (e)  Notwithstanding anything to the contrary in this Section 2.4
     or the Certificate, if the Corporation pays a dividend with respect to its
     outstanding Common Stock in the form of additional shares of Common Stock,
     then:

               (i)  the Corporation may pay a dividend with respect to the
          outstanding shares of this Series in the form of additional shares of
          this Series, payable at the same time with the same record date and in
          the same ratio as the dividend with respect to the Common Stock
          (including treatment of fractional shares);

               (ii)  if the Corporation elects to pay the dividend in accordance
          with clause (i) above, the Corporation shall pay a dividend with
          respect to the outstanding shares, if any, of Series LMC Common Stock
          in the form of additional shares of Series LMC Common Stock, payable
          at the same time with the same record date and in the same ratio as

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          the dividend with respect to the Common Stock (including treatment of
          fractional shares); and

               (iii)  if the Corporation pays the dividend in accordance with
          clauses (i) and (ii) above, there shall not be any adjustment to the
          Formula Number by reason of such dividend with respect to the Common
          Stock.

               (f) If a distribution is made in accordance with the provisions
     of Section 2.2, anything in this Section 2.4 to the contrary
     notwithstanding, no adjustment pursuant to this Section 2.4 shall be
     effected by reason of the distribution of such assets, property,
     securities, rights, options or warrants or the subsequent modification,
     exercise, expiration or termination of such securities, rights, options or
     warrants.


          3.  Conversion at the Option of the Holder.
              ---------------------------------------

          3.1  Each holder of a share of this Series shall have the right at any
time to convert such share of this Series into either: (i) a number of shares of
Common Stock per share of this Series equal to the Formula Number in effect on
the Conversion Date or (ii) one share of Series LMC Common Stock per share of
this Series; provided, however, that such holder may convert shares of this
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Series only to the extent that the ownership by such holder or its designee of
the shares of Common Stock or Series LMC Common Stock issuable upon such
conversion would not violate the Communications Laws.

          3.2  No adjustments in respect of payments of dividends on shares of
this Series surrendered for conversion or any dividend on the Common Stock or
Series LMC Common Stock issued upon conversion shall be made upon the conversion
of any shares of this Series (it being understood that if the Conversion Date
for shares of this Series occurs after the Record Date and prior to the Dividend
Payment Date of any such dividend, the holders of record of shares of this
Series on such Record Date shall be entitled to receive the dividend payable
with respect to such shares on the related Dividend Payment Date pursuant to
Section 2.1).

          3.3  The Corporation may, but shall not be required to, in connection
with any conversion of shares of this Series into shares of Common Stock, issue
a fraction of a share of Common Stock, and if the Corporation shall determine
not to issue any such fraction, the Corporation 

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                                                                              11

shall make a cash payment (rounded to the nearest cent) equal to such fraction
multiplied by the Closing Price of the Common Stock on the last Trading Day
---------- --            
prior to the Conversion Date. The Corporation shall issue a fraction of a share
of Series LMC Common Stock in order to effect a conversion of a fraction of a
share of this Series into Series LMC Common Stock.

          3.4  Any holder of shares of this Series electing to convert such
shares into Common Stock or Series LMC Common Stock shall surrender the
certificate or certificates for such shares at the principal executive office of
the Corporation (or at such other place as the Corporation may designate by
notice to the holders of shares of this Series) during regular business hours,
duly endorsed to the Corporation or in blank, or accompanied by instruments of
transfer to the Corporation or in blank, or in form satisfactory to the
Corporation, and shall give written notice to the Corporation at such office
that such holder elects to convert such shares of this Series, which notice
shall state whether the shares of this Series delivered for conversion shall be
converted into shares of Common Stock or shares of Series LMC Common Stock.  If
any such certificate or certificates shall have been lost, stolen or destroyed,
the holder shall, in lieu of delivering such certificate or certificates,
deliver to the Corporation (or such other place) an indemnification agreement
and bond satisfactory to the Corporation.  The Corporation shall, as soon as
practicable (subject to Section 3.8) after such deposit of certificates for
shares of this Series or delivery of the indemnification agreement and bond,
accompanied by the written notice above prescribed, issue and deliver at such
office (or such other place) to the holder for whose account such shares were
surrendered, or a designee of such holder, certificates representing either (i)
the number of shares of Common Stock and the cash, if any, or (ii) the number of
shares of Series LMC Common Stock, as the case may be, to which such holder is
entitled upon such conversion.  Each share of Common Stock delivered to a holder
or its designee as a result of conversion of shares of this Series pursuant to
this Section 3 shall be accompanied by any rights associated generally with each
other share of Common Stock outstanding as of the Conversion Date.

          3.5  Conversion shall be deemed to have been made as of the date (the
"Conversion Date") that the certificate or certificates for the shares of this
Series to be converted and the written notice prescribed in Section 3.4 are
received by the Corporation; and the Person entitled to receive the Common Stock
or Series LMC Common 

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                                                                              12

Stock issuable upon such conversion shall be treated for all purposes as the
holder of record of such Common Stock or Series LMC Common Stock, as the case
may be, on such date. The Corporation shall not be required to deliver
certificates for shares of Common Stock or Series LMC Common Stock while the
stock transfer books for such stock or for this Series are duly closed for any
purpose, but certificates for shares of Common Stock or Series LMC Common Stock,
as the case may be, shall be delivered as soon as practicable after the opening
of such books.

          3.6  In the event that after the effective time of the transactions
contemplated by the Merger Agreement, whether or not any shares of this Series
have been issued by the Corporation, in the event that either (a) any
consolidation or merger to which the Corporation is a party, other than a merger
or consolidation in which the Corporation is the surviving or continuing
corporation and that does not result in any reclassification of, or change
(other than a change in par value or from par value to no par value or from no
par value to par value, or as a result of a subdivision or combination) in,
outstanding shares of Common Stock or (b) any sale or conveyance of all or
substantially all of the property and assets of the Corporation, then lawful
provision shall be made as part of the terms of such transaction whereby the
holder of each share of this Series shall have the right thereafter, during the
period such share shall be convertible, to convert such share into the kind and
amount of shares of stock or other securities and property receivable upon such
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock into which such shares of this Series could have been converted
immediately prior to such consolidation, merger, sale or conveyance, subject to
adjustment that shall be as nearly equivalent as may be practicable to the
adjustments provided for in Section 2.4 and this Section 3 (based on (i) the
election, if any, made in writing to the Corporation by the holder of record (as
of the date used for determining holders of Common Stock entitled to make such
election) of the largest number of shares of this Series on or prior to the last
date on which a holder of Common Stock may make an election regarding the kind
or amount of securities or other property receivable by such holder in such
transaction or (ii) if no such election is timely made, an assumption that such
holder failed to exercise any such rights (provided that if the kind or amount
of securities or other property is not the same for each nonelecting holder,
then the kind and amount of securities or other property receivable shall be
based upon the kind and amount of securities or other property receivable by a
plurality of the nonelecting holders of 

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                                                                              13

Common Stock)). In the event that any of the transactions referred to in clause
(a) or (b) of the first sentence of this Section 3.6 involve the distribution of
cash or property (other than equity securities) to a holder of Common Stock,
lawful provision shall be made as part of the terms of the transaction whereby
the holder of each share of this Series on the record date fixed for determining
holders of Common Stock entitled to receive such cash or property (or if no such
record date is established, the effective date of such transaction) shall be
entitled to receive the amount of cash or property that such holder would have
been entitled to receive had such holder converted his shares of this Series
into Common Stock immediately prior to such record date (or effective date)
(based on the election or nonelection made by the holder of record of the
largest number of shares of this Series, as provided above). Concurrently with
the mailing to holders of Common Stock of any document pursuant to which such
holders may make an election regarding the kind or amount of securities or other
property that will be receivable by such holders in any transaction described in
clause (a) or (b) of the first sentence of this Section 3.6, the Corporation
shall mail a copy thereof to the holders of record of the shares of this Series
as of the date used for determining the holders of record of Common Stock
entitled to such mailing, which document shall be used by the holders of shares
of this Series to make such an election. The Corporation shall not enter into
any of the transactions referred to in clause (a) or (b) of the first sentence
of this Section 3.6 unless effective provision shall be made in the certificate
or articles of incorporation or other constituent documents of the Corporation
or the entity surviving the consolidation or merger, if other than the
Corporation, or the entity acquiring the Corporation's assets, as the case may
be, so as to give effect to the provisions set forth in this Section 3.6. The
provisions of this Section 3.6 shall apply similarly to successive
consolidations, mergers, sales or conveyances. For purposes of this Section 3.6,
the term "Corporation" shall refer to the Corporation as constituted immediately
prior to the merger, consolidation or other transaction referred to in this
Section 3.6.

          3.7  The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued stock, for the
purpose of effecting the conversion of the shares of this Series, such number of
its duly authorized shares of Common Stock and Series LMC Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of this Series into shares of Common Stock or Series LMC Common Stock at
any time (assuming that, at the 

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                                                                              14

time of the computation of such number of shares, all such Common Stock or
Series LMC Common Stock would be held by a single holder); provided, however,
                                                           --------  -------
that nothing contained herein shall preclude the Corporation from satisfying its
obligations in respect of the conversion of the shares by delivery of purchased
shares of Common Stock or Series LMC Common Stock that are held in the treasury
of the Corporation. All shares of Common Stock or Series LMC Common Stock that
shall be deliverable upon conversion of the shares of this Series shall be duly
and validly issued, fully paid and nonassessable. For purposes of this Section
3, any shares of this Series at any time outstanding shall not include shares
held in the treasury of the Corporation.

          3.8  In any case in which Section 2.4 shall require that any
adjustment be made effective as of or retroactively immediately following a
record date, the Corporation may elect to defer (but only for five (5) Trading
Days following the occurrence of the event that necessitates the notice referred
to in Section 2.4(d)) issuing to the holder of any shares of this Series
converted after such record date (i) the shares of Common Stock issuable upon
such conversion over and above (ii) the shares of Common Stock issuable upon
such conversion on the basis of the Formula Number prior to adjustment;
provided, however, that the Corporation shall deliver to such holder a due bill
--------  -------                                                              
or other appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.

          3.9  If any shares of Common Stock or Series LMC Common Stock that
would be issuable upon conversion pursuant to this Section 3 require
registration with or approval of any governmental authority before such shares
may be issued upon conversion (other than any such registration or approval
required to avoid a violation of the Communications Laws), the Corporation will
in good faith and as expeditiously as possible cause such shares to be duly
registered or approved, as the case may be.  The Corporation will use
commercially reasonable efforts to list the shares of (or depositary shares
representing fractional interests in) Common Stock required to be delivered upon
conversion of shares of this Series prior to such delivery upon the principal
national securities exchange, if any, upon which the outstanding Common Stock is
listed at the time of such delivery.

          3.10  The Corporation shall pay any and all issue or other taxes that
may be payable in respect of any issue or delivery of shares of Common Stock or
Series LMC 

<PAGE>
 
                                                                              15

Common Stock on conversion of shares of this Series pursuant hereto. The
Corporation shall not, however, be required to pay any tax that is payable in
respect of any transfer involved in the issue or delivery of Common Stock or
Series LMC Common Stock in a name other than that in which the shares of this
Series so converted were registered, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the Corporation
the amount of such tax, or has established, to the satisfaction of the
Corporation, that such tax has been paid.

          3.11  In case of (i) the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation or (ii) any action triggering an
adjustment to the Formula Number pursuant to Section 2.4 (or in connection with
which a dividend of shares of this Series is paid in accordance with Section
2.4(e)) or Section 3.6, then, in each case, the Corporation shall cause to be
mailed, first-class postage prepaid, to the holders of record of the outstanding
shares of this Series, at least fifteen (15) days prior to the applicable record
date for any such transaction (or if no record date will be established, the
effective date thereof), a notice stating (x) the date, if any, on which a
record is to be taken for the purpose of any such transaction (or, if no record
date will be established, the date as of which holders of record of Common Stock
entitled to participate in such transaction are determined), and (y) the
expected effective date thereof.  Failure to give such notice or any defect
therein shall not affect the legality or validity of the proceedings described
in this Section 3.11.


          4.  Voting.
              -------

          4.1  The shares of this Series shall have no voting rights except as
expressly provided in this Section 4 or as required by law.

          4.2  Each share of this Series shall be entitled to vote together as
one class with the holders of shares of Common Stock upon the election of the
directors of the Corporation.  In any such vote, the holders of shares of this
Series shall be entitled to a number of votes per share of this Series equal to
the product of (i) the Formula Number then in effect multiplied by (ii) the
maximum number of votes per share of Common Stock that any holder of shares of
Common Stock generally then has with respect to such matter divided by (iii)
100.

<PAGE>
 
                                                                              16

          4.3  So long as any shares of this Series remain outstanding, unless a
greater percentage shall then be required by law, the Corporation shall not,
without the affirmative vote or written consent of the holders of shares of this
Series representing at least 66-2/3% of the aggregate voting power of shares of
this Series then outstanding, amend, alter or repeal any of the provisions of
the Certificate or the Certificate of Incorporation so as, in any such case, as
applicable, to (i) amend, alter or repeal any of the powers, preferences or
rights of the Series Common Stock or (ii) adversely affect the voting powers,
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, of the shares
of this Series or the Series LMC Common Stock; provided, however, that no
                                               --------  -------         
affirmative vote or written approval of any holder of shares of this Series
shall be required to amend, alter or repeal any of the powers, preferences or
rights of any series of Series Common Stock other than this Series and the
Series LMC Common Stock.

          4.4  So long as any shares of this Series remain outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
holders of shares of this Series representing 100% of the aggregate voting power
of shares of this Series then outstanding, amend, alter or repeal the provisions
of Section 7.7 or this Section 4.4.

          4.5  No consent of holders of shares of this Series shall be required
for (i) the creation of any indebtedness of any kind of the Corporation, (ii)
the authorization or issuance of any class or series of Parity Stock or Senior
Stock, (iii) the approval of any amendment to the Certificate of Incorporation
that would increase or decrease the aggregate number of authorized shares of
Series Common Stock or Common Stock or (iv) the authorization of any increase or
decrease in the number of shares constituting this Series; provided, however,
                                                           --------  ------- 
that the number of shares constituting this Series shall not be decreased below
the number of such shares then outstanding.


          5.  Liquidation Rights.
              -------------------

          5.1  Upon the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of shares of this
Series shall be entitled to receive, contemporaneously with any distribution to
holders of shares of Common Stock upon such liquidation, dissolution or winding
up, an aggregate amount per share 

<PAGE>
 
                                                                              17

equal to the product of the Formula Number then in effect multiplied by the
                                                          ---------- --
aggregate amount to be distributed per share to holders of Common Stock.

          5.2  Neither the sale, exchange or other conveyance (for cash, shares
of stock, securities or other consideration) of all or substantially all the
property and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation, or the merger or consolidation
of any other corporation into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 5.


          6.  Transfer Restrictions.
              ----------------------

          6.1  Without the prior written consent of the Corporation, no holder
of shares of this Series shall offer, sell, transfer, pledge, encumber or
otherwise dispose of, or agree to offer, sell, transfer, pledge, encumber or
otherwise dispose of, any shares of this Series or interests in any shares of
this Series except to a Permitted Transferee that shall agree that, prior to
such Permitted Transferee ceasing to be a Permitted Transferee, such Permitted
Transferee must transfer ownership of any shares of this Series, and all
interests therein, held by such Permitted Transferee to any Permitted
Transferee.  For the avoidance of doubt, the preceding sentence is not intended
to prohibit a holder of shares of this Series from entering into, or offering to
enter into, (a) any arrangement under which such holder agrees to promptly
convert shares of this Series and sell, transfer or otherwise dispose of the
Common Stock issuable upon such conversion or (b) any pledge or encumbrance of
shares of this Series; provided, however, that the terms of any such pledge or
                       --------  -------                                      
encumbrance must require that, in the event of any sale or foreclosure with
respect to shares of this Series, such shares must be delivered immediately to
the Corporation for conversion into Common Stock.  The provisions of this
Section 6.1 shall continue to be in effect with respect to any shares of this
Series received by any holder by virtue of merger, consolidation, operation of
law or otherwise.

          6.2  Certificates for shares of this Series shall bear such legends as
the Corporation shall from time to time deem appropriate.

<PAGE>
 
                                                                              18

          7.  Other Provisions.
              -----------------

          7.1  All notices from the Corporation to the holders of shares of this
Series shall be given by one of the methods specified in Section 7.2.  With
respect to any notice to a holder of shares of this Series required to be
provided hereunder, neither failure to give such notice, nor any defect therein
or in the transmission thereof, to any particular holder shall affect the
sufficiency of the notice or the validity of the proceedings referred to in such
notice with respect to the other holders or affect the legality or validity of
any distribution, right, warrant, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up, or the vote upon
any such action.  Any notice that was mailed in the manner herein provided shall
be conclusively presumed to have been duly given whether or not the holder
receives the notice.

          7.2  All notices and other communications hereunder shall be deemed
given (i) on the first Trading Day following the date received, if delivered
personally, (ii) on the Trading Day following timely deposit with an overnight
courier service, if sent by overnight courier specifying next day delivery and
(iii) on the first Trading Day that is at least five days following deposit in
the mails, if sent by first class mail to (x) a holder at its last address as it
appears on the transfer records or registry for the shares of this Series and
(y) the Corporation at the following address (or at such other address as the
Corporation shall specify in a notice pursuant to this Section 7.2):  AOL Time
Warner Inc., 75 Rockefeller Plaza, New York, New York 10019, Attention:  General
Counsel.

          7.3  Any shares of this Series that have been converted or otherwise
acquired by the Corporation shall, after such conversion or acquisition, as the
case may be, be retired and promptly canceled and shall become authorized but
unissued shares of this Series, unless the Board of Directors determines
otherwise.

          7.4  The Corporation shall be entitled to recognize the exclusive
right of a Person registered on its records as the holder of shares of this
Series, and such holder of record shall be deemed the holder of such shares for
all purposes.

          7.5  All notice periods referred to in the Certificate shall commence
on the date of the mailing of the applicable notice.

<PAGE>
 
                                                                              19

          7.6  Any registered holder of shares of this Series may proceed to
protect and enforce its rights by any available remedy by proceeding at law or
in equity to protect and enforce any such rights, whether for the specific
enforcement of any provision in the Certificate or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.

          7.7  The shares of this Series shall not be subject to redemption at
the option of the Corporation, including pursuant to Section 5 of Article IV of
the Certificate of Incorporation (or any equivalent provision in any further
amendment to or restatement of the Certificate of Incorporation).


          IN WITNESS WHEREOF, AOL Time Warner Inc. has caused this certificate
to be signed this [  ]th day of [               ], 2000.


                                        AOL TIME WARNER INC.,
                                        
                                          by 
                                             -------------------------
                                             Name:
                                             Title: