EXHIBIT 8.0
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
and Treasurer
BANCO ITAU S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
and
By: /s/ Marco ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: Marco ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager Director
BANCO ITAU S.A. - CAYMAN BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
and
By: /s/ Marco ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: Marco ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager Director
ITAU BANK LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
and
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
EXHIBIT A
Shares of the Company over which the Stockholders have Voting Power
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Stockholder Shares of the Company
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Banco Itau S.A. 23,775,000 Shares of Class A Common Stock
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Banco Itau S.A.--Cayman Branch 4,237,840 Shares of Class A Common Stock
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Itau Bank Limited 7,925,000 Shares of Class A Common Stock
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Attachment 1
Amendment to Restated Certificate of Incorporation
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